HomeMy WebLinkAboutcoa.lu.co.314 E Hyman Motherlode.0004.2012 THE CITY OF ASPEN
City of Aspen Community Development Department
CASE NUMBER 0004.2012.ASLU
PARCEL ID NUMBERS 2737 07 3 38 007
PROJECTS ADDRESS 314 E HYMAN AVE
PLANNER JEN PHELAN
CASE DESCRIPTION CONDOMINIUMIZATION
REPRESENTATIVE THE MOTHERLODE INVESTORS
DATE OF FINAL ACTION 3.12.12
CLOSED BY ANGELA SCOREY ON: 8.31.12
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THE PURPOSE OF THIS MAP IS TO CONDOMINIUMIZE � �' �«• , � � $#
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Jennifer Phelan
From: Jennifer Phelan
Sent: Tuesday, February 14, 2012 11:56 AM
To: 'Fred Peirce' ,
Subject: Mother Lode condominium plat
Attachments: Mother Lode 2.14.12.pdf; draft condo 1 30 12-TA_JP.pdf
Hi Fred: I apologize that my review has taken longer than expected but our department has been concerned with the
representations being made in the sales marketing of the building(see attachment: Mother Lode 2.14.12).This letter is
being sent today to Sean Gooding as well as Heidi Houston and yourself. Besides the inaccurate marketing issue outlined
in my letter dated 2/14/12, I've included comments on the draft condominium plat (see attachment: draft condo).The
comments on the pdf are identified as JP (for a planning comment)or TA (for an engineering comment).These plat
comments can be divided into the following categories: 1)general formatting comments and specific questions on
limited common elements in the basement.
Additionally, I've reviewed the covenants and am concerned that a permitted use in the Commercial Core zone district:
restaurant and bar, is prohibited under section 12.2. 1 also think that there is a typographical error in section 17.7, as it
notes that there are five condominium units rather than the six shown on the draft condominium plat. I've forwarded
the draft deed restriction to Cindy Christenson for review.
At this point I cannot approve the draft plat and am happy to meet at your convenience.
Kind regards,Jennifer
Jennifer Phelan,AICP
Deputy Planning Director
Community Development Department
City of Aspen
130 S. Galena St.
Aspen, CO 81611
970-429-2759
www.aspenpitkin.com
1
Mr. Sean Gooding
Mother Lode Investors LLC
162 Bristlecone Drive
Carbondale,CO 81623
February 14,2012
ASPEAI/PITKIN
COMMuNm DEVELOPMENT DEPARTMENT
Dear Sean:
The purpose of this letter is to inform you that the Aspen Community Development Department believes
that the property commonly known as 314 E. Hyman Avenue(hereinafter referred to as the"Mother
Lode")is being inaccurately marketed to the public as it does not appear to accutately reflect the
requirements and representations associated with its land use approvals, As noted in my previous
correspondence to you dated October 13,2011,the land use approvals permit the development of 3,804
square feet of net leasable commercial area(divided between the ground floor and basement),two free-
market residential units(one on the second story and one on the third story)and two affordable housing
units.The following examples are the reasons that lead us to believe the marketing of the Mother Lode to
be inaccurate: .
• An Aspen Magazine issue(Midsummer 2011)ran an article on the 81611 Aspen Experience
which"was hosted at the Mother Lode Residence."The clear implication of the article was that
the entire building could be considered as a single residence.The land use approvals were not for
a single residence,
• An advertisement by Houston and Gorog(now Aspen Home Sales and Rentals) in Aspen
Magazine(Fall 2011)describes the property as the Mother Lode Residence,being a"3-story
residence."This advertisement continues the inaccurate representation to the public that the
building can be purchased and used as a single-residence.
• An online advertisement by Houston and Gorog describing the Mother Lode's"corporate
entertaining area and amenities including a full bar area,media center and sitting room and two
large bathrooms with steam showers"which appears to be the commercial space approved for the.
basement, The land use approvals.do not permit the commercial space to be used for residential
purposes and certainly not to expand the size of the residential unit.
• An online video,http://www,youutube.com/watch?v=vapAshQLw5k,advertising the Mother Lode
for sale,as an"exclusive Aspen home"and showing the second story free market residence's
living room decorated as a bedroom as well as the basement commercial area as a private
media/entertaining room. We have the same concerns about this advertisement.;
• The draft condominium plat's basement includes Commercial Unit 102,accessory bathrooms that
are required(by building code)to serve the commercial unit as well as storage and mechanical
areas that serve both commercial and residential units. Staff is perplexed as to-why one would
have to walk through a commercial unit to.gain access to some residential storage which is
Page 1 of 2
130 SOUTU GALENA STREET • .ASPEN,COLOeADO 81671-1975 • PHONE 970.920,5090 FAx 970.920.5439 _
Printed an Recyded Paper
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defined as a limited common element.Additionally,the basement bathrooms and laundry room
are proposed to be designated as limited common elements to the benefit of both the basement
j commercial unit and the 3`d floor free market residential unit(penthouse). Staff is again at a loss
F as fo whythe penthouse requires shared access to the bathrooms required to serve the commercial
unit.Additionally, if the penthouse is granted use of the bathrooms and laundry the square
footage will count towards the penthouse's net livable area.The penthouse already exceeds the
unit size cap permitted and cannot be increased. For the reasons stated above, our department
r cannot currently approve the condominium plat submitted to our department. i
These examples of marketing material evidence an intention to sell the Mother Lode to a purchaser for
some other uses than the land use approvals will allow. Please explain the apparent inconsistencies
between the marketing of the property and the approvals associated with the Mother Lode.
This correspondence shall serve to put you on notice that the City's Community Development
Department believes that the marketing materials for the,Mother Lode appear to be fraudulently
misrepresenting the allowed uses for the property.Please be advised that if potential purchasers call the
department as part of their due diligence,theywill be informed of the concerns expressed in this letter.
Please contact me at your earliest convenience at 970-429•-2757 or Jennifer_phelan(a—ci.aspen.co.us.
Sincerely,
Jennifer Phelan
Deputy,Planning Director
cc;
Heidi Houston,.Aspen Sales and Rentals
Fred Peirce,Esq: Austin,Smith and Peirce PC.
Page 2 of 2
CONDOMINIUM MAP OF
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: LOTS N AND O,MOTHER LODE SUBDIVISION
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RECFIVED
JAN 26 2012
AUSTIN, PEIRCE &SMITH, P.C.
Attorneys At Law CITY OF ASPEN
600 E. Hopkins Avenue COWUNITY NVELOPMEW
Suite 205
Aspen,Colorado 81611
Frederick F.Peirce Telephone-(970)925-2600
fpeirce @aps-pc.com
Facsimile-(970)925-4720
Thomas Fenton Smith
tsmith @aps-pc.com
January 26, 2012
Ms. Jennifer Phelan, Planning Deputy Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
130 S. Galena Street, 3rd Floor
Aspen, CO 81611
RE: Mother Lode Subdivision;Application for Condominiumization;
Condominium Plat Review
Dear Jennifer:
Pursuant to our recent communications, this Application is submitted to you on behalf
of Mother Lode Investors, LLC, a Colorado limited liability company, the owner of Lots N &
O, Mother Lode Subdivision, for condominiumization and plat approval.
APPLICANT'S NAME,ADDRESS AND TELEPHONE NUMBER:
Mother Lode Investors, LLC
c/o Sean Gooding, Manager
162 Bristlecone Drive
Carbondale, CO 81623
(970) 618-5347
Attached is a letter from the Applicant authorizing Austin, Peirce & Smith,
P.C. to act on behalf of the Applicant.
IDENTIFICATION OF PROPERTY/OWNER OF PROPERTY:
Lots N and O, Mother Lode Subdivision, according to the Plat \
thereof recorded July 22, 2005 in Plat Book 74 at page 70,
Reception No. 512739, Pitkin County real property records
Street Address: 314 E. Hyman Avenue
AUSTIN, PEIRCE &SMITH, P.C.
Attorneys At Law R E to;`F, I V E UP"
Ms. Jennifer Phelan, Planning Deputy Director JAN 2 6 2012
CITY OF ASPEN COMMUNITY DEVELOPMENT
January 26, 2012
Page 2 COMMUNITY DEVELOPMENT
Attached is a copy of a title insurance policy issued by Stewart Title of Aspen,
Inc., Order Number 44196, dated October 14, 2005, reflecting that Applicant is
the owner of the Property and that there are no liens against the Property.
According to the title examiner at Stewart Title, the owner and lien status
remain unchanged since the date of the attached title insurance policy.
APPLICATION:
The property which is the subject of this Application received development
approvals to construct a three story expansion to the Mother Lode Building pursuant to
Ordinance No. 25, Series of 2005, recorded in the Pitkin County real property records
on July 19, 2005 under Reception No. 512547. Section 17 of the referenced Ordinance
No. 25 grants approval for condominiumization of the property, subject to:
"recordation of a condominium plat in compliance with the current (at the time of
condo plat submission) plat requirements of the City Community Development
Engineer." The within application is to obtain the requisite approval from the City
Community Development Engineer and Department of the proposed condominium
plat and related condominium documents for the condominiumization of the property.
Section 7 of the referenced Ordinance No. 25 requires the Applicant to record
a deed restriction on the affordable housing units prior to the issuance of a Certificate
of Occupancy. The Applicant has negotiated a deed restriction with the Aspen/Pitkin
County Housing Authority that is acceptable to both parties in accordance with the
referenced Ordinance No. 25.
Attached are paper copies of the proposed Condominium Plat for the Property,
which includes a vicinity map and complies with the requirements set forth on
the Engineering Department's Condominium Plat Survey Checklist. Also
attached are copies of the proposed Condominium Declaration and Affordable
Housing Deed Restriction for the Property.
LAND USE APPLICATION:
Attached is a copy of the completed Land Use Application
PRE-APPLICATION CONFERENCE SUMMARY
Attached is a copy of the Pre-Application Conference Summary
Y:\Files M-Z\Mother Lode Investors,LLC\Land Use Application.doc
AUSTIN, PEIRCE &O'MITH, P.C.
Attorneys At Law RECF-WED
Ms. Jennifer Phelan, Planning Deputy Director JAN 2 6 2012
CITY OF ASPEN COMMUNITY DEVELOPMENT CITY OF ASPEN
January 26, 2012 COMMUNITY DEVELOPMENT
Page 3
FEE AGREEMENT AND DEPOSIT
Attached are the signed fee agreement and a check for $1,525.00 for the
deposit.
If you have any questions, please do not hesitate to give me a call. In any case, I will
look forward to hearing from you shortly.
Sincerely,
J
s
AUSTIN,PEIRCE&SMITH-,P.C.
By:
Frederick F. Peirce
FFP/hs
Enclosures
cc: Mr. Sean Gooding, Manager
Mother Lode Investors, LLC
Y:\Files M-Z\Mother Lode Investors,LLC\Land Use Application.doc
January 26, 2012 JAN
2 li
CITY f- A�;r,tt`°l
COMMU&IiTY DEVELOrpMEW
Ms. Jennifer Phelan, Planning Deputy Director
CITY OF ASPEN COMMUNITY DEVELOPMENT
130 S. Galena Street, 3rd Floor
Aspen, CO 81611
RE: Mother Lode Subdivision;Application for Condominiumization;
Condominium Plat Review
Dear Ms. Phelan:
As the owner of Lots N & O, Mother Lode Subdivision, located at 314 E. Hyman
Avenue, Aspen, the undersigned hereby authorizes Austin, Peirce & Smith, P.C. to act as the
Applicant's designated representative with respect to the referenced land use application. Fred
Peirce is authorized to submit those land use applications necessary to obtain approval for this
condominiumization review and is authorized to represent the Applicant in meetings with
City staff and with any applicable review bodies.
Should you have any need to contact the Applicant during the course of your review of
this application, please do so through Austin, Peirce & Smith, whose address and phone
number are included in the land use application.
Sincerely,
MOTHER LODE INVESTORS, LLC
By:
Sean Gooding, Manager - - - - - -- -- -- -
162 Bristlecone Drive
Carbondale, CO 81623
970-618-5347
SG/fp
RECF
JAN 2 6 2012 ��
ATTACHMENT 2—LAND USE APPLICATION CITE' Ot-
PROJECT: COMMUNITY DEVELOPM1 w
Name: Mother Lode Condominiums
Location: 314 E. Hyman Avenue , Lots N & O, Mother Lode Subdivision
(Indicate street address,lot&block number,legal description where appropriate)
Parcel ID#(REQUIRED) 273707338007
APPLICANT•
Name: Mother Lode Investors , LLC
Address: 162 Bristlecone Dr. , Carbondale , CO 81623
Phone 9: 970-618-5347
REPRESENTATIVE:
Name: Austin, Peirce & Smith, P.C.
Address: 600 E. Hopkins Ave . , 6te .205 , Aspen, CO 81611
Phone.#:. 970-925-2600
TYPE OF APPLICATION:(please check all that apply):
❑ GMQS Exemption
❑ Conceptual PUD ❑ Temporary Use
❑ GMQS Allotment ❑ Final PUD(&PUD Amendment) ❑ Text/Map Amendment
❑ Special Review ❑ Subdivision
❑ Conceptual SPA
❑ ESA—8040 Greenline,Stream Subdivision Exemption(includes ❑ Final SPA(&SPA
Margin,,Hallam Lake Bluff, condominiumization) Amendment)
Mountain View Plane
❑ Commercial Design Review [❑ Lot Split ❑ Small Lodge Conversion/
Expansion
El Residential Design Variance ❑ Lot Line Adjustment ❑ Other:
❑ Conditional Use
EXISTING CONDITIONS: (description of existing buildings,uses,previous approvals,etc.
Property developed with a three story building pursuant to approvals
contained in City Ordinance No. 25 (2005)
PROPOSAL: descri tion of proposed buildings,uses,modifications,etc.
Approval of condominiumization of building and
condominium plat
Have you attached the.following? FEES DUE:$
Pre-Application Conference Summary
Attachment#1,Signed Fee Agreement
❑
Response to Attachment#3,Dimensional Requirements Form
Response to Attachment#4,Submittal Requirements-Including Written Responses to Review Standards
❑ 3-D Model for large project
All plans that are larger than.8.51.'X 11"must be folded. A disk with an electric copy of all written text
(Microsoft_Word Foimat)must be submitted as part of the application. Large scale projects should include an
electronic 3-D model. Your pre-application conference summary will indicate if you must submit a 3-D model.
ALTA OWNER'S POLICY—10-17-92
POLICY OF TITLE INSURANCE ISSUED BY
STEWART TITLE
GUARANTY COMPANY
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN
SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, STEWART TITLE GUARANTY COMPANY, a Texas
corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not
exceeding the Amount of Insurance stated in Schedule A,sustained or incurred by the insured by reason of:
1. Title to the estate or interest described in Schedule A being vested other than as stated therein;
2. Any defect in or lien or encumbrance on the title;
3. UnmarketabiIity of the title;
4. Lack of a right of access to and from the land.
The Company will also pay the costs,attorneys' fees and expenses incurred in defense of the title,as insured,but only to the
extent provided in the Conditions and Stipulations.
IN WITNESS WHEREOF,Stewart Title Guaranty Company has caused this policy to be signed and sealed by its duly
authorized officers as of the Date of Policy shown in Schedule A.
