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HomeMy WebLinkAboutcoa.lu.co.211 Midland Ave.A66-91 R CASELOAD SUMMARY SHEET City of Aspen DATE RECEIVED: 11/26/91 PARCEL ID AND CASE NO. DATE COMPLETE: ///671/9/ 2737- 181 -0.7- 010 /11 A66 -91 STAFF MEMBER: LL PROJECT NAME: Promontory Condominium Amend. To Condo. Declare Project Address: Units 1 and 2, Promontory Condominiums Legal Address: APPLICANT: Theresa Hubbert Schiff Applicant Address: REPRESENTATIVE: Brooke Peterson - Representative Address /phone: 315 East Hyman Avenue Aspen, CO 81611 925 -8166 PAID:(YES) NO AMOUNT: $203 NO. OF COPIES RECEIVED 2/2 TYPE OF APPLICATION: 1 STEP: 2 STEP: P &Z Meeting Date PUBLIC HEARING: YES NO VESTED RIGHTS: YES NO CC Meeting Date PUBLIC HEARING: YES NO VESTED RIGHTS: YES NO P1. ing Director Approv- : Paid: Insubstantial Amen• -et or Exemption: )( Date: REFERRALS: City Attorney Mtn Bell School District ✓ City Engineer Parks Dept. Rocky Mtn NatGas Housing Dir. Holy Cross State HwyDept(GW) Aspen Water Fire Marshall State HwyDept(GJ) City Electric Building Inspector Envir.Hlth. Roaring Fork Other Aspen Con.S.D. Energy Center DATE REFERRED: / / /, -;70/ INITIALS: 94 FINAL ROUTING: DATE ROUTED: /(Jc2 INITIAL: /'6 0., City Atty _ City Engineer _Zoning _Env. Health Housing Other: FILE STATUS AND LOCATION: November 10, 1993 • r - MI. Brooke Peterson THE CITY OF ASPEN 315 East H Avenue, OFFICE OF THE CITY ENGINEER Aspen, Colorado 81611 Re: Lakeview Townhome Condominiums Plat Dear Brooke: The above referenced plat is lacking information required by state and local statute. This was identified in memos of October 30, 1990, and January 8, 1992, copies of which is attached for your information. • The concerns and needs are as follows: 1. Width of adjacent right -of -way and any variation in width across the frontage of the property; 2. A statement whether or not the 5' reservation for widening of Park Avenue as shown on the plat of Promontory Subdivision, filed at Plat Book 2A, Page 240, is reflected on the condominium plat; 3. A reference on the condominium plat that it amends the Promontory Subdivision plat at Plat Book 2A, Page 240, and the Promontory Condominium plat at Book 8, Page 50; 4. Items 4 through 11 on the attached memo of January 8, 1992 which have not been responded to yet as of this writing, and items 3 through 5 on the attached memo of October 30, 1990; 5. As per discussions with applicant, trash area needed to be formalized, by easement and encroachment license if legitimized in front of adjacent property, to which applicant responded that trash areas would be indicated and utilized on the property, in the garages, plat note number 3 notwithstanding, therefor necessitating revision on face of drawing to • delete trash storage indications in public right -of -way; 6. All surface improvements in adjacent right -of -way, including but not limited to edge of pavement, curb and gutter, approximate location of future 5' wide sidewalk, driveway, licensed encroaching driveway and landscaping with note for license book and page (the 130 SOUTH GALENA STREET • ASPEN, COLORADO 81611 • PHONE 303.9205088 •- FAX 303.920.5197 N S rerydSSPPt mail boxes were determined not to be encroachments and were not included in the encroachment agreement, therefore that note needs revision); 7. Plat certificates (please refer to attached); 8. Indication of zone district, basis of bearings, date of survey, performance in accordance with Colorado Revised Statutes 1973, Title 38, Article 51, as amended from time to time, and closure of survey to within 1:10,000; 9. A written description of the area including total acreage to nearest 0.001 acre; 10. Monumentation of all property corners; 11. Are the GCE's and LCE's correct? Normally someone's yard would be an LCE. 12. The air conditioner, swimming pool, and hot tub future locations should be removed from the plat because the setbacks appear to be incorrect, and any building permits issued in the future would be issued under setback requirements in place at the time of issuance. 13. Identify and label adjacent subdivided lots. • 14. The blanks for two easements have not been filled in. 15. Provide index of sheets on cover sheet. 16. Gas meter is indicated; water and electric meter locations must also be indicated. Brooke, this plat is substantially incomplete. Information provided by this office four years ago and two years ago has not even been included in the current submission. If you have any questions, please call me at 920 -5088. • • Sincerely, & Chuck Roth, P.E. City Engineer cc: Bob Gish, Public Works Director Leslie Lamont, Planning Office L93. 101 MEMORANDUM To: Leslie Lamont, Planning Office From: Chuck Roth, City Engineer o!`= Date: January 8, 1992 Re: Promontory Condominium Plat Amendment Having reviewed the above referenced application, and having made a site inspection, the engineering department has the following comments: 1. Some of the following comments were provided for the Schiff Conditional Use Review application. A copy of that memo is attached. 2. This parcel may have been approved in 1979 for condominiumization. There is a plat on file at the County Clerk's office and in the city engineering department, but it does not appear to be a bona fide plat with proper signatures, such as approval by city council. Since condominium approvals do not expire if a plat is not recorded, the incomplete previous plat may not matter. 3. The applicant has applied for an encroachment license for the extra driveway. It is scheduled for the council agenda of February 10. The current application should be approved conditional upon the successful resolution of the encroachments issue. (Transformers are not generally permitted in the right -of -way, but given the easement which is being conveyed and the small amount of space in question, the engineering department would not interpret it as an encroachment.) 4. The plat is missing too many elements to enumerate each item. The applicant is referred to the municipal code for plat content requirements. I see that the surveyor who prepared the plat appears to be a first time for city plats. He should call engineering so that we can discuss details. 5. It is not clear from the plat that the proper number and size of parking spaces has been provided. It appears that one parking space in one garage may not be usable due to the location of a wall. 6. The plat must show the width of the adjacent right -of -way, the edge of pavement, curb and gutter, and the driveways with a notation for the we driveway for the encroachment license to be obtained with book and page numbers. 7. The trash area is not adjacent to the property, therefore it is technically not an encroachment of the applicant's. Nonetheless, trash facilities may not be in the public right -of- way and must be provided for on the applicant's property and so indicated on the final plat. 8. The "mutual consent" note implies that the yards are in fact LCE's (limited common elements) to Unit A or B. 9. Some book and page blanks have not been filled in on the plat. One triangle at the northeast corner of the property has been labelled, but the other two triangle functions are unclear. 10. The plat shows future hot tub areas. This is not a detail that is approved by plat approval. It is not an engineering function to approve future hot tub locations. Perhaps they should be removed from the plat. 11. The surveyor's certificate must indicate that all easements of record as indicated in title policy dated have been shown. A copy of the title policy must be provided to the engineering department. 12. The application makes no reference to having met the storm runoff requirements of the municipal code. 13. Given the continuous problems of unapproved work and development in public rights -of -way, we would advise the applicant as follows: The applicant shall consult city engineering (920 -5080) for design considerations of development within public rights -of -way and shall obtain permits for any work or development within public rights -of -way from city streets department (920- 5130). 14. The applicant shall agree to join any future improvement dis- tricts which may be formed for the purpose of constructing improvements in the public right -of -way using language currently available from the city attorney's office. cc: Bob Gish, Public Works Director cr /M92.15 MEMORANDUM To: Leslie Lamont, Planning Office From: Chuck Roth, City Engineer 21e Date: January 15, 1992 Re: Promontory Condominium Plat Amendment Please accept this addendum to our January 8 memo. 1. Section 19 -98 requires construction of sidewalk "for all new construction in certain districts." Therefore, construction of sidewalk should be required prior to plat approvals. If timing is a problem, the applicant should be required to post a bond for construction of sidewalk in the spring. 