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Home My WebLink Aboutcoa.lu.ec.Epicurean Condominiumization.1981-EC-06 . \p~~gJ (jrnp~ - JI'''', , > CASELOAD SUMMARY SHEET City of Aspen 1. DATE SUBMITTED: '313, / II , . I 2. APPLICANT: ';: F\~ 'Lf ',:, f\ STAFF: ?It\'1ne\' .....(.;\P No. e2(P - 8'1 ;J&fl ,lack 'Soh II ~OlV' /SJ/LJ{l 3. REPRESENTATIVE: 6i6 '-~)..:bs,; ()O I l"iOI"'+}1 01;/1 s+) ~'"/\+c: ';;.:.,1 J ~\,pe/r..l .10<'5 :f7iJ()? .' . 4. PROJECT NAME: tf/CiJ(tClr) ( 'j!/hcl~)(,:pl/&/( - &n/tiJ?J/?ltltJ1Ea/;J1[ 5. LOCATION: J.()fs 61 CIA/ad;7; ~/ . 6. TYPE OF APPLICATION: Rezoning P.U.D. Special Review Growtt: Management HPC ~SUbdivision _L_Jxcepti on Exemption 70:30 Residential Bonus -to fr~ (Y\~ 5,. IW ____Stream Margin ____8040 Greenline View Plane ____Conditional Use Other Sanitation District School District ~ire Marshal/c~: Rocky Mtn. Nat. Gas Parks _"y1.(1 ____State Highway Dept. Holy Cross Electric ____Other Mountai n Be 11 7. REFERRALS: LAttorney ~ngineering Dept. AHoUsing ~ater City Electri c Cnndorn , . 1'1' ,.-,L :;1" '. I' . ,~, i' I (' " ../ 8. REVIEW REQUIREMENTS: ~O~.20-'rl 1':7~A^^I.",,^ r; C.....A ~ . ....."l__~ ~~ ~ VJv\lfDlN11YV~VI\I1Nl~~ ...... 1'"" '- /'", --.".,,' 9. DISPOSITION: P & Z ~ Denied tOChl .. . ~ ~ ~ ~ ~'2) ,~~ ~t2M.GI'~ ~ r.e.o...v ~ +e..Q. -ttHQt!. C~) €.w\~.e... ~CJ.I\Il~ ~+7. May 26, 1981 - City Council tabled this item until June 8 to investigate parking issue. Council X Approved X Denied Date June 22. 1981 Citv Council aporoved as oer P & Z above. 10. ROUTING: Attorney ABuilding ~Engineering Other . . ~ c :) 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. ARTICLE I NAt.lE 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 ~ssociation is organ- ized is to provide an entity pursuant to Article 33 of Title 38 C.R.S. 1973, et seg" 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 Condominiul'1), located upon the property described as follows, to-wit: Lots Block City and 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 ti~e to time, including but not limited to the following: a. members to defray Condomini um) . To Make and collect assessments against the costs and expenses of the EPICURE PLAZA (a 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. ~ r- ........ I""" "j 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 ~ct, the Declaration, these Articles, the By-Laws of the Association, and the rules and regulations for the use of the condol'1inium property. h. To contract for the management of the condomin- iul'1 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 perl'1itted 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 acguired 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 ~rticles, 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 ~ssociation. ARTICLE IV ~\Er'lBERS 1. The members of the Association shall consist solely of all record owners of condol'1inium units of the EPICURE PLAZA (a Condominium I I 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 condol'1inium 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 I 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- .' " -''''I 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. first Board of successors are as follows: The names and addresses of the members of the Directors who shall hold office until their elected and have qualified, or until removed, are J. Michael Solheim P.O. Box 9112 Aspen, Colorado 81612 John L. Wilbur P.O. Box 9112 Aspen, Colorado 81612 ARTICI,E VI OFFICERS 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 r\ill Street, Aspen, Colorado 81611, and the Registered Agent of the Association at that address shall be J. r\ichael Solheim. ARTICLE VIII INDErmIFICATION 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 -3- .. ,f'" '- "'" -' thereof, to which such person nay be a party, or in which such person may hecol'le involved, by reason of such person's heing 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 - LAloJS The first By-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 MlENDMENTS Amendments to these Articles of Incorporation shall be proposed and adopted in the following manner: 1. Any member of the Association or any director l'lay 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 reguest 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 mllst 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 gualifications for mem- bership nor the voting ri'Jhts of mel'lbers 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 XI TER/1 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. -4- .". . , 1""'- ........ ,..." '-" l\RTICLE 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. the Incorporator has hereunto day of J. MICHAEL SOLHEIM STATE OF COLORADO) ) ss. COUNTY OF PITKIN ) 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. GIVEN under my hand and notarial seal this , 1981. day of My Commission Expires: Notary Public (SEATo) -5- /.~ - El(hi bit- ~ CONDOMINIUM DECLARATION FOR EPICURE PLAZA (A Connominium) THIS DECLARATION is made and entered into by THE EPICUREAN PARTNERSHIP, a Colorado limited partnership, herein- after referred to as "Declarant." WIT N E SSE T H: IlHEREAS I 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 I and to provide for the harmo- nious, beneficial, and proper use and conduct of the pro- perty and all air space units; and, WHEREAS I the Declarant desires and intends that the several unit owners, mortgagees, and trust deed holders I occupants I and other persons hereafter acguiring any interest in the property shall at all times enjoy the benefits of, and shall hold their interest subject to the rights, easements I privileges, restrictions I 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 I 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 I conditions, easements, restrictions I 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 I and any persons acquiring or owning an interest in the subject property and improvements, their grantees I 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, partnershipl 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 any Mortgagee or Trust Deed beneficiary as herein defined, unless such Mort- gagee or Trust Deed beneficiary has acguired 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 I 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 "~lajority 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 I 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 I beams, supports, main perimeter and supporting walls, roofs, and those entrances, stairs, stairways, balconies, landings, access corridors, fire escapes and halls necessary to the safetYI maintenance, or common use or access; (ii) The exterior loading I storage, walkways I yard and garden areas; (iii) Any installations consisting of eguipment 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; -2- "r"''. '-- (iv) In general I 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 reguired 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 I 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 alI, 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 " '-~ "'"" (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 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. In) "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 Comwon Element Easement to arise, vest and come into possession of the owners and Units to which it is appurtenant shall not extend or run beyond the period specified in Paragraph 32Ie). (ii) Installation shall comply with the provisions of Paragraphs 12(j) and 12(k). liii) 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 I 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 (0) "Common Expenses" means and includes: -4- " ," (i) Expenses declared common expenses by provisions of this Declaration and the By-Laws of the Association; (ii) Expenses of administration I opera- tion, and management, maintenance I repair, replacement or improvement of the General Common Clements; (iii) ~ll 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) the Association. "Board" means the Board of Directors of (r) "Map" means a plat or survey of the surface of the ground of the property I 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 I 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 I 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 subseguently 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. -5- ,.., -- 5. Inseparabil i ty of a Condor:1inium tlni t. Except as provided in Paragraph 3 hereof respecting the l'lodifica- tion of percentage interests hy virtue of combination and subdivision, each unit owner shall at all times he 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 COl'lmon 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, rer:1ain 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 Comnon Elenents appurtenant thereto shall together comprise one unit which shall be inseparable and nonpartitionable, and nay 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, encul'lber or otherwise affect not only the unit but also the General Common Elements and the Limited Common Elements appurtenant thereto. Each such description shall he 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 Elenents, together with the right to the exclusive use of the appurtenant LiMited COl'lmon 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 Elel'lents 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 encroachl'lent 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 rer:1ain 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. ;,uch 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 -6- -,...'..... ,...... 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 eguipment, and electrical conduits, wires, and eguipment 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, l'lortgagees, 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 Elel'lents. 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 I 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 shoPI laundromat, shoe repair shop, paint store, hardware store, food market, butcher shoPI fish market, pet shoPI 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 I repair, alteration I 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 I 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 Coml'lon 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 COl'lmon Elements, unless the Board of Directors, by rule or regulations I provides otherwise. -8- ......"""' (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 be 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 perl'litted to construct, improve I 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 I 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 eguitable manner (in proportion to the benefits bestowed) to the units benefitting therefrom. shown on altered; (iv) the Condominium and, The boundaries of such unit, as r1ap, will not thereby be changed or (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 eguipment, 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 I 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. -9- - ~, (0) If, due to the act or neglect of an owner, or of a l'lember of an owner's fal'lily or of a guest, 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, includina but not limited to any furnace or utility room, heating ~guipment, pipes, ducts, apparatus or other eguipment, or Maintenance, repairs or replacel'lents shall be reguired which would otherwise be at the common expense, then such owner shall pay for such damage and such maintenance I repairs and replacements, as may be determined hy the Board of Directors to the extent not covered by insurance. Neither the failure of the Board of Directors to reguire such payment, nor any disagreement regarding the extent of payment required pursuant to the Board's deterl'lination hereunder I 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 (0) 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, a~cessories 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 Hechanic's r,ien Rights and Indemnification. Suseguent 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 reguest 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 reguesting 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 clail'l of any lien aqainst the unit of any other owner or against the General COl'lmon rlements for construction performed or for labor, materials, services or other products incorporated in that owner's unit at such owner's reguest 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 mel'lher of such Association, which mel'lbership 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 autol'latically become a l'lember 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 pO'tler to engage the services of a manager or managing agent, herein referred to as the "l.lanaging Aoent," who l'lay 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 deleoate to such manager or managing agent any of its duties, powers, and functions. -10- ...... '-" (d) The Board of nirectors shall consist of five persons who shall be elected in the manner provided in the By-Laws of the ~ssociation. (e) If any unit is owned by more than one person, the voting rights with respect to snch 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 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 Coml'lon Elel'lents 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 judament, 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 Elenents. 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 dal'lage 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 (0) 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 (0) 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 de en of conveyance, accepts the same subject to all terms, provisions, easements, restrictions, conditions, covenants, reservations I liens and charges, and the jurisdiction, rights, ann powers created or reserved by this Declaration ann the ~rticles of Incorporation and By-Laws of the Association, and the provisions of the Colorado Condominium Ownership Act, as at any time al'lended, 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 ann every deed of conveyance. 