STEWART TITLE
GUARANTY COMPANY
Cdazrnaa or tha 0ourd — — n
Proidnnt
1909 ;o
EX%'0
Countersigned:
Authorized Countersignature
Stewart Title of Aspen,Inc. (970)925-3577
620 East Hopkins Avenue
Aspen,CO S 16!1
EXCLUSIONS FROM COVERAGE
The following matters are expressiy excluded from the coverage of this policy and die Company will not pay loss or damage,costs,attorneys'Pecs or expenses
which arise uy reason of: —
1. (a) Any law, ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances,or regulations)restricting,
regulating,prohibiting or relating to(i)the occupancy,use,or enjoyment of the land;(ii)the character,dimensions or location of any improvement now or
hereafter erected on the land;(iii)a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part.;
or(iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations,except to the extent that a notice of the
enforcement thereof or.a nonce of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the
public records at Date of
(b)Any govemmental pc;:cc power not excluded by(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,lien or
encumbrance resulting from a violaUOn or alleged vioiauon affecting the land has been recorded in the public records at Date of Policy.
2.Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy,but not excluding from coverage
any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge.
3.Defects,liens,encumbrances,adverse claims or other matters:
(a)created,suffered,assumed or agreed to by the insured claimant;
(b)not known to the Company,nor recorded in the public records at Date of Policy,but known to the Insured claimant and not disclosed in writing to
the Company by the insured claimant prior to the date the insured claimant became an insured under this policy;
(c)resulting in no loss or damage to the insured claimant;
(d)attaching or created subsequcri t to Date of Policy;or
(c)resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this
policy.
Serial No. 0-9701-1537808
Page l of4 ALTA OWNER'S POLICY 10-17-92
5.PROOF OF LOSS OR DAMAGE.
In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company,a proof of loss or
damage signed and sworn to by the insured claimant shall be furnished to the Company within 90 days after the insured claimant shall ascertain the facts
giving rise to the loss or damage.The proof of loss or damage shall describe the defect m,or lien or encumbrance on the title,or other matter insured against
by this policy which constitutes the basis of loss or damage and shall state,to the extent passible,the basis of calcuiating the amount of the loss or damage If
the Company is prejudiced by the failure of the insured claimant to provide die required proof of loss or damage.the Company's obligations to the insured
under the policy shall terminate,including any liability or obligation to de€end,prosecute,or continue any litigation,with regard to the matter or matters
requiring such proof of loss or damage.
In addition,tiie insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and
shall produce for examination,inspection and copying,at such reasonable times and places as may be designated by any authorized representative of the
Company,all records,books,ledgers,checks,correspondence and memoranda,whether bearing a date before or after Date of Policy,which reasonably pertain
to the loss or damage.Further,if requested by any authorized representative of the Company,die insured claimant shall grant its permission,in writing,for
any authorized representative of the Company to examine,inspect and copy all records,books,ledgers,checks,correspondence and memoranda in the custody
or control of a third party,which reasonably pertain to the loss or damage.All information designated as confidential by the insured claimant provided to the
Company pursuant to this Section shall not be disclosed to others unless,in the reasonable judgment of die Company,it is necessary in the administration of
the claim.Failure of the insured claimant to submit for examination under oath,produce other reasonably requested information or grant permission to secure
reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the Company under this policy as to that
claim.
G.OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS;TERAIINATION OF LIABILITY.
in case of a claim under this policy,the Company shall have the following additional options:
(a)To Pay or Tender Payment of the Amount of Insurance.
(i)To pay or tender payment of the amount of insurance under this policy together with any costs,attorneys'fees and expenses incurred by die insured
claimant,which were authorized by the Company,up to the time of payment or tender of payment and which the Company is obligated to pay.
(ii)Upon the exercise by the Company of this option,all liability and obligations to the insured under this policy,other than to make tiie payment
required,shall terminate,including any liability or obligation to defend,prosecute,or continue any litigation,and the policy shall be surrendered to the
Company for cancellation.
(b)To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant.
(i)to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy,together with any
costs,attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the
Company is obligated to pay;or
(ii)to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy,together with any costs,attorneys'fees and
expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to
pay.
Upon the exercise by the Company of either of the options provided for in paragraphs(b)(i)or(ii),die Company's obligations to the insured under this
policy for the claimed loss or damage,other than the payments required to be made,shall terminate,including any liability or obligation to defend,
prosecute or continue any litigation.
7,DETERMINATION,EXTENT OF LIABILITY AND COINSURANCE.
)oiicy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered toss or
damage on of matters insured against by this policy and only to the extent herein described.
(a)Tlie...i')ility of the Company under this policy shall not exceed the least Of: (i)the Amount of insurance stated in Schedule A;or, (ii)the difference
between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect,lien or encumbrance insured
against by this policy.
(b)In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or
the full consideration paid for the land,whichever is less,or if subsequent to the Date of Policy an improvement is erected on the land which increases the
value of the insured estate or interest by at least 20 percent over the Amount of insurance stated in Schedule A,then this Policy is subject to the following: (i)
where no subsequent improvement has been made,as to any partial loss.the Company shall only pay the loss pro rata in the proportion that Elie amount of
insurance at Date of Policy bears to the total value of the insured estate or interest at Date of Policy;or (ii)where a subsequent improvement has been made,
as to any partial loss,the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of insurance stated in Schedule A bears to
the sum of the Amount of Insurance staled in Schedule A and tale amount expended for the improvement.The provisions of this paragraph shall not apply to
costs,attorneys' fees and expenses for which the Company is liable under this policy,and shall only apply to that portion of any loss which exceeds,in the
aggregate,10 percent of the Amount of Insurance stated in Schedule A.
(e)Tile Company will pay only those costs,attorneys'fees and expenses incurred in accordance with Section d of these Conditions and Stipulations.
8.APPORTIONMENT.
1£the land described in Schedule A consists of two or more parcels which are not used as a single site,and a loss is established affecting one or more of
the parcels but not all,the loss shall be computed and settled on a pro rata basis as if the amount of insurance under this policy was divided pro rata as to the
value on Date of Policy of cacti separate parcel to the whole,exclusive of any improvements made subsequent to Date of Policy,unless a liability or value has
otherwise been agreed upon as to cacti parcel by the Company and the insured at the time of the issuance of this policy and shown by an express statement or
by an endorsement attached to this policy.
Serial No. 0-9701-1537808
�Paac 3 of,l ALTA OWNER'S POLICY I0-17-92
ALTA OWNER'S POLICY
SCHEDULE A
Order Number: 44196 Policy No.: 0-9701-1537808
Date of Policy: October 14, 2005 at 1:27 PM
Amount of Insurance: $8,500,000.00 Premium: $6,626.00
1. Name of Insured:
Mother Lode Investors,LLC,a Colorado limited liability company
2. The estate or interest in the land which is covered by this Policy is:
Fee Simple
3. Title to the estate or interest in the land is vested in:
Mother Lode Investors, LLC,a Colorado limited liability company
4. The land referred to in this policy is described as follows:
Lots N and O,MOTHER LODE SUBDIVISION,according to the PIat thereof recorded July
22,2005 in Plat Book 74 at Page 70 as Reception No.512739,
COUNTY OF PITKIN, STATE OF COLORADO.
STEWART TITLE
GUARANTY'COMPANY
ALTA OWNER'S POLICY
SCHEDULE B
Order Number:44196 Policy No: 0-9701-1537808
This policy does not insure against loss or damage (and the Company will not pay costs,
attorney's fees or expenses)which arise by reason of;
1. Rights or claims of parties in possession,not shown by the public records.
2. Easements, or claims of easements,not shown by the public records.
3_ Discrepancies, conflicts in boundary lines, shortage in area,encroachments, and any facts
which a correct survey and inspection of the premises would disclose and which are not
shown by the public records.
4. Any lien, or right to a Iien, for services, labor or material heretofore or hereafter furnished,
imposed by law and not shown by the public records.
5. Water rights, claims or title to water.
6. Real Estate taxes and assessments for 2005 and subsequent years, not yet due and payable.
7. Terms, conditions, obligations and provisions of Notice of Historic Designation as set
forth in instrument recorded January 13, 1975 in Book 295 at Page 515 as Reception No.
172532.
8. Terms, conditions, obligations and provisions of Resolution of the Aspen Historic
Preservation Commission (HPC) Recommending Approval of an Application for Major
Development (Conceptual) and a Parking Variance for the Property Located at 314 East
Hyman Avenue, Lots N and O, Block 81, City and Townsite of Aspen, Colorado,
Resolution No. 31, Series of 2004 as set forth in instrument recorded February 11, 2005 as
Reception No. 506947_
9. Terms, conditions, obligations and provisions of Resolution No. 12 (Series of 2005) A
Resolution of the City of Aspen Planning and Zoning Commission, as set forth in
instrument recorded April 13,2005 as Reception No. 508884.
10. Terms, conditions, obligations and provisions of Resolution of the Aspen Historic
Preservation Commission (HPC) Recommending Approval of an Application for Major
Development (Final) and Commercial Design Review for the Property Located at 314 E.
Hyman Avenue, Lots N and O, Block 81, City and Townsite of Aspen, Colorado,
Resolution No. 21, Series of 2005 as set forth in instrument recorded July 14, 2005 as
Reception No. 519378.
STEWART TITLE
GUARANTY COMPANY
ALTA OWNER'S POLICY
SCHEDULE B
Order Number: 44196 Policy No: 0-9701-1537808
11. Terms, conditions, obligations and provisions of Ordinance No. 25 (Series of 2005) An
Ordinance of the Aspen City Council Approving with Conditions, the Mother Lode
Subdivision and a GMQS Exemption for the Development of Affordable Housing to
Construct a Three Story Expansion to the Mother Lode Building on the Property Located
at 314 E. Hyman Avenue, City of Aspen, Pitkin County, Colorado, as set forth in
instrument recorded July 19, 2005 as Reception No. 512547,
12. Terms, conditions, obligations and provisions of Revocable Encroachment License by and
between the City of Aspen and Gordon L. Whitmer and Howard Ross,Partners as set forth
in instrument recorded July 22, 2005 as Reception No. 512737,
13. Terms, conditions, obligations and provisions of Subdivision Agreement for Mother Lode
Subdivision as set forth in instrument recorded July 22,2005 as Reception No. 512738.
14. Easements, rights of way and other matters as shown and contained on Plat of Mother
Lode Subdivision recorded July 22, 2005 in Plat Book 74 at Page 70 as Reception No.
512739.
STEWART TITLE
GUARANTY COMPANY
ENDORSEMENT
ATTACHED TO AND MADE A PART OF POLICY OF TITLE INSURANCE
SERIAL NUMBER 0-9701-1537808
STEWART TITLE
GUARANTY COMPANY
HEREIN CALLED THE COMPANY
Order Number: 44196 Charge: $150.00
The Policy is hereby amended by deleting Paragraph 1 through 4 of Schedule B.
This endorsement is made a part of the policy and is subject to all of the terms and provisions thereof and of any prior endorsements
thereto. Except to the extent expressly stated, it neither modifies any of the terms and provisions of the policy and any prior
endorsements, nor does it extend the effective date of the policy and any prior endorsements, nor does it increase the face amount
thereof.
Signcd unucr seal for the Company,but this endorsement is to be valid only when it bears an authorized countersignature.
S T E W A R T T I T L E
GUARANTY COMPANY
cann.nu or cne nonra 3:��'—*— fo:•� rron>aaee L
srni I 8 0 8 _o
Countersigned:
Authonzea Countersignature
Stewart Title of Aspen,Inc.
620 East Hopkins Avenue
AspenCO CO b 1611
(970)925-3577
Serial No. E-9851-1537808
CLTA Form 1 10.1 (Rev.9-10-93) Deletion of Item From Policy
ALTA—Owner
STG Index of Endorsements to Policy
STEWART TITLE
GUARANTY COMPANY
INDEX OF ENDORSEMENTS TO POLICY
COLORADO
Agent File No.: 44196
Insured: Mother Lode Investors, LLC, a Colorado limited liability company
Policy No.: 0-9701-1537$08
Policy Form: ALTA Owners Policy 10-17-92 Charge: 59,957.00
The Endorsements indicated below are attached to the above referenced Policy:
ENDORSEMENT 110.1 Deletion of Standard Exceptions Charge $ 150.00
i
...ITY OF ASPEN CITY OF ASPEN
HRETT PAID WRZ17 PAID
DATE REP NO. DATE REP NO.
o.11-05 ;P > 0Q4 S'y3 R3 fo t Y-03 *P:` oat/ Ezi 3!-
Recorded at o'clock .M.
Reception No. Recorder
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Krabacher Sanders P.C.
201 N. Mills Street, Suite 201_
Aspen, Colorado 81611 blF �rjQ d
Attention: B. Joseph Krabacher, Esq.
SPECIAL WARRANTY DEED
[Statutory Form—C.R.S. § 38-30-1131
SR MOTHER LODE,L.P., a Delaware limited partnership ("Grantor"),
whose street address is 450 N. Roxbury Drive, Suite 600, Beverly Hills, California
90210, for the consideration of Ten and 00/100 Dollars ($10.00) and other good and
valuable consideration, in hand paid, hereby sells and conveys to Mother Lode Investors,
LLC, a Colorado limited liability company ("Grantee"), whose street address is 620 E.
Hyman Avenue, Suite IE, Aspen, Colorado 81621, the real property that is described on
Exhibit A attached hereto and made a part hereof, together with all of Grantor's right,
title and interest in and to (i)all buildings, improvements, structures and fixtures located
on such land, and (ii) all rights-of-way and easements appurtenant to such land, including
Qom' all right, title, and interest of Grantor in and to all gaps, gores and rights to abandoned or
�. vacated roads, roadways or pathways adjoining such real property or anywise
�. appertaining to such land.
Grantor specially warrants the title to the same against all persons lawfully
claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto and
made a part hereof.
516250
Page: 1 of 4
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A DAVIS PIT COUNTY CO 4/2005 017261
R 21.00 D 850.00
IRAN C DECLARATION TION RECEIVED 1011412005
i
Signed as of this 13th day of October 2005.
GRANTOR:
SR MOTHER LODE, L.P.,
a Delaware limited partnership
By: SR ASPEN GENPAR, LLC,
a California limited liability company,
its general partner
By: REGENT ASPEN, L.P.,
a California limited partnership,
its member
By: REGENT PROPERTIES,INC.,
a California corporation,
its er
By:
Doug rown,
its Executive Vice President
STATE OFfj
COUNTY OF L06 41 de'-> )ss.)
The foregoing instrument was acknowledged before me this I2 day of
G r , 2005, by Douglas S. Brown, Executive Vice President of Regent
Properties, Inc., which is the general partner of Regent Aspen, L.P., which is a member of
SR Aspen GenPar, LLC, which is the general partner of Grantor.
WITNESS my hand and official seal.
SEAL
s. colry
Not Public in an fo -1 _ tcry RI n. 1418844
County and State Wotory Rrb1e 'CaN mva
Mr cArrm.En*"Jun County
516250
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Exhibit A
to Special Warranty Deed
LEGAL DESCRIPTION
Lots N and O, MOTHER LODE SUBDIVISION, according to the Plat thereof recorded
July 22, 2005 in Plat Book 74 at Page 70 as Reception No. 512739
COUNTY OF PITKIN, STATE OF COLORADO
also known by street and number as: 314 E. Hyman Ave., Aspen, Colorado 81611
ll! 6250
Page: 3 of 4
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ILVIA DAVIS PITKIN COUNTY CO 2005 01.261
5
R 21.00 o 850,00
Exhibit B
to Special warran , Deed
PERMITTED EXCEPTION
Terms, conditions, obligations and provisions of Notice of Historic Designation as set
forth in instrument recorded January 13, 1975 in Book 295 at Page 515 as Reception No.
172532.
