HomeMy WebLinkAboutLanduse Case.CO.1215 Snowbunny Ln.A20-95 -',
CASELOAD SUMMARY SHEET
City of Aspen
DATE RECEIVED:, 02 /22/95 PARCEL ID AND CASE NO.
DATE COMPLETE: 2735- 122 -08 -013 A20 -95
STAFF MEMBER: KJ
PROJECT NAME: WHITLOCK CONDO REVIEW
Project Address: 1215 Snowbunnv Lane Aspen, Colorado 81611
Legal Address:_
APPLICANT: Donald A. Whitlock
925 -1713
Applicant Address: 1215 Snowbunnv Lane Aspen, Colorado 81611
REPRESENTATIVE: Dennis B. Green
925 -1885
Representative Address /Phone: 117 southOSpring Ste. 1
FEES: PLANNING $ 215 # APPS RECEIVED 2
ENGINEER $ # PLATS RECEIVED 2
FLAT FEE $ 96
ENV.HEALTH $
TOTAL $ 311
TYPE OF APPLICATION: STAFF APPROVAL: _ 1 STEP: X 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
DRC Meeting Date
REFERRALS: School District
City Attorney Parks Dept.
City Engineer Bldg Inspector Rocky Mtn NatGas
Housing Dir. Fire Marshal CDOT
Aspen Water Holy Cross Clean Air Board
City Electric Mtn. Bell Open Space Board
Envir.Hlth. ACSD
Zoning Energy Center Other
DATE REFERRED: INITIALS: DUE:
FINAL ROUTING: DATE ROUTED: - `9 <INITIAL: d
_ City Atty -C ',3
City Engineer _Zoning _Env. Health
Housing _ Open Space _ Other:
FILE STATUS AND LOCATION:
MEMORANDUM
TO: Stan Clauson, Community Development Director
FROM: Kim Johnson, Planner
RE: Cottontail Townhouse Condominiumization - Planning
Director Approval
DATE: March 13, 1995
SUMMARY: The applicant wishes to condominiumize an existing duplex
located at 1215 Snowbunny Lane (Lot 6 Block 1 Snowbunny
Subdivision). This qualifies as a subdivision exemption to be
approved by the Planning Director pursuant to Ordinance 53, 1993.
BACKGROUND: The parcel size is 17,956 square feet. Unit A is one
story and Unit B is two levels plus a basement. One garage parking
space is provided per duplex half, with adequate exterior parking
for at lease four more cars. The applicant has dedicated limited
as well as common elements on the proposed condominium plat. The
condominium declarations include a restriction to long term
residential use which is consistent with the purpose statement of
the R -15 zone district.
REFERRALS: Engineering: The plat must contain the following:
1) zoning designations of the subject parcel and surrounding
properties, including lot /block description of abutting
parcels;
2) the parcel area described to the nearest .001 acre;
3) show and dimension (8.5'x 18') actual parking spaces
inside and outside of structure (1 space per bedroom);
4) indicate edge of pavement and a 5' wide pedestrian space
between pavement and property line and indicate different
surfaces, ie. pavement and grass areas;
5) indicate basis of bearings;
6) Return two sets of mylars to Engineering fully signed by
private parties prior to sign -off by Engineering and
Planning;
7) All material representations made by the applicant in the
application shall be adhered to and considered conditions
of approval, unless otherwise amended by other
conditions;
8) The condominium plat shall be recorded in the office of
the Pitkin County Clerk and Recorder within 180 days of
its approval by the Planning Director. Failure to do so
shall render the plat invalid and a new application and
approval will be required
RECOMMENDATION: Staff recommends approval of the
condominiumization of the Cottontail Townhouses at 1215 Snowbunny
Lane with the condition that the above 8 items are accomplished.
I hereby a••rove condominiumization of the Cottontail Townhomes,
a cll�plex ocated at 1215 Snowbunny Lane.
S - - a. on Community Development Director
Date
ATTACHMENT:
Proposed condo plat
2
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s
ASPEN /PITKIN PLANNING OFFICE
Agreement for Payment of City of Aspen Development Application Fees
CITY OF ASPEN (hereinafter CITY) and
(hereinafter APPLICANT) AGREE AS FOLLOWS:
1. APPLICANT has submitted to CITY an application for
(hereinafter, THE PROJECT).
2. APPLICANT understands and agrees that City of Aspen Ordinance
No. 77 (Series of 1992) establishes a fee structure for Planning Office applications
and the payment of all processing fees is a condition precedent to a determination
of application completeness.
3. APPLICANT and CITY agree that because of the size, nature or
scope of the proposed project, it is not possible at this time to ascertain the full
extent of the costs involved in processing the application. APPLICANT and
CITY further agree that it is in the interest of the parties to allow APPLICANT
to make payment of an initial deposit and to thereafter permit additional costs to
be billed to APPLICANT on a monthly basis. APPLICANT agrees he will be
benefited by retaining greater cash liquidity and will make additional payments
upon notification by the CITY when they are necessary as costs are incurred.
CITY agrees it will be benefited through the greater certainty of recovering its full
costs to process APPLICANT'S application.
4. CITY and APPLICANT further agree that it is impr for
CITY staff to complete processing or present sufficient information to the
Planning Commission and /or City Council to enable the Planning Commission
and /or City Council to make legally required findings for project approval, unless
current billings are paid in full prior to decision.
0
Condominiumization of an
Existing Duplex
Applicant: Donald A. Whitlock
1215 Snowbunny lane
Aspen, Co 81611
Phone: 925 -1713
Representative: Attorney Dennis B. Green
117 South Spring Ste 1
Aspen, Co 81611
Phone: 925 -1885
This proposal is to the Planning Director of the City of Aspen Colorado.
Donald A. Whitlock
t
This proposal is for condominiumization of an existing duplex under the
procedures of 24 -7 -1007 of the City's Land Use Regulation. The proposal meets
the standards and requirements as follows:
1. The request is for an existing duplex located at 1215 Snowbunny Lane,
R 15 zone, Lot 6, Block 1 Snowbunny Subdivision County of Pitkin,
State of Colorado, see vicinity map attached as Exhibit "A ".
2. The property has adequate existing access utilizing a
driveway which provides ingress and egress from
Snowbunny Lane. There is adequate parking, including
designated spaces for each unit and one indoor garage
space for each unit, all as shown on the proposal plat
attached as Exhibit 'B ".
3. Each of the condominium units is already serviced by
utilities, including water, electric and gas service, as
shown on the plat.
4. Each unit has ample outdoor and deck areas which are
partially screened from view of neighbors by fences
which run along both sides of the property, the entire
back, and a portion of the front. The site is landscaped
and there is an enclosed area for trash and storage.
5. Each proposed unit has several individual entrances.
6. No additional construction or additions to structures are
being proposed as part of this proposal.
7. This proposal will not have a negative impact on hlneighbors and will
not create any significant increase in traffic or the need for pubic
facilities or services.
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EXHIBIT
1
a
NTI
COMMITMEI S FORU T A INSURANCE
1. Effective Date: 02/01/95 at 08:30 A.M. Case No. PCT -9670
2. Policy or Policies to be issued:
Amount$ TBD
(a) ALTA Owner's Policy Form 1992 premium$
Rate:
Proposed Insured:
PROFORMA
Amount$
(b) ALTA Loan Policy Form 1992 premium$
Rate:
Proposed Insured:
Tax Certificate $TBD
3 referred toeinEthisMCommitment or
s atttheseffectiveldatedescribed or
hereof
vested in:
DONALD A. WHITLOCK
4. The land referred to in this Commitment is situated in the County
of PITKIN, State of Colorado and is described as follows:
LOT 6, BLOCK 1, SNOWBUNNY SUBDIVISION. COUNTY OF PITKIN, STATE OF
COLORADO.
Countersigned at: PITKIN COUNTY TITLE, INC. S ch e dule A is invalid
601 E. 81 611 unless the Insuring
303-9 CO. C1 256 81611 Provisions and Schedules
Fax 303 - 925 -6527 03 -9 A and B are attached.
•
Fa
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Condominium Declaration
For
Cottontail Townhouses Condominiums
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, DONALD A. WHITLOCK, hereinafter called the
"Declarant" is the owner of the following described real property
situated in the City of Aspen, County of Pitkin, State of
Colorado:
Lot 6, Block 1, Snowbunny Subdivision, as shown on
the plat thereof, recorded as Document # 105066 in
the records for Pitkin County, Colorado.
WHEREAS, Declarant desires to establish a condominium project
under the Common Interest Ownership Act of the State of Colorado;
and
WHEREAS, there is currently constructed on said real property
improvements consisting of (1) duplex structure containing two (2)
separately designated residential condominium units; and
WHEREAS, Declarant does hereby establish a plan for the
ownership in fee simple of the condominium estates subject to the
easements, restrictions, reservations, rights -of -way, conditions,
taxes and assessments of record and reservations in this
Declaration, consisting of the area or space contained in each of
the air space units located in the building improvements, and the
co- ownership by the individual and separate Owners thereof as
tenants -in- common of all of the remaining property (except such
property as is otherwise reserved herein), which property is
hereinafter defined and referred to the General Common Elements;
and
NOW, THEREFORE, Declarant does hereby publish and declare
that the following terms, covenants, conditions, easements,
restrictions, uses, limitations and obligations shall be deemed to
run with the land, shall be a burden and benefit to Declarant,
Declarant's heirs, personal representatives, successors and
assigns, and any persons acquiring or owning interest in the real
property improvements, their grantees, successors, heirs,
executors, administrators, devisees or assigns, and the name of
the Condominium herein created shall be COTTONTAIL TOWNHOUSES
CONDOMINIUMS.