17. Insurance. (a) The Boarn of Directors or the nanaging 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 adeguacy 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 Boarn 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 ~anaging Agent shall use reasonable efforts to obtain insurance on any such additions, alterations or improvements if such owner reguests 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 insnrance proceeds to restore the affecten 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 standarn 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 ann to each owner. -12- ,r.' , Iii) Comprehensive public liability and property damage insurance in such limits as the Hoard of Directors shall ~eem desirable insuring the Association, the mel'lbers 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 indir.ectly pursuant to the provisi,ons of this Declaration and with the General Common Blements. ( iii) llorkmen' s compensa t ion insurance and employer's liability insllrance as !'lay be nec'~ssary 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, premiu!'ls for all insurance obtained or l'lain- tained by the Hoard 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 l'lore of the following: Ii) with respect to the insurance provided for in (a)lii) of this Subparagraph, for coverage of cross liability claims of one insured against another; Iii) With respect to the insurance provided for in (a) Ii) 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 la) Ii) of this Subparagraph, that the policy cannot be cancelled, invalidated or suspended on account of the conduct of anyone 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 ~ssociation or Managing Agent cure the defect; (iv) With respect to the insurance provided for in (a) (i) of this Subparagraph, that the insurer shall Dot have the option to restore the prer'lises, if the property is sold as provided in paragraph 23(c) hereof; (v) with respect to the insurance provided for in (a) Ii) of this Subparagraph, that any "no other insurance" clause in such policy exclude policies of insurance maintained by any owner or his mortgagee frol'l consideration and that no such insurance policy coverage under (a)li) of this Subparagraph be brought into contri- bution with insurance purchased by any owner or his mortgagee. (d) Any owner !'lay obtain additional insnrance 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 l'laintained 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, e~ployees, 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, Replacel'lents, Additions Alterations, and Il'lprovements 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 reguired 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 be so expressed in the deed, shall be deemed to covenant and agree with each other and with the Association to pay to the Association guarterly 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 ~rticle, and by the Articles of Incorporation and By-Laws of the Association. (b) The total quarterly assessments against all units shall be based upon advance estimates of cash reguirements 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 reguired or permitted to maintain pursuant hereto, except such premiums as are paid for by the Association for which direct reil'lburse- ment is made by a unit owner or owners; common lighting and heating and COffinon 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 andlor sinking fund; and any -14- ....'.., other expenses and 1 iabilities which May he incurr'"" 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 esti~ate the annual budget of common expenses (the "annual budget") including the total amount reguired 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 Co~mon 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 r'lanaging 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 Oirectors 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 toge ther I., i th a tabulation of the amounts collecte" 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 reguired 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 Oirectors 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 nnit 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 assess~ent. All unit owners shall be obligated to pay the adjusted guarterly amount. (d) ~he 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 I the owners shall continue to pay the quarterly assessment charges at the then existing quarterly r~te established for the previous period until th~ next quarterly assessment payment which is due more than ten days after such new annual or adjusted budget shall have been mailed or delivered. -15- ,.... The Roanl of Director (or the 1'anag ing 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 liahilities 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 reasoryable tine 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 nay be reguired to reflect delinguent 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 I 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 Board of Directors and lor unit owner is increased as a result of any business 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 guest, 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 premiul'l 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 conmercial 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 -16- ,", 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. (hi 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: (al 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 l'lade pursuant to such encumbrances. All other or junior lienors acguiring 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 I 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 l'lay be enforced hy 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 he reguired 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 l'lay pay, but shall not be reguired to pay, any unpaid common expenses or other assessments or charges payable with respect to such unit, and upon such paYl'lent 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 hecome 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. -17- ~ ~ All sums assessed for common expenses which remain unpaid for thirty days from and after the due date thereof shall bear interest at the rate of eighteen percent (18%) per annum from and after such due date. 21. ~iability for Common Expense and Other CharGes Upon Transfer of a Unit is Joint. Upon pay~ent of a reasonable fee not to exceed S25.00, and upon the written request of any owner or any encumbrancer or prospective encumbrancer of a unit, the Association, by its Managing ~gent 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 asseSSl'lents 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 com~on assessments, which statel'lent shall be conclusive upon the Association in favor of all persons who rely thereon in good faith. Unless such reguest for a statement of indebtedness shall be cOl'lplied with within ten days after receipt thereof, all unpaid common expenses and other charges due hereunder which becol'le due prior to the date of making such reguest shall be subor- dinate to the lien, if any, of the person or entity request- ing such statement. The grantee of a unit shall be 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 11anaging 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 reguest, 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 terl'ls, conditions I covenants, restrictions, uses, limitations, obligations, liens for common expenses, and other obligations created by this Declaration, the ~rticles 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- -18- ~ #-, mises, which insurance policies were effected and placed upon the mortgaged premises by the AssociQtion. 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, Damage, Destruction, Obsolescence and Sale. This Declaration does hereby make mandatory the irrevocable appointl'lent 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 grQnted. 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 dal'lage 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 I 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 sguare 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 attor.ney-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 -19- ...."., 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; (2Y For payment of the halance 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 sguare 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 mortgagee, the ~ssociation shall forthwith record a notice setti~g 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 ~ssociation, 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 ~ssociation, and such proceeds shall be 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 he in the name of the Association, and shall be further identified by the unit designation and the name of the owner. ~hereafter, 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 dishurse 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 I 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 -20- "...... .-.. full authority, right, and power, as attorney-in-fact, to cause the repair or restoration of the ir~i)rovelT'ents 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 rcpresentinn an aggregate ownership interest of eighty-five percent (85%), or more, of the General COl'lmon 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 OImers as common expenses; provided, however I 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 land give notice of such nomination to the other party) a separate appraiser who shall be a licensed Colorado real estate broker and regular mel'lber of the ~spen Board of Realtors or sil'lilar local organization. If either party fails to make such a timely nomination, the appraiser nominated shall, within five days 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 theffi, 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 ul'lpire. 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 -21- - ,,~ ....."" market value, or in the case 0f their r'lisagreement, then such decision of the umpire, shall be final and binding. The expenses and fees of such appraisers shall he borne egually 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 statel'lent 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 Condor:liniur:l rlap 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 nar:le of the Association, and shall be further identified by the unit designaton ann 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 sal'le 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 Annress. Each owner shall register that owner's l'lailing address with the Association, and except for buoget 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 tlanaging Agent shall be sent by certified mail, postage prepaid, return receipt reguested, 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 intenoed to be serveo 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 -22- - ..---- .~ ~;, deposited in the United States mails as aforesaid. 26. Period of Condoninium Ownership. The separate condol'liniul'l 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 be revoked unless all of the owners and all of the holders of all recorded mortgages andlor deeds of trust coverino 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 al'lended 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 I 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: (al 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 eguity, 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 frol'l 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 defaultina 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 lor 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 frol'l re-acguiring 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 I 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 l'lortgagee, 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 ~ailing 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 (bl (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 acguiring 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 ~ay be amended, changed or ~odified 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 condo~inium 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 appointl'lent 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 frol'l the Declarant or from any owner shall constitute appointl'lent 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 co~plete author- ization, right, and power to l'lake, 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. (hI In the event that all or any part of the Condominium Project shall be taken or condemned hy any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, all compensation, damages or other -24- ,..", - proceeds therefrom, the sum of which is hereinafter called the "Condemnation Award" shall be payable to the ~ssociation as attorney-in-fact, and the following provisions shall apply. (i) Complete Takinq. In the event that the entire Condominium Project is taken or conde~ned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the Condomini~m 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)(l) through (5) of Paragraph 23. (ii) Partial Takin'J. 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 Condominiul'l Ownership hereunder shall not terminate. Each owner shall be entitled to a share of the Condemnation Award to be determined in the following ~anner: as soon as is practicable, the Association shall, reasonably and in good faith, allocate the Conde~nation Award between compensation, dal'lages 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, (bl the total amount allocated to severage damages shall be apportioned to those Condominium Units which were not taken or conde~ned, (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 eguitable in the circum- stances. If an allocation of the Condemnation ~ward is already established in negotiation, judicial decree or otherwise, then in allocating the Condemnation ~ward 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 representinq 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)(l) 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 I 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 I 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 eguitable 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 lil'lits, 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. THE EPICUREAN PARTNERSHIP, a Colorado limited partnership By General Partner STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing me this day of as Generar-Partner of limited partnership. instrument was acknowledged before , 1981, by The Epicurean Partnership, a Colorado Witness my hand and official seal. My commission expires: Notary Public -26- "....... EXHIBIT A (Attached to Condominium Declaration for Epicure Plaza) The undivided interest tenant to units in the follows: Unit Numbers B-1 101 102 103 104 105 106 107 108 201 202 203 204 205 206 207 208 209 301 302 303 in the General Common Elements appur- Epicure Plaza (a condominium) are as Percentage Interest TOTAL 100.00% -27- ----- MEMORANDUM , ~: r f j TO: Aspen City Council' FROM: Jack Johnson, Planning Office RE: Epicurean Subdivision Exception (Condominiumizatio~ ' DATE: May 26, 1981 APPROVED AS TO FORM: iL.,~ / Location: Zoning: Background: Applicant's Request: City Attorney: Eng i neeri ng Department: Planning Office: / ;/7 r:. u. ( ("It, )"d"'~ The open patio space located between the Wh le of a Wash and the Epicure Restaurant in the 400 blO~h of east Main Street (Lots Band C, Block 87, City and J~wnsite of Aspen, Colorado)o ' CC - Comnercial Core (HoP. Overlay) 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 expireo This is an application by the Epicurean Partnership requesting subdivision exception for the purposes of condominiumizing the proposed Epicure Plaza Building into 21 spaces. Compliance with applicable provisions of Section 20-22 required. 