Terms,conditions, obligations and provisions of Resolution of the Aspen Historic
Preservation Commission(HPC)Recommending Approval of an Application for Major
Development(Conceptual)and a Parking Variance for the Property Located at 314 East
Hyman Avenue, Lots N and O,Block 81, City and Townsite of Aspen, Colorado,
Resolution No. 31, Series of 2004 as set forth in instrument recorded February 11, 2005
as Reception No. 506947.
Terms, conditions,obligations and provisions of Resolution No. 12 (Series of 2005)A
Resolution of the City of Aspen Planning and Zoning Commission,as set forth in
instrument recorded April 13, 2005 as Reception No. 508884.
Terms, conditions, obligations and provisions of Resolution of the Aspen Historic
Preservation Commission(HPC) Recommending Approval of an Application for Major
Development(Final)and Commercial Design Review for the Property Located at 314 E.
Hyman Avenue, Lots N and O, Block 81, City and Townsite of Aspen, Colorado,
Resolution No. 21, Series of 2005 as set forth in instrument recorded July 14, 2005 as
Reception No. 512378.
Terms, conditions,obligations and provisions of Ordinance No. 25 (Series of 2005)An
dinance of the Aspen City Council Approving with Conditions,the Mother Lode
Subdivision and a GMQS Exemption for the Development of Affordable Housing to
Construct a Three Story Expansion to the Mother Lode Building on the Property Located
at 314 F_ Hyman Avenue, City of Aspen, Pitkin County, Colorado, as set forth in
instrument rc-f;-.dcd July 19, 2005 as Reception No. 512547.
Terms, conditions, ,.' ligations and provisions of Revocable Encroachment License by
and between the City o Aspen and Gordon L. Whitmer and Howard Ross, Partners as set
forth in instrument recorded July 22,2005 as Reception No. 512737.
Terms, conditions,obligations and provisions of Subdivision Agreement for Mother Lode
Subdivision as set forth in ivstr,a.nent recorded July 22,2005 as Reception No. 512738.
Easements,rights of way anc .ether matters as shown and contained on Plat of Mother
Lode Subdivision recorded July 22, 2005 in Plat Book 74 at Page 70 as Reception No.
512739.
516250
Page: 4 of 4
II I
10/14/2005 01:261
�1
SI_'%IA DAVIS PITKIN COUNTY CO R 21.00 D 850.00
• Page 1 of 1
Fred Peirce
From: Chuck Dorn [C Dorn @stewa rt.com]
Sent: Wednesday, January 25, 2012 1:14 PM
To: Fred Peirce
Subject: Motherlode Subdivision
I preformed a date down from Stewart Title's Owner's Policy dated October 14, 2005 Order No.
44196, Lots N and 0, Motherlode Subdivision.There were two Deeds of Trusts recorded after the
issuance of the Owner's Policy Reception No's 520918 and 520921; both have been released by the
Public Trustee as Reception No. 552680 and 552681. Mechanic Liens also recorded during the date
down period, but also have been released of record.There does not appear to be any recorded liens or
encumbrances on the subject property. Let me know if you have any questions.Thank you.
Chuck Dorn
District Manager
stewart title
60 South 8th Street,Carbondale,Colorado,81623
O 970.704.1000 i M 970.3191327 i F 970.704.0205
www.stewart.com
eftw —c
Please consider the environment before printing this email
1/25/2012
,CF1VK
JAN 2 6 2012.
CITY OF ASPEN CITY OF A81 PEN
PRE-APPLICATION CONFERENCE SUMMARY mdmuNITY DDELOPMM'
PLANNER: Jennifer Phelan—970.429.2759 DATE: 1.5.12
PROJECT: 314 E. Hyman Avenue, Condom iniumization
REPRESENTATIVE: Fred Peirce
TYPE OF APPLICATION: Condominiumization.
DESCRIPTION: 314 E. Hyman Avenue received council approval to develop a mixed use building containing two
free-market residences, two affordable housing residences and a certain amount of commercial net
leasable space. The project is substantially completed and the applicant is seeking to create a
condominium form of ownership prior to receiving a certificate of occupancy. Deed restrictions on
the affordable housing units need to be approved and in place prior to a Certificate of Occupancy
being received. Condom iumization is an administrative approval.
A copy of the Land Use Application form, as well as planning fees are located online at:
http://www aspenpitkin com/Departments/Community-DevelopmenUPlanning-and-Zoning/Applications-
and-Fees/
A copy of the Land Use Code is available online at:
http://www aspenpitkin com/Departments/Community-DevelopmenVPlanning-and-Zoning/Title-26-
Land-Use-Code/
Land Use Code Section(s)
26.304 Common Development Review Procedures
26.480.090 Condominiumization
Review by: - Planning, Engineering and APCHA Staff for compliance
- Community Development Director for approval
Public Hearing: No hearing required
Planning Fees: $630.00 Deposit for 2 hours of staff time. Additional staff time required is billed at$315/hour
Referral Fees: Engineering, billed at$265/hour(1 hour deposit is taken), APCHA flat fee of$630.00
Total Deposit: $1,525.00 (Additional fees will be required for recording the plat. Those fees will be
identified and due just prior to filing of the plat.)
Total Number of Application Copies: Two (2)
To apply, submit the following information:
1. Total Deposit for review of application.
2. Applicant's name, address and telephone number, contained within a letter signed by the applicant stating the
name, address, and telephone number of the representative authorized to act on behalf of the applicant.
3. Street address and legal description of the parcel on which development is proposed to occur, consisting of a
current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing
the names of all owners of the property, and all mortgages,judgments, liens, easements, contracts and agreements
affecting the parcel, and demonstrating the owner's right to apply for the Development Application.
4. Completed Land Use Application.
5. Signed fee agreement.
6. Pre-application Conference Summary.
7. An 81/2" x 11" vicinity map locating the subject parcel within the City of Aspen,
8. Proof of ownership.
9. Proposed condominium plat. Provide paper copies for staff review(and a digital PDF if available). Once staff
has reviewed the proposal and made any necessary corrections, then mylars can be created for recordation.
10. All necessary items fo-und in Land Use Codes Section 26.480.090, Condominiumization. Engineering requirements
are available online at:
http://www aspenpitkin com/Portals/O/docs/City/engineering/survey%20checklists/CondominiumPlatSurveyChecklist
Disclaimer:
The foregoing summary is advisory in nature only and is not binding on the City. The summary is based on current zoning,
which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary
does not create a legal or vested right.
N
UAW
COMMUNITY DEVELOPMENT DEPARTMENT
Agreement to Pay Application Fees
Anagreement between the City of Aspen ("City") and
Property MOTHER LODE INVESTORS, LLCPhone No.: 970-618-5347'
Owner("I")- Email:seardgoodinginvestmentprop rties .
E. Hyman Avenue - - - 162 Bristiecone Dr. com
Address of
Property: Aspen, CO 81611 Address:Billing Carbondale, CO 81623
(subject of (send bills here)
application)
I understand that the City has adopted, via Ordinance.No. , Series of 2011, review fees for Land Use applications
and the payment of these fees is a condition precedent to determining application completeness. I understand
that as the property owner that I am responsible for paying all fees for this development application.
For flat fees and referral fees: I agree to pay.the following fees for the services indicated. I understand that these
flat fees are non-refundable.
$ 630:00'/ flat fee.for APCHA Dept referral $ flat fee for
$ flat fee for $ flat fee for
For deposit cases only: The City and I understand that because of the size, nature or scope of the proposed
project, it is not possible at this time to know the full extent or total costs involved in processing the application. I
understand that'additional costs over and above the deposit. may accrue. I understand and agree that it is
impracticable for City staff to complete processing, review, and presentation of sufficient information to enable
legally required findings to be made for project consideration, unless invoices are paid in full.
The,City «nd I understand and agree that invoices mailed by the City to the above listed billing address and not
returned to the.City shall be considered by the City as being received by me. I agree to remit payment within 30
days of presentation of an invoice by the City for such services.
I have read, understood, and agree to the,Land Use Review Fee Policy including consequences for non-payment.
I agree to pay.the following initial deposit amounts for the specified hours.of staff time. I understand that payment
of a deposit does not render an application complete or compliant with approval criteria. If actual recorded costs
exceed the initial deposit, I agree to pay additional monthly billings to the City to reimburse the City for the:
processing of my application at the hourly rates hereinafter stated.
$ 630.00 ✓ deposit for 2 hours of Community Development Department staff time. Additional time
above the deposit amount will be billed at$315 per hour.
$ 265.00 J deposit for 1 hours of Engineering Department staff time. Additional time above the
deposit amount will be billed at$265 per hour. Engineering will bill against the deposit.
City of Aspen: Prope Owner:
Chris Bendon
Community Development Director Name: Sean Goodin
City Use: Title:
Manager
Fees Due:$ 1,525.00 Received:$
November, 2011 of . 130 1 920-5090
DECLARATION OF CONDOMINIUM FOR
MOTHER LODE CONDOMINIUMS
THIS DECLARATION OF CONDOMINIUM for MOTHER LODE CONDOMINIUMS
(the "Declaration") is made and entered into this _ day of , 2012, by MOTHER
LODE INVESTORS,L.L.C.,a Colorado limited liability company(the "Declarant").
RECITALS
WHEREAS, Declarant is the owner of certain improved real property described in
Exhibit A, City of Aspen, Colorado, also known as Mother Lode Condominiums according to the
Condominium Plat thereof recorded 2012 as Reception No. in the
Office of the Clerk and Recorder of Pitkin County, Colorado, said land and improvements being
hereinafter collectively referred to as the"Real Property"and,
WHEREAS, Declarant desires by this Declaration to create a condominium common
interest community under the name and style of the "Mother Lode Condominiums," in which
portions of said Real Property will be designated for separate ownership and use and in which the
remainder of said Real Property will be designated for common ownership solely by the owners
of the separate ownership portions.
NOW, THEREFORE, in furtherance thereof, Declarant hereby submits the Real
Property, including all easements, rights-of-way and appurtenances thereto and the Building and
other improvements erected thereon, to condominium ownership under and pursuant to the
provisions of the Colorado Common Interest Ownership Act, Section §§38-33.3-101, et seq. of
the Colorado Revised Statutes, as it may be amended from time to time (the "Act"), and to this
Declaration. The common interest community hereby created is hereinafter referred to as the
Mother Lode Condominiums, or the "Project". The Mother Lode Condominiums will be a mixed
use condominium project comprised of Commercial Units, Residential Units and Common
Elements, all as hereinafter defined. Declarant hereby publishes and declares that the entire
Project and each and every Unit and Common Element therein shall be held, occupied, used,
leased, mortgaged, sold and conveyed subject to the following terms, easements, reservations,
restrictions, covenants, and conditions. Declarant further declares that this Declaration is made
for the purpose of protecting the value and desirability of the Mother Lode Condominiums; that
this Declaration shall run with the Mother Lode Condominiums and shall be binding on all parties
having any right, title or interest in the Mother Lode Condominiums or any part thereof, their
heirs, devisees, legal representatives, successors and assigns, and shall inure to the benefit of the
Declarant,the Association, and each and every Owner.
ARTICLE 1: DEFINITIONS
1.1 Allocated Interests. "Allocated Interests" shall mean, with respect to each
Condominium Unit, a fraction or percentage of the undivided interests in the Common Elements
and in the Common Expenses of the Association allocated to such Condominium Unit and the
votes in the Association allocated to such Condominium Unit. The Allocated Interests for the
Project are specifically set forth on Exhibit B attached hereto and made a part hereof by this
reference.
1.2 Articles of Incorporation. "Articles of Incorporation" or "Articles" shall mean and
refer to the Articles of Incorporation of Mother Lode Condominium Association,Inc., a Colorado
nonprofit corporation which have been filed with the Secretary of State of the State of Colorado,
as the same may be amended from time to time.
1.3 Assessment. "Assessment" shall mean and refer to a Regular Assessment, a Special
Assessment, or a Personal Assessment, as defined herein.
1.4 Association. "Association" shall mean and refer to the Mother Lode Condominium
Association, Inc., a Colorado nonprofit corporation, its successors and assigns. The members of
the Association are the Owners of Units in the Project. The Association shall act by and through
its Executive Board and officers unless the Articles of Incorporation or Bylaws of the Association
or this Declaration specifically requires otherwise.
1.5 Building. "Building" means the building presently situated on the Real Property,
together with (i) any additions or modifications or replacements that may hereafter be made
thereto; and(ii)all improvements and fixtures contained therein.
1.6 Bylaws. `Bylaws" means the instrument adopted by the Executive Board of the
Association for its regulation and management,together with any amendments thereto.
1.7 Commercial Common Expenses. "Commercial Common Expenses" shall mean all
Common Expenses reasonably and equitably attributable to the Commercial Units but not to the
Residential Units, as reasonably determined by the Executive Board as being reasonable and
ordinary for mixed use condominium buildings located in the Aspen, Colorado area which are
similar in type and nature to the Mother Lode Condominiums. Examples of anticipated
Commercial Common Expenses include, but are in no way limited to, the maintenance, repair, or
improvement of all Limited Common Elements allocated exclusively to the Commercial Units.
1.8 Commercial Units. "Commercial Units" shall mean and refer to the Commercial
Units as depicted on the Condominium Map.
1.9 Common Elements."Common Elements" shall mean all portions of the Project other
than the Units, including the Real Estate. Without limiting the generality of the foregoing, the
Common Elements include all structural components of the Building, all mechanical systems and
equipment in the Building which exist for the common use of some or all of the Owners, and all
other parts of the Project used in common by some or all of the Owners or necessary or
convenient to the Project's existence, maintenance or safety.
1.10 Common Expenses. "Common Expenses" shall mean and refer to all expenditures
made or liabilities incurred by or on behalf of the Association, together with any allocations by
the Association to reserves, and shall include Project Common Expenses, Residential Common
Expenses and Commercial Common Expenses, as defined herein.
1.11 Condominium Map. "Condominium Map" shall mean and refer to the
Condominium Map of Mother Lode Condominiums recorded , 201_as Reception
No. in the Office of the Clerk and Recorder of Pitkin County, Colorado, as the
Condominium Map may be amended from time to time. By this reference, the Condominium
Map is incorporated in this Declaration.
The Condominium Map, and any amendments thereto, shall contain a certificate by a
registered land surveyor certifying that the Condominium Map contains (i) all of the information
required by Section 38-33.3-209 of the Act, and (ii) that the Condominium Map was prepared
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subsequent to substantial completion of the improvements shown thereon. In interpreting the
Condominium Map, the existing physical boundaries of each Unit as constructed shall be
conclusively presumed to be its boundaries.
In addition to any other rights reserved to Declarant in this Declaration, Declarant hereby
reserves the right from time to time, without the consent of any Owner or Mortgagee being
required, to amend the Condominium Map (i)to provide consistency between the Condominium
Map and this Declaration, (ii) to satisfy any requirements in the Act, (iii) to correct any errors in
the Condominium Map, (iv) to conform the Condominium Map to the actual location of any
improvements constructed, installed or erected on the Real Estate, and/or (v) to establish and
designate any General Common Elements as Limited Common Elements. The rights accorded to
Declarant in this Section shall expire ten(10)years after the date this Declaration is recorded.
1.12 Condominium Unit."Condominium Unit" or"Unit" shall mean and refer to a Unit
depicted on the Condominium Map, whether a Commercial Unit or a Residential Unit. Each of
the Units is an airspace unit which is bounded by the unfinished interior surfaces of the exterior
walls (or the demising walls, where two such Units adjoin each other), floors, ceilings (or the
uppermost ceilings, in respect of Units containing more than one level), windows and window
frames and doors and door frames of the Building, and which is separately identified on the
Condominium Map. The boundaries of the Units shall be further defined by the provisions of
Section 38-33.3-202 of the Act. The term Condominium Unit does not include any utility facility
running through the Unit that serves more than one Unit, or any other Common Element or part
thereof located within the Unit.