2. Since the plat does not identify the width of the adjacent right -of -way, I cannot determine if this is a concern to the city. If the ROW is 50' wide, we would recommend requesting that the applicant dedicate 5' of public ROW. This detail should have been a condition of approval when condominiumization was approved in the '70's, therefore we are only suggesting it as request at this time. cc: Bob Gish, Public Works Director ry cr /M92.19 MEMORANDUM TO: City Engineer FROM: Leslie Lamont, Planning Office RE: Promontory Condominium Amendment DATE: November 29, 1991 Attached for your review and comments is an application from Theresa Schiff requesting approval of an amendment to the Promotory Condominium Declaration. Please return your comments to me as soon as possible, but no later than December 13th. Thanks 1 • LAW OFFICES BROOKE A. PETERSON A PROFESSIONAL CORPORATION 315 EAST HUMAN AVENUE 8 ASPEN. COLORADO 81611 1303) 925-8166 TE LE FAX: 13031 925-1090 HAND DELIVERED December 5, 1991 City of Aspen Pitkin County Planning Office Attn: Leslie Lamont 130 S. Galena Aspen, CO 81611 Re: Amendment to Condominium Declaration for the Promontory Condominiums Dear Leslie, Pursuant to the letter I received from Debbie Skehan, I am enclosing a copy of the Deed vesting title in Units 1 and 2, The Promontory Condominiums, as well as a letter from Ms. Schiff allowing me to represent her in this matter. I am also enclosing two (2) new copies of the proposed Condominium Plat. Should you need further information, please do not hesitate to contact me. Thank you for your assistance. Very truly yours, BROO • PETE' mh P.C. A P- ofessi•na Corp =Y: )/ B •o e A' P -' er'•n Enc. Recorded epiio art _ Reel • (,1 ` I Reception No. —. ----- INAIMANTY DEED e r August THIS Aran, Made This 7.f? say � l • ro 88 . between PAUL MARK KLINGEMAN and PAMELA K. KLINGEMAN Pitkin and State "( onhe • County of Colorao, gra mr. and THERESA M. HUBBERT SCHIFF whose legal address i 6416 Ventnor Avenue, Ventnor City, NJ 08406 New Jersey Anti State offMnntrr, gr:uncc: I 1 County of and other or me TEN DOLLARS ($10.00) 1V1'I'NI ?SSP "I'll, 'I'h;u the pmnlor aim : in consideration of the sum of ' good and valuable consideration ihe were at nti c sufficiency gr ate, h his heirst dassif gnsforever, granted ll the real properly together with impmvmd,ts, any, sinwlel ani. bargain, sell. I being in the convey a confirm, unhl the grantee, is heis, and State of Colorado JcscrilxJ as follows: C Pitkin 1 CONDOMINIUM UNITS 1 and 2, PROMONTORY CONDOMINIUMS, accor , to thereof in anddescribed in8, at Page o move m Declaration Condominiums the Co edoNd November 1, infBookr378natrPage 562, - 7 recorded 1 cl l•— �� x l Aspen, Colorado 81611 J-- e, m km,wn by street anti nnn,lxr :u: 265 and 267 Midland Avenue, T(1GF; 1'IIER with all and singular the hrmdlauu•mu and :fur in anywise appeoaining. and the reversion and right, Idle, inlayeds chin, and i ng. an d t th e whatsoever of the ^nnlenanecs Ihvnn,I btlungu,p. reversions, remainder mid remainders, rents, issues and prolils thereof, and fill t he hcredla rail!, t i ap grantor, either in law or equity, of, in and to the above bargained premise t igns TO DAVE AVE. AND TO 11(11.1) the said premises thew bargained and described. ilie pu re n, n c sgm t aeJ ra grantees this Weis ai hind al ass and o assigns And the.he; for himself, his heirs, anti personal represeiaiives• doescovemmi,gr: r his airline adind.thatalthetate me inheritance, oIhn u,ung and delivery simple, uml Ire goo rigid, full p .WCr and lawul nllmrily 10 grant , cIal f a conveyed. again, sell sure, and convey the same in n indefeasible and or of in law, in manor and form n as aforesaid, d, : annut Mat the same am free and canna bosh, :dl hemmer and other grains, bat f� uns, sales. liens. I:acs, assessments, See Exhibit vAn encumbrances and reslricIiuns of whatever kind or nature strayer, except and suj bec this reference . attached hereto and incorporated herein by The grantor shall igns, , ag gn ins WA Rd ANT Aer or pefons Lawfully claiming lhe do or any part thereof. quiet Thesi gul r number shall Me grantee, plural, his heirs and assigns, ad all and every Ere M Ih ur I ill • si • ulnr, and the use of any gender shall he applicable to all genders. 1 WE ES. WI1El Ent. to grant r n' executed Ibis deed on the date set ftrlIt above. / L Mn ' n PA w FAME A K. L G 'MAN 7 STATE OF COLORADO ss. Cmmly of Pitkin The foregoing insmamenl was acknowledged before me This `,1 - _k day of August .19 88. by PAUL MARK KLINGEMAN and PAMELA K. KLINGEMAN. pl . Witness my hand and official se ti My commission expires . i Joy S. HlgonsfNotary Public 5 l (' \ My Commission expires 4122/ °l'. - -- rv,a,tr t +.n. 601 East Hopkins 1 I Aspen, Colorado PPP/ \ 9f in Denver, insert "City anti ". No. 932A. Rev. 141. WARRANTY DEED (For l•hnlographic Permit) Ill nlfmt Publishing. 5521 W. 60. Ave ,Lakewood, CO 10214 13a11211.64M1 Ilya Qll f }) E X H I B I T °A" To the Warranty Deed between PAUL MARK KLINGEMAN and PAMELA K. KLINGEMAN, Seller, and THERESA M. HUBBERT SCHIFF, Purchaser, for Units 1 and 2, Promontory Condominiums, Aspen, Colorado 81611 (EXCEPT AND SUBJECT TO:) 1. General taxes for 1988 due and payable 1989. 2. Reservations and exceptions as contained in Patent recorded in Book 175 at Page 246. 3. Right of Way as described in Book 183 at Page 38. 4. Terms, conditions, obligations and provisions of Subdivision Restrictions as set forth in instrument recorded in Book 183 at Page 38. 1• 5. Terms, conditions, obligations and provisions of Condominium Declaration as set forth in instrument recorded in (Book 378 at Page 562. 6. Easements, rights of way and other matters as shown and contain in Condominium Map recorded in Plat Book 8 at Page 50. i 7. Terms, conditions, obligations and provisions of Statement of Exemption from the Definition of Subdivision as set forth in instrument recorded in Book 378 at Page 177. ALL DOCUMENTS ARE RECORDED IN THE RECORDS OF PITKIN COUNTY HAND DELIVERED December 4, 1991 City of Aspen Pitkin County Planning Office Attn: Leslie Lamont 130 S. Galena Aspen, CO 81611 Dear Leslie, The undersigned, being the owner of Units 1 and 2, Promontory Condominiums, hereby consents to the representation by Brooke A. Peterson, Esq. with respect to the amendments to the Condominium Declaration and Condominium Plat for the Promontory Condominiums to reflect the reconstruction of the structure, and the land use applications in connection therewith presently pending in the City of Aspen. Yours very truly, Theresa M. Hubbert (Schiff) - 1 LAW OFFICES BROOKE A. PETERSON A PROFESSIONAL CORPORATION 315 EAST HYMAN AVENUE � ASPEN. COLORADO 81611 13031 925-8166 4L L TELEFAX: 13031925 -1090 (3 10 _ HAND DELIVERED 00 November 26, 1991 City of Aspen Pitkin County Planning Office Attn: Leslie Lamont 130 S. Galena Aspen, CO 81611 Re: Amendment to Condominium Declaration for Promontory Condo- miniums Dear Leslie, Pursuant to our pre - application conference, please allow this letter to serve as application on behalf of Theresa M. Hubbert Schiff, the owner of Units 1 and 2, Promontory Condominiums for permission to amend the Condominium Declaration and the Condominium Plat for the Promontory Condominiums to reflect the reconstruction of the structure in accordance with the drawings as shown on the enclosed plat, and the amendment of the declaration to accomplish among other matters, the change of the name of the condominium project from "Promontory Condominiums" to the "Lake View Townhome Condominiums." In accordance with our discussions, I am enclosing herewith two (2) copies of the revised Condominium Plat for the Promontory Condominiums, to be known in the future as the Lake View Townhome Condominiums, two (2) copies of the Amendment to the Condominium Declaration to the Lake View Townhome Condominiums, and the application fee in the amount of Two Hundred Three and no /100 Dollars ($203.00) for this process. I have also enclosed a copy of the original Condominium Declaration for Promontory Condominiums and the original Statement of Exemption from Subdivision for your reference. It is my understanding from our conversations that this matter will be processed as an "insubstantial change" and reviewed within the Planning Office itself. I would appreciate it if you would review this documentation, and advise me if there is anything further that you need at this time prior to the review. Page Two Should you have any questions, please feel free to contact me. Very truly yours, BROO •ETER ON, P.C. - rofessi• a • 'oration BY� Ilk �, .:.�1 `I 0o e A. Pe - '.n cc: Theresa M. Hubbert Gideon Kaufman, Esq. AMENDMENT TO CONDOMINIUM DECLARATION FOR PROMONTORY CONDOMINIUMS, (A CONDOMINIUM) TO BE KNOWN HEREAFTER AS LAKE VIEW TOWNHOME CONDOMINIUMS KNOW ALL MEN BY THESE PRESENTS: WHEREAS, Theresa M. Hubbert Schiff is the owner of Units A and B of the Promontory Condominiums, which condominiums were created pursuant to a Condominium Declaration recorded in Book 378 at Page 562 et. seq. of the records of Pitkin County, Colorado, and WHEREAS, pursuant to Paragraph 16 thereof, Theresa M. Hubbert Schiff, hereinafter referred to as "Declarant" is desirous of amending said Condominium Declaration in its entirety to read from and after the date hereof as follows, and WHEREAS, Declarant desires to preserve the condominium project on said property under the Condominium Ownership Act of the State of Colorado and to establish thereby a plan for ownership and fee simple of the real property of estates consisting of the area or space contained in each of the units as hereinafter defined, and the ownership by one or more the individual or separate owners thereof as tenants in common of all the remaining real property hereinafter referred to as the "common elements ", NOW THEREFORE, Declarant does hereby publish and declare that the following terms, covenants, conditions, easements, uses, restrictions, limitations and obligations shall deem to run with the land, shall be a burden upon and a benefit to the Declarant, Declarant's heirs, personal representatives, successors and assigns and any persons acquiring owning interest in the real property encumbered hereby and the improvements thereon, their grantees, lessees, successors, heirs, personal representatives, administrators, devisees or assigns, it being the intent of the Declarant from and after the date hereof the provisions hereof 1 .�e shall govern the condominiums located on Lot 5, Promontory Subdivision, City of Aspen, County of Pitkin, State Colorado. I. AMENDMENT TO CONDOMINIUM DECLARATION. Pursuant to Paragraph 16, from and after the date hereof, the Condominium Declaration for Promontory Condominiums recorded in Book 378 at Page 562, et. seq., shall be amended to read in its entirety as follows hereafter. Upon the execution hereof the Condominium Declaration recorded in Book 378 at Page 562, et. seq., shall be of no further force and effect. II. DEFINITIONS. 2.1 Act. "Act" means the Colorado Condominium Ownership Act, Article 33 of Title 38, 1973 Colorado Revised Statutes, as amended. 2.2 Building. "Buildings" mean the building now and any building hereafter constructed on the Real Property. 2.3 Common Elements. "Common Elements" means all of the Project, except the portions thereof which constitute Units, and also means all parts of the Building or any facilities and fixtures which may be within a Unit which are or may be necessary or convenient to the support, existence, use, occupancy, operation, maintenance, repair, or safety of the Building or any part thereof or any other Unit therein, including but not limited to the foundations, columns, girders, beams, supports, main walls, roofs and crawl spaces contained in each of the building improvements which are the subject of this Declaration, and the "party wall" dividing Units A and B as shown on the Condominium Map; the installations in the Building consisting of the equipment and materials making up the central services such as tanks, pumps, motors, fans, compressors, ducts, power, sewer, light, gas, hot and cold water, heating, ventilating and air conditioning and, in general, all apparatus and installations existing for common use. 2 The Common Elements shall be owned as tenants in common by the Owners of the separate Units, each Owner having an undivided interest in such Common Elements as hereinafter provided. 