1. Definitions. The following definitions shall apply
unless the context expressly provides otherwise:
a. "Articles" means the Articles of Incorporation of
the Association.
b. "Association" means the Cottontail Townhouses
Condominium Association, Inc., a non - profit corporation organized
under the laws of the state of Colorado, of which both Owners of
the two Units shall be members, and which shall be charged with
the management and maintenance of the Common Interest Community.
c. "Board of Directors" or "Board" means the governing
body of the association.
d. "Bylaws" means the Bylaws of the Association.
e. "Building" means the building improvements
comprising a part of the Common Interest Community.
f. "Common Expenses" means and includes:
(1) all sums lawfully assessed against the
Owners by the Board, as hereinafter defined;
(2) expenses of administration, maintenance, repair'
or replacement of the General Common Elements, as hereinafter
defined;
(3) expenses declared common expenses by provisions
of this Declaration and the Bylaws; and
(4) expenses agreed on as common expenses by a vote
of the Owners representing an aggregate ownership interest of all
of the General Common Elements.
g. Condominium Unit" means the fee simple interest'
title in and to a Unit, together with the undivided interest in the
General Common Elements, and the appurtenant Limited Common
Elements thereto.
h. "Declarant" means the Declarant named herein, and
such successor or successors as may be designated hereafter by
Declarant by written notice duly recorded.
i. "Declaration" means this Declaration, together with
any supplement or amendment hereto, recorded in the office of the
Clerk and Recorder of Pitkin County, Colorado.
j. "General Common Elements" means all of the Common
Interest Community, as hereinafter defined, except the portions
thereof which constitute Units, and also means all parts of a
building or any facilities, improvements and fixtures which may be
within a Unit which are or may be necessary or convenient to the
support, existence, use, occupation, operation, maintenance, repair
or safety of a building, or any part thereof, or any other Unit
therein.
Without limiting the generality of the foregoing, the
following shall constitute General Common Elements:
(1) all of the land and easements which are part of
the property, and all facilities designated as General Common
Elements on the Condominium Map;
(2) all utility, service and maintenance rooms,
space, fixtures, apparatus, installations and central facilities
for power, light, gas, telephone, television, hot water, cold
water., heating, snowmelt systems, refrigeration, air conditioning,
trash. incineration or similar utility, service or maintenance
purposes, including furnaces, tanks, pumps, motors, fans,
compressors, flues, vents, similar fixtures, apparatus,
installations and facilities, sprinkler systems; and
(3) all other parts of the Common Interest
Community used in common by the Owners, necessary or convenient to
the Common Interest Community's existence, maintenance and safety.
k. "Limited Common Elements" means that portion of
those General Common Elements which are reserved for the use of one
Owner to the exclusion of the other, including and not limited to
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•
certain balconies, porches, patios, fireplaces, deck or yard areas,
parking spaces, and storage lockers or areas.
1. "Guest" means any agent, employee, tenant, guest,
licensee or invitee of an Owner.
m. "Managing Agent" means the person employed by the
Board to perform the management and operational functions of the
Common Interest Community.
n. "Map" means the Condominium Map referred to in
Paragraph 2 below.
o. "Mortgage" means any mortgage, deed of trust, or
other security instrument by which a Condominium Unit or any part
thereof is encumbered.
p. "Mortgagee" means any person named as the mortgagee
or beneficiary under any mortgage by which the interest of any
Owner is encumbered.
q. "Owner" means the person or persons, as hereinafter
defined, owning a Unit in fee simple, together with a fifty percent
(50 %) undivided interest in fee simple in the General Common
Elements as established in this Declaration, including the
Declarant, as long as any Condominium Unit, as hereinafter defined,
is owned by Declarant.
r. "Person" means an individual, corporation,
partnership, association, trustee, or any other legal entity.
s. "Common Interest Community" means real estate
described in this Declaration with respect to which a Person, by
virtue of such Person's ownership of a Unit is obligated to pay for
real estate taxes, insurance premiums, maintenance, or improvement
of real estate described in this Declaration including all of the
real property, both Condominium Units, building(s), fixtures.
personal property and improvements submitted to this Declaration.
t. "Unit" means one (1) individual air space which is
contained within the unfinished perimeter walls, floors, ceilings,
windows and doors of each Unit as shown on the Condominium Map to
be filed for record, together with all fixtures and improvements
therein contained, and not including any structural components of
the building or other General Common Elements, if any, located
within the Unit.
2. Map. There shall be filed for record in the office of
the Clerk and Recorder of Pitkin County, Colorado, a map,
hereinafter referred to as the "Map," which Map may be filed in
whole or in part, depicting thereon:
a. the legal description of the property and a survey
thereof;
b. the name and general location of the Common Interest
Community;
c. the linear measurements and Iodation, with reference
to the exterior boundaries of the land, of the building(s) and all
improvements built on the land;
d. floor plans and elevation plans of the building(s)
showing the location, the designation and the linear dimensions of
each Unit, and the designation of the Limited Common Elements;
e. the elevations of the unfinished interior surfaces
of the floor and ceilings as established from a datum plan, and the
linear measurements showing the thickness of the perimeter and
common walls of the building.
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The Map and any supplement(s) thereto shall contain the
statements of: (1) the Declarant, submitting the property to the
provisions of this Declaration; and (2) a registered land surveyor
certifying that the Map fully and accurately depicts the layout,
measurements and location of all of the building(s) and
improvements, the Unit designations, the dimensions of such Units,
and the elevations of the floors and ceilings. Declarant hereby
reserves unto Declarant and the Board the right, from time to time,
until the sale of a unit, to amend the Map and supplement(s)
thereto, to conform the Map to the actual location of any of the
constructed improvements, to establish, vacate and relocate utility
easements, access road easements and parking spaces, and to
establish certain General Common Elements as Limited Common
Elements.
In interpreting any and all provisions of this
Declaration or the Bylaws, subsequent deeds to and /or mortgages of
Condominium Units, the actual location if a Unit shall be deemed
conclusively to be the property intended to be conveyed, reserved
or encumbered, notwithstanding any minor deviations from the
location of such Unit as indicated on the Map.
3. Division into Units. Declarant does hereby submit the
Common Interest Community to condominium ownership pursuant to the
Colorado Common Interest Ownership Act, and the Common Interest
Community is hereby divided into two (2) residential Condominium
Units, each consisting of a separate fee simple estate in a
particular Unit, and an appurtenant undivided fee simple interest
in the General Common Elements. The undivided interest in the
General Common Elements appurtenant to a particular Unit is as is
set forth on Exhibit "1" attached hereto and incorporated herein by
this reference.
4. Limited Common Elements. Subject to the definition
thereof, the Limited Common Elements shall be identified herein or
on the Map, and designated as appurtenant to a particular
Condominium Unit herein or on the Map or in a deed from the
Declarant. Any door, window, balcony, porch, patio, concrete
walkway to a Unit, window well and the area dug out for the window
well, railing, or fireplace which is accessible from, associated
with and adjoins a Unit, deck and yard areas, parking spaces,
driveways and storage lockers or areas identified as Limited Common
Elements on the Map, and designated as appurtenant to a particular
Condominium Unit, shall, without further reference thereto, be used
in connection with the Unit to which it is appurtenant to the
exclusion of the use thereof by the other Owner, except by
invitation.
5. Inseparability of a Condominium Unit. An Owner's
undivided interest in the General Common Elements, and in any
appurtenant Limited Common Elements, shall not be separated from
the Unit to which they are appurtenant, and shall be deemed to be
conveyed or encumbered with the Unit even though the interest is
not expressly mentioned or described in a deed or other instrument.
6. Description of a Condominium Unit. Every deed, lease,
mortgage, trust deed, will or other instrument may legally
describe a Condominium. Unit by its i.lentifying unit location
followed by the words "Cottontail Townhouses,' a Condominium," with
reference to the recorded Declaration and Map. This description
shall be deemed good and sufficient for all purposes to sell,
convey, transfer, encumber, or otherwise affect not only the Unit,
but also the Common Elements appurtenant to that Unit. This
description shall be construed to include a non - exclusive easement
for ingress and egress throughout the Common Elements appurtenant
thereto to the exclusion of all third parties not lawfully entitled
to use the same.
7. Title. A Condominium Unit may be held and owned by more
than one (1) person as joint tenants or as tenants in common, or in
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any real property tenancy or relationship recognized under the laws
of the State of Colorado, or by any other legal entity under the
laws of the State of Colorado.
8. No Partition. The Common Elements shall remain
undivided, and no Owner or any other person shall bring any action
for partition or division of the Common Elements. Similarly, no
action shall be brought for the partition of a Unit between or
among the Owners thereof. Each Owner expressly waives any and all
such rights of partition an Owner might otherwise have by virtue of
ownership of a Condominium Unit. A violation of this provision
shall, entitle the Association to personally collect, jointly or
severally, from the parties violating the same, actual attorneys'
fees, costs and other damages the Association incurs in connection
therewith.
9. Separate Taxation. Each Condominium Unit shall be deemed
to be a parcel, and shall be subject to separate assessment and
taxation by each assessing unit and special ad valorem levies and
special assessments. Neither the buildings, the property, nor any
use of the General Common Elements shall be deemed to be a parcel.
The lien for taxes assessed to any Condominium Unit shall only be
a lien confined to that Unit. No forfeiture or sale of any Unit
for delinquent taxes, assessments or other governmental charges
shall divest, or in any way affect, the title to any other
Condominium Unit. In the event that such taxes or assessments for
any year are not separately assessed to each Owner, and rather are
assessed on the property as a whole, each Owner shall pay that
Owner's proportionate share thereof in accordance with that Owner's
ownership interest in the General Common Elements; and, in such
event, such taxes or assessment shall be a common expense, Without
limiting the authority of the Board provided for elsewhere herein,
the Board shall have the authority to collect from the Owners their
proportionate share of taxes or assessments for any year in which
taxes are assessed on the property as a whole.