1.13 Declarant. "Declarant" shall mean and refer to Mother Lode Investors, L.L.C., a
Colorado limited liability company, its successors, assigns and affiliates. A person shall be
deemed a "successor and assign" of Declarant if specifically designated in a duly recorded
instrument as a successor or assign of Declarant under this Declaration and shall be deemed a
successor and assign of Declarant only as to the particular rights or interests of Declarant under
this Declaration which are specifically designated in that written instrument.
1.14 Declaration. "Declaration" shall mean and refer to this Declaration of
Condominium, as it may be amended from time to time.
1.15 Executive Board. "Executive Board" or "Board" shall mean and refer to the
Executive Board of the Association.
1.16 First Mortgage."First Mortgage" shall mean a Security Interest on a Condominium
Unit which has priority over all other Security Interests in the Condominium Unit.
1.17 First Mortgagee. "First Mortgagee" shall mean and refer to any person named as a
mortgagee or beneficiary under any First Mortgage, or any successor to the interest of any such
person under such First Mortgage.
1.18 General Common Elements."General Common Elements" shall mean and refer to
all of the Common Elements except the Limited Common Elements. The General Common
Elements may not be conveyed or encumbered except as permitted by the Act; provided,
however,that the granting of permits, licenses and easements for public utilities or other purposes
consistent with the intended use of the Common Elements or reasonably necessary or useful for
the proper maintenance or operation of the Project shall not be deemed to be a conveyance.
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1.19 Limited Common Elements. "Limited Common Elements" shall mean and refer to
a portion of the Common Elements allocated by the Condominium Map and/or by this
Declaration for the exclusive use of one or more of the Units but fewer than all of the Units.
1.20 Member. "Member" shall mean and refer to each Owner of a Condominium Unit,
including the Declarant. Membership in the Association shall be appurtenant to, and may not be
separated from, ownership of a Condominium Unit.
1.21 Owner."Owner" shall mean and refer to any record owner(including Declarant and
including a contract vendor), whether one or more persons or entities, of a fee simple title interest
in any Condominium Unit; but excluding, however, any such record owner having such an
interest merely as security for the performance of an obligation (unless such person has acquired
a fee simple title interest therein pursuant to foreclosure or any proceedings in lieu thereof).
1.22 Personal Assessment. "Personal Assessment" shall mean and refer to a charge
against a particular Owner and the Owner's Unit for purposes of reimbursing the Association for
costs and expenses incurred by the Association in connection with the enforcement of any
provision hereof or the remedying of any violation by the Owner of this Declaration or any
amendment hereto, or of the Articles or Bylaws or Rules and Regulations, or for purposes set
forth in this Declaration, pursuant to Section 7.9 hereof, together with late charges and interest as
provided herein. Personal Assessments shall include without limitation any Common Expense
caused by the misconduct of an Owner or of such Owner's guests or invitees or customers.
1.23 Project. "Project" shall mean and refer to the totality of all the Real Estate,
Building, Condominium Units and Common Elements.
1.24 Project Common Expenses. "Project Common Expenses" shall mean all Common
Expenses other than Residential Common Expenses and Commercial Common Expenses.
1.25 Real Estate. "Real Estate" shall mean and refer to that certain real property in the
City of Aspen, Colorado, that is more specifically described in Recital No. 1 in this Declaration,
but expressly excluding certain development rights appurtenant thereto, which Declarant has
specifically reserved as more fully set forth in Article 17 hereof.
1.26 Regular Assessment. "Regular Assessment" shall mean and refer to a charge
against each Owner and the Owner's Unit for purposes of covering the annual costs of operating
and administering the Association and all other Common Expenses. Regular Assessments are
more particularly described in Section 7.6 below. Common Expenses that are to be charged to a
particular category of Unit (e.g., Commercial Common Expenses or Residential Common
Expenses) shall be included in the Regular Assessment for that Unit category and shall be
allocated in accordance with the Allocated Interests for that category. Regular Assessments are
based on a Budget adopted by the Executive Board in accordance with Section 7.7 below, and are
allocated to the Units in accordance with the Allocated Interests.
1.27 Residential Common Expenses. "Residential Common Expenses" shall mean all
Common Expenses reasonably and equitably attributable to the Residential Units but not to the
Commercial Units, as reasonably determined by the Executive Board. Residential Common
Expenses include but are in no way limited to all costs of maintaining, repairing, improving or
replacing Limited Common Elements that are allocated exclusively to the Residential Units, or
some of them.
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1.28 Residential Unit. "Residential Unit" shall mean and refer to Condominium Unit
Nos. 200, 201, 202 and 300, as depicted on the Condominium Map.
1.29 Security Interest. "Security Interest" shall mean an interest in real estate or
personal property created by contract or conveyance which secures payment or performance of an
obligation. The term includes a lien created by a mortgage, deed of trust, trust deed, security
deed, contract for deed, land sales contract, lease intended as security, assignment of lease or
rents intended as security, and any other consensual lien or title retention contract intended as
security for an obligation.
1.30 Special Assessment. "Special Assessment" shall mean and refer to a charge against
each Owner and the Owner's Unit for purposes of reimbursing the Association for costs and
expenses incurred or to be incurred by the Association for the purpose of paying for the
construction, reconstruction,repair or replacement of capital improvements within the Project,the
costs of which were not included in a Regular Assessment, or for excess reconstruction costs or
other extraordinary expenses, or for funding any operating deficit of the Association, as
authorized by the Executive Board from to time as provided herein.
1.31 Special Declarant Rights. "Special Declarant Rights" shall mean and refer to the
development and other rights expressly reserved for the benefit of Declarant in accordance with
the terms and conditions of this Declaration, including but not limited to Article 17 hereof.
ARTICLE 2: DIVISION OF PROJECT INTO CONDOIVIINIUM OWNERSHIP
2.1 Division into Condominium Units. The Project is hereby initially divided into six
separate Condominium Units, comprised of two Commercial Units and four Residential Units,
including two Free Market Residential Units and two Affordable Housing Residential Units, as
more particularly depicted on the Condominium Map. Each of the Units shall have an
appurtenant undivided interest in the Common Elements as set forth on Exhibit B attached hereto,
which undivided interest has been computed for each Unit (with minor adjustments) by dividing
the square footage of such Unit by the total square footage of all Units without regard to decks or
other Limited Common Elements, and then multiplying the quotient derived thereby by 100 to
obtain the percentages contained on Exhibit B under the column heading "Percentage Interest in
Common Elements."
2.2 Inseparability. Except as provided in Section 2.4 or Article 17 hereof, each
Condominium Unit, and the appurtenances, rights and burdens associated therewith, shall be
inseparable and may be transferred, conveyed, leased,devised, encumbered or otherwise disposed
of only as a Condominium Unit. Except as otherwise provided in Article 17, every conveyance,
transfer, devise, lease, encumbrance or other disposition of a Condominium Unit shall be deemed
to be a conveyance, transfer, devise, lease, encumbrance or other disposition, as the case may be,
of the entire Condominium Unit, together with all appurtenant rights, interests, duties and
obligations created by law or by this Declaration.
2.3 Non-Partitionability. Subject to the rights reserved to Declarant under Article 17
thereof, the Common Elements shall be owned in common by all of the Owners and shall remain
undivided. By the acceptance of a deed or other instrument of conveyance or assignment of the
Condominium Unit, each Owner specifically waives any right to institute and/or maintain a
partition action or any other action designed to cause a division of the Common Elements.
Furthermore, each Owner agrees that this Section 2.3 may be conclusively pleaded as a bar to the
maintenance of such an action. Any violation of this Section 2.3 shall entitle the Association to
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collect,jointly and severally, from the parties violating the same, the actual attorney's fees, costs,
expenses and all damages which the Association incurs in connection therewith. Any purported
conveyance, encumbrance, judicial sale, or other voluntary or involuntary transfer of an
undivided interest in the Common Elements made without the Unit to which that interest is
allocated is void.
-*2.4 Relocation of Boundaries of Condominium Units. Except as hereinafter
specifically provided with respect to Declarant, no Owner or Owners may relocate the boundaries
of any Condominium Unit(s) except by amendment to this Declaration in accordance with the
applicable requirements hereof, including, but not limited to, any approvals required by Article 16
hereof. In addition, any relocation of boundaries shall be done in accordance with the procedures
set forth in the Act, in particular Sections 212 and 213.All costs incurred in connection with such
relocation of boundaries shall be borne by the Owner or Owners of the affected Condominium
Units, including all costs incurred by the Association in connection therewith. With respect to any
such relocation of boundaries, the Owners of the affected Condominium Units shall have the 1
right, with the prior written approval of the Executive Board of the Association,to redesignate, as
part of a Unit or as a Limited Common Element, any portion of the Common Elements or any —7
walls, floors or other separations between the affected Condominium Units, which may be
necessary or appropriate to accomplish such combination or division; provided, however, that the
exercise of the rights granted herein shall be subject to the prior written consent of any First
Mortgagee having an interest in any such affected Condominium Units, in addition to the other
approvals required by this Section 2.4 and Article 16. If Condominium Units are combined, the
undivided interest in the Common Elements allocated to the combined Condominium Unit shall
be the sum of the undivided interests of the Condominium Units that were combined. Any
previously combined Condominium Units which are later divided shall be reinstated to the
undivided interests in the Common Elements which they had prior to the combination. An
amendment to the Declaration and Condominium Map implementing a relocation of Unit
boundaries under this Section shall be executed and filed in accordance with the Act.
Notwithstanding any other provision of this Section 2.4, Declarant shall have the right for a
period of ten (10) years following the recording of this Declaration to relocate unit boundaries
and/or to combine Units and to designate and redesignate General Common Elements and
Limited Common Elements in connection therewith, and no consent will be required from the
Association, the Executive Board,the Owners, or any other person for Declarant to exercise such
rights, and any amendment to this Declaration or the Condominium Map that is required to
implement the same may be executed solely by Declarant.
ARTICLE 3: CONDOMINIUM MAP
3.1 Recording. The Condominium Map shall be recorded in the office of the Clerk and
Recorder of the County of Pitkin, Colorado, prior to conveyance of the first Condominium Unit
shown on such Condominium Map.
3.2 Content. The Condominium Map shall depict and show all items required under
Section 209 and elsewhere in the Act, including but not limited to: the legal description of the
Real Estate and a land survey plat thereof;the location of the Building in reference to the exterior
boundaries of the Real Estate; the floor and elevation plans; the location of the Units within the
Building, and the location of the Common Elements, both horizontally and vertically; to the
extent not provided in this Declaration, the allocation of Limited Common Elements to a specific
Unit or Units; and the Condominium Unit designations.
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ARTICLE 4: COMMON ELEMENTS; MAINTENANCE OF PROJECT;
ADDITIONS,ALTERNATIONS OR EUPROVEMENTS
4.1 Easement for Use of Common Elements; Right of Ingress and Egress. Every
Owner, tenant, and their respective family members, guests, invitees and licensees shall have a
right and easement of enjoyment in and to the General Common Elements and those Limited
Common Elements allocated to such Owner's Condominium Unit, plus a right and easement of
ingress and egress over, across and upon the General Common Elements and those Limited
Common Elements allocated to such Owner's Condominium Unit, for the purpose of entering and
exiting such Owner's Condominium Unit, access to garages, parking areas, any public ways, for
both pedestrian and vehicular travel, which rights and easements shall be appurtenant to and pass
with the transfer of title to the Owner's Condominium Unit; provided, however, that such rights
and easements shall be subject to the following:
(a) The terms, provisions, covenants, conditions, restrictions, easements, reservations,
uses, limitations and obligations contained in this Declaration and the Condominium Map; and
(b) The right of the Association to suspend the voting rights and any and all rights of any
Member to the use of any recreational or other facilities for any period during which any
Association Assessment against such Member or against such Member's Condominium Unit
remains unpaid and, for any period of time which the Executive Board may deem to be
appropriate, for such Member's infraction, or the infraction by any Member's tenant, any member
of such Member's or tenant's family or such Member's or tenant's guests, licensees or invitees, of
any provision of this Declaration or of any Rule or Regulation of the Association; and
(c) The right of the Association to adopt, from time to time, Rules and Regulations
concerning the Condominium Units, use of the Common Elements, and/or any property owned by
the Association, and any facilities located thereon, as the Association may determine is necessary
or prudent; and
(d) The right of the Association to grant permits, licenses and easements over, upon and
through the Common Elements for utilities and other purposes reasonably necessary or useful for
the proper maintenance or operation of the Project.
4.2 Limited Common Elements. Subject to the terms and provisions of this Declaration,
every Owner shall have the exclusive right to use and enjoy the Limited Common Elements
allocated to the Owner's Condominium Unit, such right to be exercised in common with any
other Owner to whose Unit the same Limited Common Element has been allocated.
4.3 Recreational Facilities. There are no recreational facilities currently existing on the
Real Estate or, at the time of recording of this Declaration, planned to be built by Declarant on the
Real Estate.
4.4 Additions, Alterations or Improvements by Owners. No additions, alterations,
changes or improvements shall be constructed, made, done or permitted to any Unit by any
Owner, or employee or agent thereof, without the prior written approval of the Executive Board,
which approval may be granted or withheld by the Executive Board in its sole discretion. Without
limiting the generality of the foregoing, said restrictions shall apply to and include(i) alteration or
change of any structural elements of a Unit, including the roof, (ii) painting or other alteration or
change of the exterior of a Unit, including doors and windows, (iii) alteration or change of any
Common Elements (including Limited Common Elements, subject to Section 4.5(a)(iii) below)
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appurtenant to the Units, or (iv) addition, alteration, change or removal of any landscaping. The
foregoing restrictions shall not apply to nonstructural additions, alterations, changes or
improvements to the interior of a Unit, that are not visible from outside the Unit, and that are in
compliance with all applicable laws, ordinances, regulations and codes. Except as specifically
provided in Section 4.5 below with respect to certain Limited Common Elements, and except for
alterations to Limited Common Elements which have otherwise received the prior written
approval of the Executive Board, no Owner shall have any right to alter, change or improve in
any way the Common Elements or any part thereof, said Common Elements being the exclusive
responsibility and jurisdiction of the Association.
4.5 Maintenance of the Project. All property within the Project, including without
limitation all Units, General Common Elements and Limited Common Elements shall be kept and
maintained in a safe, clean and attractive condition and in good order,condition and repair.
(a) Association Maintenance Responsibilities: Common Elements. The Association,
acting by and through the Executive Board, shall be responsible for inspecting, maintaining,
repairing, improving, restoring and replacing, the Common Elements, excluding the Limited
Common Elements. Each Unit Owner shall be responsible for maintaining, repairing, improving,
restoring and replacing the Limited Common Elements associated with such Unit, including any
such maintenance, repair, improvement, restoration or replacement mandated by the Association.
Such obligations shall include without limitation the painting, staining or other resurfacing of the
exterior surfaces of all walls, exterior doors, windows, decks and balconies of the Units, the
maintenance,repair, improvement, restoration or replacement of all structural elements and roofs,
common lighting and utilities, snowplowing, and landscaping, irrigation and general upkeep of all
yard areas. The Association shall have the exclusive right and authority to make any changes,
alterations, improvements or additions to the Common Elements, including the Limited Common
Elements, and shall have an irrevocable right of access into any Unit to perform such
responsibilities, and no individual Owner shall have any right to do any of such things without the
express prior written consent of the Executive Board. No Unit Owner may affect any change or
do any work hereunder on any Limited Common Element without first obtaining the written
approval of such change or work from the Association.