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 ceilingso 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 siteo Unless the applicant can produce written consent from this office granted prior to the 1979 GMP r.eview, we will not permit a tap to the storm sewer. Any water tap to the six-inch (6") ~ain in Main Street shall be undertaken during the off-season (i.eo, mid-April to mid-Mayor 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. 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 square feet include 10,041 square feet of commercial and office space and appruximately 1,959 square feet of employee housing. The FAR for this site is 2.0 (1.5 by r" / 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. , f I I , , I I MEMO: Epicurean Subdivision Exception (Condollliniumization) May 26, 1981 Page Two Planning Office Recommendation: Approval of the application for subdivision exception for the purposes of condominiumizing the Epicure Plaza Building subject to the following conditions: I. 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: Council 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. 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." I~~L- .6, J~ 8 h, ~~~r rPvvk1l\1~O ..:.. -teu'j ~Tf{u'J.~~', , , , ~ APPLICATION FOR EXCEPTION FROM SUBDIVISION REGULATIONS Request is hereby made on behalf of The'Epicurean Partnership (hereinafter referred to as "applicant"l, under Section 20-19(al 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 I 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 I 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. r~ ~ .' The applicant intends to file a condominium plat for the property which will include approximately twenty-one condominium units. The basement and main f190r will constitute nine condominium units for restaurant and commercial uses. Nine condominium units for offices will be located on the second floor I and three employee residential condominium units will be located on the third floor. The building will be occupied, however I 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. ,,.,...... " , '. .# 'I'he prompt, consideration of this appli.cation will be sincerely appreciated. Dated: Harch :30 I 1981. 81611 -3- --< _.l .-.. . . . . . . . . . . . . . . - . - - . . - . - . . . . __1 .,~fII '_ ....~,.J. ~ ,;;_....~" _t "'--~- t>o-i_ ",.-..tl " 1 1 ~ ~ Ql - ~ ... , . . . . - . . . . . - . . . . . - - . . - . . - - . . . - . - . . - - . . . . - . . - . - - - . . . - . - . - . - . - . . . - - . - - . . - . . - - - - . . . . - - . . . . . . - - - - - ..III1I1Utllllllll:-III1I1..IIIIIIIIII..IIII11 - 1111111111111"1111_11111111111111111111111' - - . - - . . . - . . s: )> - z en -i ::D m m -i GALENA STREET "0 ;r 0 :l ~ IC Ql CIl - :c ~ c;- o !'l 0 z i 0 i 0 0 . lD r-"'O 0- c;')O .C :D ! : I ...... 1 l , [ .- Iii Iii ~ J> ... ... m -< MILL STREET . : . j " , \ ( I I I J: o "'0 " - z en )> < m Z c m . . <llllllUIUU..III.....IIIIIIII'!IIII1I1UUIlIlIIl..IU.UUUIU.UtlU..1I1111111111111111111111111111111111".'1111111111111111111111111 1IIIIIIIUIIIIIIIIIIIIllllllIllllIIII'tUIIIIIIIIIIIIIIIIIIIIIIIIIIUIUIlIIIlII11I11I1I11I1I11I111111I1I1I1I1I11I",,"IIIIIIIII1I1I1II1II1UII 1 ! r 1 . . 8" sanitary sewer 48" storm sewer z o :D -t :z: ( fs~4 SITE PLAN EXISTING UTILITIES ASPEN THOMAS WELLS & ASSOC!! SCALE: 1" so' '0" '-,~"'. '", ) I.' \, . MEMORANDUM TO: City Attorney City Engi neer Housing Director FROM: Jack Johnson, Planning Office RE: Epicurean Subdivision Exception - Condominiumization DATE: Apri 1 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 Band 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. ~~' /' ------ - , r' ". MEMORANDUM TO: Aspen City Council FROM: Jack Johnson, Planning Office RE: DATE: Epicurean Subdivision Exception (Condominiumizatio~' " APPROVED AS TO FORM: ~~t~ ~ June 8, 1981 , I This application was continued from May 26, 1981 to June;8, 1981 for ditional research. It is recommended that City Council continue th s 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. MEMORANDUM TO: Jack Johnson, Planning Office Jay Hammond, Engineering Department~~ FROM: DATE: April 30, 1981 RE: Epicurean Subdivision Exception, Lots Band 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- Mayor 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. -:i1'-.-:-, 1981 !.r:~ << . " r!t'col'dl'd at 4:f,1, 1',"'. ("or" !:l. 1':'7'1 LOl"l'tL: :'",PIII.'" l':'_'cunJf!r rI'-..'cl'!Jtif'I) ';iJ: 21:1386 CERTl FICA'l'E Of' LHll1'EO PARTNEHSIIIP (1'"( I . (~.I"~C ..~tsh..~.Jt) ! "'_: t..'t..:'i WJlEREl\S, the unucrsi<jllccl, upon bci ng desirous of forming a Limited Partnership and pursuant to the statutes of the State of Colorado, do hereby m.-:lkc Llnd 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, develo~ and operate the real estate described as Lots A, B & C, Block 87, City and Tm.'l1sitc of Asper., Colorildo. 3. The principal place of business of the partnership is to be located at 100 South Hill Street, Aspen, Colorado. 4. The names of all general and limited partners are: NAHE RESIDENCE Michael So]heim, General Partner 24141 E. Highway 82 Aspen, Colorado 31611 John \Jilbur, General Partner 4338 Kahala Ave., IIonolu1u, Ilawaii 96816 Yon l'hnneT, Limited PiJrtner 167 E. 63rd fit. New York. New Y0rk 5. The term for which the partnership is to exist is approximately thirty (30) years, commencing April 10, 1979. 6. The amount of cash <lnd the description of the agreed value of the property contributed by each limited partner j.s as follows: NAME OF LUIITED PARTI-:ER CASH DESCRIPTION OF CONTRIBUTIO::'>J OTHER PROPERTY I\GREED VI\LUE OF OTHER PROPERTY Yon Ninner S55,000.00 None None 7. Additional contributions, if any, agreed to be m&de by eaCh limited partner at any times at which events or happenings at \olhich they viill be made are as follows: , <Ie / / . N/V'~; OJ' Ll::..1TLD P.l\l{,I':~i-:l{ ----- Yon \'linnc:r ;)1 'fj , 3r.(, ,"': I .',,' . .~I!! ),,_ U, C.l\SII awr:UmJi'lr):! On ~J:!~ AGPJ::ED V7\UJE Tli1E OR 1:\'1:\11' c>:':n1l3trrlCXJ O'fHEH a:.N'l'RIDUT10>J 10 BE P^lD on r: $]0,000.00 I~JlC None Upon 30 clays Notice iran Partnership $33.333,36 None None Allor a p:::>rtio thereof clue and payable u[xm 60 days ootice iran Partnership 8. There is no orccisc time u0recd UDon for the contributions of any limited partner to be returned. Upon the s<Jlc of the p.J.rtncrship pro)'Jcrty or a mnjor refinancing which genera tcs funds not currcwrked for partnership purposes, a distribution may be Made to each limited partner. Ot.hervlise, 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 ar.long 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 ca~)ital paid into the Partnership by each Partner, then by giving a return to each limited partner representing a retur:1 of t\"]clve percent (12%) on the amount of money contributed by said partner and not previously returned, with all other fu~ds 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 Yon Winner 1 10. Eaeh limited partner may substitute an assignee as - 2 - .,..-==-=.,..J) ,")['(' "(] .I;:lv hi ,~'cu 1 a contributcr in his place and the terms and conditions of the substitutions arc 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 partn.ership 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 th~ 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 - , , '.-' .~ , /'/ )J:'_J1o"""" it;~3fj(J ,:,.,3G2 12. No limited partners have priority over other limited partners as to contriuutions or iiS to compens.Jtion with income except that alimitcd purtner's right to distribution shall be determined by the number of units he owns and that a limited partnerls right to receive 12t 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 ti!nc 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 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 ~!IIEREOF VIe have hereunto set our hands and seals this day of April, 1979. (---., G - ""::;:: ). .) . " . I . ~ _ . :' \ .~ . . '\';'~,; ..... ---~:""..~'''~- h , General Partner I_~ '-~::-~.rl'<'-'~, ~;~'~l\'--'" ;'n'\~~-v,~ ;,' j"' r.&J -(IV " ,:->,', c\\ ,,'..... ,. "_ ~.. II General Partner \. t . fv'~-<........,~ ':~~~~'.... I'~~"::'T~"~:';-~" r\,. t"'..t.c.' ~ ,"')-'>,.'J. II '._ ;'_'-'.-;1' r;tmi ted' Partner '" STATE OF COLORADO ) COUNTY OF PITKIN ) 55 On this lOth day of A!Jril, 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 . ~..l r~iartncrship as a general partner, personally, and as the : >_':::',;0.:" . attorney-in-fact for the above-signed general and limited :' .':::i~"','\';'-.',:/.partners, and that the facts stated therein are true and . ::~~-:'':. ,,,__,"correct. ~ ; ". : ,\~. t4y Commission Expires: June 19, 1979 ,- _;> I,,'" \-litness my hand and official seal. II ....} ,'/, CL. ... I' . ~ \j_,,-.-- ..&.....?-.:<- (.. Not3ry \Fub).ic - 4 - r"- ,,' ...-- APPLICATION FOR EXCEPTION FROM SUBDIVISION REGULATIONS Request is hereby made on behalf of The Epicurean Partnership (hereinafter referred to as "applicant"), under Section 20-l9(a) of the Aspen, Colorado I Subdivision Regulations I 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 I Colorado It is sub~itted 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 I efficient and integrated development of , the city, to insure the proper distribution of population I to coordinate the need for public services I and to encourage well-planned subdivision. The above-described property is zoned "cc" as Commercial Core property I and such zoning permits the proposed uses to be included in the building such as restaurants I retail commercial establishments I offices I 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 Counci~ on November 26, 1979. Accordingly I the granting of this application for exception compl~es with the Aspen Growth Management Plan and will not conflict with the Aspen Subdivision Regulations. c ....c, -,,'--,. _ _ 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 I however I 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 ~aployee 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 I 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 Deciaration 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 subm~,tted upon request. ," -')- , . ~ ,""' \ . ... /'~,~ The"prompt consideration of this application will be sincerely appreciated. Dated: ~larch j 0 I 1981. , .......--. B SACHS, KLEIN Attorneys fo -)- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - ........11II1111:-1.......1................. . ~11"'"I_.fI..........."'..".. . . . . . . - - - - - --' ......L . . - . . - - . . - . . . . . - - - - - . . . . .. - - - . . . - z, o " of Z , : III.IIII.......I.......'.."._~..I..II.........I....I.......II".".I.,......U.,I.,.I...............llfI..,I............"~...,I..,.II.. -----'.'-'Trr'.----.'.-.'.--------'~,.---'- ....... .-..4.., ...... --" ...... --- -- - ---. - --~ :I: o "'0 " - z en ~ m Z C m A4 -- GALENA STREET ~ 'i! III .. III ... '0 ':S' 0 :I III co III III .. :c III n ii' n 0 . z . 0 : . n 0 , J l . L - (It iii ~ 3: > - Z en -I :IJ m m -I ~O~ ."':t III.. :t ,.. m . : ,.. : ~ :< i . : : . i : . . . : . . . . . : . . . . III ,.."ll c- G)n .C ~ MILL STREET ll"sanitary sewer 48" storm sewer ( SITE PLAN EXISTING UTILITIES SCALE: 1" so' '0" THOMAS WELLS & ASSOCI ....N MEMORANDUM TO: Aspen City Council FROM: Jack Johnson, Planning Office RE: Epicurean Subdivision Exception (COndOminiumizatio~~ DATE: June 22, 1981 APPROVED AS TO FORM: ' ~~ 'UP / Location: Zoning: Background: Applicant's Request: City Attorney: Engineering Department: Planning Office: . 'eL/ ~ J 0" " ";;'.u'~ The open patio Street (Lots Band C, Block 87, City an Aspen, Colorado). CC - Commercial Core (H.P. Overlay) 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 ownerl applicant has not yet sought a building permit and must "submit plans suffi ci ent for buildi ng permit issuance" before September 1, 1981, or this allotment will auto- matically expire. This is an application by the Epicurean Partnership requesting subdivision exception for the purposes of condominiumizing the proposed Epicure Plaza Building into 21 spaces. Compliance with applicable provisions of Section 20-22 requi red. 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 ceil i ngs. 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-Mayor 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") 1 ifts. 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 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 t MEMO: Epicurean Subdivision Exception (Condominiumization) June 22, 1931 Page Two right in the tc zone and .5 granted by Special Review)o 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 levelo 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 yearo Planning Office Recommendation: Approval of the application for subdivision exception for the purposes of condominiumizing the Epicure Plaza Building subject to the following conditions: 10 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 unitso 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: Council 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. 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." r...~ ,- ~' APPLICATION FOR EXCEPTION FROM SUBDIVISION REGUI.ATIONS Reguest 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 reguested 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 I 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. d".' - 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 application will be sincerely appreciated. 30 , 1981. Da ted : ]'1arch By: 81611 -3- .- ....... , . ...... ........L- - . . . . . . . . . . . . . . . . . . . . . . . . . . . :0.' ~ ........ -.J, ~ - _'1. ...... Aoo- ..,L ........ .......J. o.......l ~ ~ III - ~ ~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111111111"'11111'1:"1111111111111"'''111111 . .,11111111111.,1111....1111.""......"'111... . . . . . . . . . . . ~ :J> - Z en -t :D m m -t GALENA STREET 'tI ~ 0 :l ~ lQ III !II - :c ~ n iD n 0 : z 0 : n ! 0 : . . ,...'0 0- C)n .c :II . " J I , L iii iii ./ )> r" r" m -< MILL STREET ;O..~,A {( ~ . ::I: o " ~ - z en :J> < m Z c m ~ J ~ d i i j 4 . 1111..111I...'.......,IIII....,U...,I..........IIIIII'n......III.,1111I111I1111.1111111,.,.,.,1.11111111111111.......1..,1111111"11111..,1 . "".II'UUIIIIIIIU.III1I1II1II1II1I!"IIIIUIIUUUtlllllllllllllltlllllllllltllltllllllllUUIlIIlIlItIUUIIU",IIIIIIUIIUIlIIIIIIUfll : 11 r . . 8" sanitary sewer 48" storm sewer z o 1Il oj Z ( 1 A4 SITE PLAN SCALE: 1" 50"0" THOMAS WELLS & A5.0CIATI EXISTING UTILITIES ..... "". "', " 111'Pr,1.Ci\'J'IOl,} ]'01, I:XCFl'TION FRU~l '::;Ul),UIVT;-;lO;'~ kLClJL!