10. Certain Work Prohibited. No Owner shall undertake any
work in that Owner's Unit which would jeopardize the soundness or
safety of the Common Interest Community, reduce the value thereof,
or impair an easement or hereditament thereon or thereto; nor . shall
any Owner enclose, by means of screening or otherwise, any balcony,
yard, deck, patio or porch which is accessible from, associated
with, and which adjoins a Unit, without having first obtained the
prior written approval of the other Owner for such enclosure, and
with respect to the materials, plans and specifications for such
enclosure. Structural or cosmetic alterations shall not be made by
an Owner to the exterior portions of that Owner's Unit, or to the
building of which the Units are a part, or in the water, gas or
steam pipes, electric conduits, plumbing or other fixtures
connected therewith, except for the purposes of maintaining the
Unit and keeping in good repair; nor shall an Owner remove any
exterior additions, improvements or fixtures from the building of
which the Units are a part without the prior written approval of
the other Owner first having been obtained. No Owner shall make
any alterations, changes or improvements to the Limited Common
Elements appurtenant to that Owner's Unit, including without
limitation, the exterior walls, doors and roof of that Owner's
Unit, nor shall that Owner make any changes to the color and type
of paint or other finishing material used thereon, fencing,
landscaping, and permanent outdoor furniture or equipment, without
the prior written consent of the Owner of the other Unit. The
Owners of both Condominium Units must mutually agree to any changes
in the color of the exterior paint on the Units. Furthermore, if
one Unit is being painted, the other Unit must be painted at the
same time.
11. Liens Against Condominium Units -- Removal from Lien --
Effect of Part Payment.
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a. No labor performed or materials furnished with the
consent of or at the request of an Owner or agent of a Condominium
Unit shall be the basis for the filing of a lien pursuant to law
against the other Condominium Unit, or the Common Interest
Community, or the other Owner not expressly consenting to or
requesting the same, except that express consent shall be deemed to
be given by the Owner of a Condominium Unit to the Managing Agent
or the Board in the case of emergency repairs. Labor performed or
materials furnished for the General Common Elements, if duly
authorized by the Managing Agent or the Board of Directors in
accordance with the Declaration or Bylaws, shall be deemed to be
performed or furnished with the express consent of each Owner, and
shall be the basis for the filing of a lien pursuant to law against
each of the Condominium Units in the Common Interest Community.
b. In the event a lien is effected against both
Condominium Units, the Owners of the separate Condominium Units may
remove their Condominium Units from the lien by payment of the
fractional or proportionate amount attributable to the Condominium
Unit so affected. Individual payment shall be computed by
reference to the percentages appearing in this Declaration.
Subsequent to payment, discharge or other satisfaction, the
Condominium Unit shall be released from the lien paid, satisfied or
discharged. Partial payment, satisfaction or discharge shall not
prevent the lienor from proceeding to enforce the lienor's rights
against any Condominium Unit not so released or discharged.
c. Each Owner shall indemnify and hold the other Owner
harmless from and against liability or loss arising from the claim
of any lien against the Condominium Unit or any part thereof that
Owner for labor performed, or for materials furnished in work on
such Owner's Condominium Unit. At the written request of an Owner,
the Association shall enforce such indemnity by collecting from the
Owner of the Condominium Unit on which the labor was performed, or
materials furnished, the amount necessary to discharge any such
lien and all costs incidental thereto, including reasonable
attorneys' fees. If not promptly paid, the Association may proceed
to collect the same in the manner provided herein for collection of
assessments for the purpose of discharging the lien.
12. Use and Occupancy of Units. Each Owner shall be entitled
to the exclusive ownership and possession of that Owner's Unit,
subject to the restrictions and reservations contained in this
Declaration. Each Condominium Unit shall be used and occupied
solely for those purposes permitted by the zoning code of Aspen,
Colorado. Leases on each Condominium Unit shall be restricted to
terms of not less than six (6) months; provided, however, that each
Condominium Unit may be leased for terms of less than six (6)
months not more than two (2) times per year, as required by the
City of Aspen.
13. Use of General and Limited Common Elements. Each Owner
may use the General Common Elements and that Owner's appurtenant
Limited Common Elements in accordance with the purpose for which
they are intended without hindering or encroaching on the lawful
rights of the other Owner. The Association may, from time to time,
adopt rules and regulations governing the use of General and
Limited Common Elements. Each Owner, by the acceptance of that
Owner's deed or other instrument of conveyance or assignment,
agrees to accept and be bound by any such adopted rules and
regulations. Each Unit is further subject to the Statement of
Exemption from the Full Subdivision Process for the purpose of
Condominiumization of an Existing Structure recorded in Book
at Page in the office of the Clerk and Recorder of Pi k n
County, Colorado.
14. Various Rights and Easements.
a. Owner's Rights in Limited Common Elements. Subject
to the other provisions of this Declaration, each Owner and that
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Owner's guests, tenants and invitees shall have an exclusive right
to use and enjoy the Limited Common Elements designated herein, in
the Map, or in the initial deed from Declarant as appurtenant to
the Condominium Unit owned by that Owner.
b. Association Rights. The Association, the Board and
the Managing Agent shall have a non - exclusive right and easement to
make such use of and enter into or on the General Common Elements,
the Limited Common Elements and the Units as may be necessary or
appropriate for the performance of the duties and functions which
they are obligated or permitted to perform under this Declaration.
c. Owner's Easements for Access, Support and Utilities.
Each Owner shall have a non - exclusive easement for access between
that Owner's Unit and the roads and streets adjacent to the Common
Interest Community, and that Owner's parking areas and exterior
access and other easements which are part of the General Common
Elements. Each Owner shall have a non- exclusive easement in, on
and over the General Common Elements, including the General Common
Elements within the Unit of another Owner, for horizontal and
lateral support of that which is part of that Condominium Unit, for
utility service to that Unit, including and not limited to water,
sewer, gas, electricity, telephone and television service.
d. Easements for Encroachments. If any part of the
General Common Elements encroaches or shall hereafter encroach on
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 on the General Common; Elements or the
other Unit, the Owner of that Unit shall and does have an easement
for such encroachments and for the maintenance of same. Such
encroachments shall not be considered to be encumbrances either on
the General Common Elements, or on a Condominium Unit, for purposes
of marketability of title or otherwise. Encroachments referred to
herein include, but are not limited to, encroachments caused by
error in the original construction of the building, 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 Common
Interest Community, or any part thereof.
e. Easements in Units for Repair, Maintenance and
Emergencies. Some of the General Common Elements are or may be
located within a Unit, or may be conveniently accessible only
through a particular Unit. The Association, Board, managing Agent
and each Owner shall have an easement, which shall be exercised for
any Owner by the Association, the Board or the Managing Agent, as
its agent, for access through each Unit and to all General Common
Elements, from time to time, during such reasonable hours as may be
necessary for the location, placement, existence, maintenance,
repair or replacement of any of the General Common Elements located
therein or accessible therefrom, or for making emergency repairs
therein necessary to prevent damage to the General Common Elements
or to another Unit, or for making repairs or replacement pursuant
to Paragraph 15 hereafter. Damage to the interior of any part of
a Unit resulting from the maintenance, repair, emergency repair, or
replacement of any of the General Common Elements, or as a result
of emergency repairs within another Unit, at the instance of the
Association, the Board or the Managing Agent, shall be a common
expense of each of the Owners. No diminution or abatement of
common expense assessments shall be claimed or allowed for
inconvenience or discomfort arising from the making of repairs or
improvements, or from action taken to comply with any law,
ordinance or order of any governmental authority, unless so
determined by the Board. Restoration of the damaged improvements
shall be substantially the same as the condition in which they
existed prior to the damage. Notwithstanding the foregoing, if any
such damage is the result of the carelessness or negligence of any
Owner, tenant, or guest, such Owner shall be solely responsible for
the costs and expenses of repairing such damage. An Owner of any
Unit containing a General Common Element shall indemnify and hold
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the Association harmless for any damage resulting from the presence
of said Common Element.
f. Easements Deemed Appurtenant. The easements, uses
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, uses and rights as are provided
for herein, even though no specific reference to such easements,
uses and rights appear in any such conveyance.
15. Owners' Maintenance Responsibility. For purposes of
maintenance, repair, alternation and remodeling, an Owner shall be
deemed to own, and shall have the right and obligation to•maintain,
repair, alter and remodel the interior nonsupporting walls, the
materials (such as, but not limited to, plaster, gypsum drywall,
paneling, wallpaper, paint, wall and floor tile and flooring, not
including the subflooring) making up the finished surfaces of the
perimeter walls, ceilings and floors within the Unit, and the
Unit's doors and windows, and any and all new additions to a Unit
made by the owner thereof, including, without limitation, any new
fence or other structure to be constructed enclosing a patio,
balcony, yard or deck area, and the Limited Common Elements
associated with the use and occupancy of the Unit, but only if
approved by the other Owner. No Owner shall, however, make any
changes or alterations of any type or kind to the exterior surfaces
of the doors or windows to that Owner's Unit or to any General
Common Elements (including, and not limited to, the exterior
portions of that Owner's Unit). An Owner shall not be deemed to
own lines, pipes, wires, conduits or systems (which, for brevity,
are hereinafter referred to as "utilities ") running through that
Owner's Unit which serve both Units, except as a tenant -in- common
with the other Owner. Each Owner shall keep and maintain the
utilities and equipment in that Owner's Unit which provide services
exclusively for that Unit. Each Owner shall have the obligation to
replace any finishing or other materials removed with similar
types or kinds of materials. Each Owner shall maintain and keep in
good repair, and in a clean, safe and attractive condition, the
interior of that Owner's Unit, including the fixtures, doors and
windows thereof, and the improvements affixed thereto, and such
other items and areas as may be required in the Bylaws. Also, an
Owner shall maintain, clean and keep in a neat and clean condition
the fireplace within that Owner's Unit, and keep in a neat and
clean condition and free and clear of snow, ice and any
accumulation of water on the deck, yard, porch, roof, balcony,
and /or patio area, if any, adjoining or leading to a Unit, which
areas are Limited Common Elements appurtenant to such Owner's
Condominium Unit. All fixtures, appliances and equipment installed
within a Unit commencing at a point where the utilities enter the
Unit shall be maintained and kept in repair by the owner thereof.
If any Owner fails to carry out or neglects the responsibilities
set forth in this paragraph the Board or the Managing Agent may
fulfill the same and charge such Owner a special assessment
therefor, which shall be immediately due and payable. Any expense
incurred by an Owner under this paragraph shall be the sole expense
of the Owner.