(i) If the need for such maintenance or repair of Common Elements results from
the willful or negligent act of or from damage or destruction caused by an Owner or an
Owner's tenant or invitee, the Executive Board shall have the right to perform such
maintenance or repair and to levy and collect a Personal Assessment upon the Owner and
the Owner's Unit for the costs and expenses incurred by the Association in connection
therewith.
(ii) The costs of repairs, maintenance, alterations, improvements or additions to
General Common Elements shall be Project Common Expenses which shall be allocated
and assessed amongst all Units in accordance with the Allocated Interests set forth on
attached Exhibit B. The costs of repairs, maintenance, alterations, improvements to
Limited Common Elements shall be allocated and assessed only to the Unit or Units for
whose use they have been designated on the Condominium Map or in this Declaration,
proportionately in accordance with such Units percentage interests in the Project as set
forth on Exhibit B.
(b) Owner Maintenance Responsibilities. Each Owner of a Unit shall be responsible for
maintaining, repairing, decorating and otherwise improving as necessary all interior elements and
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features of the Owner's Unit and, if applicable, Limited Common Elements associated with such
Unit Owner's Unit, including interior non-supporting walls, improvements, fixtures, equipment,
appliances and appurtenances. All fixtures, equipment and utilities installed and included in a
Unit that serve only that Unit, commencing at the point where the fixtures, equipment and utilities
enter the Unit, shall be maintained and kept in repair by the Owner of that Unit. An Owner shall
also maintain and keep in repair all windows and other glass items related to such Owner's Unit,
and all entry doors and interior doors servicing such Unit. In addition, each Owner shall be
responsible for any damage to other Units or Common Elements resulting from the Owner's
failure to perform or negligent performance of the Owner's maintenance and repair
responsibilities as set forth herein. Each Owner shall perform the Owner's maintenance and repair
responsibilities in such manner as shall not unreasonably disturb or interfere with other Owners or
Occupants.
If an Owner fails to perform any such maintenance or repair obligations within 10 days
following receipt of a written notice from the Executive Board requesting the same,the Executive
Board shall have the right to enter upon the Unit or Limited Common Elements associated with
such Unit of the Owner to perform such obligations on the Owner's behalf and to levy and collect
a Personal Assessment upon the Owner and the Owner's Unit for the costs and expenses incurred
by the Association in connection therewith. Each Unit is subject to an easement for the benefit of
the Association and its Executive Board, agents, employees and contractors, for purposes of
accomplishing the maintenance and repair rights described herein.
(c) Standard of Care. The Association and the individual Owners shall each use a
reasonable standard of care in performing their respective maintenance, repair and upkeep
responsibilities so that the entire Project will reflect a pride of ownership. All repairs and
replacements within the Project shall be substantially similar to the original construction,
craftsmanship and materials and shall be of first-class quality.
(d) Reserves. The Executive Board shall establish such reserves as it may determine to
be necessary or appropriate from time to time to provide for the maintenance, repair, replacement
or restoration of Units, General Common Elements, or Limited Common Elements, and the
funding of such reserves shall constitute Common Expenses as set forth in Section 7.6 below.
(e) Emergency Maintenance and Repair. Notwithstanding any other provisions of this
Section 4.5, in the event of an emergency or the sudden occurrence of unanticipated conditions
which threaten the health, safety or physical well-being of persons or property within the Project,
the Executive Board shall have the authority(without any notice being required)to take whatever
remedial action and to undertake such maintenance, repairs and improvements as may be
necessary anywhere in the Project to protect persons and property.
ARTICLE 5: MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
5.1 Membership; Voting Rights.
(a) There shall be one Membership in the Association for each Unit in the Project. The
person or persons who constitute the Owner of a Unit shall automatically be the holder of the
Membership appurtenant to that Unit, and shall collectively be the "Member" of the Association
with respect to that Unit and the Membership appurtenant to that Unit shall automatically pass
with fee simple title to the Unit. Declarant shall hold a Membership in the Association for each
Unit owned by Declarant. Membership in the Association shall not be assignable separate and
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apart from fee simple title to a Unit, and may not otherwise be separated from ownership of a
Unit.
(b) The Commercial Units shall each have one vote for the Executive Board
member representing the Commercial Units. If the Commercial Units split their votes for
the Executive Board member representing the Commercial Units, the vote of Commercial
Unit 101 shall control. Each Free Market Residential Unit in the Project shall have one
vote for the Executive Board member representing each Free Market Residential Unit.
Hence, Unit 200 shall have one vote for the Executive Board member representing Unit
200 and Unit 300 shall have one vote for the Executive Board member representing Unit
300. When voting for all other matters, each Commercial Unit and each Free Market
Residential Unit in the Project shall have the number of votes in the Association corresponding to
the Allocated Percentage Interest in Common Expenses for each such Unit as set forth in Exhibit
B attached hereto and by this reference incorporated herein; the Affordable Housing Units shall
be owned by the Association and shall have no votes or Allocated Percentage Interests in
Common Expenses in the Association. The vote for each Condominium Unit shall be exercised
by the Owner or Owners as they determine.
5.2 Executive Board. The affairs of the Association shall be managed by an Executive
Board which shall consist of the number of members which is set forth in the Association's
Articles of Incorporation, as amended from time to time, or Bylaws, as amended from time to
time. From the date of formation of the Association until the termination of the Period of
Declarant's Control as provided below, Declarant shall have the right to appoint and remove all
members of the Executive Board and all officers of the Association. The Period of Declarant's
Control of the Association shall terminate upon the first to occur of (i) sixty (60) days after
conveyance of two-thirds (66.66%) of the Condominium Units that may be created in the Project
to Owners other than Declarant, or(ii)two (2)years after the last conveyance of a Condominium
Unit by Declarant in the ordinary course of business. Declarant may voluntarily surrender the
right to appoint and remove officers and members of the Executive Board before termination of
the Period of Declarant's Control, but in that event Declarant may require, for the duration of the
Period of Declarant's Control, that specified actions of the Association or Executive Board, as
described in a recorded instrument executed by Declarant, be approved by Declarant before they
become effective. Not later than sixty (60) days after conveyance of one-third (33.33%) of the
Condominium Units that may be created in the Project to Owners other than Declarant, at least
one member and not less than one-third(33.33%) of the members of the Executive Board will be
elected by Owners other than Declarant.
Not later than sixty (60) days after the conveyance of 50% of the Condominium Units
that may be created in the Project to Owners other than Declarant, not less than 33-1/3% of the
members of the Executive Board will be elected by Owners other than Declarant. Not later than
the termination of the Period of Declarant's Control as provided above, the Owners (including
Declarant) shall elect an Executive Board of at least three (3) members, at least a majority of
whom must be Owners other than Declarant or designated representatives of Owners other than
Declarant and the Executive Board shall elect the officers, with such Directors and officers to
take office upon termination of the Period of Declarant's Control. Within sixty (60) days after
Owners other than Declarant elect a majority of the Executive Board, Declarant shall deliver to
the Association all property of the Owners and the Association held or controlled by Declarant,
including without limitation those items specified in Section 303(9) of the Act and, if not
previously conveyed to the Association,the Affordable Housing Units.
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Upon and after Declarant's turnover of control of the Board (e.g., by the resignation of
all Declarant-appointed Directors) and delivery of the information and materials required by
Section 303(9) of the Act, Declarant shall have the same rights as any other Unit Owner in the
election of Directors of the Association, to wit: All votes cast by Declarant as a Unit Owner shall
be counted in an election of Directors, and it shall no longer be required that a majority of the
members of the Board be Owners other than Declarant or designated representatives of Owners
other than Declarant.
ARTICLE 6: THE ASSOCIATION
6.1 Association; General Powers. The Association has been organized as a Colorado
nonprofit corporation under the Colorado Revised Nonprofit Corporation Act, and shall be
operated, to provide for the acquisition, construction, management and maintenance of
"association property" as that term is used and defined in Section 528 of the Internal Revenue
Code and its regulations. The Association shall serve as the governing body for all of the Owners
for the protection, improvement, alteration, maintenance, repair, replacement, administration and
operation of the Common Elements, the levying and collection of Assessments for Common
Expenses and other expenses of the Association, and such other matters as may be provided in
this Declaration, the Articles and the Bylaws. The Association shall not be deemed to be
conducting a business of any kind, and all funds received by the Association shall be held and
applied by it for the Owners in accordance with the provisions of this Declaration, the Articles
and the Bylaws.
Subject to any limitations on such powers as are set forth in this Declaration, the
Association shall have and may exercise all of the rights,powers,privileges and immunities of
a Colorado corporation formed under the Colorado Revised Nonprofit Corporation Act, and all of
the powers and duties provided for in the Act and in particular under Section 302 thereof,
including without limitation all of the powers and duties necessary (i) for the administration,
management, governance and operation of the Project and the Association, (ii) to own, operate,
improve, maintain, repair, manage, lease, encumber, and otherwise deal with the Common
Elements, including the Limited Common Elements, (iii) to enforce the provisions of this
Declaration,the Rules and Regulations,the Articles and Bylaws, and(iv)to do any and all lawful
things that may be authorized, required or permitted to be done by the Association under the Act
and/or under the provisions of this Declaration.
6.2 Specific Powers of Association. Without limiting the generality of the foregoing, the
Association shall have the power and authority to:
(a)Adopt and amend Bylaws and Rules and Regulations;
(b) Adopt and amend Budgets for revenues, expenditures, and reserves, and collect
Assessments for Common Expenses of the Unit Owners;
(c) Hire and terminate managing agents and other employees, agents, and independent
contractors;
(d) Institute, defend or intervene in litigation or administrative proceedings in its own
name on behalf of itself or two or more Unit Owners on matters affecting the Project;
(e)Make contracts and incur liabilities;
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(f) Subject to the provisions of Section 4.5(a) above, regulate and implement the use,
maintenance, repair,replacement, and modification of Common Elements;
(g) Cause additional improvements to be made as a part of the Common Elements;
(h) Acquire, hold, encumber, and convey in its own name any right, title, or interest to
real or personal property, subject to the proviso that Common Elements may be conveyed or
subjected to a security interest only pursuant to Section 312 of the Act;
(i) Grant easements, leases, licenses, and concessions upon,through or over the Common
Elements or any part thereof,
0) Impose and receive payments, fees, or charges for the use, rental or operation of the
Common Elements other than Limited Common Elements;
(k) Impose charges for late payment of Assessments, and recover reasonable attorney
fees and other legal costs for collection of Assessments and other actions to enforce the power of
the Association, regardless of whether suit is initiated;
(1) Impose reasonable charges for the preparation and recordation of amendments to the
Declaration or Notices of Delinquent Assessments;
(m) Provide for the indemnification of Association officers and Executive Board
members and maintain Directors' and officers' liability insurance;
(n) Assign the Association's right to Assessments for purposes of providing security to a
lender for a loan by the Association for Association purposes;
(o) Own and rent the Affordable Housing Units consistent with the terms of this
Declaration and the deed restrictions against said Affordable Housing Units.
(p)Exercise any other powers conferred by this Declaration or the Bylaws;
(q) Exercise all other powers that may be exercised in Colorado by legal entities of the
same type as the Association; and
(r) Exercise any other powers reasonably necessary and proper for the governance and
operation of the Association.
6.3 Compliance with Laws; No Damage or Waste. Nothing shall be done or kept in
any Condominium Unit or in or on the Common Elements, or any part thereof,which would be in
violation of any statute, rule, ordinance, regulation, permit or other imposed requirement of any
governmental body having jurisdiction over the same. No damage to, or waste of, the Common
Elements, or any part thereof, shall be committed by any Owner or Owner's tenant, or by any
member of an Owner's or tenant's family, or by a guest, invitee, licensee or concessionaire of any
Owner or Owner's tenant. Each Owner shall indemnify and hold the Association and the other
Owners harmless from and against all loss and damage resulting from any action or activity
committed by him, his tenant or the members of his or his tenant's family, his or his tenant's
guests, invitees, or licensees which is in violation of this Section 6.3, including but not limited to
any permitted improvements constructed by an Owner in or upon the Limited Common Elements.
At its own initiative or upon the written request of any Owner(and if the Association determines
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that further action by it is proper), then the amounts to be indemnified shall be and constitute a
Personal Assessment determined and levied against the Owner's Condominium Unit.
6.4 Management Agreements and Other Contracts. The Association may delegate
management of its business affairs. The Association's contract with the managing agent shall be
terminable for cause without penalty to the Association, and any such contract shall be subject to
renegotiation, as required by Section 38-33.3-302(4)(a) of the Act. Any management contract,
employment contract, any other contract or lease between the Association and Declarant, or an
affiliate of Declarant or any contract or lease that was unconscionable to the Owners at the time
entered into under the then-prevailing circumstances may be terminated without penalty by the
Association at any time following expiration of Declarant's Period of Control of the Executive
Board, upon not less than ninety(90)days notice to the other party.
6.5 Acquiring and Disposing of Real and Personal Property. The Association may
acquire, own and hold for the use and benefit of all Owners, tangible and intangible personal
property and real property for such uses and purposes as the Executive Board may in its
discretion deem appropriate from time to time, and may dispose of the same by sale or otherwise.
The beneficial interest in any such property shall be deemed to be owned by the Owners in the
same undivided proportion as their respective undivided interests in the Common Elements. Such
beneficial interest of an Owner shall not be transferable except with the transfer of that Owner's
Condominium Unit. Transfer of a Condominium Unit, including transfer pursuant to foreclosure,
shall transfer to the transferee ownership of the transferor's beneficial interest in such personal
and/or real property without any reference thereto. Each Owner may use such personal and/or real
property in accordance with the purposes for which such property is intended and in accordance
with such conditions, limitations, restrictions, and Rules and Regulations as may be placed on any
such property by the Executive Board in its sole discretion from time to time, provided that such
use of any Owner shall not hinder or encroach upon the lawful rights of other Owners.
6.6 Promulgation of Rules and Regulations. The Executive Board of the Association
may promulgate and enforce, including, without limitation, enforcement by levying and
collecting charges for the violation thereof, reasonable Rules and Regulations governing (i) the
use of the Condominium Units, or either category thereof(i.e., Commercial Units and Residential
Units), Common Elements and any property owned by the Association, (ii) the investment of
reserve funds, and (iii) such other matters as the Executive Board may consider necessary or
appropriate from time to time, which Rules and Regulations shall be consistent with the terms and
provisions of this Declaration.
6.7 Conveyance or Encumbrance of Common Elements. The Association may convey
or grant a security interest in portions of the Common Elements only in accordance with the
provisions of Section 312 of the Act. The Association may grant a security interest in
Assessments for purposes of providing security to a lender for a loan by the Association for
Association purposes.
6.8 Limited Liability. Neither the Association nor its past, present or future Members,
officers or directors,nor any other employee, agent or committee member of the Association shall
be liable to any Owner or to any other person for actions taken or omissions made except for
wanton and willful acts or omissions. Without limiting the generality of the foregoing, the
Association and the Executive Board shall not be liable to any Owner or other person for any
action or for any failure to act with respect to any matter if the action taken or failure to act was in
good faith and without malice. Acts taken upon the advice of legal counsel, certified public
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accountants, registered or licensed engineers, architects or surveyors shall conclusively be
deemed to be in good faith and without malice.