\'J'TOi'JS Request is hereby made on behalf of The Epicuruan Partnership (hereinafter referred to as "Clpplicant"), under Section 20-19(a) of the ^spen, Colorado, Subdivision negulations, for an exception from the definition of the term "subdivision" with respect to the real propcrty to be known as the Epicure Plaza and which is more particularly described as: Lots B & C, Block 87, City and Townsite of ^spen, Pitkin County, Colorado It is submitted that the reguested exception is appropriate for the condominiumizatibn of a commercial and office building which is to be constructed on the above-described property. If the reguested excepti on is granted, the ~'il1e@ of the property lvill have a conmlOn interest in the land and there will be a condominium declaration and maintenance agreerr'2nt 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 Conunercial Core property, and such zoning permits the proposed uses to be ~lcluded in the building such as restaurants, retail cOllunercial establishments, off ices, and employee residential dl~elling units. Plans and details of the entirc devclo;)Ircnt project for Epicure Plaza were subnitted by the applicant in 1979 for review under the llspcn Growth Banaq(:,ment Pl~'ln, and the project h73S approved l:.'y rcsaluLion of the 7\~~pcn Ci_Ly Counci] on November 26, 1979. l\ccorcLLlq:: Y I tho (Jran~.inlJ of this tlppliCd_LiDI1 for cxccptj_on comp,! ic:" \oJ:; t.h the l~spe{l G_rowLh l"lan:1gc~;L\C"nt Pl,Jl1 and \\Ij 1':' n'._'L cCHJfl.iel: v,rit1-l t.he l\~~;pc;n ~~ubd.ivi~3iJ)n p,(.:fj u 1'::1 tic)]].'_). .1'*'''''', 'rhe applicant intend:.; to file Zl condolldniul1\ plat for the property which will inclllc]" ill'pro;dll1ately h"enty-une condominium units. The basemant and main floor will constitute nine condominium units for rcstaurant 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 I 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 ~'mployee 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 Articlcs 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 Covcnants ill reconlable form attached hereto as Exhibit F. Any additioIlul c]ocun~C'nt(~l:.i(;n or .information \vith respect 1:.0 thi~:; tlPpl icu tj on "],111 be: proT:lptl~/ [~ubrr,i ttcc.1 ut-jon rcquc:s t: ~ -- ,....., The: lJl:ompt C'on~d_dC'ra Lion of t.h.i s appl j Cd l j on wi 11 be s j nccrcly al)preciat<.~d . Du teu : ~lurch -3 () ) , 1981. SACHS, KLEIN & SEIGLE Attorneys for The Epicurean Partnership j/J /(rl BY_~/~(L~t:,dJ~~ c~ 11. .;;:\ch" ~2jiN~th l1ill Street II ~{fl tel 201 Aspen, Colorauo 81611 (303) 925-S-JOO '-3- .c.x.'1,' ;] 1"7 ~~ / f onll No. 11\0] (1170) ALTA OWllor'~ Policy 1'0011 [1 .- 197U IAn,andod 10.17.7Ul ,,'\' '\'- ' '\ '< ,\ \1 I. I{ / (, '/ J. POLICY OF TITLE INSURANCE ::<.:T[I) BY First A /llCriCNIl Title /IlSlI rllllce CO/llfJI111 r SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCIOPTIONS 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, flat 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 ot!lerwise 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 WITI\1ES5 WHEREOF, First Americ<ln Title Insurance Company hl.ls 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~ ATTEST ~ ~ ,0" ,/2) jj ;' ATTEST ~(y'{'/'/ 'I', ",..///'., ),,-_/ ){ , r., PRESIDENT SfCRElARY ASSISTAKT SECRETARY ASPEN TITLE CmlPANY Aspen, Colorado D 1 q ....; ;) r: .-. '......... -.,..... -- ....... SC DULL Oft,XCLUs!()r'J~~ r I\OM C< "l1AGl Ttl-, FOLLOWING MATlEUS MIl: [XIJHC~~;LY f:XCllIDLD fllOM TilL CnVI:I~^(3( OF THIS I'OLlCY: 11. ANY Lm'V, QIWINM.JCl on GOVEnNfI1fNTAl. m-GU!.AIION \INCLUDING UlJT NOT LlMI1[[) TonUILOING AND ZONING ClIHJlNANClS) HlSTIIICTlNli on HlGULA1ING on ['I!UH1BlllNC; Tlit (JCCUf'J\NCY. W;L 011 lNJOYi\1!, NT OF THE l.AND, on HLGUlAllNG THE CH^I~. ACTU1, DIMENStONS 01{ LOCATION UF ANY Ifl.il'1I0VrrJCNT NOW Oil ttll~EArl [I{ (HEeTED ON THE LAND, on PIIOllltlrT!NG ^ SEPAHATION IN OWNlI~SHIP on A f~LllUCTION IN ",life DIMENSIONS Oft /\HEA OF THE LAND. on THE [FFECT OF ANY VIOLATION OF ANY SUCH LAW, OIlUINANCE all GUVlENr..l[NrAl HLGUlATfur\l. 2. RIGHTS OF EMINENT OOtl.-1AIN on GOVf:IlNI\'ENTAL BIGHTS OF POLlCE !'OWEH UNLESS NOTICE OF THE l:.Xi..:nCISE OF SUCH RIGHTS APPEARS IN THE PUBLIC nECOHDS AT DATE or: POLlCY. 3. DEFECTS, LIENS, ENCUM8RANCES, ADVEHSE CL......1MS, 011 OTHEn MATlERS (;I} CREATED, SUFFERED. ASSUMED OR AGnFED TO BY THE [NSUHED CLAIMANT; (hI NOT KNOWN TO THE COMPANY I\NO NOT SHO\"JN BY THE PUBLIC HECOHDS I3UT KNOWN TO THE INSURED CLAIMANT EITHER AT DATE OF POLlCY on AT TilE DATE SUCH CLAIMANT ACQUlrlED AN ESTATE on INTEREST INSURED I3Y THIS POLICY AND NOT DISCLOSEU IN WHiliNG BY THE INSURED ClAIr..1ANT TO THl COr.tP~\NY Pnlon TO THE DATE SUCH INSURED CLAIMANT BECAME AN INSURED H[fl[UNDEf\; (c) RESUL TIr~G IN NO lOSS OR DAMAGE TO THE INSUHEt) CLAIMAr-.!T; (d) ATTACHING OR CHEATED SUUSEQUENT TO DAlE OF POLICY; on Ie) HESUL lING IN lOSS OR DAMAGE WHICH WOULD NOT HAVE BEEN SUSTAINED IF THE INSURED CLAIMANT HAD PAID VALUE rOR THE ESTATE OR INTEREST INSURED I3Y THIS POLlCY. 1, DEFINITION OF TERMS The following terms when used in this policy n1ean: (a) "insured": the insured named in Schedule A, nod, subject to any rights or defenses the Company may have had against the named in, sured, those who succee-d to the interest of such insured by operi'tion of law as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representa- tives, next of km, or corporate or fiduciary successors, (bl "insured claimant": an iilsurC'd claiming loss or damage hereunder. Ie) "knowledge"; actual knowledge, inot constructive knowiedgc or notice which may be impuled to an insured by reason of any public records. (dJ "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 refcrred \0 in Schedule C, nor any right, title, interest, estate or easement in abutting streets, roJds, avenues, alleys, lanes, ways or waterways, uut nothing herein shall modi- fy or limit the extent to which a right 01 access to and from the land is insured by this policy, (e) "mortgilge": mortgage, deed of trust, trust ,deed, or other security instrument, (fI "public records": those records which by luw impart constructive notice of r.1atters 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 indebtcdrwss SL'ClJ rcd by a pur- chase money mortg.Jge given by a purchZlser from such insured, or so long as su<.:h insurM shall have liability by reil~Dn of covcnant~ of warranty made by such insured in any tr<lllsfer or conveyance of such estilte or interest; provided, howl>ver, Ihis policy shall not continue in force in favor of <lilY purchaser from such insured of cilher said ep,lle or intcr(>St or the indebtL'dness secured l.Jy a purchase money mortgage given to such insured, 3. DEFENSE AND PROSECUTION OF AC- TIONS -- NOTICE OF CLAIM TO BE GIVEN aY AN INSUf-~ED CLAIMANT {al The Company, at ils own cost and with. out undul' delay, shall provide for the defense of an CONDITIONS AND STIPULATIONS insured in all tilrg;Jlion consisting of actions or proceedings cornmenced ,lgainst such insured, or ;l defense Interposed <lgLllllst an insured in an action to enforce a contract lor a sale of the estate or interest in said land, to Ihe el<.tent thClt such Ilti, gat ion is founded upon an alleged derect. lien, encumbr<lnce, or other matlcr insured agClinst by this policy, (bl The insured shall notify the Company promptly in writing Ii) in case any action or pro- ceeding is uegun or defense is interposed ilS set forth in tal above, (iil in case knowledge shall come to an insured hereunch'r of any cl3im 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 virlue of this policy, or (iiiJ if title to the estate or interest, ilS insured, is relected as un. marketJble, I f such prompt notice shall not be given to the Cornp,my, then as !O such insured al! liability of the Cornp"ny Shill! c('Jse and lerrninate in r('gJrd to the matter or m<l1trrs for which such prompt notice is required; provided, however, that failure to notify shafl 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, lcl The Company shall have the right at its own cost 10 institute anri without undue delay prosecute any action or proceeding or to do any other act \'\,'hicl1 in its opinion may be nCCL~sary or (ksi/iJule to cst~'lblish the title to the f'Stiltc or in- terest ilS insurcd, and the Company ma~' 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 w<live any provision of this poliCY (dl Whenever the Company shall have brought any <Jction or interposed a defense ilS re- quired or permitled by the ~rovisions of this pOlicy, the Company mJY pursue any such litigation to final determination by a court of competent juris- diction and expressly rescrves the right, in its sole discretion, to appeal from any adverse jud~mellt or order. (clln all cases where this pOlicy permits or reqUires the Company to prosecute or provide for thc derense of any action or proceeding, the in- sured hereun(lI;r shull secure to the Company the right to so prosecute or provide defense in su(:h ac. tion or proceeding, (1nd all appeals therein, <lnd per. mit the CompilllY to use, Jt Its option, thr; nClrne of such insured for such purpose. Whenever requested by the Company, such insured sh<J11 (jive the Compilny all rea,;o'lnble aid in any sllch ~tion or proceeding, in ellectin9 settlemt'nt, securing cvi, dence, obtaining witnl'ssl'~;, or prosecullnq or de- fending such action or proc~cdiflg, <Hid the C~mp<lny sh<!11 reimburse such insured for any expense so incurred, 4, NOTICE OF lOSS - LIMITATION OF ACTION In i1ddlll0n to the nOlin's rpqllired under par agr i1ph ](b) of lhest' Condl lions a:ld Stipulations, il Stiltt'!nCllt in \'\riting of any loss Of dam'lye fDr wtlich it 15 clall1led the Cornpany is liable under thIS policy shall be furrllshed to ttle Company within 90 di'lys illter such loss or dalll<lge shall have been determined ,lnd no right of ;:Ictlon shall Jccrue 10 an insured claimant un Iii 30 C3YS Jftcr such st,ltcmerlt <'hall havc becr) fUfIllshcc!. FZlilurc to furnish such Sl21emerll of loss or diJrnagt> sh311 terminate <lqy liJbillty of the CompJny Ufl(J'~r thi5 policy as to such loss or damage, 5. OPTIONS TO PAY OR OTHERWISE SET- TLE CLAIMS TheCompuny shall have the opliorl to payor otherwise spttle for or III the r.a:ne of In irlsurpu clail11anl ilny claim insured against or 10 termin<1te illl II<JbiJrty ilnd o!)llgatIOl of the Company h('re-- under by paying or tendering p<lyrTlI'llt of the amount of insurance under this policy togelher wilh any costs, attorneys' fees and e'lpenses in. currpd up to the t,me of sllch paym("11 or tender of pa'/ment, uy the insured cl<':limant and authorized by the Company 6. DETERMINATION AND PAYMENT OF LOSS (a) The liability of the Comp<lny under this pOlicy shall in no ca~e elo;ceed thl) le<.lst of: (iI claimant; or (iil Schedule A, the actual loss of the insured the amount of inSUf()nce stated in (h) The Comp,HlY will pay, in addition to any loss insureu ag.Jinsl by this policy, all costs illl' posf'd upon an insured in litigation carried on by the Comp<J11Y for such insured, and <JII costs, anorneys' fees and elo;penses in 1!!I(jilllon carried on by such illS\Hl,'d With t!le written authorization of the Company, (c) When Ii~lhility h", been detinitely fixed in i1ccord.J!lU with lhe ct'nd;tions of this polin', the loss or damage shall be payable Within 30 d2\'<; therc;:dter (Continued en inside [)<lck cover) 7. LIMITATION OF L1ABlLlTY No claim shall ari$e or be maintainable under this pOlicy (al if the Company. after having rC'ccived notice of an alleged defect, lien or encul11brClncc in- sured against hereunder, by litigation or otherwise. rernoves such defect, lien or encumbrance or es- tablishes the tille, as insured. within a rC<1SQnabJe time afler receipt of such notice: (bl 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 par<Jgraph 3 hereof; or Ie) for liability voluntarily assumed by an in. sured in settling any cli.lim or suit without prior written consent of the Company. B. RE;DUCTION OF LIABILITY All paymc>rllS under this policy, except pay- ments made for costs, attorneys' fees and ex. perses, shall reducl.' the amount of the imurance pro tanto. No pa'lment shall be made Without producing this pOlicy for endorsement of sllch 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 und~r this policy shalllle reduced by any amount the Company may pay under any policy insuring either (il) a mortgdg~ 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 thilt otherwise would be paY<Jble hereunder to the in- sured owner of the estilte or interest covered by this policy and the <3mOtJnt 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 lnnd described in Schedule C con- sists 01 t\.'.I0 or more pare('\" which arc not used as <l single site, ilnd a loss is e<;tab!ished affecting one or nlore of s.1id p.3rcels but not ,111, the loss sh:.dl he computed <Inri SL'ltll'd on a pro rata b,1Sis ilS if the amount of insuranc under thiS poliCy W3S di- vided pro ratil as 10 the value on Dilte of PoliCY of f'.3ch separate parcel to the whole, exclusive of any improvements made subsequent to Dale of Pot icy, unless a liJlJility or value has otherwise been 3grced upon oJS to each such parcel by the Con1pilllY and the insured at the time of the issuance of this POliCY and showll by ill\ express st~ternellt herein or by an endorsement attached here:o. 11, SUBROGATION UPON PAYMENT OR SETTLEMENT Whenever the Company shall have sCllled a claim under this policy, all righl of subrog:Hion Shilll vest in the Company unaffectrd 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 II) resperl to such cl"im had this policy not been issued, and if requested by the Company, such insured claimant shall transfer to the Company all rights and remedies ag,linst ,my person or property ncceSSMy in order to perlecl such right of subrogJtlon and shJl1 permit the CompJny to use the name of such insured cI0inl<ln! in any tranS.:Jction or litigation involving such rights or remedies. If the payment does not cover the los~ of such in$ured cl3imilnt, the Company $hJII he subrogatcd to such fights and remedies in the pro- portion which s<lid payment tlCMS to the amount of said loss. If loss should result from any act of such insured cl<limant, such act shall not void this policy, but the Co,np,lnY, in that event, shnll U~ rCLjuired to pal' only thLlt part of any losses insured ag<:lir~st hereunder which shLll1 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 ~vilh all endorse- ments and oth(>r instruments, if any, atlJ,:hcd hereto by the Company is the enlire policy nnd conlf<lct between the insurf'd and the Company_ Any claim of loss or damage, whethf'r or not b3sl'd on ncsllgence, and which arises out of tile status of the tllle to the est,lte or interest covered hereby or i]ny <lc\ioJl asserting such cl31m, Shd!l be restricted to the provisions and conditiOlls and stipulations of this policy_ No amendment of or endorsement to this policy C,Jn be made except by writing endorsed hereon or ,llt<lched hcretosiYilcd by eithef the Presi- dent, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signa- tory of the Comp,my. 13. NOTICES, WHERE SENT All notices required to be given the Company and any sl.:Jtt'rnent in writing required 10 be fur- nished the Comp.:Jny Shilll be ,Jddressed 10 it ill ils main office <It 421 North Main Street, S<Jnl<l Ana, California, or to the office which issued Ihis ~~{.'licV. ;I)n""' . .1",' .\, J\L. r i\ O'.~'n,,' . f'ol,,:y - 'I-{lrm U -- l~J IU SCHEDULE ^ sjl Total Fee 10. Tille Search, EX;:Hnirliltion 79-()2-73 and Title Insur<ince 5: _~_l .U},A .. 5_ 0_ ___ Amountoflllsu'ollce: $ 950,000.00 Policy No, D 193262 Date of Policy: April 11, 1979 ~t 9:01 A.