16. Compliance with Provisions of Declaration, Articles and
Bylaws of the Association. Each Owner shall comply strictly with,
and shall cause each of that Owner's guests to comply strictly
with, all of the provisions of this Declaration, the Articles and
Bylaws, and the decisions, rules, regulations and resolutions'of
the Association or the Board adopted pursuant thereto, as the same
may be lawfully amended from time to time. Failure to comply with
any of the same shall be grounds for an action to recover sums due,
and for damages or injunctive relief or both, along with costs of
suit and reasonable attorneys' fees, maintainable by the Managing
Agent or Board of Directors in the name of the Association on
behalf of the Owners or, in as proper case, by the aggrieved Owner.
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17. The Association.
a. General Purposes and Power. The Association,
through the Board or the Managing Agent, shall perform functions
and hold and manage property as provided in this Declaration so as
to further the interests of Owners of both Condominium Units in the
Common Interest Community. It shall have all powers necessary or
desirable to effectuate such purposes.
b. Membership. The Owner of a Condominium Unit shall
automatically be a member of the Association. The membership is
appurtenant to the Condominium Unit of that Owner, and the
ownership of the membership for a Condominium Unit shall
automatically pass with fee simple title to the Condominium Unit.
Each Owner shall automatically be entitled to the benefits and
subject to the burdens relating to the membership for that
Condominium Unit. If the fee simple title to a Condominium Unit is
held by more than one (1) person, those persons shall collectively
as Owners of a Condominium Unit have one membership of, and be
entitled to one (1) vote on all matters of the Association.
Memberships in the Association shall be limited to Owners of
Condominium Units in the Common Interest Community.
c. Board of Directors. The affairs of the Association
shall be managed by a Board of Directors which may by resolution
delegate any portion of its authority to an executive committee, or
to a director or managing agent for the Association. There shall
be not less than two (2) but not more than three (3) members of the
Board of Directors. The Owner of each Unit shall have one (1) seat
on the Board, and the additional member, if there shall be one (1)
(whose term shall expire annually) shall be elected by a vote of
the two (2) Owners if there shall be three (3) directors. No later
than five ( 5) days after conveyance of the Units to a
purchaser other than the Declarant, such Unit Owner shall be
entitled to elect one (1) person to the Board of Directors.
Notwithstanding anything to the contrary provided for herein, until
Declarant has conveyed both Condominium Units in the Common
Interest Community, or until December 31, 1995, whichever event
shall first occur, two (2) members of the Board of Directors shall
be appointed by Declarant, Declarant's heirs, successors or
assigns.
d. Voting of Directors. The Director(s) shall be
entitled to one (1) vote each.
e. Bylaws and Articles. The purposes and powers of the
Association, and the rights and obligations with respect to owners
set forth in this Declaration, may and shall be controlled by
provisions of the Articles and Bylaws of the Association.
18. Certain Rights and Obligations of the Association.
a. Association as Attorney -in -Fact for Owners. The
Association is hereby irrevocably appointed attorney -in -fact for
the Owners and each of them to manage, control and deal with the
interest of each Owner in the General Common Elements so as to
permit the Association to fulfill all of its duties and obligations
hereunder, and to exercise all of its rights hereunder, to deal
with the Common Interest Community on its destruction or
obsolescence as hereinafter provided, and to grant utility
easements through any portion of the General Common Elements. The
acceptance by any person of any interest in either Condominium Unit
shall constitute an appointment of the Association as attorney -in-
fact as provided above and hereinafter. The Association is hereby
granted all of the powers necessary to govern, manage, maintain,
repair, rebuild, administer and regulate the Common Interest
Community, and to perform all of the duties required of it.
Notwithstanding the foregoing, and subject to the provisions
contained in this Declaration (unless at least one -half (1/2] of
the first mortgagees of Condominium Units, based on one (1] vote
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for each first mortgage owned), and both of the Owners (excluding
Declarant) have given their prior written approval, the Association
shall not be empowered or entitled to:
(1) by act or omission seek to abandon or terminate
the Common Interest Community;
(2) change the pro rata interest or obligations of
either Condominium Unit for the purpose of levying assessments or
charges, or allocating distributions of hazard insurance proceeds
or condemnation awards;
(3) partition or subdivide either Condominium Unit;
(4) by act or omission seek to abandon, partition,
subdivide, encumber, sell or transfer (excluding the granting of
easements for public utilities or other public purposes consistent
with the intended use of the General Common Elements) any of the
General or Limited Common Elements; and
(5) use hazard insurance proceeds which have been
received for loss to the Common Interest Community (whether Units
or General Common Elements) for other than repair, replacement or
reconstruction thereof.
Provided, however, that no action set forth in
Subparagraphs 19(a)(1 -5) above may be taken without the prior
written approval of the owner and first mortgagee of the specific
Unit or Units being affected.
b. General Common Elements. The Association shall
provide for the care, operation, management, maintenance, repair
and replacement of the General Common Elements, except as is
provided for in Paragraph 15 herein. Without limiting the
generality of the foregoing, the obligations shall include the
keeping of such General Common Elements in a good, clean,
attractive, and sanitary condition, order and repair; removing snow
and any other materials from such General Common Elements which
might impair access to the Common Interest Community or the Units,
irrigating and maintaining the landscaping and lawns; keeping the
Common Interest Community safe, attractive and desirable; and
making necessary or desirable alterations, additions, betterments
or improvements to or on the General Common Elements.
c. Other Association Functions. The Association may
undertake any activity, function or service for the benefit of or
to further the interests of any Owners on a self- supporting,
special- assessment, or common - assessment basis. Such activities,
functions or services may include the providing of police or
similar security services.
d. Labor and Services. The Association: (1) may
obtain and pay for the services of a Managing Agent to manage its
affairs or any part thereof to the extent it deems advisable, as
well as such other personnel as the Association shall determine to
be necessary or desirable for the proper operation of the Common
Interest Community, whether such personnel are furnished or
employed directly by the Association, or by any person with whom or
which it contracts; (2) may obtain and pay for legal and accounting
services necessary or desirable in connection with the operation of
the Common Interest Community or the enforcement of this
Declaration; and (3) may arrange with others to furnish lighting,
heating, water, trash collection, sewer service and other common
services.
e. Property of Association. The Association may pay
for, acquire and hold or lease tangible and intangible personal
property, and may dispose of the same by sale or otherwise for the
purposes set forth in this Declaration. Subject to the provisions
of this Declaration, and rules and regulations of the Association,
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each Owner and each Owner's family and guests may use such
property. On termination of condominium ownership of the Common
Interest Community and dissolution of the Association, if ever, the
beneficial interest in any such property shall be deemed to be
owned by the then Owners as tenants in common in the same
proportion as their respective interests in the General Common
Elements. A transfer of a Condominium 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 purposes for which it is
intended, without hindering or encroaching on the lawful rights of
the other Owner. The transfer of title to a Condominium Unit under
foreclosure shall entitle the purchaser to the beneficial interest
in such property associated with the foreclosed Condominium Unit.
f. Association Right to Grant Easements to the General
Common Elements. The Association shall have the right to grant
utility easements under, through or over the General Common
Elements which are reasonably necessary to the ongoing operation of
the Common Interest Community.
g. Mortgagee Notification. The Association shall
notify each first mortgagee of any proposed material amendment of
the Association's Articles or Bylaws at least ten (10) days prior
to the effective date of such amendment or change. Further, on the
written request of any first mortgagee, such first mortgagee shall
be entitled to receive the most recent annual financial statement
of the Association, and written notice of all meetings of the
Association, and such first mortgagee shall have the right to
designate a representative to attend any such meeting.
h. Enforcement by Association. The Board may suspend
any Owner's voting rights in the Association, or the right of any
owner to use the common facilities of the Common Interest Community
during any period or periods during which such Owner fails to
comply with the Association's rules and regulations, fails to pay
assessments, or fails to comply with any other obligations of such
•
Owner under this Declaration. The Association may also take
judicial action against any Owner to enforce compliance with such
rules, regulations or other obligations hereunder, or in the Bylaws
contain, or to obtain damages for non - compliance by any such Owner
or his tenants, guests or invitees.
i. Certificate. The Board of Directors may, from time
to time, record a certificate of the identity and the mailing
addresses of the persons then comprising the Board of Directors,
together with the identity and address of the conclusive evidence
thereof in favor or any person relying thereon in good faith,
regardless of the time elapsed since the date thereof.
j. Implied Rights. The Association shall have and may
exercise any right or privilege given to it expressly by this
Declaration, the Articles or the Bylaws, or reasonably to be
implied form the provisions of those documents, or given or implied
by law, or which may be necessary or desirable to fulfill its
duties, obligations, rights or privileges.
19. Assessment for Common Expenses.
a. Each Owner and the Declarant, if the Declarant is an
owner, shall be obligated to pay the assessments imposed by the
Board of Directors to meet the estimated common expenses. The
assessments shall be made pro rata according to each Owner's
interest in and to the General Common Elements, as set forth in
Exhibit "1" attached hereto. Declarant shall be obligated as any
other Owner in reference to Condominium Units then owned by
Declarant to pay the estimated common expense assessments imposed
by the Board to meet the common expenses. Except as hereinabove
provided, the Limited Common Elements shall be maintained in the
same manner as General Common Elements, and Owners having the
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exclusive use thereof shall not be subject to any special charges
or assessments. Assessments for the estimated common expenses
shall be due, in advance, on the first day of January and July of
each year. Thirty (30) days before the annual meeting of the
Owners, the Managing Agent or Board of Directors shall prepare and
deliver or mail to each Owner an itemized annual budget showing the
various estimated or actual expenses for which the assessments are
made, and the assessments paid by each Owner for the prior year.