2.4 Common Expenses. "Common Expenses" means and includes: A. 1. Expenses of administration, operation and management, repair, or replacement of the Common Elements of the Project, and of any property which the Owners are obligated to care for by virtue of the terms of any other agreement; B. 2. Expenses declared Common Expenses by the provisions of this Declaration. C. All sums lawfully assessed against the Common Elements of the Project by the Owners or Managing Agent D. Expenses agreed upon as Common Expenses by the Owners; and E. Expenses as are levied by the Managing Agent. 2.5 Condominium Unit. "Condominium Unit" means a Unit together with the undivided interest in the Common Elements appurtenant to that Unit. The undivided interest in Common Elements appurtenant to each Unit is described in the Section of this Declaration entitled Undivided Interests in Common Elements (expressed as a percentage of the entire ownership interest in the Common Elements) as set forth in Exhibit A attached hereto. 2.6 Declarant. "Declarant" means Theresa M. Hubbert Schiff. 2.7 Declaration. "Declaration" shall mean this Condominium Declaration, together with any supplements or amendments thereto that have been recorded in the office of the Clerk and Recorder of Pitkin County, Colorado. 3 2.8 (a) (1) General Common Elements. "General Common Elements" means all Common Elements except Limited Common Elements. (b) (2) Restricted General Common Elements. "Restricted General Common Elements" means those portions of the General Common Elements as designated, located or shown on the Condominium Map by legend, symbol or word, whose use shall be limited to the uses as shown and designated on the Condominium Map. 2.9 Limited Common Elements. "Limited Common Elements" mean those parts of the Common Elements that are either limited to and reserved for the exclusive use of an Owner of a Condominium Unit, which Limited Common Elements are deemed to be an inseparable appurtenance to such Condominium Unit and shall include, but shall not be limited to, pipes, ducts, electrical wiring, conduits, flues, and built -in fireplaces (if any) located entirely within a Unit and serving only such Unit, the air conditioning and hearing systems serving exclusively any Unit, such portions of the perimeter walls, floors and ceilings, doors, windows and all associate fixtures and structures intended to be physically located within the Unit, as may lie outside the Unit boundaries. Additionally, Limited Common Elements shall mean and include any balcony, porch, storage room, patio, or parking area that is accessible from, associated with, and /or which adjoins a Unit, as may be designated, located, or shown on the Condominium Map be legend, symbol, or word, and shall, without further reference thereto, be used in connection with such Unit to the exclusion of the use thereof by the other Owners of Condominium Units except by invitation. 2.10 Map. "Map" means the Condominium Map for Lake View Townhome Condominiums /formerly known as the Promontory Condominiums,/, filed or to be filed in the records in the office of the Clerk and Recorder of Pitkin County, Colorado ( "Pitkin County 4 Records ") and shall include any supplements and amendments thereto. 2.11 Mortgage and First Mortgage. A "Mortgage" shall mean a mortgage or a deed of trust or similar security interest encumbering a Condominium Unit. A "First Mortgage" means a Mortgage in a position of first priority on the Condominium Units and amendments thereto. 2.12 Mortgagee and First Mortgagee. "Mortgagee" means any person or persons or entity or entities who is a mortgagee under a mortgage or a beneficiary under a deed of trust or similar security interest instrument encumbering a Condominium Unit. "First Mortgagee" shall mean a Mortgagee whose Mortgage is in a position of first priority on the Condominium Unit it encumbers. 2.13 Owner. "Owner" means the person or persons or entity or entities, including Declarant, who own fee simple title to a Condominium Unit. The term Owner shall not include the owner or owners of any lesser estate or interest and shall not include a Mortgagee or other person or entity that holds an interest merely as security for the performance of an obligation. 2.14 Mutual Consent Usage Division Line. "Mutual Consent Usage Division Line" shall be that imaginary line which is shown and designated as such on the Condominium Map. 2.15 Project. "Project" means the Real Property, the Building, and all other improvements on the Real Property, and all rights, easements and appurtenances belonging thereto. 2.16 Real Property. "Real Property" means the real property located in the City of Aspen, Pitkin County, Colorado described as follows: Lot 5, Promontory Subdivision together with all rights and interests appurtenant thereto. 5 2.17 Related Party. "Related Party" means any guest, invitee, tenant, customer, agent, or employee of an Owner, any member of the family of an Owner or other person who uses the Unite of an Owner, and any person or entity not an Owner, who has acquired any title or interest in a Condominium Unit by, through, or under an Owner, including a lessee, licensee, or mortgagee and any guest, invitee, subtenant, customer, agent, or employee of such a person or entity. 2.18 Unit. "Unit" means an individual air space which is contained within the windows, doors, and finished perimeter walls, floors (or lowermost floors, if it is an individual air space Unit containing more than one level) and ceilings (or the uppermost ceilings, if it is an individual air space Unit containing more than one level) of each Unit as shown on the Condominium Map to be filed for record, together with all fixtures and improvements therein contained, but not including any of the Common Elements, if any, located within the Unit. The term "finished perimeter walls, floors, and ceilings," as used herein, shall not include any paint, carpeting, wallpaper, paneling, or other wall, floor, or ceiling decorator treatment. Each Condominium Unit is designated on Exhibit A attached hereto. III. DECLARATION AND EFFECT THEREOF. 3.1 Declaration. Declarant for itself, her successors and assigns, as Owner of the Project, hereby declares that the Project shall at all times be owned and held in condominium ownership under the Condominium Ownership Act of the State of Colorado and shall at all times be owned, held, used, and occupied subject to the provisions of this Declaration. 3.2 Division into Condominium Units. The Project is hereby divided into two (2) Condominium Units, each consisting of a separate fee simple estate in a particular Unit and an appurtenant 6 undivided fee simple interest in the Common Elements. 3.3 Undivided Interests in Common Elements. The undivided interest in Common Elements appurtenant to a particular Unit shall be Fifty Percent (50 %). Each Owner shall own his appurtenant undivided interest in Common Elements as a tenant in common with all other Owners. 3.4 Description of a Unit. Any instrument affecting a Condominium Unit may legally describe it by the identifying Condominium Unit number shown on the Map covering the Condominium Unit. This identifying number for a Condominium Unit in the Project is the letter on the Map identifying the Condominium Unit. A legal description of a Condominium Unit in the Project may be in the following form: Condominium Unit , Lake View Townhome Condominiums, Pitkin County, Colorado, according to the recorded Condominium Map thereof, and any conveyance or other instrument affecting title to a Condominium Unit or any part thereof describing the Condominium Unit in the Project in substantially the foregoing form or otherwise describing the Condominium Unit shall be deemed to include and describe the entire Condominium Unit including the appurtenant undivided interest in Common Elements and all of the rights, easements, obligations, limitations, encumbrances, covenants, conditions, and restrictions benefiting or burdening the Condominium Unit under the terms of this Declaration. Any reference to Lake View Townhome Condominiums in any description shall mean Lake View Townhome Condominiums according to the Map covering the Project and this Declaration, all as filed and recorded in the office of the Clerk and Recorder of Pitkin County, Colorado. 7 3.5 Duration of Condominium Ownership. The condominium ownership of the Project created under this Declaration shall continue until this Declaration is terminated or revoked as hereinafter provided. 3.6 Inseparability of Condominium Unit. The interest of an Owner in a Unit and the appurtenant undivided interest in Common Elements which constitute a Condominium Unit shall be inseparable for the period of condominium ownership hereinabove described. 3.7 Partition of Common Elements not Permitted. The Common Elements shall be owned in common by all Owners of Condominium Units, and no Owner may bring any action for partition thereof. Except as set forth herein, no Owner shall partition or subdivide any Condominium Unit so as to encumber or convey an interest in less than an entire Condominium Unit with the prior written consent of the Declarant as defined in this Declaration. In addition, no subdivision may taken place without full compliance with the applicable City of Aspen land use regulations as amended from time to time. "Subdivision" as used herein shall be deemed to include the division of a Condominium Unit into time -share or interval estates. This Section is not intended, however, to prohibit joint or common ownership of a Condominium Unit by two or more persons or entities. 3.8 Ad valorem Taxation. 