~. 1. Name of Insured: TilE EPICUREAll, ~ Colorado limited p~rtncrship 2. The estate or interest referred to hcreill is at DiJte of Policy vested in: j TilE EPICUREAN, a Colorado limited partnership 3. The estate or interest in the liJnd described in Sdll>dule C and which is covered by this P(l!!CY is: Fee Simple #'''- --.. . f-orm Nt, 1,1(l;>.C AL 1/\ StMH.J.Hd Polll.:Y Wc~tcrn HC'oliun 79-02-73 SCHEDULE B This policy does not insure against loss or t1mnilglJ by rca$On of the matters shown in parts one and two following: Part One: 1. Taxes or i1ssc~ments which are not s.hown as existing liens by the records of any taxing authority th;)t levies taxes or as..<:;essmcnts on rpal property or by the public records. The lien of all tax.es 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 lJnd 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, shortJge in area, encroachmer,ts, or any other facts which a correct survey would disclose, and which are not shown by public records. 5. Uqpatentcd mining claims; H:scrvations 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 Histroie 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 s~)ject property in Aspen Fire Protection District, Aspen Street Improvement District, Aspen Sanitation District and Aspen Valley Hospital Distriet. 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. . '- f(Hnt r~o. 10!>6.4 AlIl'olley"onn. .# ". SCHEDULE C The l.:1nd referred to in this polie\, is situated in the Stille of Counryof PItkin Colorado Lots A, II and C Block 87 CITY AND TOWNSITE OF ASPEN Pitkin County, Colorado , -, 79-0Z--73 and is described as follows: ~ c " ~'/~ , MEMORANDUM TO: Aspen Planning and Zoning Commission FROM: Jack Johnson, Planning Office RE: Epicurean Subdivision Exception (Condominiumization) DATE: May 5, 1981 Location: . Zoning: Background: Applicant's Request: City Attorney: Engineering Department: The open patio space located between the Whale of a Wash and the Epicure Restaurant in the 400 block of east Main Street (Lots Band C, Block 87, City and Townsite of Aspen, Colorado). CC - Commercial Core (H.P. Overlay) The Epicure Plaza, subject of this application, was grante9 a commercial GMP allotment for 10,041 square feet by City Council on November 26, 1979. The ownerl applicant has not yet sought a building permit and must "submi t plans suffi ci ent for buil di ng permit issuance" before September 1, 1981, or this allotment will auto- matically expire. 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. Compliance with applicable provisions of Section 20-22 required. 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 drai nage from the site vi a a forty-ei ght-i nch (48") storm sewer in Mill Street. It i~ 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 wi 11 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-Mayor anytime in September after Labor Day). Pavement l .:i !~ " , . 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. ~any 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, tne 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. , , /'"'0, \../ ,........... Exhihi + c. " CONDOMINIUM DECLARATION FOR EPICURE PLAZA (A Condominium) THIS DECLARATION is made and entered into by THE EPICUREAN PARTNERSHIP, a Colorado limited partnership I herein- after referred to as "Declarant." WIT N E SSE T H: WHEREAS I 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 propertYI 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 I desirabilitYI 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 I 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 I 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 c 1 ,..;' .. 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 t6 any Mortgagee or Trust Deed beneficiary as herein defined, unless such Mort- gagee or Trust Deed beneficiary has acguired 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. If) "Occupant" means any person or persons, other than the Owner I in possession of a Unit. Ig) "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 I rights I 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: Ii) 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 I maintenance, or common use or access; (ii) The exterior loading, storage, walkways I yard and garden areas; (iii) Any installations consisting of eguipment and l'laterials 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; -2- ,. -.... I"', ',-" (iv) In general, all other apparatus and installations existing for common use; (v) All pipes, wires, ducts, flues, chutes, conduits I 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 I 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 I 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 I maintenance I and safetYI 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 alI, 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 ,,....,\ ,"," - (m) "Proposed Wall,n "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 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. In) "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: Ii) 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 beyond the period specified in Paragraph 32(e). (ii) Installation shall comply with the provisions of Paragraphs 121j) and 12(k). (iii) Upon installation, the definitions contained in this declaration shall apply to such improvements. liv) 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 I 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 (0) "Common Expenses" means and includes: -4- ,F ., ,., (i) Expenses declared common expenses by provisions of this Declaration and the By-Laws of the Association; (ii) Expenses of administration I opera- tion, and management, maintenance I 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 I its successors and assigns, the Certificate of Incorporation and By-Laws of which shall govern the adminis- tration of this condominiu~ 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'l or a similar name. (q) the Association. "Board" means the Board of Directors of (r) "Map" means a plat or survey of the surface of the ground of the property I showing a survey and legal description thereof I the location of buildings with respect to the boundaries of the property I 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 ~ay 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 I 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 I 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 subseguently 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 I 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. -5- c ,...... ....^',,/ 5. Inseparability of a Condominium Unit. Except as provided in Paragraph 3 hereof respecting the l'lodifica- tion of percentage interests hy virtue of combination and subdivision, each unit owner shall at all times he 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 COl'lmon 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, re~ain 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. Pach 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 terl'ls, 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 hy 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 Condominiul'l 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 Elel'lents and the Limited Common Elements appurtenant thereto. Each such description shall he 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 Coml'lon 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. ;,uch 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 -6- ". , ...."".... , 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 eguipment, 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 a~purtenant 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, l'lortgagees, 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 I however I 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 Elel'lents. 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 I 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- 1'" --,~" r ted on any part of the property except at such location and in such forl'l 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 establishl'lent 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 I 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 perl'litted 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 Coml'lon Elements. (9) 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 I 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 COl'lmon Elements, unless the Board of Directors, by rule or regulations, provides otherwise. -8- l'"';..... ........ ....''"' .,";""~ (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 builqing, 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. shovm on altered; (iv) the Condominium and, The boundaries of such unit, as /1ap, will not thereby be changed or (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 Elel'lents. 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. -9- '*""', ...... (0) If, due to the act or neglect of an owner, or of a member of an owner's family or of a guest, 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 eguipment, pipes, ducts, apparatus or other eguipment, or maintenance, repairs or replacements shall be required which would otherwise be at the common expense, then such owner shall pay for such dal'lage 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 (0) 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 eguipment 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 I s Lien Rights and Indemnification. Suseguent 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 reguesting 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 clail'l of any lien against the unit of any other owner or against the General Common rlements 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 l'lemher of such Association, which mel'lbership 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 "r']anaging 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. -10- 1"', -., .......,/ (d) The Board of Directors shall consist of five persons vlho shall be elected in the manner providec1 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. If) The Board of Directors may, from time to time, adopt or amend such reasonable rules and regulations governing the operation, maintenance I beautification and use of the General Common Elel'lents and the units, not inconsistent vlith 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 regulati5ns shall be given to all owners. A violation of such rules or regulations shall be deemed a violation of the terms of this Declaration. (q) The members of the Board of nirectors and the officers and employees of the Association shall not be liable to the owners for any mistake of judament, 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 anc1 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 ~ccess - Tlaintenance, 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 til'le 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 (0) of Paragraph -11- ,,', "'" '.......,.- '-~-""" 12 hereof. Restoration of the (lanaged iP1prOVe~len ts shall be substantially the same as the condition of such iP1provenents prior to the damage. Subject to the provisions of Subparagraph (0) of Paragraph 12 hereof, and except as herein otherwise specifically provided, all P1aintenance, repairs, reconstruc- tion aDd replacements as to the Ceneral COP1mon Elements, whether located inside 'or outside of the units, shall be the COP1won expense of all of the owners. 16. Grantees. Each grantee of the Declarant, by the acceptance of a deed of com'eyance, accepts the same subject to all terns, provisions, caseP1ents, restrictions, conditions, covenants I reservations, liens and charges, and the jurisdiction, rights, and powers created or reserved by this Declaration and the ~rticles of Incorporation and By-Laws of the Association, and the provisions of the Colorado Condominium Ownership Act, as at any tine amended, and all easements, rights, benefits and privileges of every character hereby granted, created, reserved or declared, and all inpositions 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. la) The Board of nirectors 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 adeguacy 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 naning 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 Acent 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 Aoent 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 reguests it to do so and if such owner shall wake 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 I 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. -12- , ~~ ,..., '-",.,;" ."" " liil 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 perforl'led by any such person directly or indirectly pursuant to the provis~ons of this Declaration and with the General Coml'lon r.lements. (iii) Workmen's compensation insurance and employer's liability insurance as l'lay 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, premiul'ls 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 l'lore 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) IH th respect to thf~ 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 anyone 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 /lanaging 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 pre1'1ises, if the property is sold as provided in paragraph 23(c) hereof; Iv) With respect to the insurance provided for in (alii) of this Subparagraph I that any "no other insurance" clause in such policy exclude policies of insurance maintained by any OI.mer or his mortgagee frol'l 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. (dl 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 If) of this Subparagraph) is furnished; Iii) 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 l'1aintaining; and (iii) Such insurance policy shall contain a waiver of subrogation as to claims against the Association, -13- t"" '-...- """', '-.-' the Managing ~gent, the owners an~ their respective agents, officers I 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 un~er any policy provi~ed 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 Boar~ 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. (fl Insurance coverage on the furnishings and contents, insurance covering other items of personal property within each indivi~ual 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 COl'lmon Elements (other than for purposes of replacing or restoring portions thereof) reguiring 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 reguired approval of or limitation upon expenditures required for the repair, maintenance and replacement of such General Common Elements. 