This budget shall be approved by the Board, and ratified by the
members of the Association at the annual meeting. Contributions
for assessments shall be pro rated if the ownership of a
Condominium Unit commences on a day other than the first day of
January or July. The assessments made for common expenses shall be
based on the requirements deemed, as the Board of Directors shall,
from time to time, determine to be paid or accrued to be paid to
provide for the payment of all estimated expenses growing out of or
connected with the maintenance and operation of the General Common
Elements, which sum may include, among other things, expenses of
management; taxes and special assessments, until separately
assessed; premiums for insurance of the types and kinds provided
for in Paragraph 22 hereafter; landscaping and care of grounds;
common lighting and heating; repairs and renovations; trash
collection; wages; water and sewer charges; legal and accounting
fees; capital expenditures made by the Board not exceeding ten
thousand dollars ($10,000.00), in any one (1) calendar year (unless
a greater amount is approved by a majority of the votes of the
Board; expenses and liabilities incurred by the managing Agent or
Board of Directors under or by reason of this Declaration; deficits
remaining from a previous period; and other costs and expenses
relating to the General Common Elements. Further, it shall be
mandatory for the Board to establish and segregate, out of such
monthly assessments, a contingency or reserve fund for the repair,
replacement and maintenance of those General Common Elements that
must be replaced periodically. The omission or failure of the
Board of Directors to fix the assessment for any month shall not be
deemed a waiver, modification or a release of the Owners from their
obligation to pay the same. Any Owner or first mortgagee may,
pursuant to C.R.S. §38- 33.3 -317, inspect the Association's records
of receipts and expenditures at any reasonable time during
convenient weekday business hours; and, on ten (10) days' notice to
the Board of Directors or Managing Agent, if any, and on payment of
a reasonable fee not to exceed twenty dollars ($20.00), any Owner
or first mortgagee of such Owner shall be furnished a statement of
account setting forth the amount of any unpaid assessments, of any
calendar year, the Board of Directors may, but shall not be
required to, refund to each Owner that Owner's proportionate share
of funds then held by the Association which are not deemed to be
necessary to meet the common expenses. Each Owner shall be
obligated to pay all charges for any separately metered utilities
servicing that Owner's Unit. Any utilities that are master metered
shall be a common expense hereunder.
b. The Board of Directors shall have the right during •
any calendar year to levy and assess against each of the Owners a
special assessment for such purpose or purposes, in accordance with
this Declaration, the Articles or Bylaws, as may be necessary to
keep the Common Interest Community as a first -class Condominium
Common Interest Community. Such special assessment shall be borne
by the Owners in accordance with each Owner's interest in the
General Common Elements, and shall be due and payable as determined
by the Board of Directors.
20. Assessment Reserves. The Association may require an
Owner to deposit with the Association an amount not exceeding the
amount of the original estimated semi - annual common assessment,
which sum shall be held, without interest, by the Association as a
reserve to be used for paying such owner's semi - annual common
assessment and for working capital. Such an advance payment shall
not relieve an Owner from making the regular payment of the semi-
annual common assessment as the same comes due. on the transfer of
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any Condominium Unit, an Owner shall be entitled to a credit from
the transferee for any unused portion thereof. Such reserves
shall, at all times, remain as capital of the Association.
21. Additions, Alterations and Improvements - General and
Limited Common Elements. There shall be no special assessments in
excess of ten thousand dollars ($10,000.00) levied by the Board of
Directors in any one (1) calendar year, or any capital additions,
alterations or improvements of or to the General or Limited Common
Elements by the Association requiring expenditure(s) in excess of
ten thousand dollars ($10,000.00), in any one (1) calendar year,
without, in each case, prior approval by a majority of the members
of the Association, except in the event of an emergency. The
limitations set forth above shall not apply to any expenditures
made by the Association for maintenance and repair of the General
Common Elements as set forth in Paragraph 18 hereof, or for repair
in the event of damage, destruction or condemnation as provided in
Paragraph 28 and Paragraph 29 hereof.
22. Insurance.
a. Insurance Requirements Generally. The Association
shall obtain and maintain in full force and effect at all times
certain casualty, liability and other insurance as hereinafter
provided. All such insurance shall be obtained, to the extent
possible, from responsible companies duly authorized to do
insurance business in the State of Colorado. All such insurance
shall name as insureds the Association, the Board of Directors of
the Association, the Association's officers, employees and agents,
and, if each of the insureds as if each were separately insured
under separate policies. To the extent possible, such casualty
insurance shall:
(1) provide for a waiver of subrogation of the
insurer as to claims against Declarant, the Association, its
directors, officers, employees and agents, and against any Owner,
and any Owner's employees and guests;
(2) provide that the insurance cannot be canceled,
invalidated or suspended on account of the conduct of the
Association, its officers, directors, employees and agents, or of
any Owner, or such Owner's employees or guests;
(3) provide that any "no other insurance" clause in
the insurance policy shall exclude any policies of insurance
maintained by any Owner or mortgagee, and that the insurance policy
shall not be brought into contribution with insurance maintained by
any Owner or mortgagee;
(4) contain a standard mortgage clause endorsement
in favor of the mortgagee of any Condominium Unit or part of the
Common Interest Community, except a mortgagee of a Condominium Unit
or part of the Common Interest Community who is covered by other
and separate insurance;
(5) provide that the policy of insurance shall not
be terminated, canceled or substantially modified without at least
ten (10) days' prior written notice to the Association, and to each
Owner and to each mortgagee covered by any standard mortgage
clause endorsement; and
(6) provide that the insurer shall not have the
option to restore the premises if condominium ownership of the
Common Interest Community is to be terminated in accordance with
the terms of this Declaration, or the Common Interest Community is
to be sold in its entirety in accordance with the destruction,
condemnation or obsolescence provisions of this Declaration.
To the extent possible, public liability and
property damage insurance shall provide for coverage of any cross
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liability claims of Owners against the Association or the other
Owner, and of the Association against Owners, without the right of
subrogation. Any insurance policy may contain such deductible
provisions as the Board of Directors of the Association deems
consistent with good business practice.
The Association shall obtain an independent
appraisal of the Common Interest Community at least every five (5)
years or more often if the Board of Directors deems it advisable;
provided, however, that said appraisal may be performed by an
appraiser employed by an insurance company.
Certificates of insurance coverage or copies of
insurance policies shall be issued to each Owner and each - mortgagee
who makes written request to the Association for any such
certificate or copy of an insurance policy.
The cost and expense of all insurance obtained by
the Association, except insurance covering additions, alterations
or improvements made to a Condominium Unit by an Owner, or other
insurance obtained at the request of and specifically benefiting
any particular Owner, shall be an expense of the Association.
b. Casualty Insurance. The Association shall obtain
and maintain casualty insurance covering the Common Interest
Community, and each Condominium Unit, covering loss or damage by
fire and such other hazards as are covered under standard extended
coverage policies, with vandalism and malicious mischief
endorsements, and, if available and if deemed appropriate by the
Association, other casualty risks, for the full insurable
replacement cost of the Common Interest Community, including each
Condominium Unit with an inflation guard endorsement that
automatically increases the amount of coverage by a fixed
percentage periodically. At the option of the Association, such
insurance may also cover additions, alterations or improvements to
a Condominium Unit made by an Owner if the Owner reimburses the
Association for any additional premiums attributable to such
coverage. The Association shall not be obligated to apply any
insurance proceeds to restore a Condominium Unit to a condition
better than the conditions existing prior to the making of
additions, alterations or improvements by an Owner, in the absence
of insurance covering such additions, alterations or improvements
as aforesaid.
c. Public Liability and Property Damage Insurance. The
Association shall obtain and maintain comprehensive public
liability and property damage insurance covering personal
liability, property damage liability, and automobile personal and
property damage liability of the Association, its officers,
managers, employees and agents, and of each Owner and each Owner's
employees and guests, arising in conjunction with ownership,
operation, maintenance, occupancy or use of the Common Interest
Community, or of any Condominium Unit in the Common Interest
Community, with limits of not less than one million dollars
($1,000,000.00) for each occurrence involving bodily injury
liability and /or property damage liability.
d. Workmen's Compensation and Employer's Liability
Insurance. The Association shall obtain and maintain workmen's
compensation and employer's liability insurance as may be necessary
to comply with applicable laws.
e. Insurance by Owners. Insurance coverage on
contents, merchandise, furnishings, including cabinets, counters,
carpet and other floor coverings, draperies, oven, range,gas
grills, refrigerators, wallpaper, disposals, plumbing fixtures such
as tubs, sinks and other items of personal and other property
belonging to an Owner, and public liability coverage within each
Unit, shall be the sole and direct responsibility of the Owner
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thereof, and the Board of Directors, the Association and the
Managing Agent shall have no responsibility therefor.
Any insurance policy obtained by an Owner shall be such
that it will not diminish or adversely affect or invalidate any
insurance or insurance recovery under policies carried by the
Association, and shall, to the extent possible, contain a waiver of
the right of subrogation by the insurer as to any claim against the
Association, its officers, managers, agents and employees, and
against the Owners and their employees and guests. A copy of any
insurance policy obtained by an Owner shall be furnished to the
Association on the written request of the Association.
f. Receipt and Application of Insurance Proceeds.
Except as some particular person has a legal right to receive
insurance proceeds directly, all insurance proceeds and recoveries
shall be paid to and received by the Association. All insurance
proceeds or recoveries received by the Association shall be
applied by the Association; first, as the Owners or persons whom
the Association may determine are legally or equitably entitled
thereto; and second, the balance, if any, to Owners in proportion
to their respective interest in Common Elements.
g. Other Insurance by Association. The Association
shall have the power and authority to obtain and maintain other and
additional insurance coverage, including casualty insurance
covering personal property of the Association, fidelity bonds, or
insurance covering employees and agents of the Association, and
insurance indemnifying officers, managers, employees and agents of
the Association.
h. Owner- Increased Premiums. In the event that, as a
consequence of the hazardous use of any Condominium Unit, or of any
Owner installed improvements to any Condominium Unit, the premiums
of any policy of insurance purchased by the Association are
increased, or special policy is required, the cost of such increase
or specific policy shall be payable by the Owner of such
Condominium Unit.