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 shall be assessed against and collected on each Condominium Unit separately and not on the Building or Project as a whole and each Condominium Unit shall be carried on the tax books as a separate and distinct parcel. For the purpose of valuation for assessment, the valuation of the Common Elements shall be apportioned among the Units in proportion to the fractional undivided interests in Common Elements appurtenant to and part of 8 the Condominium Units. The Declarant shall deliver to the County Assessor of Pitkin County, Colorado, a written notice as required by the Condominium Ownership Act of Colorado, setting forth descriptions of the Condominium Units and shall furnish all necessary information with respect to such apportionment of valuation of Common Elements for assessment. The lien for taxes assessed to any Condominium Unit shall be confined to that Condominium Unit. No forfeiture or sale of any Condominium Unit for delinquent taxes, assessments, or other governmental charges shall divest or in any way affect the title to any other Condominium Unit. 3.9 Mechanic's Liens. No labor performed or materials furnished for use in connection with any Condominium Unit with the consent or at the request of the Owner thereof or his agent, contractor, or subcontractor shall create any right to file a statement of mechanic's lien against the Condominium Unit of any other Owner not expressly consenting to or requesting the same or against any interest in the Common Elements except the undivided interest therein appurtenant to the Condominium Unit of the Owner for whom such labor shall have been performed and such materials shall have been furnished. Each Owner shall indemnify and hold harmless each of the other Owners from and against liability or loss arising from the claim of any lien against the Condominium Unit, or any part thereof, of any other Owner for labor performed or for materials furnished, in work on the first Owner's Condominium Unit. IV. VARIOUS RIGHTS AND EASEMENTS. 4.1 Owner's Rights in General Common Elements. Subject to the other provisions of the Declaration, each Owner, and any Related Party of such Owner, shall have a nonexclusive right to use and enjoy the General Common Elements, provided there is no hindrance or encroachment upon the rights of use and enjoyment of 9 other Owners as provided hereunder. 4.2 Owner's Rights in Limited Common Elements. Subject to the other provisions of the Declaration, each Owner, and any Related Party of such Owner, shall have an exclusive right to use and enjoy the Limited Common Elements appurtenant to the Condominium Unit owned by such Owner. 4.3 Owner's Rights in Unit. Subject to the other provisions of this Declaration, each Owner shall have full and complete dominion and ownership of the Unit which is part of the Condominium Unit owned by such Owner and shall have the exclusive right to use and enjoy the same. Each Owner shall have the right (subject, however, to the provisions of Section 5.2), to paint, repaint, tile, wax, paper, and otherwise refinish and decorate the interior surfaces of the walls, ceilings, floors, and doors, excluding exterior doors, which are the boundaries of his Unit and the walls, ceilings, floors, and doors within the boundaries of his Unit. 4.4 Managing Agent's Rights. The Managing Agent has the irrevocable right to have access to each Unit from time to time during reasonable hours as may be necessary for the inspection, maintenance, repair or replacement of any of the General Common Elements thereon or accessible therefrom or for making emergency repairs therein necessary to prevent damage to the General Common Elements or to another Unit or Units. Damage to the interior of any part of a Unit resulting from maintenance, repair, emergency repair or replacement of any of the General Common Elements or as a result of emergency repairs within a Unit at the instance of the Managing Agent shall be a Common Expense of all of the Owners of Units having an interest in such General Common Elements; provided, however, that if such damage is 10 the result of the negligence of a Unit Owner, then such Unit Owner shall be responsible for all of such damage. 4.5 Owners' Easements for Access, Support, and Utilities. Each Owner shall have a non - exclusive easement for access between the Unit which is part of the Condominium Unit of such Owner and public roads and streets, the entrances, exits, halls, stairs, landings, fire escapes, land, walks, and exterior access and other easements which may be part of the General Common Elements. Each Owner shall have a non - exclusive easement in and over Common Elements, including Common Elements within the Unit of another Owner, for horizontal and lateral support of his Unit which is part of his Condominium Unit and for utility service to that Unit, including water, sewer, gas, electricity, telephone, and television service. 4.6 Easements for Encroachments. If any part of the Common Elements encroaches or shall hereafter encroach upon a Unit, an easement for such encroachment and for the maintenance of the same shall and does exist. If any part of a Unit encroaches or shall hereafter encroach upon the Common Element, or upon another Unit, the Owner of that Unit shall and does have an easement for such encroachment and for the maintenance of the same. Such encroachments shall not be considered to be encumbrances either on the Common Elements or a Unit. Encroachments referred to herein include, but are not limited to, encroachments caused by error in the original construction of the Buildings, by error in the Map, by settling, rising or shifting of the earth, or by changes in position caused by repair or reconstruction of the Project or any part thereof. Encroachments herein referred to shall not include intentional encroachments. 4.7 Easements in Unit for Repair, Maintenance, and Emergencies. Some of the Common Elements are or may be located within a Unit or may be conveniently accessible only through a 11 Unit. Each Owner and the Managing Agent shall have an easement for access to each Unit and to all Common Elements from time to time during such reasonable hours as may be necessary for the maintenance, repair, or replacement of any Unit or the Common Elements located therein or accessible therefrom. 4.8 Easements Deemed Appurtenant. The easements and rights herein created for an Owner shall be appurtenant to the Condominium Unit of that Owner and all conveyances of and other instruments affecting title to a Condominium Unit shall be deemed to grant and reserve the easements and rights as are provided for herein, even though no specific reference to such easements appears in any such conveyance. V. ADMINISTRATION OF PROJECT. 5.1 Administration and Management. Each Owner shall manage his own Unit and share management of the General Common Elements co- equally with the other Owners, unless the Owners of both Units agree upon the appointment of a Managing Agent to administer both units and the Common Elements. Notices of Appointment of the Managing Agent by the Owners of Units hereunder shall be placed of record by the Managing Agent insofar as required by law or practice. Until she no longer owns any interest in the Project, Theresa M. Hubbert Schiff shall be the Managing Agent thereof. 5.2 Owners' Maintenance Responsibility. For purposes of maintenance, repair, alteration and remodeling, an Owner shall be deemed to own the exterior surfaces of such Owners' Unit the limited common elements assigned thereto, and windows, doors, interior nonsupporting walls, the materials (such as but not limited to plaster, gypsum dry walls, paneling, wallpaper, brick, stone, paint, wall and floor tile, and finished surfaces of the perimeter walls), ceilings and floors within the Unit and the Unit doors and windows; provided, however, that in exercising such 12 responsibility or any right ranted under this paragraph no repair, alteration, remodeling or maintenance thereof shall modify the appearance or color scheme of the exterior improvements as they may exist from time to time by agreement of both of the Owners nor of any landscaping on the property, without the written consent of both of the Owners. The Owner shall not be deemed to own any utilities running through his Unit which serve more than one Unit except as a tenant in common with the other Owners. Such right to repair, alter and remodel shall carry the obligation to replace any finishing materials removed with similar or other types or kinds of finishing materials of equal or better quality, and to maintain the exclusive use area in neat and clean condition. An Owner shall maintain and keep the interior, together with exterior surfaces and other non - interior areas for which he is responsible as provided above, of his own Unit and the Limited Common Elements appurtenant thereto in good taste and repair, including the fixtures thereof. All fixtures and equipment installed with the Unit commencing at a point where the utility lines, pipes, wires, conduits or systems (which for brevity are hereafter referred to as Futilities ") enter the Unit shall be maintained and kept in repair by the Owner thereof. In the event that the Owners do not agree on any repair, alteration, remodeling or maintenance of the exterior improvements or any landscaping on the Property, the decision of the Managing Agent if one has been appointed, shall be binding on the Owners. If no Managing Agent has been appointed, and the Owners do not agree on any decision, each of the Owners shall appoint a licensed real estate broker or a licensed contractor to represent it, and those two in turn shall appoint a third licensed broker or contractor, and the majority decision of those three (3) people ( "the Arbitration Panel ") shall be binding on the Owners as if made by the Owners' mutual agreement. Thereafter, the implementation of any such decision and the ability to levy assessments therefore as 13 provided for herein shall be as if said decision was made by both Owners. The disagreement of any Owner with any decision made hereunder shall not limit or void his responsibility for his prorata cost thereof. 