6.9 Public Disclosures. The Association shall be obligated to provide the annual notice
to Unit Owners required by Section 38-33.3-209.4(1), and shall be obligated to make certain
information available to Unit Owners upon reasonable notice as required by Section 38-33.3-
209.4(2) and to educate the Unit Owners with respect to certain Association matters as required
by Section 38-33.3-209.7.
ARTICLE 7: ASSESSMENTS
7.1 Assessment Obligation; Taxes and Utilities. For each Unit, Declarant shall be
deemed to covenant and agree, and each Unit Owner, by acceptance of a deed therefor(including
a public trustee's or sheriffs deed), whether or not it shall be so expressed in any such deed or
other instrument of conveyance, shall be deemed to covenant and agree, to pay to the
Association: (1) Regular Assessments or charges, (2) Special Assessments, and (3) Personal
Assessments, such assessments to be established and collected as hereinafter provided
(collectively the"Assessments"). The Assessments,together with interest, late charges, costs, and
reasonable attorneys' fees, shall be a continuing lien and security interest upon the Unit against
which each such Assessment is charged. The obligation for such payments by each Unit Owner to
the Association is an independent covenant, with all amounts due from time to time payable in
full without notice (except as otherwise expressly provided in this Declaration) or demand, and
without set-off or deduction of any kind or nature. Each Unit Owner is liable for the full amount
of all Assessments made against such Owner's Unit as a joint and several obligation with all other
Owners of the Unit. Each Assessment, together with interest, late charges, costs and reasonable
attorneys' fees, shall also be the joint, several and personal obligation of each person who was an
Owner of such Unit at the time when the Assessment became due. Upon the transfer of title to a
Unit, the transferor and the transferee shall be jointly, severally and personally liable for all
unpaid Assessments and other charges due to the Association prior to the date of transfer, and the
transferee shall be personally liable for all such Assessments and charges becoming due
thereafter. Notwithstanding anything to the contrary contained herein, upon transfer of the
Affordable Housing Units to the Association, and for so long as the Affordable Housing Units are
owned by the Association, no assessments shall be assessed against the Affordable Housing
Units.
In addition to the foregoing, each Owner shall have the obligation to pay real property ad
valorem taxes and special assessments levied upon his or her Unit by Colorado governmental
authorities, as well as all charges for separately metered utilities serving the Unit. The charges for
utilities which are not separately metered to an individual Unit may be collected by the
Association as part of the Common Expenses, provided the charges for such utilities shall be
allocated among the Units based on actual usage, if such can be effectively determined.
7.2 Statutory Lien. The Association has a statutory lien pursuant to §38-33.3-316 of the
Act on the Unit of an Owner for all Assessments levied against such Unit or fines imposed
against such Unit's Owner from the time the Assessment or fine becomes due (the "Assessment
Lien"). Fees, charges, late charges, attorneys' fees, fines and interest charged by the Association
pursuant to the Act or this Declaration are enforceable as Assessments. The amount of the lien
shall include all such items from the time such items become due. If an Assessment is payable in
installments, the Association has an Assessment Lien for each installment from the time it
becomes due, including the due date set by the Executive Board's acceleration of installment
obligations. Pursuant to Section 38-33.3-316(5) of the Act, an Assessment Lien is extinguished
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unless proceedings to enforce the lien are instituted within 6 years after the full amount of
Assessments becomes due. If Section 38-33.3-316(5) of the Act is subsequently amended, this
provision shall be deemed to be amended to be consistent with Colorado law, as amended.
7.3 Lien Superior to Homestead and Other Exemptions. An Assessment Lien shall be
superior to any homestead exemption now or hereafter provided by the laws of the State of
Colorado or any exemption now or hereafter provided by the laws of the United States. The
acceptance of a deed subject to this Declaration shall constitute a waiver of the homestead and
any other exemption as against said Assessment Lien.
7.4 Priority of Lien. An Assessment Lien is prior to all other liens and encumbrances on
a Unit except as follows:
(a)Liens and encumbrances recorded before the recordation of this Declaration;
(b) 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. An Assessment Lien is prior to the security interest described in the
preceding sentence to the extent of an amount equal to the Regular Assessments (based on a
Budget adopted by the Association pursuant to Section 7.7 below) which would have become
due, in the absence of any acceleration, during the 6 months immediately preceding institution by
the Association or any party holding a lien senior to any part of the Association lien created under
this Article 7 of an action or a nonjudicial foreclosure either to enforce or to extinguish the lien;
(c) Liens for real estate taxes and other governmental assessments or charges against the
Unit; and
(d) As may otherwise be set forth in the Act. The priority of mechanics' and
materialmen's liens is not affected by the Act. This Article 7 does not prohibit an action or suit to
recover sums for which this Article 7 creates a lien or prohibit the Association from taking a deed
in lieu of foreclosure. Sale or transfer of any Unit shall not affect the lien for an Assessment.
7.5 Perfection of Lien. The recording of this Declaration constitutes record notice and
perfection of the statutory lien. No further recordation of any claim of lien for Assessments is
required; however, a claim may be recorded at the Association's option, in which event costs and
attorneys' fees incurred in connection with the preparation and filing of such claim shall be
assessed against the Unit as a Personal Assessment.
7.6 Regular Assessments.
(a) A Regular Assessment shall be made annually against each Unit based upon an
annual Budget prepared by the Executive Board, for purposes of paying (i) the annual costs of
operating and administering the Association and all other Common Expenses, (ii) reasonable
reserves for contingencies, maintenance, repairs, replacements, and other proper purposes, (iii)
the costs of services rendered or expenditures incurred by the Association to or for less than all
Units including Residential Common Expenses and Commercial Common Expenses, (iv) the
costs of repairing, maintaining or improving Limited Common Elements, and reasonable reserves
for such costs, which costs shall be assessed only to the Units designated for the use of said
Limited Common Elements, and (v) such other matters as may be reasonably determined by the
Executive Board to be the subject of a Regular Assessment;
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(b) Regular Assessments shall be allocated in accordance with the Allocated Interests of
each Unit in the Common Elements of the Project as set forth on attached Exhibit B, except that
(i) any Common Expense or portion thereof (including Residential Common Expenses and
Commercial Common Expenses) benefiting fewer than all of the Units may be assessed
exclusively against the Units benefited; and (ii) any Common Expense associated with the
maintenance, repair, improvement or replacement of a Limited Common Element shall be
assessed only against the Unit(s)for which the Limited Common Element is designated.
(c) Regular Assessments shall be levied on a calendar year basis, except that the initial
Regular Assessment period shall commence on the first day of the calendar month or quarter in
which the first Unit is conveyed by Declarant to a person other than Declarant. Regular
Assessments shall be paid in installments on a monthly or quarterly basis, as the Executive Board
may determine from time to time, and shall be due either on the first day of each calendar month
or on the first day of each calendar year quarter (January 1, April 1, July 1 and October- 1) as
appropriate. Unless and until changed to a monthly system by the Executive Board, Regular
Assessments shall be due and payable on the first day of each calendar quarter. Any Owner
acquiring a Unit between installment due dates shall pay a pro rata share of the immediately
preceding installment.
(d) The Executive Board shall fix the amount of the Regular Assessment, using the
Budget procedure described below, at least thirty (30) days before the end of each calendar year.
Written notice of the Regular Assessment shall be sent to each Owner. Failure of the Executive
Board timely to fix and levy the Regular Assessments for any year or to send a notice thereof to
any Owner shall not relieve or release any Owner from liability for payment of Regular
Assessments or any installments thereof for that or subsequent years as soon as the Executive
Board levies the Regular Assessment and provides notice thereof. If a duly adopted Budget is
amended during the calendar year, the Executive Board shall provide written notice to the
Owners of any changes caused thereby in the remaining Regular Assessments due during that
year.
(e) The Executive Board shall also mail to each Owner at least the (10) days prior to the
due date thereof a written notice of the amount of the next quarterly (or monthly) installment of
Regular Assessment that is due from such Owner, and the date on which such installment is due
pursuant to subparagraph (d) above. Failure of the Executive Board to send timely notice to any
Owner of an installment of Regular Assessment due shall not relieve or release any Owner from
liability for payment of that installment as soon as the Executive Board in fact provides such
notice.
(f) In accordance with §38-33.3-314 of the Act, any surplus funds remaining after
payment of or provision for Association expenses and any prepayment of or provision for
reserves shall be carried forward as_a credit against the next year's budget.--
7.7 Association Budget. Commencing in 201_, and during the last three (3) months of
each calendar year thereafter, the Executive Board shall prepare or cause to be prepared an
operating budget for the Common Expenses for the next calendar year (the "Budget"). Each
Budget shall provide for the allocation of any surplus funds remaining from any previous Budget
period. Within ninety(90) days after adoption of the proposed Budget, the Executive Board shall
mail, by ordinary first-class mail, or otherwise deliver, a summary of the Budget to all of the Unit
Owners and shall set a date for a meeting of the Unit Owners to consider ratification of the
Budget within a reasonable time after the mailing or other delivery of the summary. Such meeting
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may, but need not be, concurrent with the annual meeting of the Members as provided in the
Bylaws.
Unless at that meeting at least sixty-seven percent (67%) of all allocated votes in the
Association reject the Budget, the Budget shall be ratified, whether or not a quorum of Owners is
present. In the event that a proposed Budget is rejected, the Budget last ratified by the Unit
Owners shall be continued until such time as the Unit Owners ratify a subsequent Budget
proposed by the Executive Board.
If the Executive Board considers it necessary or appropriate, a duly adopted Budget may
be amended during the calendar year by the Executive Board provided the same notice and
ratification procedure is followed for the Amended Budget as is required for the annual Budget.
7.8 Special Assessments. In addition to the Regular Assessments and Personal
Assessments authorized in this Article 7,the Executive Board may levy, in any assessment year, a
Special Assessment applicable to that year only for the purpose of defraying, in whole or in part,
the cost of any construction, reconstruction, repair, maintenance, or replacement of capital
improvements (including related fixtures and personal property)to or upon or serving the Project,
or for excess reconstruction costs or other extraordinary expenses, or for funding any operating
deficit of the Association. Special Assessments shall be based on a Budget adopted in accordance
with the procedures described in Section 7.7 above.
Special Assessments shall be allocated in the same manner as Regular Assessments, that
is, in accordance with the Allocated Interests of each Unit in the Common Elements of the
Project, provided that Special Assessments that benefit fewer than all of the Units shall be
allocated exclusively to the Units benefited. Special Assessments shall be due and payable to the
Association on the due date fixed by the Executive Board in the notice given to the Owners of
such Special Assessment, which due date shall be no earlier than thirty (30) days after the giving
of such notice.
7.9 Personal Assessments. In addition to the Regular and Special Assessments
authorized hereunder, the Executive Board may levy against any Owner or Owners, at any time
and from time to time, a Personal Assessment for purposes of reimbursing the Association for all
costs and expenses incurred by it in enforcing any provision of or in remedying any violation of
this Declaration, the Rules and Regulations, the Articles or Bylaws, by such Owner or Owners,
their tenants or invitees, or their agents, employees or contractors. Personal Assessments may also
be made by the Executive Board for any other purposes for which this Declaration provides for
the levying of a Personal Assessment. Personal Assessments shall be due and payable to the
Association on the due date fixed by the Executive_Board_in the notice given to the Owner(s) of
such Personal Assessment, which date shall be no earlier than thirty (30) days after the giving of
such notice.
7.10 Declarant's Obligation to Pay Assessments. Declarant shall be obligated to pay
the Regular, Special and Personal Assessments levied on each Unit owned by Declarant.
7.11 Effect of Nonpayment of Assessments, Remedies of the Association. Any
Assessment or portion or installment thereof which is not paid when due (or for which a bad
check is issued) shall be deemed delinquent and shall bear interest from and after the due date at
the rate of interest set by the Executive Board from time to time, which shall not be less than
twelve percent (12%) nor more than twenty-one percent (21%) per year, or the maximum
allowable by law, whichever is less, and the Executive Board may also assess a late charge
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thereon and/or may assess a bad check charge in the amount of ten percent (10%) of the bad
check. The Executive Board may also elect to accelerate the installment obligations of any
Regular Assessment for which an installment is delinquent, and may suspend the delinquent
Owner's use of any amenities in the Project and the provision of Association services and
benefits during the period of any delinquency in paying Assessments The delinquent Owner shall
also be liable for all costs, including attorneys' fees, which may be incurred by the Association in
collecting a delinquent Assessment, which collection costs shall be added to the delinquent
Assessment. The Executive Board may but shall not be required to record a Notice of Delinquent
Assessment or charge against any Unit as to which an Assessment or charge is delinquent. The
Notice shall be executed by an officer of the Executive Board, and shall set forth the amount of
the unpaid Assessment or charge,the name of the delinquent Owner and a description of the Unit.
The Assessment Lien may be foreclosed by the Association in the same manner as a
mortgage on real property. The Association shall be entitled to purchase the Unit at foreclosure.
The Association may also bring an action at law against the Owner personally obligated to pay
the delinquent Assessment and/or foreclose the lien against said Owner's Unit in the discretion of
the Association. No Owner may exempt himself or otherwise avoid liability for the Assessments
provided for herein by waiver of the use or enjoyment of any Common Elements or by
abandonment of the Unit against which the Assessments are made.
In any action by the Association to collect Assessments or to foreclose a lien for unpaid
Assessments, the court may appoint a receiver to collect all sums alleged to be due from the Unit
Owner prior to or during the pending of the action. The court may order the receiver to pay any
sums held by the receiver to the Association during the pending of the action to the extent of the
Association's Regular Assessments. 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 facsimile transmittal or by certified mail, first class postage prepaid, return
receipt requested, to the Association, a written statement setting forth the amount of unpaid
Assessments currently levied against such Owner's Unit, whether delinquent or not. The
statement shall be furnished within fourteen (14) days after receipt of the request and is binding
on the Association, the Executive Board, and every Owner. If no statement is timely furnished
either delivered personally or by facsimile transmission 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 lien upon the Unit for unpaid Assessments which were due as of the date of the request.
7.12 Liens. In accordance with the requirements of the Act, as amended, Declarant
hereby states that it is possible that liens other than mechanics' liens, Assessment Liens or tax
liens may be obtained against the Common Elements, including without limitation judgment liens
and construction or purchase money mortgage liens.
ARTICLE 8: INSURANCE
8.1 Insurance Requirements. The Association shall obtain, maintain and keep in full
force and effect at all times the following types of insurance, and the cost of said coverage shall
be paid by the Association as a Project Common Expense:
(a) Casualty Insurance. Property insurance on the Common Elements (including the
Limited Common Elements) and on any property owned by the Association. The insurance must
include the Units but not the finished interior surfaces of the walls, floors and ceilings of the
'Units. Such insurance shall be for broad form covered causes of loss, including casualty, fire, and
extended coverage insurance including, if available at a reasonable cost, coverage for vandalism
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and malicious mischief and, if available and if deemed appropriate, coverage for flood, mud flow,
earth movement, and war risk. Such insurance shall, to the extent reasonably obtainable, be for
the full insurable replacement cost of the Common Elements and other insured property, less
applicable deductibles at the time the insurance is purchased and at each renewal date, exclusive
of land, excavation,foundations and other items normally excluded from property policies.