23. Lien for Nonpayment of Assessments.
a. The Association has a lien on a Unit for any
assessment levied against that Unit, or fines imposed against its
Owner, from the time the assessment or fine becomes due. Fees,
charges, late charges, attorney fees, fines and interest charged,
pursuant to subsections (d) and (e) below, are enforceable as
assessments under this section. If an assessment is payable in
installments, the full amount of the assessment is a lien from the
time the first installment thereof becomes due.
b. A lien under this section is prior to all other
liens and encumbrances on a Unit, except;
(1) Liens and encumbrances recorded before the
recordation of the Declaration;
(2) A security interest on the Unit which has
priority over all other security interests on the Unit, and which
was recorded before the date on which the assessment sought to be
enforced became delinquent; and.
(3) Liens for real estate taxes and other
governmental assessments or other charges against the Unit.
c. A lien for assessments is also prior to the security
interests described in Subparagraph (2) of Paragraph b above to the
extent of:
(1) An amount equal to the common expense
assessments based on a periodic budget adopted by the Association
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which would have become due, in the absence of any acceleration,
during the six (6) months immediately preceding institution of an
action to enforce the lien, but in no event shall the priority
accorded under this Paragraph 23 to such lien exceed one hundred
fifty percent (150 %) of the average monthly assessment during the
immediately preceding fiscal year multiplied by six; and
(2) Attorneys' fees and costs being incurred in an
action to enforce the lien.
d. If any assessment shall remain unpaid twenty (20)
days from and after the due date thereof, such unpaid sums shall
bear interest from and after the due date thereof at a rate of
interest equal to four (4) points above the Prime Rate.as set by
the Chase Manhattan Bank, and the Board of Directors may impose a
late charge on such defaulting Owner, to cover the extra cost and
expenses involved in handling such delinquent assessments.
e. The Association may enforce its lien for assessments
by foreclosure of the defaulting Owner's Condominium Unit by the
Association in like manner as a mortgage on real property. In any
such foreclosure, 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 attorneys' frees. The
Owner shall also be required to pay to the Association the monthly
assessment for the Condominium Unit during the period of
foreclosure, and the Association shall be entitled to the
appointment of a receiver to collect the same. The Board of
Directors shall have the power to bid on the Condominium Unit at
foreclosure sale, and to acquire and hold, lease, mortgage and
convey the same.
f. Any encumbrancer holding a lien on a Condominium
Unit may pay, but shall not be required to pay, any unpaid common
expenses payable with respect to such Condominium Unit, and, on
such payment, such encumbrancer shall have a lien on such
Condominium Unit for the amounts paid of the same rank as the lien
of that encumbrancer's encumbrance; provided, however, that any
first mortgagee who acquires a Condominium Unit by foreclosure or
by a deed in lieu thereof shall acquire title to such Condominium
Unit free and clear of any lien for unpaid common expenses, and
shall only be responsible for common expenses arising after the
date on which such first mortgagee acquires title to the
Condominium Unit, except for those expenses which are a statutory
lien under §38- 33.3 -316 of the Colorado Common Interest Ownership
Act.
g. The Association shall furnish to an Owner or such
Owner's designee, or to a holder of a security interest or its
designee, upon Written request, delivered personally or by
certified mail, first -class postage prepaid, return receipt, to,
the Association's registered agent, a statement setting forth the
amount of unpaid assessments currently levied against such Owner's
Unit. The statement shall be furnished within fourteen (14)
business days after receipt of the request, and is binding on the
Association, the Board, and each Owner. If no statement is
furnished to the owner or holder of a security interest or. their
designee, delivered personally or by certified mail, first -class
postage prepaid, return receipt requested, to the inquiring party,
then the Association shall have no right to assert a prior lien
upon the Unit for unpaid assessments which were due as of the date
of the request. The inquiring party shall pay a reasonable fee as
specified in the rules and regulations adopted by the Board upon
making the written request for a statement under this section.
h. Each Owner hereby agrees that the Association's lien
on a Condominium Unit for assessments, as hereinabove described,
shall be superior to the Homestead Exemption provided by C.R.S.
§38 -41 -201, et seq., as amended, and each Owner hereby agrees that
the acceptance of the deed or other instrument of conveyance in
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regard to any Condominium Unit within the Common Interest Community
shall signify such grantee's waiver of the Homestead right granted
in the section of the Colorado statutes.
i. Any recorded lien for nonpayment of the common
expenses may be released by recording a release of lien executed by
a member of the Board of Directors.
24. Owners' Obligations for Payment of Assessments. The
amount of the common expenses and any special assessment assessed
against each Condominium Unit shall be the personal and individual
debt of the Owner or Owners thereof at the time the assessment is
made. Suit to recover a money judgment for unpaid common expenses
or special assessments, and costs of suit and attorneys' fees,
shall be maintainable without foreclosing or waiving the lien
securing same. No Owner may exempt them from liability for
contribution towards the common expenses or any special assessment
by waiver of the use of enjoyment of the General Common Elements,
Limited Common Elements, or by abandonment of that Owner's
Condominium Unit.
25. Liability for Assessments on transfer of Condominium
Unit.
a. The grantee of a Condominium Unit, except a first
mortgagee who acquires a Condominium Unit by foreclosure or a deed
in lieu of foreclosure, shall be jointly and severally liable with
the grantor for all unpaid assessments against the grantor for that
Grantor's 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 on payment of a reasonable fee
specified in rules and regulations adopted by the Board of
Directors, and written request, any such prospective grantee shall
be entitled to a statement from the Managing Agent or Board of
Directors setting forth the amount of the unpaid common expense, if
any, with respect to the subject Condominium Unit, the amount of
the current monthly assessment, the date that such assessment
becomes due, the amount of any assessment reserve on deposit with
the Association, and any credit for advance payments for prepaid
items, including, but not limited to, insurance premiums, which
statement shall be conclusive on the Association in favor of all
persons who rely thereon in good faith. Unless such request for
such a statement shall be complied with within fourteen (14) days
from the receipt thereof, such requesting grantee shall not be
liable for and the Condominium Unit conveyed shall not be subject
to a lien for any unpaid assessments against the subject
Condominium Unit.
26. Mortgaging a Condominium Unit - Priority. Any Owner
shall have the right, from time to time, to mortgage or encumber
that Owner's Condominium Unit by deed of trust, mortgage or other
security instrument. The Owner of a Condominium Unit may create
junior mortgages (junior to the lien, deed of trust, or other
encumbrance of the first mortgage) on that Owner's Condominium Unit
on the following conditions: (1) that any such junior mortgages
shall always be subordinate to all of the terms, conditions,
covenants, restrictions, uses, limitations, obligations, liens for
assessments, and other obligations created by this Declaration and
the Bylaws; and (2) that the mortgagee under any junior mortgage
shall release for the purpose of restoration of any improvements on
the mortgaged premises all of the Mortgagee's right, title and
interest in and to the proceeds under all insurance policies
effected and placed on the Common Interest Community by the
Association. Such release shall be furnished forthwith by a junior
mortgagee upon written request of the Managing Agent, or by one (1)
or more of the members of the Board of Directors of the
Association, and if not furnished, may be executed by the
Association as attorney -in -fact for such junior mortgagee.
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27. Restrictive Covenants and Obligations. The Board of
Directors or the Managing Agent shall have the power to establish,
make, and enforce compliance with all covenants and obligations
hereof.
a. No Imperiling of Insurance. No Owner and no Owner's
guest shall do anything or cause anything to be kept in or on the
project which might cause cancellation of any insurance effected
and placed on the Common Interest Community by the Association.
b. No Violation of Law. No Owner and no Owner's guest
shall do anything, or keep anything in or on the Common Interest
Community, which would be improper, offensive, or in violation of
any statute, rule, ordinance, regulation, permit, or other validly
imposed requirement of any governmental body.
c. No Noxious, Noisy. Offensive, Hazardous or Annoying
Activities. No noxious, noisy or offensive activity shall be
conducted on any part of the Common Interest Community; nor shall
anything be done or placed on or in any part of the Common Interest
Community which is or may become a nuisance or cause embarrassment,
disturbance or annoyance of any other Owner or their guest. No
activity shall be conducted on any part of the Common Interest
Community, and no improvements shall be made or conducted on any
part of the Common Interest Community, which are or might be unsafe
or hazardous to any person or property. No sound shall be emitted
on any part of the Common Interest Community which is unreasonably
loud or annoying. No odor shall be emitted on any part of the
Common Interest Community which is noxious or offensive to others.
No light shall be emitted from any part of the Common Interest
Community which is unreasonably bright or causes unreasonable
glare.
d. No Unsightliness. No unsightliness or waste shall
be permitted on or in any part of the Common Interest Community.
Without limiting the generality of the foregoing, no Owner shall
keep or store anything on or in any of the General Common Elements.
No Owner shall have, erect, affix or place anything on any of the
General Common Elements (except for decorative items within that
Owner's Unit) , and nothing shall be placed on or in windows or
doors of Units which would or might create an unsightly appearance.