5.3 Assessment for Common Expenses. All Owners shall be obligated to pay the assessments imposed by the Declaration by the Owners, Managing Agent or the Arbitration Panel to meet the Common Expenses which shall be necessary to keep the Project in good and attractive condition. Except for insurance premiums, the Assessments for the estimated Common Expenses, including all insurance shall be due in advance on the first day of each month or other time period established by the Managing Agent. The Managing Agent or other Owner incurring the cost shall prepare and deliver or mail to each Owner an itemized statement showing the various estimated or actual expenses for which the assessments are made. Assessments for reasonable actual Common Expenses may be made by the Managing Agent, or an Owner incurring the same, or the Arbitration Panel, among other things, for the following: expenses of management; the cost of performing landscaping and maintenance obligations for any properties adjacent to the Property the responsibility for which has been assumed by license agreement or otherwise by the Unit Owners, and any taxes and special assessments, until separately assessed; fire insurance with extended coverage and vandalism and malicious mischief insurance with endorsements attached issued in the amount of the maximum replacement value of both of the Units; casualty and other insurance premiums; landscaping and care of General Common Elements; utilities; repairs and renovations; garbage collections; wages, water charges; legal and accounting fees; management fees; expenses and liabilities incurred by the Managing Agent, other Owner, or Arbitration Panel, under or by reason of this Declaration; the payment of any deficit remaining from a previous period; the creation of a reasonable contingency or other reserve 14 or surplus fund as well as other costs and expenses relating to the appurtenant Common Elements. The omission or failure of the Managing Agent to fix the assessment for any month or other period of time shall not be deemed a waiver, modification or release of the subject Owners from their obligation to pay. 5.4 Insurance. One policy of public liability insurance, covering all of the Common Elements shall be purchased and maintained in effect at all times by the Owners of all of the Condominium Units, in an amount deemed appropriate by such Owners, with total coverage not less than and not less than Dollars per occurrence. The cost thereof shall be shared in accordance with such Owners' respective undivided percentage interests in the Common Elements. In addition, the Owners or Managing Agent shall purchase and maintain in effect at all times fire, casualty, and extended coverage insurance on the Condominium Units as hereinabove discussed in Paragraph 5.3. Insurance coverage on the furnishings, additions and improvements incorporated into a Unit and all items of personal property belonging to an Owner, and casualty and public liability insurance coverage within each undivided Unit, shall be the sole responsibility of the Owner thereof. 5.5 Owners' Personal Obligation for Payment of Assessments. The amount of the Common Expenses assessed against or incurred on account of both of the Units shall be the personal and individual debts of the Owners thereof. Suit to recover a money judgment for unpaid Common Expenses shall be maintainable by the Managing Agent, or any aggrieved Owner without foreclosure or waiving the lien securing the same. No Owner may exempt himself from liability for his contribution towards the Common Expenses by Waiver of the use or enjoyment of any of the Common Element or by abandonment of his Unit. 5.6 Lien For Non - Payment Of Common Expenses. All sums due or 15 unpaid for the share of Common Expenses chargeable to any of the Units, including interest thereon at eighteen percent (18 %) per annum, shall constitute a lien on such Unit superior (prior) to all other liens and encumbrances except: (a) Tax and special assessment liens on the Unit in favor of any assessing entity; and (b) All sums unpaid on a first mortgage or first deed of trust of record, including all unpaid obligatory sums as may be provided by such encumbrance, including additional advances, refinance or extension of these obligations made thereon prior to the arising of such a lien. To evidence such lien the Managing Agent or aggrieved Owner may, but shall not be required to, prepare a written notice setting forth in the amount of such unpaid indebtedness, the name of the defaulting Owner of the Condominium Unit and a description of the Condominium Unit. Such a notice shall be signed by the Managing Agent or the aggrieved Owner, as appropriate, and may be recorded in the office of the Clerk and Recorder of the County of Pitkin, State of Colorado. Such lien for the Common Expenses shall attach from the date of the failure of payment of the debt, and may be enforced by foreclosure on the defaulting Owner's Condominium Unit by the Managing Agent on behalf of the aggrieved Owner or the aggrieved Owner in like manner as a mortgage or deed of trust on real property upon recording of a notice of claim thereof. In any such foreclosure the defaulting Owner shall be required to pay the costs and expense of such proceedings, the costs and expenses for filing the notice or claim of lien and all reasonable attorney's fees. The foreclosing party shall have the power to bid on the Condominium Unit at foreclosure sale and to acquire and hold, lease, mortgage and convey the same. The amount of the Common Expenses chargeable against the 16 Condominium Units and the costs and expenses, including attorney's fees, of collecting the same shall also be a debt of the Owner thereof at the time the same is due. Suit to recover a money judgment for unpaid Common Expenses shall be maintainable without foreclosing or waiving the lien securing same. Any encumbrancer holding a lien on the Condominium Units may pay any unpaid Common Expenses payable with respect to such Unit, and upon such payment such encumbrancer shall have a lien on such Unit of the amounts paid of the same priority as the lien of his encumbrance. 5.7 Liability for Common Expense Upon Transfer of Condominium Unit. Upon payment of a reasonable fee not to exceed Fifty Dollars ($50.00), and upon the written request of any Owner or any Mortgagee or prospective Mortgagee of either of the Units, the Managing Agent or the Owner of the other Unit shall issue a written statement setting forth the amount of the unpaid Common Expenses, if any, with respect to the subject Unit, the amount of the current assessment and the date such assessment becomes due, credit for advance payments or for prepaid items, including but not limited to insurance premiums, which shall be conclusive upon the issuer of such statement in favor of all persons who rely thereon in good faith. Unless such request for a statement of indebtedness is complied with within (10) days, all unpaid Common Expenses which become due prior to the date of making such request shall be subordinate to the lien of the person requesting such statement. The grantee of a Unit shall be jointly and severally liable with the grantor for all unpaid assessments against the latter for his proportionate share of the Common Expenses up to the time of the grant or conveyance, without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor; provided, however, that upon payment of a reasonable fee not to exceed twenty -five dollars ($25.00) and upon written 17 request, any perspective grantee shall be entitled to a statement from the Managing Agent or Owner of the other Unit, setting forth the amount of the unpaid assessments, if any, with respect to the subject Unit, the amount of the current quarterly assessment and the date that such assessment becomes due, credit for advance payments or for prepaid items, including but not limited to insurance premiums, which shall be conclusive upon the issuer of such statement. Unless such request for a statement of indebtedness shall be complied with within ten (10) days of such request, then such grantee shall not be liable for, nor shall the Unit conveyed by subject to a lien for, any unpaid assessments against the subject Unit. 5.8 Mortgaging A Condominium Unit. Any Owner shall have the right from time to time to mortgage or encumber his interest by deed of trust, mortgage or other security instrument. A first mortgage shall be one which has first and paramount priority under applicable law. The Owner of a Condominium Unit may create junior mortgages on the following conditions: (1) Any such junior mort- gages shall always be subordinate to all of the terms, conditions, covenants, restrictions, uses, limitations, obligations, lien for common expenses, and other obligations created by this Declaration; (2) The Mortgagee under any junior mortgage shall release, for the purpose of restoration of any improvements upon the mortgaged premises, all of his right, title and interest in and to the proceeds under all insurance policies upon said premises which insurance policies were effected and placed upon the mortgaged premises by the Managing Agent or other Owners. Such release shall be furnished forthwith by a junior mortgagee upon written request of the Managing Agent or Owners of the other Unit. VI. ATTORNEY IN FACT. 6.1 Attorney in case of destruction, repair, obsolescence or condemnation. This Declaration hereby makes mandatory the 18 irrevocable appointment of an Attorney -in -Fact to deal with Condominium Units upon their destruction, repair, obsolescence, or condemnation. Title to both of such Condominium Units is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed from the Declarant or from any Owner shall constitute appointment of the Attorney -in -Fact herein provided. All of the Unit Owners irrevocably constitute and appoint the Managing Agent, from time to time appointed pursuant to this Declaration, their true and lawful attorney in their name, place and stead for the purpose of dealing with the property upon its destruction, repair or obsolescence as is hereafter provided. If there is no Managing Agent, then the Owners shall jointly perform the functions of the Attorney -in -Fact as described herein. The Attorney -in -Fact shall have full and complete authorization, right and power to make, execute and deliver any contract, deed or any other instrument with respect to the interest of a Condominium Unit Owner which are necessary or appropriate to the exercise of the powers herein granted. Repair and reconstruction of the improvements as used in the succeeding subparagraphs means restoring the improvements to substantially the same condition in which they existed prior to the damage, with each Unit and the General Common Elements and Limited Common appurtenant thereto having the same vertical and horizontal boundaries as before. The proceeds of any insurance collected shall be available to the Attorney -in -Fact for the purpose of repair, restoration or replacement unless the Owners of the Condominium Units and all first mortgagees thereof agree not to rebuild in accordance with the provisions set forth hereinafter. 