19. Assessment for Common Expenses. (al 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 guarterly 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 asseSSl'lents shall be fixed, established, and collected from time to time in the manner provided in this ~rticle, and by the Articles of Incorporation and By-Laws of the Association. (bl The total guarterly assessments against all units shall be based upon advance estimates of cash reguirements 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 Coml'lon 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 asseSSlnents, until the units are separately assessed as provided herein; preMiums for all insurance which the Association is reguired 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; coml'lon 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; an~ any -14- ~ c """ -- other expenses and liabilities Association for the benefit of of this Declaration. which may be incurrc=,l by the the ovlners under or by reason (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 reguirer1 for the cost of wages, ~aterials, insurance, services, and supplies which will be required during the ensuing calendar year for the rendering of all services in connection with the General COl'lmon 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 Coml'lon 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 f'1anaging 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 I 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. ~he 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. ~he 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 guarterly 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 guarterly 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, \~henever the same shall be deterl'lined, and in the absence of any annual budget or adjusted budget, the owners shall continue to pay the guarterly assess~ent 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. -15- t"" '../ - "'he Boan1 of Director (or the l'anaging 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 liahilities 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 reguired to reflect delinguent 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 t1anasing 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 I 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 andlor unit owner is increased as a result of any business 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 guest, 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 premiul'l 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 agreel'lent 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 -16- c :) 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. (hI 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 acguiring 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 I 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 l'lay be enforced hy 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 condominiul'l unit during the period of foreclosure, and the Association shall be entitled to a Receiver to collect the same. The Association shall have the power to participate as a bidder at such foreclosure or other legal sale and to acguire 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 reguired to pay, any unpaid common expenses or other assessments or charges payable with respect to such unit, and upon such paYl'lent such encumbrancer shall have a lien on such unit for the amounts paid of the sal'le 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 hecome 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. -17- c '''''''\ ,-" All SUMS assessed for comMon expenses which remain unpaid for thirty days from and after the due 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 ~nd Other Charges 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 encum~rancer or prospective encumbrancer of a unit, the ~ssociation, by its Managing ~gent 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 be complied with within ten days after receipt thereof, all unpaid common expenses and other charges due hereunder which becol'le due prior to the date of making such reguest shall be subor- dinate to the lien, if any, of the person or entity reguest- 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 frol'l 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 Hanaging 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 reguest, then such requesting grantee shall not be liable for, nor shall the unit conveyed be subject to a lien for any unpaid asseSSl'lents or other charges due hereunder against the suhject 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 l'lay 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 ~rticles 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 prel'lises, all of that mortgagee's right, title, and interest in and to the proceeds under all insurance policies upon said pre- -18- r~ ~~ ,- mises, which insurance policies were effected and placed upon the mortsaged premises by the Association. Such release shall be furnished forthwith by a junior mortgagee upon written reguest of one or more of the members of the Board of Directors of the Association. 23. Association as Attorney-in-Fact, 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 I 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 sguare 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 payahle 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 deht 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 -19- I'" - ~ -' Association. The proceeds derived from the sale of such unit shall be 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; (2Y 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 [lcrcent (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 unanil'lous written approval or consent of every first mortgagee, the ~ssociation 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 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 l'lortgagees, 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 l'lade pro rata accord- ing to each owner's percentage interest in the general common elements ann shall be due and payable as provined by the terms of such plan, but not sooner than sixty days after written demand thereof. The Association shall have -20- 1".... ..."~, ...." ",","- full authority, right, and power, as attorney-in-fact, to cause the repair or restoration of the iMprove~ents 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 representinG an aggregate ownership interest of eighty-five percent (85%), or more, of the General COl'lmon Elements l'lay 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 be a licensed Colorado real estate broker and regular member of the ~spen Board of Realtors or sil'lilar local organization. If either party fails to make such a timely nomination, the appraiser nominated shall, within five days 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 nlarket value of the nnit, they shall appoint another appraiser (to be selected from the Aspen Board of Realtors or similar local organization) to be umpire between thel'l, 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 nOl'linations 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 -21- c - ---- market value, or in the case 0f their disagreement, then such decision of the umpire, shall be final and binding. The expenses and fees of such appraisers shall be borne egually 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 procceds 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 l'lortgagee. 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 statel'lent 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 rlap 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 l'lailing 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 r1anaging 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 "he Declarant shall be sent to it in the same manner at P.O~~Box 9112, Aspcn, Colorado 81612, until such address is changed by recorded notice. All notices so mailed shall be deemed to be given and received when -22- -, -. .....,.. ,.......,r deposited in the United States mails as aforesaid. 26. Period of Condoninium Ownership. The separate condominiul'l 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. ~his Declaration shall not be revoked unless all of the owners and all of the holders of all recorded mortgages andlor deeds of trust coverina 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 aqents, 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 eguity, 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 I and obligations of this Declaration or the regulations adopted by the Roaro 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 defaultina 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 Boaro of nirectors against the owner andlor 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 riaht, 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 frol'l re-acguiring 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 I 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 oeed 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 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 I 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, o81igations, 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 menbers 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, l'lodification 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 improvel'lent, 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 l'lake 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 frol'l the Declarant or from any owner shall constitute appointl'lent 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. (hI In the event that all or any part of the Condominium Project shall be taken or condemned hy any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, all compensation, dal'lages or other -24- . " --..,./ proceeds therefrom, the sum of w~ich 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 Si'lme purposes and in the same order as is provided in subparagraphs (b)(l) through (5) of Paragraph 23. (ii) Partial Takincr. In the event that less than the entire Condominium Project is taken or condel'lned, 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 cOl'lpensation, 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 i'lS the Association determines to be equitable in the circum- stances. If an alloci'ltion of the Condemnation ~ward is already established in negotiation, judicial decree or otherwise, then in allocating the Condemnation ~ward the Association shall employ such allocation to the extent it is relevant i'lnd 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. Prom each separi'lte account, the Association as attorney-in-fact, shall use and disburse the total amount of each of such accounts without contribution frol'l one account to another, for the same pur- poses and in the same order i'lS is provided in subparagraphs (b) (1) through (5) of Paragraph 23. (iii) Reorganization. In the event a partial taking results in the takincr 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 I 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 lil'lits, 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. THE EPICUREAN PARTNERSHIP, a Colorado limited partnership By General Partner STATE OF COLORADO ) ) ss. COUNTY OF PITKIN ) The foregoing me this day of as Generar-Partner of limited partnership. instrument was acknowledged before , 1981, by The Epicurean Partnership, a Colorado Witness my hand and official seal. My commission expires: Notary Public -26- I""'- - , ,....., -- eXHIBIT A (Attached to Condominium Declaration for Epicure Plaza) The undivided interest tenant to units in the follows: unit Numbers B-1 101 102 103 104 105 106 107 108 201 202 203 204 205 206 207 208 209 301 302 303 in the General Common Elements appur- Epicure Plaza (a condominium) are as Percentage Interest TOTAL 100.00% -27- .... /,"",", """'" Exhibit D ARTICLES OF INCORPORATION OF EPICURE PLAZA CONDmlINltJr1 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. ARTICLE I NArm 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 ~ssociation is organ- ized is to provide an entity pursuant to Article 33 of Title 38 C.R.S. 1973, et seg., as from time to til'le it is amended, supple- mented or succeeded I hereinafter called the Condol'linium Act, for the operation of the EPICURE PLAZA (a Condominium), located upon the property described as follows, to-wit: Lots Block City and 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. members to defray Condomini um) . To make and collect assessments against the costs and expenses of the EPICURE PLAZA (a 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 il'lprovements 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 ~ct, 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 condol'liniul'l unit owners. 3. All funds and the titles of all properties acguired 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 MEI1BERS 1. The members of the Association shall consist solely of all record owners of condol'linium 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 CountYI 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 l'lel'lbers 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. first Board of successors are as follows: The names and addresses of the members of the Directors who shall hold office until their elected and have qualified, or until removed, are J. Michael Solheim P.O. Box 9112 Aspen, Colorado 81612 John L. \'lilbur P.O. Box 9112 Aspen, Colorado 81612 ARTICI,E VI OFFICERS 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 l'lembers 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 ~lill Street, Aspen, Colorado 81611, and the Registered Agent of the Association at that address shall be J. ~lichael Solheim. ARTICLE VIII INDm1NIFICATION 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 -3- ~ -",", /"""', ,,-,"/ . thereof, to which such person May be a party, or in which sllch 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 reimbursel'lent as being for the best interests of the Association. The foregoing right of indemnification shall be in addition to and not exclusive of all other rights to which such Director or officer may be otherwise entitled by law, under the Declaration and By-Laws of the Association. ARTICLE IX BY-LAI'JS The first By-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 MlENDMENTS 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 reguest 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 amendl'lent 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 gualifications for mem- bership nor the voting rights of l'lembers 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 XI TERI'I 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. -4- /"'"",. /", ''',,_.0/ -...."".- 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, the Incorporator has hereunto affixed his signature on this day of 1981. J. MICHAEL SOLHEIM STATE OF COLORADO) ) ss. COUNTY OF PITKIN ) 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. GIVEN under my hand and notarial seal this , 1981. day of My Commission Expires: Notary Public (SEAL) -5- '" """ '-' EXHIBIT E BY-L^~'JS OF EPICURE PLAZA rONDOMINIUM ASSOCIATION (A CondominiuT'1) ARTICLE I OBJECT (Plan of Ownership) 1. The purpose for which this non-profit Associa- tion is formed is to govern the condoT'1inium property which has been or will be s~bT'1itted 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 facilitips 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 condominiuT'1 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 ~lEMBFRSHIP, VO-rH1G, I1AJORITY OF 0\'7NERS, QUORU/.l, 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. VotinC) shall be based upon the per- centage of the undivided interest owned by each unit owner in all of the general common elements. The aggreC)ate 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 "T'1ajority of unit owners" shall mean those owners of more than fifty percent (50%) 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'" :) It ARTICTJE III ADMINISTRA'rION 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 projec.t through a Board of Directors herein- after referred to as the "Board." 