All trash shall be collected in areas designated by the
Association. No wiring, television antennae, or other items may be
installed which protrude through windows, walls or roof areas,
except as expressly authorized by the Association or this
Declaration.
e. Restriction on Signs. No signs or advertising
devices of any nature shall be erected or maintained on any part of
the Common Interest Community, except for those erected by
Declarant, without the prior written consent of the Board. The
Board shall allow for one (1) for -sale sign at the time of the
offering for sale of a unit.
f. No Violation of Rules. No Owner and no Owner's
tenants, guests or invitees shall violate the rules and regulations
adopted from time to time by the Association, whether relating to
the use of Units, the use of General or Limited Common Elements, or
otherwise.
g. Owner Caused Damages. If, due to the act or neglect
of an Owner or such Owner's tenants, guests or invitees, loss or
damage shall be caused to any person or property, including the
Common Interest Community or any Unit therein, such Owner shall be
liable or responsible for the same, except to the extent that such
damage or loss is covered by insurance obtained by the Association,
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 Association from such Owner as an
assessment against such Owner by legal proceedings or otherwise,
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and such amount (including reasonable attorneys' fees) shall be
secured by a lien on the Condominium Unit of such owner, as
provided hereinabove, for assessments or other charges.
h. Parking of Vehicles. Parking of any and all
vehicles on the Common Interest Community shall be only on the
paved areas designated for parking and subject to the rules and
regulations of the Association. The Association shall have no
responsibility for damage done to automobiles parked on the Common
Interest Community.
i. Restrictions on parkins and Storage. No part of the
Common Interest Community, including the public streets and
driveways or parking areas, unless specifically designated by the
Association therefor, shall be used as a parking, storage, display
or accommodation area for any type of trailer, camping trailer,
boat trailer, hauling trailer, running gear, boat or accessories
thereto, truck or recreational vehicle, except as a temporary
expedience for loading, delivery, emergency, etc., provided this
restriction shall not restrict trucks or other commercial vehicles
which are necessary for the construction or maintenance of the
Common Interest Community. Repairing of vehicles on the premises,
outside of either unit, shall not be permitted.
j. Six -Month Rental Restriction. For so long as
required by the Municipal Code of the City of Aspen, no Owner shall
lease that Owner's Condominium Unit for a period of less than six
(6) months, except that twice during each calendar year Owners may
lease their Condominium Units for lesser periods.
k. Leases. No Owner may lease less than that Owner;s
entire Condominium Unit, and all leases shall be in writing. All
leases shall provide that the terms of the lease are subject, in
all respects, to the provisions of this Declaration, and to the
provisions of the Articles of Incorporation, Bylaws, rules and
regulations, and decisions and resolutions of the Association and
the Board of Directors.
1. Pets. Only cats and dogs will be allowed in each
Unit, and then only if they are quiet and obedient. In the event
the Owner of a Unit owns a permitted dog, they will be required to
install an invisible electric fence, and the dog will be required
to wear an electric collar whenever it is in the yard in order to
make the invisible electric fence operational. In 'liu of an in-
visible fence, a Unit Owner shall be entitled to fence that portion of the yard
constituting their limited common element. '
m. Hot Tubs. Hot tubs shall be allowed on the roof of each
Unit. Each Unit Owner agrees that in connection with their use of the hot tub,
not to violate any of the rules or regulations herein contained . or, from time to
• time, adopted by the Association. •
n. Outdoor Grills. No use of an outdoor grill . shall
violate any of the rules or regulations herein contained or hereinafter adopted
by the Association.
o. Outdoor Furniture and Equipment.' No swing sets,
structures or fixtures will•he.allo4ed in the yards.
28. Association as Attornev -in -Fact - Damage and Destruction
- Obsolescence. This Declaration does hereby make mandatory the
irrevocable appointment of the Association as attorney -in -fact to
deal with the Common Interest Community on its destruction, repair
or obsolescence.
Title to any Condominium 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 for the purpose of
dealing with the Common Interest Community on its destruction,
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repair 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 is necessary and
appropriate to exercise 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 the improvements existed prior to the
damage, with each Unit and the General Common Elements and Limited
Common Elements having substantially the same vertical and
horizontal boundaries as before. Except as is otherwise herein
provided, the proceeds of any insurance collected shall be
available to the Association for the purpose of repair, restoration
or replacement, unless all Owners and all first mortgagees agree
not to rebuild in accordance with the provisions set forth
hereinafter.
Assessments for common expenses shall not be abated during the
period of insurance adjustment and repair and reconstruction.
a. In the event of damage or destruction to the Common
Interest Community to the extent of not more than sixty six and
two - thirds percent (66 -2/3 %) of the total replacement cost thereof,
not including land, 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 cause the
repair and restoration of the improvements.
b. If the insurance proceeds are insufficient to repair
and reconstruct the improvements, and if such damage is to the
extent of not more that sixty -six and two - thirds percent (66 -2/3 %)
of the total replacement cost of the Common Interest Community, not
including land, such damage or destruction shall be promptly
repaired and reconstructed by the Association, as attorney -in -fact,
using the proceeds of insurance and the proceeds of an assessment
to be made against all of the Owners and their condominium Units.
Such deficiency assessment shall be a common expense and made pro
rata according to each Owner's interest in the General Common
Elements, and shall be due and payable within thirty (30) 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 and such assessment. The assessment provided for herein
shall be a debt of each Owner and a lien on that Owner's
Condominium Unit, and may be enforced and collected as is provided
hereinabove. In addition thereto, the Association, as attorney -in-
fact, shall have the absolute right and power to sell the
Condominium Unit of any Owner refusing or failing to pay such
deficiency assessment within the time provided, and, if not so
paid, the Association shall cause to be recorded a notice that the
Condominium Unit of the delinquent Owner shall be sold by the
Association, as attorney -in -fact. The proceeds derived from the
sale of such Condominium Unit shall be used and disbursed by the
Association, as attorney -in -fact, in the following order:
(1) For payment of taxes and special assessment
liens in favor or any assessing entity.
(2) For payment of the balance of the lien of any
first mortgage.
(3) For payment of unpaid common expenses including
the proration share of the deficiency assessment.
(4) For payment of junior mortgages and
encumbrances in the order of and to the extent of their priority.
(5) The balance remaining, if any, shall be paid to
the Owner.
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c. If the Common Interest Community is destroyed or
damaged to the extent of more that sixty -six and two - thirds percent
(66 -2/3 %) of the total replacement cost thereof, not including
land, the Board shall adopt a plan for the repair and
reconstruction of the Common Interest Community, and each Owner
shall be bound by the terms and provisions of such plan. The
Association shall have the right to use, in accordance with such
plan, all proceeds of insurance for such destruction or damages, as
well as the proceeds of an assessment to be made against each of
the Owners and their Condominium Units. Any assessment made in
connection with such plan shall be common expense, and made pro
rata according to each Owner's percentage interest in the General
Common Elements, and shall be due and payable as provided by the
terms of such plan, and not sooner than thirty (30) days after
written notice thereof, the Association shall have full authority,
right and power, as attorney -in -fact, to cause the repair and
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 that Owner's Condominium Unit, and may
be enforced and collected as is provided hereinabove. In addition
thereto, the Association, as attorney -in -fact shall have the
absolute right and power to sell the Condominium 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 Condominium Unit of the delinquent Owner
shall be sold by the Association. The proceeds derived from the
sale of such Condominium 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 -5) of this
paragraph.
d. If the Common Interest Community is damaged or
destroyed to the extent of more that sixty -six and two - thirds
percent (66 -2/3 %) of the total replacement cost thereof, not
including land, and if the Owners vote not to adopt a plan for
repair and reconstruction, the Association shall, forthwith record
a notice setting forth such fact or facts, and, on the recording of
such notice by the Association's president and secretary, the
entire remaining Common Interest Community 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 Map, the
Articles and the Bylaws. The insurance settlement proceeds shall
be collected by the Association and such proceeds shall be divided
by the Association according to each Owner'[s interest (as such
interests appear on the policy or policies), and such divided
proceeds shall be paid into separate accounts, each such account
representing One (1) of the Condominium Unit. Each such account
shall be in the name of the Association, and shall be further
identified by the Condominium 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 Common Interest Community. Such apportionment shall be
based on each Owner's percentage interest in the General Common
Elements. The total funds of each account shall be used and
disbursed, without contribution from one (1) account to another by
the Association, as attorney -in -fact, for the same purposes and in
the same order as is provided in Subparagraphs (b)(1 -5) of this
paragraph. The provisions contained in this subparagraph shall not
hinder the protection given to a first mortgagee under a mortgagee
endorsement.
e. The Owners may agree that the General Common
Elements are obsolete and adopt a plan for the renewal and
reconstruction; provided, however, that the plan shall have the
approval of the first mortgagees of record at the time of the
adoption of such plan. If a plan for the renewal or reconstruction
is adopted, notice of such plan shall be recorded, and the expense
of renewal and reconstruction shall be recorded, and the expense of
renewal and reconstruction shall be payable by each of the Owners
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as a common expense, whether or not they have previously consented
to the plan or renewal and reconstruction. The Association, as
attorney -in -fact, shall have the absolute right and power to sell
the Condominium 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
Condominium Unit of the delinquent Owner shall be sold by the
Association. The delinquent Owner shall be required to pay to the
Association the costs and expenses for filing the notices, interest
at the rate of eighteen percent (18 %) per annum on the amount of
the assessment, and all reasonable attorneys' fees. The proceeds
derived from the sale of the Condominium 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 -5) of this paragraph.
f. The Owners representing a aggregate ownership
interest of one hundred percent (100 %) of the General Common
Elements may agree that the Condominium Units are obsolete and the
same should be sold. Such plan (agreement) must have the unanimous
approval or consent of every first mortgagee. In such instance,
the Association shall forthwith record a notice setting forth such
fact or facts, and, on the recording of such notice by the
Association president and secretary, the entire Common Interest
Community shall be sold by the Association, as attorney -in -fact for
each of the Owners, free and clear of the provisions contained in
this Declaration, the Map, the Articles and the Bylaws. The sale
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 (1) Condominium Unit. Each such
account shall be in the name of the Association, and shall be
further identified by the Condominium 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 (1) account to
another for the same purposes and in the same order as is provided
in Subparagraphs (b)(1 -5) of this paragraph.
29. Condemnation.
a. Consequences of Condemnation. If, at any time or
times during the continuance of condominium ownership pursuant to
this Declaration, all or any part of the Common Interest Community
shall be taken, condemned by any public authority, or sold or
otherwise disposed on in lieu of or in avoidance thereof, the
provisions of this Paragraph 30 shall apply.
b. Proceeds. All compensation, damages or other
proceeds therefrom, the sum of which is hereinafter called the
"Condemnation Award," shall be payable to the Association.
c. Complete Taking. In the event the entire Common
Interest Community is taken, condemned, or sold or otherwise
disposed of in lieu of or in avoidance thereof, condominium
ownership pursuant to this Declaration shall terminate. The
Condemnation Award shall be apportioned among the Owners in
proportion to their respective undivided interests in the General
Common Elements; provided, however, that, if a standard different
from the value of the Common Interest Community as a whole is
employed to measure the Condemnation Award in the negotiation,
judicial decree or otherwise, in determining such
share, the same standard shall be employed to the extent it is
relevant and applicable.
d. Partial Taking. In the event less than the entire
Common Interest Community is taken, condemned, or sold or otherwise
disposed of in lieu of or in avoidance thereof, the condominium
ownership hereunder shall not terminate. Each Owner shall be
entitled to a share of the Condemnation Award to be determined in
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the following manner. As soon as practicable, the Association
shall reasonably and in good faith allocate the Condemnation Award
among compensation, damages and other proceeds, and shall apportion
the amounts so allocated among the Owners as follows:
(1) The total amount allocated to taking of or
injury to the General Common Elements shall be apportioned among
the Owners in proportion to their respective undivided interests in
the General Common Elements.