6.2 In the event of damage or destruction due to fire or other casualty, the insurance proceeds, if sufficient to reconstruct the improvements, the damage or destruction shall be promptly repaired and reconstructed by the Attorney -in -Fact, using the proceeds of 19 insurance and the proceeds of an assessment to be made against both of the Unit Owners and their Condominium Units. These deficiency assessments shall be a Common Expense and made pro rata according to each Owner's fractional interest in the Common Elements, and shall be due and payable within thirty days after written notice thereof. The Attorney -in -Fact shall have the authority to cause the repair or restoration of the improvements using all of the insurance proceeds for such purpose notwithstanding the failure of an Owner to pay the assessment. The assessment provided herein shall be a debt of each Owner and a lien on his Condominium Unit and may be enforce and collected as is provided in Paragraph 5.6. In addition thereto, the Attorney -in -Fact shall have the absolute right and power to sell the Condominium Unit of any Owner refusing or failing to pay the deficiency assessment within the time provided, and if not so paid, the Attorney -in -Fact shall cause to be recorded a notice that the Condominium Unit of the delinquent Owner shall be sold by the Attorney -in -Fact. The proceeds derived from such a sale of a Condominium Unit shall be used and disbursed by the Attorney -in -Fact, in the following order: (1) For payment of the balance of the lien of any first mortgage; (2) For payment of taxes and special assessment liens in favor of any assessing entity; (3) For payment of unpaid Common Expenses; (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 Condominium Unit Owner. 6.3 An Owner of one of the Units may give notice to the other 20 Unit Owner that the Units are obsolete and that the same should be renewed or reconstructed. If both Owners agree, then the expense thereof shall be payable by both of the Owners as Common Expenses; provided, however, that any Owner not in agreement to such renewal or construction may give written notice to the Attorney -in - Fact that such Unit shall be purchased by the Attorney -in - Fact on behalf of the other Owner for the fair market value thereof. If such Owner and the Attorney -in - Fact can agree on the fair market value thereof, then such sale shall be consummated within thirty days thereafter. If the parties are unable to agree, the date when either party notifies the other that he or it is unable to agree with the other shall be the "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, an appraiser who shall be a realtor and be qualified to make appraisals of condominiums and similar property in Pitkin County, Colorado. If either party fails to make such a nomination, the appraiser nominated shall, within five days after default by the other party, appoint and associate with him another similarly qualified appraiser. If the two appraisers designated by the parties, or selected pursuant hereto in the event of default of one party, are thereafter unable to agree on the fair market value of the Unit within thirty (30) days, they shall appoint another similarly qualified appraiser to be arbitrator between them. The decision of the appraisers as to the fair market value shall be final and binding. The expenses and fees of such appraisers shall be borne equally by the Attorney -in -Fact and the Owner. The sale shall be consummated within fifteen (15) days thereafter, and the Attorney -in - Fact shall disburse such proceeds as is provided in subparagraph (b)(1) through (5) of this Paragraph. 6.4 Owners of both Units may agree that the Units are obsolete and that the same should be sold. Such agreement must have the unanimous approval of every first Mortgagee. In such 21 instance, the Attorney -in - Fact shall forthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Attorney -in - Fact, both of the units shall be sold by the Attorney -in - Fact for both of the Owners, subject to all of the provisions contained in this Declaration and the Map. The sales proceeds shall be apportioned among the affected Owners on the basis of each Owner's fractional interest in the Common Elements, and such apportioned proceeds shall be paid into separate accounts representing each such Condominium Unit. Each such account shall be in the name of the Attorney -in - Fact, and shall be further identified by the number of the Unit and the name of the Owner. From each separate account, the Attorney -in - Fact shall use and disburse the total amount of such accounts, without contribution from one account to another, for the same purposes and in the same order as provided in subparagraph (b)(1) through (5) of this Paragraph. 6.5 This Declaration hereby makes mandatory the irrevocable appointment of an Attorney -in -Fact to deal with the Project in the event of its complete or partial condemnation. Title to all of the Condominium Units is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed from the Declarant(s) or form any Owner shall constitute appointment of the Attorney - in - Fact herein provided. The Managing Agent is hereby appointed the true and lawful attorney to act in the name, place and stead of the Owners for the purpose of dealing with the Project upon its condemnation as is hereinafter provided. If there is no Managing Agent appointed than the Owners shall jointly perform the functions of the Attorney -in -Fact as described herein. The Attorney -in - Fact shall have full and complete authorization, right and power to make, execute and deliver any contract, deed or other instrument with respect to the interest of a Condominium Unit Owner which are necessary or appropriate to the exercise of the powers herein granted. 22 (a) Conseauences of Condemnation. If at any time or times during the continuance of the Condominium Ownership pursuant to this Declaration, all or any part of the Project shall be taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, the following provisions shall apply. (1) Proceeds. All compensation, damages, or other proceeds therefrom, the sum of which is hereinafter called the "Condemnation Award," shall be payable to the Attorney -in - Fact. (2) Complete Taking. In the event that the entire Project is taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the Condominium ownership pursuant thereto shall terminate. The Condemnation Award shall be apportioned among the owners on the basis of each Owner's fractional interest in the Real Property Common Elements, provided that if a standard different from the value of the property as a whole is employed to measure the Condemnation Aware 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. On the basis of the principles set forth in the last preceding subparagraph, the Attorney -in -Fact shall as soon as practicable determine the share of the Condemnation award to which each Owner is entitled. Such shares shall be paid into separate accounts and disbursed in accordance with Paragraph 6.2 above. (3) Partial Taking. In the event that less than the entire Project is taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the Condominium Ownership hereunder shall not terminate. Each Owner shall be entitled to a share of the Condominium Award to be determined in the following 23 manner: As soon as practicable, the Attorney -in -Fact shall, reasonably and in good faith, allocate the Condemnation Award between compensation, damages or other proceeds, and shall apportion the amounts so allocated among the Owners, as follows: (a) the total amount allocated to taking of or injury to the General Common Elements, (b) the total amount allocated to severance damages shall be apportioned to those Condominium Units which were not taken or condemned, (c) the respective amounts allocated to the taking of or injury to a particular Unit and /or improvements an Owner had made within his own Unit shall be apportioned to the particular Unit involved, and (d) the total amount allocated to consequential damages and any other takings of injuries shall be apportioned as the Attorney -in - Fact determines to be equitable in the circumstances. If an allocation of the Condemnation Award is already established in negotiation, judicial decree or otherwise, then in allocating the Condemnation Award the Attorney -in - Fact shall employ such allocation to the extent it is relevant and applicable. Distribution of apportioned proceeds shall be disbursed as soon as practicable in the same manner provided in Paragraph 6.2 above. (4) 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. (5) Reconstruction and Repair. Any reconstruction and repair necessitated by condemnation shall be governed by the procedures specified in Paragraph 6.2 hereof, in which case such Paragraph shall be construed to apply to both Condominium Units. VII. RESTRICTIONS UPON PROJECT. 7.1 Use and Occupancy. Each Condominium Unit shall be used and occupied solely for, except as the Owners might otherwise agree, adult residential purposes only, and except as provided in this 24 Paragraph, no trade or business of any kind may be carried on therein. Lease or rental of a Condominium Unit for lodging or residential purposes shall not be considered to be a violation of this covenant. 7.2 Restrictions on Use of Interior Walls. Because of the requirements of the Municipal Code of the City of Aspen, anything contained in this Declaration to the contrary notwithstanding, no holes will be made in, nor will any speakers of any kind be installed in the common party wall dividing Units A and B. 7.3 Restrictions on Use of Window Wells. Anything contained in this Declaration to the contrary notwithstanding, the General Common Elements on the basement level of Units A and B shall be used for fire escape only. These areas shall not be used in any other fashion. 