(b) Liability Insurance. Comprehensive general liability insurance against claims and
liabilities arising in connection with the ownership, existence, use, maintenance or management
of the Common Elements (including the Limited Common Elements) and covering public
liability or claims of liability for injury to persons and/or property, and death of any person or
persons and, if the Association owns or operates motor vehicles, public liability or claims of
liability for bodily injury (including death) and property damage arising as a result of the
ownership or operation of motor vehicles. Such liability insurance for other than motor vehicle
liability shall, to the extent reasonably obtainable, (a) have limits of not less than Five Million
Dollars($5,000,000.00)per person and Five Million Dollars($5,000,000.00)per occurrence;
(b) insure the Executive Board, the Association and its officers, and their respective employees,
agents and all persons acting as agents; (c) include the Declarant as an additional insured as its
interests may appear, (d) include the Owners as additional insureds, but only for claims and
liabilities arising in connection with the ownership, existence, use or management of the
Common Elements; (e) cover claims of one or more insured parties against other insured parties;
(f)be written on an occurrence basis; and(g) shall name as additional insureds such other parties
as may be required by specific agreement.
(c) Contractual Liability Insurance. To the extent reasonably available, contractual
liability insurance covering such contractual obligations and liabilities, indemnifications, hold
harmless agreements, and agreements to defend, as the Association may have or be a party to
from time to time, with coverage of at least Two Million Dollars ($2,000,000.00) or such greater
amount as the Executive Board shall determine to be appropriate from time to time.
(d) Fidelity Bonds. To the extent reasonably available, fidelity bond coverage against
dishonest acts on the part of directors, officers, managers, trustees, agents, employees or
volunteers responsible for handling funds belonging to or administered by the Association. If
funds of the Association are handled by a management agent, then fidelity bond coverage may
also be obtained for the officers, employees, or agents thereof handling or responsible for
Association funds. The fidelity bond or insurance must name the Association as the named
insured and shall be written to provide protection in an amount no less than the lesser of(a) one-
half times the Association's estimated annual operating expenses and reserves, (b) a sum equal to
three (3) months aggregate Regular Assessments, plus reserves, as calculated from the current
Budget of the Association; or(c)the estimated maximum amount of funds, including reserves, in
the custody of the Association (and its management agent) at any one time. In connection with
such coverage, an appropriate endorsement to the policy to cover any person who serves without
compensation shall be added if the policy would not otherwise cover volunteers.
(e) Flood Insurance. In the unlikely event the Project is determined to be located in a
Special Flood Hazard Area which is designated A,AE,AH,AO,Al-30,A-99,'V, VE,VI-30 on a
flood insurance rate map, the Association shall obtain a policy of flood insurance in an amount
equal to 100% of the insurable value of the Project or the maximum coverage available under the
appropriate National Flood Insurance Administration program. The Building coverage should
equal 100% of the insurable value of the Building, including machinery and equipment that are
part of the Building. The contents coverage must include 100% of the insurable value of all
contents, including any machinery and equipment that are not part of the Building, but which are
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Common Elements or owned by the Association. The maximum deductible amount shall be the
lesser of $5,000.00 or one percent of the policy face amount. Funds to cover this deductible
amount should be included in the Association's reserve account.
(f) Worker's Compensation. A Worker's Compensation policy, if necessary, to meet the
requirements of law.
(g) Directors and Officers Liability Insurance. The Association may, in its discretion,
carry directors and officers liability insurance in such amount as the Executive Board may deem
appropriate.
(h) Other Insurance. Such other insurance in such amounts as the Executive Board shall
determine, from time to time, to be appropriate to protect the Association or the Owners, or as
may be required by the Act.
(i) General Provisions Respecting Insurance. Insurance policies carried pursuant to
Sections 8.1(a) and 8.1(b) above shall provide that(i) each Owner is an insured person under the
policy with respect to liability arising out of such Owner's interest in the Common Elements or
membership in the Association; (ii) the insurer waives its rights of subrogation under the policy
against the Association, each Owner, and any person claiming by, through, or under such Owner
or any other director, agent or employee of the foregoing; (c) no act or omission by any Owner,
unless acting within the scope of such Owner's authority on behalf of the Association, will void
the policy or be a condition to recovery under the policy; and (d) if at the time of a loss under the
policy, there is other insurance in the name of an Owner covering the same risk covered by the
policy, the Association's policy shall be the primary insurance. An insurer that has issued an
insurance policy for the insurance described in Sections 8.1(a) and 8.1(b) above shall issue
certificates or memoranda of insurance to the Association and, upon request, to any Owner or
holder of a security interest, at their respective last-known addresses. Unless otherwise provided
by statute,the insurer issuing the policy may not cancel or refuse to renew it until thirty(30) days
after notice of the proposed cancellation or nonrenewal has been mailed to the Association and to
each Owner and holder of a security interest to whom a certificate or memorandum of insurance
has been issued, at their respective last-known addresses.
Any loss covered by the property insurance policy described in Section 8.1(a)above must
be adjusted with the Association, but the insurance proceeds for that loss shall be payable to any
insurance trustee designated for that purpose, or otherwise to the Association, and not to any
holder of a security interest. The insurance trustee or the Association shall hold any insurance
proceeds in trust for the Association, the Owners, and lienholders as their interests may appear.
Subject to the provisions of Section 38.33.3-313(9) of the Act, the proceeds must be disbursed
first for the repair or restoration of the damaged property, and the Association, the Owners, and
lienholders are not entitled to receive payments of any portion of the proceeds unless there is a
surplus of proceeds after the property has been completely restored or the Project is terminated.
The Association may adopt and establish written nondiscriminatory policies and
procedures relating to the submittal of claims, responsibility for deductibles, and any other
matters of claims adjustment. To the extent the Association settles claims for damages to real
property, it shall have the authority to levy a Personal Assessment against negligent Owners
causing such loss or benefiting from such repair or restoration for all deductibles paid by the
Association. In the event more than one Unit is damaged by a loss, the Association in its
reasonable discretion may assess each Owner a pro rata share of any deductible paid by the
Association. Insurance obtained by the Association shall, to the extent reasonably possible, and
YAFiles M-Z�Mother Lode Investors,LLC\Declaration(2).doc 20
provided Declarant reimburses Association for any additional premium payable on account
thereof, name Declarant as an additional insured and shall contain a waiver of rights of
subrogation as against Declarant.
Insurance policies and insurance coverage shall be reviewed at least annually by the
Executive Board to ascertain whether coverage under the policies is sufficient in light of the
current values of Common Elements and in light of the possible or potential liabilities of the
Association and other insured parties.
In no event shall insurance coverage obtained or maintained by the Association obviate
the need for Owners to obtain insurance for their own benefit. Furthermore, to the extent
reasonably available, insurance policies obtained by the Association shall contain the following
provisions:
(i) The coverage afforded by such policies shall not be brought into contribution
or proration with any insurance which may be purchased by an Owner or Mortgagee.
(ii) The conduct of any one or more Owners shall not constitute grounds for
avoiding liability on any such policies.
(iii)Each policy must contain a waiver of any defenses based on co-insurance or
on invalidity arising from the acts of the insured.
(iv) A "severability of interest" endorsement shall be obtained which shall
preclude the insurer from denying the claim of an Owner because of the conduct or
negligent acts of the Association and its agents or other Owners.
(v) Any "no other insurance" clause shall exclude insurance purchased by
Owners or Mortgagees.
(vi) Coverage must not be prejudiced by (i) any act or neglect of Owners or
Occupants when such act or neglect is not within the control of the Association, or (ii)
any failure of the Association to comply with any warranty or condition regarding any
portion of the Project over which the Association has no control.
(vii) Coverage may not be canceled or substantially modified without at least
thirty (30) days (or such lesser period as the Association may reasonably deem
appropriate)prior written notice to the Association.
(viii)Any policy of property insurance which gives the carrier the right to elect to
restore damage in lieu of a cash settlement must provide that such election is not
exercisable without the prior written approval of the Association, or when in conflict with
the insurance trust provisions contained herein, or any requirement of law.
(ix) A recognition of any insurance trust agreement entered into by the
Association.
(x) Each hazard insurance policy shall be written by a hazard insurance carrier
which has a financial rating as designated in Best's Key Rating Guide of Class VI or
better, or if such rating service be discontinued, an equivalent rating by a successor
Y:Tiles M-Mother Lode Investors,LLC\Declaration(2).doc 21
thereto or a similar such rating service. Each insurance carrier must be specifically
licensed or authorized by law to transact business within the State of Colorado.
(i) Nonliability of Association or Executive Board. Notwithstanding the duty of the
Association to obtain insurance coverage, as stated herein, neither the Association nor any
Executive Board member or officer,nor the Declarant, shall be liable to any Owner,mortgagee or
other person, if any risks or hazards are not covered by insurance, or if the appropriate insurance
is not obtained because such insurance coverage is not reasonably obtainable on the Association's
behalf, or if the amount of insurance is not adequate, and it shall be the responsibility of each
Owner to ascertain the coverage and protection afforded by the Association's I insurance and to
procure and pay for such additional insurance coverage and protection as the Owner may desire.
0) Premiums. Premiums for insurance policies purchased by the Association and other
expenses connected with acquiring such insurance shall be paid by the Association as a Project
Common Expense, except that (i) liability insurance on the Limited Common Elements that
consist of Parking Garages,Decks, and the Roof Deck shall be separately bid and the cost thereof
shall only be included in the Regular Assessments of the Units entitled to use such Limited
Common Elements, and(ii)the amount of increase over any annual or other premium occasioned
by the use, misuse, occupancy or abandonment of a Unit or its appurtenances, or Common
Elements, by an Owner, may at the Executive Board's election, be assessed against that particular
Owner or his or her Unit as a Personal Assessment.
(k) Insurance Claims. The Association is hereby irrevocably appointed and authorized,
subject to the provisions contained herein, to adjust all claims arising under insurance policies
purchased by the Association and to execute and deliver releases upon the payment of claims, and
to do all other acts reasonably necessary to accomplish any of the foregoing. The Executive
Board has full and complete power to act for the Association in this regard, and may, in its
discretion, appoint an authorized representative, or enter into an insurance trust agreement,
wherein the trustee shall have the authority to negotiate losses under any policy purchased by the
Association.
(1) Benefit. Except as otherwise provided herein, all insurance policies purchased by the
Association shall be for the benefit of, and any proceeds of insurance received by the Association
or any insurance trustee shall be held or disposed of in trust for the Association or the Owners, as
their interests may appear.
(m) Other Insurance to be Carried by Owners. Insurance coverage on the improvements,
furnishings and other items of personal property belonging to an Owner, and public liability
insurance coverage within and upon each Unit shall be the responsibility of the Owner of the
Unit.
ARTICLE 9: CONVEYANCES AND TAXATION OF CONDONHNIUM UNITS
9.1 Conveyance of a Unit. Every contract, deed, lease,mortgage, deed of trust,will and
every other instrument affecting title to a Condominium Unit may legally describe that
Condominium Unit as follows:
Condominium Unit , Mother Lode Condominiums, according to the Condominium
Map thereof recorded on , 201, at Reception No. in the
Office of the Clerk and Recorder of the County of Pitkin, Colorado, and as defined and
YAHes M-Z\Mother Lode Investors,LLC\Declaration(2).doc 22
described in the Condominium Declaration for Mother Lode Condominiums recorded on
201_, at Reception No. in said records.
9.2 Legal Effect of Description. Every contract, deed, lease, mortgage, deed of trust,
will and every other instrument affecting title to a Condominium Unit which legally describes
said Condominium Unit substantially in the manner set forth in Section 9.2 hereof shall be good
and sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect the
Condominium Unit, including its undivided interest in all Common Elements and all other
appurtenant properties and property rights, and incorporate all of the rights, limitations and
burdens incident to, ownership of a Condominium Unit as described in this Declaration and the
Condominium Map. Each such description shall be construed to include a nonexclusive easement
for ingress and egress to and from each Condominium Unit and the use of all the General
Common Elements as well as all of the Limited Common Elements allocated to said
Condominium Unit, all as more fully provided in this Declaration.
9.3 Taxation. Each Condominium Unit shall be assessed separately for all taxes,
assessments and other charges of the State of Colorado, any political subdivision thereof, any
special improvement district, and any other taxing or assessing authority, in accordance with the
Act. For the purpose of such assessments, the valuation of the General Common Elements shall
be apportioned among the Condominium Units in proportion to the undivided interest in all of the
Common Elements appurtenant thereto and, to the extent feasible, the valuation of the Limited
Common Elements shall be apportioned among the individual Condominium Units to which such
Limited Common Elements are allocated. The Association shall furnish to the Tax Assessor of
the County of Pitkin, Colorado, and to all other appropriate persons and authorities, all necessary
information with respect to such apportionment. No forfeiture or sale of any Condominium Unit
for delinquent taxes, assessments or other governmental charges shall divest or in any way affect
the title to any other Condominium Unit.
ARTICLE 10: MECHANIC'S LIENS
10.1 Mechanic's Liens. No labor performed and/or materials furnished for use and
incorporated in any Condominium Unit with the consent or at the request of the Owner thereof,
his agent, contractor or subcontractor, shall be the basis for the filing of a lien against a Unit of
any other Owner not expressly consenting to or requesting the same, or against any interest in the
Common Elements except as to the undivided interest therein allocated to the Unit of the Owner
for whom such labor shall have been performed or such materials furnished. Each Owner shall
indemnify and hold harmless each of the other Owners and the Association from and against any
liability or loss arising from the claim of any mechanic's lien against the Unit of any other Owner,
the Common Elements, or any part thereof, for labor performed and/or for materials furnished in
work on the first Owner's Condominium Unit or on any Limited Common Elements designated
for the use of that Unit when such work is performed by or on behalf of the indemnifying Unit
Owner.
10.2 Enforcement by the Association. At its own initiative or upon the written request
of any Owner, if the Association determines that further action by it is proper and the mechanic's
lien(s) are not disputed claims with a reasonable basis for such dispute, the Association, after
notice and hearing, shall enforce the indemnity provided by Section 10.1 hereof by collecting
from the Owner of the Condominium Unit on which the labor was performed and/or materials
furnished, the amount necessary to discharge any such mechanic's lien, including all costs and
reasonable attorney's fees incidental thereto, and obtain a discharge of such lien. In the event that
the Owner of the Condominium Unit on which the labor was performed and/or materials
Y-Tiles M-Z\Iother Lode Investors,LMDeclaration(2).doc 23
furnished refuses or fails to so indemnify within seven (7) days after the Association shall have
given notice to such Owner of the total amount, or any portions thereof, from time to time, to be
indemnified, then the failure to so indemnify shall be a default by such Owner under the
provisions of this Section 10.2 and such amount to be indemnified shall automatically become a
Personal Assessment determined and levied against such Condominium Unit.
ARTICLE 11: EASEMENTS
11.1 Recorded Easements.In addition to all easements and rights-of-way of record at or
before the recording of this Declaration, the Real Estate, and all portions thereof, shall be subject
to the easements as shown on any recorded plat of the Real Estate, or any portion thereof, and as
shown on the recorded Condominium Map.
11.2 Encroachments.In the event that any portion of the Common Elements encroaches
upon any Unit(s) or in the event that any portion of a Unit encroaches upon any other Unit(s) or
upon any portion of the Common Elements, or in the event any encroachment shall occur in the
future as a result of: (i) settling of the Building, or (ii) alteration or repair to the Common
Elements, or(iii) repair or restoration of the Building and/or Unit(s) after damage by fire or other
casualty, or condemnation or eminent domain proceedings, then, in any of said events, a valid
easement is hereby created and does exist for the encroachment and for the maintenance of the
same so long as the encroachment exists. In the event that any one or more of the Units, Building
or other improvements comprising part of the Common Elements are partially or totally destroyed
and are subsequently rebuilt or reconstructed in substantially the same location, and as a result of
such rebuilding or reconstruction any portion thereof shall encroach as provided in the preceding
sentence, a valid easement for such encroachment is hereby created and does exist. Such
encroachments and easements shall not be considered or determined to be encumbrances either
on the Common Elements or on the Units for purposes of marketability of title or other purposes.