(2) The respective amounts allocated to the taking
of or injury to a particular Unit and /or improvements and Owner had
made within his own Unit shall be apportioned to the particular
Condominium Unit involved.
(3) The amount allocated to consequential damages
and any other takings or injuries shall be apportioned as the
Association determines to be equitable in the circumstances.
If an allocation of the Condemnation Award is already
established in negotiation, judicial decree or otherwise, in
allocating the Condemnation Award, the Association shall employe
such allocation to the extent it is relevant and applicable. Any
distribution of the Condemnation Award made pursuant to this
subparagraph shall be made by checks payable jointly to the Owners
and their first mortgagees. Upon acquisition by condemnation,
unless the decree otherwise provides, the ownership and assessment
interest of any Unit that has been partially or completely taken
must be reallocated to the remaining Unit in proportion to the
respective allocated interest of the Unit before the taking. Any
remnant of a Unit remaining after part of a Unit is taken is
thereafter a common element.
e. Reallocation of Interests. Except as provided in
Subsection d of this Article, if part of a Unit is acquired by
condemnation, the Association must distribute the award to
compensate the Owner for the reduction in value of the Unit and
that Owner's interest in the Common Elements, whether or not any
Common Elements are acquired. Upon acquisition by condemnation,
unless the decree otherwise provides:
(1) That Unit's ownership and assessment interests
are reduced in proportion to the reduction in the size of the Unit;
and
(2) The portion of interests divested from the
partially acquired Unit is automatically reallocated to that Unit,
and to the remaining Unit in proportion to the respective interests
of that Unit before the taking, with the partially acquired Unit
participating in the reallocation on the basis of its reduced
interests.
f. Limited Common Elements. If part of the Common
Elements is acquired by eminent domain, that portion of any award
attributable to the Common Elements taken must be paid to the
Association. Any portion of the award attributable to the
acquisition of a Limited Common Element must be divided among the
Owners of the Unit to which that Limited Common Element was
allocated at the time of acquisition.
g. Distribution. The Association 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 as soon as practicable; provided, however,
that in the event of a complete taking, such distribution shall be
made in the same manner as is provided in Subparagraph 29(b)
hereof.
h. Mortgage Notice. The Association shall give timely
written notice to each first mortgagee of the commencement of any
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condemnation or eminent domain proceedings, and shall notify the
first mortgagees in the event of the taking of all or any part of
the General Common Elements.
i. Reorganization. In the event a partial taking
results in the taking of a complete Unit, the Owner thereof
automatically shall cease to be a member of the Association, and
such Owner's interest in the General Common Elements shall
thereupon terminate, and the Association, as attorney -in -fact for
such Owner, may take whatever action is necessary, and execute such
documents as are necessary, to reflect such termination. Any
reallocation of ownership and assessment interests shall be
confirmed by an amendment to the Declaration prepared, executed,
and recorded by the Association.
30. Miscellaneous.
a. Duration of Declaration. All of the provisions
contained in this Declaration shall continue and remain in full
force and effect until condominium ownership of the Common Interest
Community and this Declaration are terminated, revoked or amended
as hereinafter provided.
b. Amendment and Termination. Any provision contained
in this Declaration may be amended, or additional provisions may be
added to this Declaration, and condominium ownership of the Common
Interest Community amy be terminated or revoked by the recording of
a written instrument or instruments specifying the amendment or
addition, or the fact of termination and revocation, executed by
the owners, as shown by the records in the office of the Clerk and
Recorder of Pitkin County, Colorado, of Condominium Units
representing an aggregate ownership interest of one hundred percent
(100 %) of the General Common Elements, and first mortgagees whose
liens encumber an aggregate ownership interest of one hundred
percent (100 %) of the General Common Elements; provided, however,
that in no event shall the undivided interest of an owner in the
General Common Elements be decreased without the unanimous consent
of each owner and each first mortgagee. The consent of any junior
mortgagees shall not be required under the provisions of this
paragraph. The Association shall, at least ten (10) days prior to
the effective date of any amendment to this Declaration, except for
conditions imposed by the City of Aspen, notify all first
mortgagees of record of such amendment.
c. 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,
shall:
(1) be deemed incorporated in each deed or other
instrument by which right, title or interest in the Common Interest
Community or in any Condominium Units is granted, devised or
conveyed, whether or not set forth or referred to in such deed of
instrument;
(2) by virtue of acceptance of any right, title or
interest in the Common Interest Community, or in any Condominium
Units by an Owner, be deemed accepted, ratified, adopted and
declared as a 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 shall be
deemed a personal covenant to, with and for the benefit of the
Association, and not to, with or for the benefit of any other non
aggrieved Owner;
(3) be deemed a real property covenant by
Declarant, for itself, its successors and assigns, and also an
equitable servitude running, in each case, as a burden with and on
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the title to the Common Interest Community and each Condominium
Unit and, as a real property covenant and also as an equitable
servitude, shall be deemed a covenant and servitude for the benefit
of the Common Interest Community and each Condominium Unit; and
(4) be deemed a covenant, obligation and
restriction secured by a lien in favor of the Association burdening
and encumbering the title to the Common Interest Community and each
Condominium Unit in favor of the Association.
d. Protection of Encumbrancer. Subject to the
provisions of Paragraph 26 above, 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 or other lien on
any Condominium Unit taken in good faith and for value, and
perfected by recording in the office of the Clerk and Recorder of
Pitkin County, Colorado, prior to the time of recording in such
office, an instrument describing the Condominium Unit, and listing
the name or names of the Owner of fee simple title to the
Condominium Unit, and giving notice of such violation, breach or
failure to comply; nor shall such violation, breach or failure to
comply, or action to enforce, affect, defeat, render invalid or
impair the title or interest of the holder of any such first
mortgage or other lien, or the title or interest acquired by any
purchaser on foreclosure of any such first mortgage or other lien,
result in any liability, personal or otherwise, of any such holder
or purchaser. Any such purchaser on foreclosure shall, however,
take subject to this Declaration; provided, however, that violation
or breaches or failure to comply with any provisions of this
Declaration which occurred prior to the vesting of fee simple title
in such purchase shall not be deemed breaches or violations hereof,
or failures to comply herewith, with respect to such purchaser,
that purchaser's heirs, personal representatives, successors or
assigns.
e. Supplemental to Law. The provisions of this
Declaration shall be governed by and subject to the Colorado Common
Interest ownership Act, and to all other provisions of law.
f. Numbers and Genders. Whenever used herein, unless
the context shall otherwise provide, the singular number shall
include the plural, the plural shall include the singular, and the
use of any gender shall include all genders.
g. Registration by Owner of Mailing Address. Each
owner shall register that Owner's mailing address with the
Association, and, except for monthly statements and other routine
notices which shall be personally delivered or sent by regular
mail, all other notices or demands intended to be served on an
Owner shall be delivered personally, or shall be deemed given when
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 notices intended to be
served on the Board of Directors of the Association or the
Association shall be sent certified mail, postage prepaid, to
CASTLE CREEK TOWNHOMES ASSOCIATION, c/o Douglas P. Allen, 600 East
Hopkins, Suite 302, Aspen, Colorado 81611,, agent for service,
until such address is changes by a notice of address duly recorded
with the office of the Secretary of State of Colorado.
h. Successors in Interest. This Declaration shall be
binding on and shall inure to the benefit of the Declarant, the
Association, and each Owner and the heirs, personal
representatives, successors and assigns of each of them.
i. Severability. 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.
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j. Captions. The captions and headings in this
Declaration are for convenience only, and shall not be considered
in construing any provision of this Declaration.
k. N. Waiver. Failure to endorse any provision of
this Declaration shall not operate as a waiver of any such
provision, or of any other provision of this Declaration.
1. R - A•,� 0 - _ .r - - . If any of the options,
privileges, covenants, or rights created by this Declaration shall
be unlawful, void or voidable for violation of the rule against
perpetuities, such provision shall continue only until twenty -one
(21) years after the death of the survivor of the now living
descendants of all of the presently registered voters of the City
of Aspen, Colorado.
m. Certificate of Identity. There shall be recorded,
from time to time, a certificate of identity which shall include
the addresses of the persons then comprising the managehtent body
(directors and officers), together with the indentity and address
of the Managing Agent. Such certificate shall be conclusive
evidence of the information contained therein, in favor of any
person relying thereon in good faith, regardless of the time
elapsed since the date thereof.
n. Arbitration. In the event that a dispute or claim
arises between the Unit Owners, that dispute or claim shall be
submitted to resolution pursuant to arbitration under the rules
and regulations of the American Arbitration Association. Any
decision rendered pursuant to such arbitration may be entered as a
judgment in the District Court of Pitkin County and shall be
enforceable in the same manner as a judgment of a court of law.
IN WITNESS WHEREOF, Declarant has duly executed this
Declaration this day of , 1995.
DONALD A. WHITLOCK
STATE OF COLORADO
ss.
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this
Day of , 1995, by Donald A. Whitlock.
Witness my hand and official seal.
My commission expires:
Notary Public
Address:
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EXHIBIT "I"
TO
CONDOMINIUM DECLARATION FOR
COTTONTAIL TOWNHOUSES CONDOMINIUMS
The undivided interest in the General Common Elements,
Commom Expenses, and Common Surplus are as follows:
Units percents
Unit "A" 50%
Unit "B" 50%
TOTAL 100%