7.4 Performance of Restrictive Covenants and License Agreement: The Owners of the Property shall be bound by, and shall perform the obligations imposed upon the Owner of Lot 5, Promontory Subdivision by those documents entitled Restrictive Covenants recorded in Book _ at Page _, in Book _ at Page _, the Easement and Restrictive Covenants recorded in Book _ at Page , in the License Agreement recorded in Book _ at Page _ of the records of Pitkin County, Colorado. 7.5 Mutual Consent Usage Division Line: Those portions of the General Common Elements north of the line marked Mutual Consent Usage Division Line on the Condominium Map shall be for the exclusive use of the Onwer of Unit B and those portions of the General Common Elements south of the line marked Mutual Consent Usage Division Line shall be for the exclusive use of the Onwer of Unit A. No Owner shall be entitled to use the exclusive areas set aside for the other Onwer in this paragraph without the express written consent of the other Owner, anything in this document or 25 shown on the Condominium Map to the contrary notwithstanding. 7.6 Maintenance Requirements. The Owners of the Units, shall, unless both agree, cause the exterior improvements of the Property to be painted at least every five (5) years in order to maintain the first class quality appearance thereof. Furthermore, the Owners shall as much as is practical employ the same maintenance personnel for the Units and the General Common Elements. 7.7 Parking Restriction. As much as is possible, all vehicles shall be parked in the garages. No boats, campers, or recreational vehicles of any type shall be parked for in excess of any three (3) hour period, at any place upon the Property. 7.8 Declarant's Rights. For so long as she owns either of the Units, the Declarant shall have the absolute and unqualified right to construct a swimming pool in the area designated for the same on the Condominium Map, without the approval of the other Unit Owner, anything contained herein to the contrary notwithstanding. In the event that the Declarant constructs the same, and if she is willing to allow the use of the same by the other Unit Owner she shall be reimbursed for one -half of the cost of construction and maintenance thereof prior to any usage thereof by other Unit Owner. 7.9 Noise Levels. Every Owner or any Related Party shall keep all noise at a level so as not to disturb the other Owner and any Related Party to that Owner. 7.10 Common Elements Restrictions. No Owner, no Related Party of an Owner, and no tenant of the Association or other occupant of Common Elements shall obstruct, damage, or commit waste to any of the Common Elements. No Owner and no Related Party of an Owner, shall change, alter or repair, or store anything in or on any of the Common Elements without the prior written consent of the Owners or the Managing Agent. 26 7.11 No Imperiling of Insurance. No Owner, no Related Party of an Owner, and no occupant of Common Elements shall do anything or cause anything to be kept in or on the Project which might result in an increase in the insurance premiums of insurance obtained for the Project or which might cause cancellation of such insurance. 7.12 No Violation of Law. No Owner, no Related Party of an Owner, and no occupant of Common Elements shall do anything or keep anything in or on the Project which would be in violation of any statute, rule, ordinance, regulation, permit, or other validly imposed requirement of any governmental body. 7.13 Maintenance of Units and Limited Common Elements. Each Unit and all other improvements, fixtures and furniture and equipment therein and any Limited Common Elements appurtenant to a Condominium Unit shall be kept and maintained by the Owner, in a clean, safe, attractive, and sightly condition and in good repair. No structural alterations within any Unit or with respect to any Limited Common Elements shall be made and no electrical, plumbing, or similar work within any Unit shall be done without the prior written consent of the Owners as the Managing Agent. 7.14 Owner Caused Damage. If, due to the act or neglect of an Owner or a Related Party of an Owner, loss or damage shall be caused to any person or property, including the Project or any Unit therein, such Owner shall be liable and responsible for the same except to the extent that such damage or loss is covered by insurance obtained by the Owners and the carrier of the insurance has waived its rights of subrogation against such Owner. The amount of such loss or damage may be collected by the other Owner form such Owner as a special assessment against such Owner, by legal proceedings or otherwise, and such amount shall be secured by a lien on the Condominium Unit of such Owner as provided elsewhere in this Declaration for assessments or other charges. 27 7.15 No Impairment of Structural Integrity. Nothing shall be done, without the written consent of both Owners in, on, or to any Unit or the Common Elements, or any portion thereof, which might impair the structural integrity of the Building or which would structurally change the Building. 7.16 Animal Restrictions. No animals other than normal household pets shall be kept in the Units. An Owner shall be absolutely liable to the other Owner and their families and guests for any unreasonable noise or damage to any person or property caused by any animal brought or kept on the Property by such Owner or by members of his family or his guests. Furthermore, each Owner shall clean up after his pets in all respects. VIII. RESERVATION TO ENLARGE AND SUPPLEMENT CONDOMINIUM PROJECT. 8.1 Right to Construct Additional Units. The Declarant, for herself, shall have and hereby specifically reserves the right to construct additional units from time to time on any real property adjacent to the Real Property, and to subject such additional units to the terms and provisions of this Declaration. 8.2 Supplemental Declaration and Map. For any additional construction by the Declarant pursuant to the provisions of this Article, the Declarant shall cause a Supplemental Declaration and Supplemental Map or Maps of such additional units to be prepared and filed in the records of the office of the Clerk and Recorder of the County of Pitkin, Colorado, prior to the conveyance of the first condominium unit on any additional real property. Declarant may not file any Supplemental Declarations or Supplemental Maps except as provided for in this Article VIII. Such Supplemental Declarations shall not vary any of the terms of this Declaration except as specifically provided in this Article VIII. 8.3 Change in Ownership of General Common Elements. Upon the Declarant's construction of additional units and their inclusion 28 • under this Condominium Declaration and the filing of the Supplemental Declaration(s) and Map(s) thereof, the undivided interest in the general common elements (including all general common elements located on the Map(s) and all general common elements located in the additional units shall automatically be reduced to a fraction, the numerator of which shall be one and the denominator of which shall be equal to the aggregate number of all condominium units then subject to this Declaration, and the undivided interest in the general common elements appurtenant to each condominium unit described in and annexed by such Supplemental Condominium Map and such Supplement to this Declaration shall be computed in the same manner. Such reduction of undivided interest in the general common elements appurtenant to a condominium unit shall be reflected and set forth in the Supplemental Declaration. An owner's interest in the limited common elements shall not be affected by construction of new units. 8.4 Liability For Common Expenses. Notwithstanding any inclusion of additional units under this Declaration, each owner (regardless of whether such owner is the owner of a condominium unit shown on the Map or is the owner of a new condominium unit, shall remain fully liable with respect to his obligation for the payment of the common expenses under this Declaration, including the expenses for such new general and limited common elements, costs, and fees, if any. The recording of a Supplemental Declaration or Map shall not alter the amount of the common expenses assessed to a unit prior to such recording. 8.5 Rights of Future Owners. No rights of any character of any unit owner in future units shall attach until a Supplemental Declaration is filed of record annexing the units constructed in such area to the condominium hereby created. Upon the recording of such Supplemental Declaration, the units constructed in the area shall be deemed to be governed in all respects by the provisions of this Declaration, as supplemented and amended by the supplement. 29 8.6 Power of Attorney to Declarant. A power coupled with an interest is hereby granted to Declarant as attorney -in - fact to shift percentages of the common elements and /or limited common elements in accordance with the Supplemental Declarations recorded pursuant hereto and to perform all acts and execute all documents necessary to subject additional real property and additional units to the terms of this Condominium Declaration and Condominium Map, and any Supplement to either of said documents, without the consent of any other Unit Owner, and each deed of a unit and common and /or limited common elements in the Lake View Townhome Condominiums shall be deemed a grant of such power to said attorney -in - fact. IX. MISCELLANEOUS. 9.1 Duration of Declaration. Each provision contained in this Declaration which is subject to the laws or rules sometimes referred to as the rule against perpetuities or the rule prohibiting unreasonable restraints on alienation shall continue and remain in full force and effect for the period of twenty -one (21) years following the death of the last survivor of the presently constituted City Council of the Town of Aspen, and the now living children of such persons or until the Declaration is terminated as hereinafter provided, whichever first occurs; provided that within such perpetuities period or successors perpetuities periods as herein provided, any provision herein so subject may be extended for successive perpetuities periods by the recording by the Board of Directors of an amendment to this Declaration to that effect. All other provisions contained in this Declaration shall continue and remain in full force and effect until condominium ownership of the Project and this Declaration is terminated or revoked as hereinafter provided. 