2 . shall be held determine. Place of fleeting. r.leetings of the Association at such place in Aspen, Colorado, as the Board may 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 rleetings. 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 f'1eeting 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 fleetings. 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 recoro, 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 prif'1a facia evidence thereof. 6. Adjourned "eetings. If any r:1eeting 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 -2- c "'I ~ (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, be 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 f'1eeting 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) ';'0 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) l'lith the assistance of the llanaging 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, comnon 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 condof'1inium 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 -3- - ,-, ,"" -- 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 condof'1inium 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) ';'0 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 Ilanaging Agent. (I) 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 tif'1e 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, expe~ses or disbursements since the last such statement. (n) To meet at least annually whereat the Managing Agent or his employee shall be in attendance. (0) of this Association reasonable in order of this condominium In general, to carryon the administration and to do all of those things necessary and to carry out the governing and the operation property. (p) To control and manage the use of all sidewalks, parking areas, open spaces, common streets and other COf'1mon 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 Waiver of Right~. 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 CondominiuT'1 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 Tern 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, anyone 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 Meetin1' 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 11eetings. Special meetings of the Board may be called by the President on three days notice to each Director, given personally or by T'1ail, 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 T'1eeting at which -5- -. ,..CO\ ,j a quorum is present shall be the acts of the Board. IE, at any meetinq 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 all officers and employees of the Association aging Agent who handle or are responsible for funds shall furnish adequate fidelity bonds. on such bonds shall be a common expense. require that and the 11an- Association The premiums ARTICLE 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 saT'1e 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- -6- "'..... ". , 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 T'1eetings. 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 sholv 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 ';'reasurer'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 AGEN';' 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 ~ssociation 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 ~he 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 aT'1ount of the total liability owned by an Ovll1er shall be shared proportionately by the owners. ARTICLE VIII Ar1EIlDrlEN'rS 1. The Articles of Incorporation may be amenden 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 comT'1on 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 110RTGAGES 1. his unit shall Agent, if any, address of his information in Notice to Association. An owner who mortgages notify the Association through the Managing or the Association Secretary, giving the name and mortgagee. The Association shall maintain such a book entitled "Ilortgagees of Units." 2. Notice of Unpain 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 OI-lNERSHIP, REGISTRATION OF ~lAII,ING ADDRESS AND DESIGNA'rION OF VOTING REPRESENTATIVE 1. Proof of Ownership. Except for those OIll1erS 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 instruT'1ent 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 Adnress. 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, deT'1ands 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. -8- <""'<.... ,...'" , '-<......J 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, p~rtnership, 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 be deemed in good standing and entitled to vote at any annual or special meeting of members. ARTICLE XI OBLIGATIONS OF THE mmERS 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 percent~ge 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 f'1eeting of mef'1bers, 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) 150% 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 settlef'1ent 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 fortlwith 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. -9- ('.... , ,/ :) 4. Maintenance and Renair. -------"---- (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 hy 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 he utililized only for the purposes described in the Condominium Declaration. 7. Use of General Comf'1on 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. 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 f'1ade in advance and that such entry is at a time convenient to the owner. In case of an ef'1ergency, such right of entry shall he immediate. 9. Rules and Regulations. (a) shall be effective are annexed hereto 'rhe initial rules and regulations, which until af'1ended or supplemented by the Board, 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 reaulations shall be furnished to each unit owner prior to the date when the same shall become effective. -10- - - ~ t 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 ENJOYMENT 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 11anaging 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 XII I ASSOCIATION - nOT FOR PROFIT 1. Association - Not for Profit. This Association is not orgainized for profit. No mef'1ber, 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 nember, 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 perforf'1 its manager's duties and functions according to written agreement for the compensation stated therein. APTICLE XIV MORTGAGEES AS PROXIES -~, '. 1. Mortgagees as Proxies. Unit owners shall have the right to irrevocably constitute and appoint the t 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 deef'1 its security in jeopardy by reason of the failure, neglect or refusal of the Association, the rJanaging 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 ~ortgage 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 " r' ~ . .. 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 -2- ..-, '""" -..I [x~..bi-f- A - Form No. 1402 (1170) AL T A Owner's Policy Form B - 1970 (Amended 10-17-70) " .\ >..- .," " ,\ \1 l: 1l I (' . ./ ,. POLICY OF TITLE INSURANCE is:)'_TED S"{ First American Title Insurance Company 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. lock of a right of access to and from the land; or 4. unmarketabiJity of such title. IN WITNESS WHEREOF, First American Title Insurance Company has caused this polley 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 'TTEST~~ St:CRETARY ATTEST /"7 ....// . {t;l(''';/ / 12)0. / i ,/ ;:, ';<",/',.r" /:'-/ ASSISTANT SECRETARY ASPEN TITLE CO~WANY Aspen, Colorado D 1 O"'),..,.-~, , .") r' !"" ,v' '- v ~ ,-'_ - SC .JULE OF EXCLUSIONS FROM C~RAGE .' - THE J",.oLLOWING MATTERS ARE EXPRESSLY EXCLUDED FROM THE COVERAGE OF THIS POLlCY: 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 tal CREATED, SUFFERED, ASSUMED OR AGREED TO BY THE INSURED CLAIMANT; Ibl NOT KNOWN TO THE COMPANY ANO 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 HEREUNOER; IcJ RESULTING IN NO LOSS OR OAMAGE TO THE INSURED CLAIMANT; Idl ATTACHING OR CREATED SUBSEQUENT TO OATE OF POLICY; DR lei RESULTING IN LOSS OR DAMAGE WHICH WOULD NOT HAVE BEEN SUSTAINED IF THE INSURED CLAIMANT HAD PAlO VALUE FOR THE ESTATE OR INTEREST INSURED BY THIS POLICY. , 1. DEFINITION OF TERMS The following terms when used in this policy rilean: (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. (bl "insured claimant": an insured claiming loss or damage hereunder. lc) "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. (fl "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. TlONS - NOTICE OF CLAIM TO BE GIVEN BY AN INSURED CLAIMANT la) 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 01 in case any action or pro- ceeding is begun or defense is interposed as set forth in (al above, (it) 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 dcslrable 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. (elln 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, obtaming 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(bl 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 fight of aClion 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 payor 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 pa'lment, by the insured claimant and authorized by the Company. 6. DETERMINATION AND PAYMENT OF LOSS (al The liability of the Company under this policy shall in no case exceed the least of: W the actual loss of the insured claimant; or (ii) 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 iitigation carried on by such insured with the written authorization of the Company, Ie) 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 lal jf 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 litle. as insured, within a re<Jsonable time after receipt of such notice; (bl in the event of litigation until Ihere has been a final determina- tion by a court of competent jurisdiction, and dis. position of all appeals therefrom, adverse 10 the title, as insured, as provided in paragraph 3 hereof; or (eI for liability volunlarily assumed by an in- sured in settling any claim or suit without prior written consent of the Company. B. REOUCTlON OF LIABILITY All payments under this policy, el(cept pay- ments made for cas Is. attorneys' fees and el(. penses, shall reduce the amount of the insurance pro tanto. No payment shall be made without producing this polley 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 (al a mortgage shown or referred to in Schedule B hereof which is a lien on the estate or interest covered by this POlicy, or (bl a mortgage hereafter executed by an insured which is a charge or lien on the estate or interest described or reo 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 mOrlgages any amount that otherwise would be payable hereunder to the in- sured owner of the estate or tnterest covered by this policy and the amount so paid shall be deemed 8 payment under this policy to said insured owner. ""-' CONDITIONS AND STIPULATIONS (Continued from inside front caved 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, tht' loss sh;J1I be computed and srltll'd on 01 pro r;:lt;:l bo1Sis as if the amount of InsurJnu' undt'r thl\ POlllY was dl vlded pro rata as 10 the value on Date of PolTCY of each separate parcel to the whole. el(clusive of any improvements made subsequent to Date of Policy. unless a liability or value has otherwise been agreed upon as 10 each such parcel by Ihe Comnany and the insured at the time of the Issuance 01 this poliCY and shown by an el(press st.:ltemenl herein or by an endorsement attached hereto. 11, SUBROGATION UPON PAYMENT OR SE TTLEMENT \",'henrv('r the Comp;:Iny sh;:lll nJve srltled a claim under thiS policy, all Tight at sllllTogatlon ShJl1 vest In the Company unaffec!rc1 by any act of the Insured clillmiJrlt, 1 he Compa...y shall be SUlHO' gated to and be entitled to all rlg1lls and remedlcs whIch such insured clalmJnt would have had agJlnst any perSOn or properly," respect to such claim had this policy not been ISSUed. and if r('quested by Ihe Company. such insured c1aimJnt shafl transfer to the Company all rigl1'ts and remedies against any person or property neCCSS<lry In order 10 perfecl such right of subrogation <lnd sh<:lll permit the Company to use the name or such lr'lsured clalm;)nl in any tranSJction or litl9Jtlon 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 p<:lyment lH',1rS to Ihe o1111ount of SJid loss, If loss should result ham any act of such insured cliHOlant, such act shall not VOid thiS poliCy. but the Company, in that evenl, shiJll U<:, rl:qulred to pay only that part of any IO'ises insured agJinSI hereunder which shall el(ceed the amount. if any. lost to Ihe Company by reason of the impairmenl of the right of subrogation. /" - 12. LIABILITY LIMITED TO THIS POLICY ThiS instrument together With all endorse- ments and other Instruments. if any, altached hereto by the Company is the entire pOlicy and contlJct bet~...'('en the insured and the Company. Any cl,llm 01 loss or dJmage. whether or not ba<,ed on negligence. anri whIch arises out of the status of the title to the E'~'.lIe or interest covered hefehy or any action asserting such clJun, 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 herron or attached hNelO Signed by either the Presi. dent, il Vice PreSident, the Secretary, an Assistant Se'U('t.Jry. or validating officer or authorized sIgna- tory of the Company. 13, NOTICES, WHERE SENT All noll(('S reqUITed to be given the Company and <1ny ~IJ:('rl1ent in writing rC(luirrd to be fur. nlshed Ihe Cor11I-lJny shall be Jddressed to it <:It its maIO olf.ce at 421 NOrlh MJIn Street, SJnta Ana. California. or to the olllce which issued Ihis policy. Form No. 1402 - A AL T A Owner', Policy Form B - 1970 "'" /" J SCHEDULE A sj 1 Total Fee for Title Search, Examination and Title Insurance $ 1.824.50 79-02-73 Amount of Insurance: $ 950,000.00 Policy No. D 193262 Date of Policy: April 11, 1979 at 9:01 A.M. 1. Name of Insured: THE 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 porlcy 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. 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. 2. ). 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-'" All ftolley Form. /", SCHEDULE C The land referred to in this policy is situated in the State of County of PI tkin Colorado Lots ^, Band C Block 87 CITY AND TOWNSITE OF ASPEN Pitkin County, Colorado ,...'