9.2 Revocation or Amendment to Declaration. This Declaration shall not be revoked nor shall any of the provisions herein be 30 amended unless the Owners of both Units, and all of the holders of any recorded first mortgage or deed of trust covering or affecting any or all Condominium Units consent and agree to such revocation or amendment by instrument(s) which shall be duly recorded. 9.3 Effect of Provisions of Declaration. Each provision of this Declaration, and an agreement, promise, covenant and undertaking to comply with each provision of this Declaration, and any necessary exception or reservation or grant of title, estate, right or interest to effectuate any provision of this Declaration: (a) shall be deemed incorporated in each deed or other instrument by which any right, title or interest in the Project or in any Condominium Unit is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument; (b) shall, by virtue of acceptance of any right, title or interest in the Project or in any Condominium Unit by an Owner, be deemed accepted, ratified, adopted and declared as personal covenant of such Owner, and as a personal covenant shall be binding on such Owner and such Owner's heirs, personal representatives, successors, and assigns, and as a personal covenant of an Owner, shall be deemed a personal covenant, with and for the benefit of the Association but not to, with or for the benefit of any other Owner; (c) shall be deemed a covenant by Declarant, for herself, its successors and assigns, and also an equitable servitude, running, in each case, as a burden with and upon the title to the Project and each Condominium Units, and as a real covenant and also as an equitable servitude, shall be deemed a covenant and servitude for the benefit of the Project and each Condominium Unit; and (d) shall be deemed a covenant, obligation, and restriction secured by a lien in favor of the Association, burdening and encumbering the title to the Project and each Condominium Unit in favor of the Association. 9.4 Enforcement and Remedies. Each provision of this Declaration with respect to an Owner or the Condominium Unit of an Owner shall 31 be enforceable by the Association by a proceeding for a prohibitive or mandatory injunction or by a suit or action to recover damages, or, in the discretion of the Association, for so long as any Owner fails to comply with any such provisions, by denial of all voting rights of such Owner and exclusion of such Owner and Related Parties of such Owner from use of any Common Elements. If court proceedings are instituted in connection with the rights of enforcement and remedies provided in this Declaration, the prevailing party shall be entitled to recover its costs and expenses in connection therewith, including reasonable attorneys' fees. 9.5 Protection of First Mortgagee. No violation or breach of, or failure to comply with, any provision of this Declaration and no action to enforce any such provision shall affect, defeat, render invalid, or impair the lien of any First Mortgage on any Condominium Unit taken in good faith and for value and perfected by recording in the office of the County Clerk and Recorder of Pitkin County, Colorado, prior to the time of recording in such office of an instrument describing the Condominium Unit and listing the name or names of the Owner or Owners of fee simple title to the Condominium Unit and giving notice of such violation, breach, or failure to comply. In addition, such violation, breach, or failure to comply and no action to enforce affect, defeat, render invalid, or impair the title or interest of the First Mortgage or the title or interest acquired by any purchaser upon foreclosure of any such First Mortgage, or result in any liability, personal or otherwise, of any such First Mortgagee or purchaser. Any such purchaser on foreclosure shall, however, take subject to this Declaration, except only that violations or breaches of, or failures to comply with, any provisions of this Declaration which occurred prior to the vesting of fee simple title in such purchaser shall not be deemed breaches or violations hereof or failures to comply herewith with respect to such purchaser, his heirs, personal representatives, successors, or assigns. 32 9.6 Name. The name of the condominium created hereby is "Lake View Townhome Condominiums." 9.7 Maili of Not ices. Each owner shall register his mailing address with the other Owners and Managing Agent t shall l notices sent bn demands intended to be served upon any addressed in either registered or certified mail, postage prepaid, the name of the Owner at such registered mailing address. All notices or demands to be served on Mortgagees pursuant hereto shall be sent by either registered or certified mail, postage prepaid, addressed in the name of the Mortgagee at such address as the Mortgagee may have furnished to the Owners in writing. Unless the Mortgagee so furnishes such address, the Mortgagee shall be entitled to receive none of the notices provided for in this Declaration. Any notice referred to in this Section shall be deemed given when deposited in the United States mail in the form provided for in this Section. 9.8 Severity. Invalidity or unenforceability of any provision of this Declaration in whole or in part shall not affect the validity or enforceability of any other provision or any valid and enforceable part of a provision of this Declaration. 9.9 Sin ct u lar a nd Plural. Whenever used herein, unless the context shall otherwise provide, the singular number shall include gender shall include all genders. 9.10 Captions. The captions and headings in this instrument are for convenience only and shall not be considered in construing any provisions of this Declaration. 9.11 Successors and Assians.. This Declaration shall be binding upon and shall inure to the benefit of the Association, and each Owner and the heirs, personal representatives, successors, and assigns of each. 33 IN WITNESS WHEREOF, Declarant has executed this Declaration the day and year first above written. Theresa M. Hubbert Schiff STATE OF ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 1991 by Theresa M. Hubbert Schiff. day of ' Witness my hand and official seal. My Commission Expires: ___________ Si•nature of Ad'acent Pro•ert Owner The undersigned as Owner of the real property described in Paragraph 7.5 above by his signature hereon agrees to be bound by the terms and conditions thereof. Neil J. Bennett STATE OF ) ss. COUNTY OF ) day of The foregoing was acknowledged before me this 1991 by Neil J. Bennett. hand and official seal. My ss �_— My Commission Exp ires: 34 n i, Recept n0. ^, `, ,90.Ci9 ' Ill Recorded at 1:10PM October 26, 1979 Loretta Banner Recorder BooK378 , 177 :a• . STATEMENT OF EXEMPTION FROM THE j DEFINITION OF SUBDIVISION '4 WNE'tEAS, the applicant. PAUL KLINGEMAN, is the , f the following described real property situate in • City cf Aspen, County of Pitkin, State of Colorado: , Lot 5, Promontory Subdivision Ind, WHEREAS, there is presently constructed upon the I . i property above - described a duplex consisting of a four bed - , nom, two bath unit and a one bedroom, one bath unit; and, . A WHEREAS, the applicant has requested an iA from the definition of a subdivision for the purposes of subdividing the existing duplex through condominiumizationi and, i'll'i WHEREAS, khe Aspen Planning and Zoning Commission at its meeting held August 24, 1976, determined that an exemp- -.1 tion from the definition of a subdivision was appropriate ^" in the circumstances and recommended that the rams be granted; h i +;' and, , .. MF WHEREAS, the City Council of Aspen, Colorado, at ' a its meeting held October 9, 1979, and upon the recommends- tion of the Planning and Zoning Commission aforesaid, deter- ti! mined that the application of PAUL KLINGEMAN met the requirements of the Municipal Code of the City of Aspen, and that, accordingly the subdivision of the existing duplex through condominiumization is not within the intent and pus - ose of Chi.cer 20 of the Municipal Code of the City of Aspen; NOW, THEREFORE, the City council of Aspen, Colorado. does hereby determine that the proposed subdivision through the condominiumization of the duplex situst: upon Lot 5, r Promontory Subdivision, Pitkin County, Colorado, is not 1, r r ' ,,-,T i .--, , , , A4 I '' 4ri‘V) Vitei 1 4 • 1 ! ; ' n te l ' 0 l' dr ' '' (44 ' ha • c 4 1/4,,Ii!1/4 1, i1/4.411• • , 1/4 ... t o s•, - - .e,•1/41/4v- 74., •••• - , r t . :, ., , .... r • .. ' , ,.1? C l . " ' .1 1 11 2 :4; t . .4 ' i 1 tt 2 ilk ii ' ' t 4 11 I trAt; 11 ;1? ' . 4 15 t. i ah 1 i i 1 . 1 il -4 ; P s 4 p . h ‘ 1.1 .4 z; 1 L I k t i l V ' • I , t ' 49 • i, ,' , 1. t , c I ' 4 t I t, L 3 • 4 1 ; . , 4 . 44 - t- . ' • I ,: ( " 41 4 . ,e; s- !. 1 •: ' . i 4 4 1 k within the intent and purpose of Chapter 20 of the Mitnieipal 4 a, 4 4 1 i q 4 4 4 : code of the City of Aspen and doss• therefOres grant an exemption from the definitice`of -a subakdalat for the Pure poses aforesaid; , . ' k PRoDEO, 110/ISVER, that ths , grant of the foregoing %.. +. 9` VI •exemption shall b. subject to and conditioned ip Appioalpii- - .% i• e . , ' - CitY once with the provisicms of ,tha M Coda of the unicipal . ,. • of Aspon, as said Code read on August 24. 3376o1/4 Steep" that , N, ,t, _ usseu to ,..., •. Applicant shall not be tmg yo Irma 7 ,,Garli. . ca tion, ellm.,,: ' •;, 1 DAVID* " ''',*•," ''. J !,,, Il k , I. ' • 0:, 5•4' '' ' •,- • '' • t ,.- k tt 1/4 F• ) 2' ".‘ 1 7/• 4 r ' ' . ' CI V. ,4 I i • • , ,./' 1 `., 7 ) ' ' ' ' , • • . ' i' : .. ."••■ ' . • ' st ,‘1 , ,, ' ' i ll,' • ' ; , i ' `‘Po ' v ; A 1/4' - '1/4- i 1/41, 1, mutates s. soca, ao heretr1C•rt4Htf;,that Wilt i l i °,1, ',". 1 foregoing statement of Exemption from this Ditflnitionof ali,,c', 'clikl IX 1.,,Ici ' subdivision was considersd and approved by tbsAaPsn t( , :,-, k- t . ,,, 4 ,..- Council at its regular meeting hold October 9. ,1072. at • ,i l which time the Mayor was authorised to emeo ib. is On tiehalf of the City of Asp en• ‘,... . • i ‘ , , • ■ t ' n . A , t t ■ , i1.: ' k ■ A 1 41 4 4 ii4 t .1 1 itar.ii i it ii f .11 . ' r . A g,,-,Ai sio • i ..., . • ' .4tnir •1 . , , t , • ,1/411/4 • 4 ,',' lit1/4 1:•,: i t ‘ t : 1 1 . 4 , 13 on ......... i ,„, 4 4 4; to .. , • • , .. . , ti ••;. l't , 4 • i•% y , /V ' 2 • 7 11, 4 SS • % 01 1/4 •e 1/4. . $ •I • t ef 4,c ' -:.' A l 0 Ot 4 4. ti n VII i 'It •