>, 79-02-73 and is described as follows: , ' . , -, ...., EXHIBIT F EI1PLOYEE 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 t. ~ " " -., ....,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 -2- ,. - MEMORANDUM TO: Aspen City. Council, FROM: Jack Johnson, Planning Office Epicurean Subdivision Exception (COndOminiumization~-; '~ /J / /1 t '~1 i,f...vl DATE: June. 22, 1981 APPROVED AS TO FORM : <';...Ui (j. / ,t>-<. / / The open patio space located between theWh.le ofa ~i~ ai'ld the Epicure Restaurant in the 400 bl()c of -east Main" StY'eet (Lots 11 and C; Block 87, City and t wnsite of j Aspen, Colorado). '. RE: Location: Zoning: _ Background: Appl icant 's Request: City Attorney: Engineering Department: .. . Planning Office: CC.- Corrmercial Core ~~~p.Overlay) , The Epicure Plaza, subject of this application, was __ :granted a commj!r_cial GMP allotmentfoX.1P.Q.1J square feet by City Council on Novemb~.....J.9.1S..-. 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. This is an application by the Epicurean Partnership requesting subdivision exception for the purposes of condominiumii,rig- the proposed Epicure Plaza Buildin~ iiit02Cspaces. ~,~,,'_'H_"""'__'X"',,'_"" Compliance with applicable provisions of Section 20-22 ._ required. The improvement survey submitted with the application is not an adequate ~ondominivm Plat and should be revised and resubmitted t.o. thi s office for signatures and re- cording'follow{ngcQnstructiol1. The revised plat shall indicate: .- - a) Adjacent streets and alleys, sidewalks, curb and gutter. b) Cross sections indicating elevations of floors and ceil i ngs. 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-Mayor anytime in Septe~ber after Labor Day). Pavement shall be saw-cut and backfill shall be 3(4-inch road base place and compacted in eighteen-inch (18") 1 ifts. 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 square feet include 10,041 square feet of commercial and office space and approv.,niafely 1,959 square feet of employee housing.,. The FAR for this site is 2.0 (l.S-by Deed restrictions of the three employee units at the middle income price guidelines. . . 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. MEMO: Epicurean June 22, 1931 Page Two Planning Office RecOlll11endation: P & Z Action: Council Action: .. ...,c,-..... ( ~ .- " ....., - Subdivision Exception (Condominiumization) right in the CC zone and .5 granted by Special Review). Retail and restaurant uses are proposed on the ground level with -ropvort space tn the basel11ent;qfftce~'!>lf<(ce' on.t!lE!--" second'level and employee housing QriJhe third level. ' Many Code requirements of Section 20-22 are not applicable as this application inv91Yes unbuilt com!llen::iaLsP;;iS;e rather than conversion-of an existing residential structure. HOweVer, the three employee housing' unlri;-'a"parf"'of"t.li"is'-- , 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 sjx (6) month minimum -'~::~~:-~~S~'fii7~'~j:{~16n t6~ ~Hs~~efj~~~~~~~C{fE'~~; voi d '"amI".'1ul1ified if valid building plans have not been re- ceived by the Building Department by September 1st of this year. / I t i I ! ; ! ~p~v9,\of the application fpr subdivision exception for ilie purposes of condominiumizing the Epicure' Plaia Building :.ubjec.t'-t'tr'1:tre' following conditions: .' ,/ 1. Compliance with the Engineering Department comments, ~., 2. :"(.'., ..J- On Mat~, 1~1, the Planning and Zoning Commission granted the~plicant a waiver to conceptual plan approval before City Counci~ and Preliminary Plat approval before P & Z (short subdivision procedure). The P & Z also r.erOl1)l7lended ~ova1.of the request for subdivision exception for the purposes of condominiumizing the Epicure Plaza Building $\.lpjE\l;J;.,to .t,h.e turee,.conditions enumerated under Planning Office .recornmendatiQll. .",-, If City Council concurs with the recommendations of the Planning Office and the Planning and Zonin9 Commission, the proper motion would be: "1 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," ~~C}~ \ ->\ I ~~JG ~I\a " J 1\ ~ \ '^1) I' Yl.C.(.M:'''V "\ V , -- .." EXHIBIT E BY-LAVIS OF EPICURE PLAZA rONDOMINIUM ASSOCIATION (A Condominium) ARTICLE I 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 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 ~lEMBFRSHIP, VO'rH1G, I1A.JORITY OF OI'TNERS, QUORUrl, 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 (50%) 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. ,... r'"",, ARTICTJE III ADNINISTRA'rION 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 . shall be held determine. Place of T1eeting. r.leetings of the Association at such place in Aspen, Colorado, as the Board may 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 thef'1. "Declarant" as used in these By-Laws refers to the Declarant named in the Condominium Declaration for the Epicure Plaza. 4. Special l1eetings. 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 f'1eeting 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 deterf'1ines 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. Adj ourned "eetings. I f 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 Meetings (d) Reports of Officers (e) Reports of committees (f) Election of Directors (g) Unfinished business -2- - "'" (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, be 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 f'1eeting 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) 'ro 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) \'lith the assistance of the rlanaging 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 condof'1inium 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 -3- -- /" 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 tlanaging 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 f'1ortgagees, 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, expe~ses or disbursements since the last such statement. (n) To meet at least annually whereat the Managing Agent or his employee shall be in attendance. (0) of this Association reasonable in order of this condominium In general, to carryon the administration and to do all of those things necessary and to carry out the governing and the operation property. (p) parking areas, open property. To control and manage the use of all sidewalks, spaces, common streets and other COf'1mon (q) To employ for the Association a 11anaging Agent who shall have and exercise those duties and powers granted to it by the Board but not those powers which the Board, by lavl, may not delegate. -4- ,.... .~" 3. No Haiver of Rights. The omission or failure of the Association or any unit owner to enforce the cove- nants, conditions, restrictions, easenents, 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 noaro or the rlana- 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, anyone 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 electeo 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 Heeting. 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 f'1eeting 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 l1eetings. 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 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 quoruf'1 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 Plajority 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 all officers and employees of the Association aging Agent who handle or are responsible for funds shall furnish adequate fidelity bonds. on such bonds shall be a comPlon expense. require that and the /lan- Association The premiuPls ARTICLE \I FISCAL MANAGEMENT 'rhe provisions for fiscal management of the units for and in behalf of all of the unit owners as set forth in the Condof'1inium 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 saf'1e person, and the office of Vice President and Secretary Play 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- -6- ~ ......... ,....... ing but not limited to the power to appoint comf'1ittees frof'1 among the owners frof'1 time to tif'1e 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 f'1eetings. 5. Vice President. The Vice President shall have all the powers and authori~y 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 INDEtlNIFICATION OF OFFICERS, DIRECTORS AND ~lANAGING AGEN'r 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 perforf'1ance 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 cOf'1mitments 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 af'1ount of the total liability owned by an owner shall be shared proportionately by the owners. ARTICLE VIII M1EIlDI'EN'rS 1. The Articles of Incorporation may be amended in the manner provided by law. 2. These By-LavIs may be amended by vote of owners of eighty-five percent (85%) of the undivided ownership of the comf'1on elcments at a duly constituted meeting of the members for such purpose, provided, however, that no amendment shall conflict with or minimize the intended cffect of the provisions of the Articles of Incorporation or the Declaration. ARTICLE IX ~lORTGAGES 1. his unit shall Agent, if any, address of his information in Notice to Association. An owner who f'1ortgages notify thc Association through the Managing or the Association Secretary, giving the name and mortgagee. The Association shall maintain such a book entitled "llortgagees of Units." 2. Notice of Unpaid Common Asscssmcnts. 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 OWNERSHI P, REGISTRATION OF ~IAII,ING ADDRESS AND DESIGNA'rION OF VOTING REPRESENTATIVE 1. Proof of Ownership. Except for those OIIners who initially purchase a unit frof'1 Declarant, any person on becoming an owner of a unit shall furnish to the Ilanaging Agent or Board of Directors, a photocopy or certified copy of the recorded instrunent 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, def'1ands 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 lcgal 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. -8- ,""", ....., 3. Designation of Voting RepresentRtive Proxv. 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 f'1eetings 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 Qeetings as provided by this Section 3. 4. The requirements herein contained in this ~rticle 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 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 mef'1bers, 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) 150% of the amount of such claim, plus (b) 10% of the amount of such claif'1 (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. -9- "'"' '" 4. ~\aintenance and P.epair. (a) Every owner must perform prof'1ptly, 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 be 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 Condominiuf'1 Declaration ann 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 Elef'1ents and Limited Common Elements. Each owner may use the general common elements, the limited common elef'1ents, 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. 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) shall be effective are annexed hereto 'rhe initial rules and regulations, which until amended or supplemented by the Board, and made a part hereof as Schedule A. (b) The Board reserves the power to establish, make and enforce compliance Vlith 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 requlations 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 ABATEHENT AND ENJOnlEllT OF VIOLATIONS BY UNIT OHNERS 1. Abatef'1ent and Enjoinf'1ent. 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 - !lOT FOR PROFI'r 1. Association - Not for Profit. This Association is not orgainized for profit. No mef'1ber, 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 perforf'1 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. Noting herein contained shall be construed to relieve unit owners, as f'1ortgagors, 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 HITNESS ,"/HEREOF, 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- , " ..../ , --...1 EXHIBIT F EHPLOYEE 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 -2- ?H8 Regular Meeting Aspen city Council June 22, 1981 ~ SUBDIVISION EXCEPTION - Epicurean ~ II ii , I Jack Johnson, planning office, told Council this is a reques t to condominiumize ,21 spaces: in the Epicure building. The Epicurean received a commercial GMP allotment for 10,041 :i square feet in 1979. This allotment will expire in September if the applicant does not :1 submit plans sufficient for a building permit issuance. The engineering department has !I noted this is not an adequate condominiurnization plat, and the applicant will need to :, resubmit a plat. Johnson told Council there is additionally 1,959 square feet of employee:1 housing. space divided into three units. The applicant is proposing this housing be '~;I restricted to the middle income category. I 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 ~ 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 $635. These are 550 SQuare 'I feet and 850 square feet respectively. Johnson told Council the basement will probably .j be used as restaurant space; the second floor will be 8 units: the third floor 9 units and'! the top floor the employee housing. ~ The is special review required for the waiving of the parking requirements. Johnson told ' Council the engineering and planning departments are in support of auto di$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 ~ompounding the parking problems in the downtown. Johnson said as future applications corne through, the staff will start looking more critically at 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. ] 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 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. ;1 ii,/, !V J 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. SUBDIVISION EXCEPTION - Brandt 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, cornmon 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 Collins. All in favor, motion carried. EXEMPTION FROM GMP FOR EMPLOYEE HOUSING - Mill Street Shopping Plaza Ii units. II I I I I Mayor Edel requested a work session to discuss the issue of the pricing of employee This was scheduled for June 24, 1981, at noon. 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' 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 three studios, two at 548 square feet and one at 530 square feet. The employee units are part of the ,~5,:1' :tl,R"bonus andJthe .applic'3.nt r]id not :::elect to t"3ke ndvantage of the bonuf'. for the pnmmet:'cial square footage. P & Z r2c:'r.roended 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- ping Plaza subject to the following conditions: (1) deed restricting the employee hous- 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 restrictions be recorded prior to the receipt of a building permit; (4) that the parking requirements for the employee units be waived: seconded by Councilman Parry. :1 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 & Z recommended low and said they wanted to recom- mend low quiielines from now on. 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