In interpreting any and all provisions of this Declaration, subsequent deeds, mortgages, deeds of
trust or other security instruments relating to Units, the actual location of a Unit shall be deemed
conclusively to be the property intended to be conveyed, reserved or encumbered,
notwithstanding any minor deviations, either horizontally,vertically or laterally, from the location
of such Unit as indicated on the Condominium Map.
11.3 Emergency Easement. A general easement is hereby granted to all police, sheriff,
fire protection, ambulance and all other similar emergency agencies or persons to enter upon any
portion of the Project in the proper performance of their duties.
11.4 Utilities. There is hereby created a blanket easement upon, across and through the
Common Elements for the installation, replacement, repair and maintenance of utilities, including
but not limited to water, sewer, gas, telephone, electricity, computer, cable, and master television
antenna or cable or satellite television systems, if any, which serve one or more Units in the
Project. By virtue of this blanket easement, it shall be expressly permissible to erect and maintain
the facilities, equipment and appurtenances on the Common Elements necessary to repair and
maintain water and sewer pipes, gas, electric, telephone, computer and television wires, cables,
circuits, conduits and meters. If any utility or quasi-utility company furnishing a service covered
by the general easement created herein requests a specific easement by separate recordable
document, Declarant reserves and is hereby given the right and authority to grant such easement
upon, across, over or under any part or all of the Common Elements without conflicting with the
terms hereof; provided, however, that such right and authority shall cease and terminate ten (10)
years after recordation of this Declaration in the County of Pitkin, Colorado, at which time said
reserved right shall vest in the Association. The easement provided for in this Section 11.4 shall
YTiles M-ZVvlother Lode Investors,LMDeclaration(2).doc 24
in no way affect, avoid, extinguish or modify any other recorded easement(s) on the Common
Elements.
11.5 Maintenance Easement. An easement is hereby granted to the Association, its
officers, directors, agents, employees and assigns upon, across, over, in and under the Common
Elements, and a right to make such use of the Common Elements as may be necessary or
appropriate to perform the duties and functions which it is obligated or permitted to perform
pursuant to this Declaration, including the right to construct and maintain on the Common
Elements maintenance and storage facilities for use by the Association.
11.6 Drainage Easement.An easement is hereby granted to the Association, its officers,
agents, employees, successors and assigns to enter upon, across, over, in and under any portion of
the Real Estate for the purpose of changing, correcting or otherwise modifying the grade or
drainage channels of the Real Estate to improve the drainage of water on the Real Estate.
11.7 Easements of Access for Repair, Maintenance and Emergencies. Some of the
Common Elements are or may be located within a Unit(s)or may be conveniently accessible only
through a Unit(s). The Owners of other Unit(s) and the Association shall have the irrevocable
right, to be exercised by the Association as their agent, to have access to each Unit and to all
Common Elements from time to time during such reasonable hours as may be necessary for the
maintenance, repair, removal or replacement of any of the Common Elements or any utility lines
or pipes which are not Common Elements, located therein or accessible therefrom, or for making
emergency repairs therein necessary to prevent damage to the Common Elements or to any Unit.
Subject to the provisions of Section 6.3 hereof, damage to the interior of any part of a Unit
resulting from the maintenance, repair, emergency repair, removal or replacement of any of the
Common Elements or as a result of emergency repairs within any Unit at the instance of the
Association shall be an expense of the Owners apportioned in accordance with Section 7.6.
Damage to the interior part of any Unit resulting from the installation, movement, repair,
emergency repair, removal or replacement of any utility lines or pipes not servicing more than
one Condominium Unit shall be the expense of the Owner whose Unit such utility lines and pipes
serve and such expense may be reimbursed through a Personal Assessment. Non-emergency
repairs shall be made only during regular business hours on business days after twenty-four (24)
hours notice to the occupants of the Unit wherein such repairs are to be made, except where the
occupants have no objections to earlier entry for repairs. In emergencies the occupants of the
affected Unit shall be warned of impending entry as early as is reasonably possible.
11.8 Construction Utility Easement. Each Owner shall have an easement in, upon,
under and across the Common Elements for the construction and installation of any duct work,
additional plumbing or other additional services or utilities in the Common Elements in
connection with the improvement or alteration of any Condominium Unit or Limited Common
Element, following review (where required) by the Association or its agents of final construction
plans for the proposed improvement or alteration, with all such documents and/or plans being
provided by the Owner at its sole cost and expense.
11.9 Declarant's Rights Incident to Completion of the Project. Declarant, for itself
and its successors and assigns, hereby retains a right and easement of ingress and egress over, in,
upon, under and across the Common Elements and the right to store materials thereon and to
make such other uses thereof as may be reasonably necessary or incidental for the purpose of the
completion, improvement, maintenance or repair of the Project, the performance of Declarant's
obligations hereunder, the sale of the Units and the exercise of Declarant's special rights under
Section 12.2 and Article 17 hereof, provided, however, that no such rights shall be exercised by
Y-Tiles M-Z\Mother Lode Investors,LLCDeclaration(2).doe 25
Declarant in such a way as to unreasonably interfere with the occupancy, use, enjoyment or
access by any Owner, his family members, guests or invitees, to or of his Condominium Unit or
the Common Elements. The rights of Declarant under this section shall terminate ten (10) years
after the recording of this Declaration.
11.10 Easements Deemed Created. All conveyances of Units hereafter made, whether
by Declarant or otherwise, shall be construed to grant and reserve the easements contained in this
Article 11, even though no specific reference to such easements or to this Article 11 appears in
the instrument for such conveyance.
ARTICLE 12: RESTRICTIVE COVENANTS
12.1 Residential Use. Subject to the provisions of Section 12.3 hereof, Residential Units
shall be used for residential purposes only, including uses which are customarily incident thereto, S
and shall not be used at any time for business, commercial or professional purposes; provided, �'� r
however, that the Owner may use his Residential Unit for a professional or home occupation, so �./✓
long as the applicable governmental rules, regulations and ordinances permit such use and there is
no external evidence thereof.
12.2 Commercial Use. The Commercial Units shall be used for retail, private office or
any other commercial uses allowed in the zone district in which the Property is located, provided,
however,that the Commercial Units may not be used for restaurant or bar purposes.
12.3 Declarant's Use. Notwithstanding anything to the contrary contained in this
Declaration, it shall be expressly permissible and appropriate for Declarant, its employees, agents,
and contractors, and Declarant hereby expressly reserves the right, to perform such reasonable
activities, and to maintain upon portions of the Project such facilities as Declarant deems '
reasonably necessary or incidental to the completion and sale of Condominium Units, specifically
including without limiting the generality of the foregoing, business offices, storage areas, signs,
model units, sales offices, parking areas and lighting facilities. The rights reserved by Declarant
in this Section 12.3 shall terminate upon the conveyance by Declarant of the last Condominium
Unit to an Owner other than Declarant or ten (10) years after the recording of this Declaration,
whichever occurs first.
12.4 Use Restrictions. No lands or structures within the Project shall ever be occupied
or used in any manner that is contrary to any zoning, subdivision, building restrictions of the City
of Aspen, nor contrary to any condition of development required by the City of Aspen, nor
contrary to any rule or regulation promulgated by the Association pursuant hereto.
12.5 Use of Common Elements. Subject to the rights of Declarant as provided in this
Declaration, there shall be no obstruction of the Common Elements, nor shall anything be kept or
stored on any part of the General Common Elements without the prior written approval of the
Association. Except for those improvements erected or installed by Declarant in its completion of
the Project, and except as provided in Section 12.3 and Article 17 hereof, nothing shall be altered
on, constructed in or removed from the Common Elements without the prior written approval of
the Executive Board. Such approval may be conditioned upon the Owner who requests the
approval to submit plans for the alteration to the Association for approval, obtaining insurance as
required by the Association and posting adequate surety. In reviewing any plans, the Association
may engage the services of architects, attorneys and engineers, and the cost of such services will
be paid by the requesting party. General and Limited Common Elements (including decks) shall
not be used for the storage of personal property, including sporting equipment (e.g., skis,
Y Tiles M-Z\Mother Lode Investors,LMDeclaration(2).doc 26
snowboards, bikes, kayaks, etc.), which must be stored completely inside the Units or in
designated storage areas. Nothing shall be stored on or in windows or doors or otherwise on the
exterior of Units or Common Elements which create an unsightly appearance.
12.6 Exterior Changes. Except for those improvements erected, constructed or installed
by Declarant in its completion of the Project, and except as provided in Section 4.5(a) above, no
exterior additions to, alterations or decoration of the Building, including but not limited to any
structural alterations to any Condominium Unit or Common Element, nor any changes in storm,
screen or security doors and/or windows or fences, walls or other structures, nor installation of
window mounted air conditioning units or awnings or any exterior improvement of any type shall
be commenced, erected, placed or maintained, without the prior written approval of the Executive
Board and subject to all laws, ordinances, regulations, or other restrictions limiting or precluding
alteration of the exterior of the Building.
12.7 Signs and Advertising. Except as hereinafter provided, and subject always to the
provisions of Section 38-333-106.5(a-c), no signs, advertising, billboards, unsightly objects or
nuisances of any kind shall be placed, erected or permitted to remain in or on any Condominium
Unit, nor shall any sign(s) be permitted in or on the Common Elements (including the Limited
Common Elements), without the prior written approval of the Association; provided, however,
that no approval is necessary for any sign which is part of the interior Common Elements, and
provided further that reasonable signs, advertising, or billboards used by Declarant in connection
with its sale of Condominium Units shall be permissible. Notwithstanding the foregoing, the
Owner of a Commercial Unit may install and maintain signs in this Unit and on the exterior
portion of the Building subject to compliance with all applicable governmental rules and
regulations and provided that such use shall not interfere with any Owners' use and enjoyment of
the Common Elements, their Condominium Units or their ingress or egress from a public way to
the Common Elements or their Condominium Units.
12.8 Leases of Residential Units. The term "lease" as used herein shall include any
agreement for the leasing or rental of a Residential Unit and shall specifically include, without
limitation, a month-to-month rental. The Owner of a Residential Unit shall have the right to lease
his Residential Unit under the following conditions:
(a) All leases of a duration of a month or longer shall be in writing and a copy of the
lease delivered to the Executive Board or the Association's managing agent prior to the effective
date of the lease.
(b) All leases shall provide that the terms of the lease and lessee's occupancy of the
Residential Unit shall be subject in all respects to the provisions of this Declaration, the Articles
of Incorporation, Bylaws and rules and regulations of the Association, and that any failure by the
lessee to comply with any of the aforesaid documents, in any respect, shall be a default under the
lease.
12.9 Nuisances. No nuisance shall be allowed on the Project, nor any use or practice
which is the source of annoyance to residents or which interferes with the peaceful enjoyment or
possession and proper use of the Project by its residents.As used herein,the term "nuisance" shall
not include any activities of Declarant in regard to the completion of the Project, or any activities
in a Commercial Unit that are customarily associated with permitted commercial uses herein. All
parts of the Project shall be kept in a clean and sanitary condition, and no rubbish, refuse or
garbage shall be allowed to accumulate, nor any fire hazard to exist. Further, no immoral,
improper, offensive or unlawful use shall be permitted or made of the Project or any part thereof.
YAHes M-Z\Mother Lode Investors,LLC\Declaration(2).doc 27
All applicable laws, ordinances and regulations of all governmental bodies having jurisdiction
over the Project, or any portion thereof, shall be observed.
ARTICLE 13: DAMAGE,DESTRUCTION,TERMINATION,OBSOLESCENCE
OR CONDEMNATION
13.1 Association as Attorney-in-Fact. This Declaration does hereby make mandatory
the irrevocable appointment of an attorney-in-fact to deal with the Project in the event of its
destruction, damage, obsolescence or condemnation, including the repair, replacement and
improvement of the Building, any Condominium Units, Common Elements or other portions of
the Project which have been destroyed, damaged, condemned or become obsolete. 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 or other instrument of conveyance from Declarant or
from any Owner or grantor shall constitute appointment of the attorney-in-fact herein provided.
All of the Owners irrevocably constitute and appoint the Association as their true and lawful
attorney in their name, place and stead, for the purpose of dealing with the Project upon its
damage, destruction, obsolescence or condemnation, as is hereinafter provided. As attorney-in-
fact, the Association by its President and Secretary or Assistant Secretary, or its other duly
authorized officers and agents, shall have full and complete authorization, right and power to
make, execute and deliver any contract, deed or other instruments with respect to the interest of
an Owner which are necessary and appropriate to exercise the powers herein granted. In the event
that the Association is dissolved or becomes defunct, a meeting of the Owners shall be held
within thirty (30) days after either such event. At such meeting a new attorney-in-fact, to deal
with the Project upon its destruction, damage, obsolescence or condemnation shall be appointed.
Such appointment must be approved by the Owners holding at least fifty-one percent (51%) of
the votes in the Association.
13.2: Termination of Condominium.
(a) The Condominium Project shall continue indefinitely unless and until it is terminated
by the taking of all of the Condominium Units by eminent domain or by agreement of the Owners
holding at least sixty-seven percent (67%) of the votes in the Association. The agreement of the
Owners to terminate must be evidenced by their execution of a Termination Agreement (or a
ratification thereof) in the same manner as a deed, by the requisite number of Owners. The
Termination Agreement must specify a date after which the Agreement will be void unless it is
recorded before that date. The Termination Agreement and all ratifications thereof must be
recorded with the Clerk and Recorder of the County of Pitkin and is effective only upon
recordation. After the recording of the Termination Agreement, the Project will be sold and the
Association, on behalf of the Owners, may contract for such sale, but the contract shall not be
binding on the Owners unless approved by the same vote of Owners required for approval of the
Termination Agreement. After approval of the sale, the Association shall have all power
necessary and appropriate to effect the sale and until the sale has concluded and the proceeds
have been distributed, the Association continues in existence with all the powers it had before
termination. Proceeds of the sale must be distributed to the Owners and lienholders as their
interest may appear, in accordance the provisions set forth below. Unless otherwise specified in
the Termination Agreement, until title to the Project has been transferred pursuant to a sale, each
Owner and its successors in interest have an exclusive right to occupancy of a portion of the real
estate that formally constituted the Unit. During the period of that occupancy, each Owner and
the owner's successors in interest remain liable for all assessments and other obligations imposed
upon the Owners by the Act or this Declaration. Following termination of the Condominium
Project, the proceeds of any sale of real estate, together with any insurance proceeds (if the
YAFiles M-Z\Mother Lode Investors,LLCDeclaration(2).doc 28
termination occurs in connection with a damage or destruction) and the assets of the Association
are held by the Association as trustee for the Owners and the holders of liens on the
Condominium Units as their interest may appear.
(b)The respective interest of the Owners is as follows:
(i) except as provided in subparagraph (ii) below, the respective interests of the
Owners are the fair market values of their Units and interest in the General Common
Elements and any Limited Common Elements allocated to such Units before termination,
as determined by one or more independent appraisers selected by the Association. The
decision of the independent appraisers shall be distributed to the Owners and becomes
final unless disapproved within thirty (30) days after distribution by Owners holding at
least one-third (33.33%) of the total votes in the Association. The proportion of any
Owner's interest to that of all Owners is determined by dividing the fair market value of
that Owner's Condominium Unit by the total fair market value of all Condominium Units;
(ii) if any Unit or any Limited Common Element is destroyed to the extent that
an appraisal of the fair market value thereof prior to destruction cannot be made, the
interests of all Owners are their respective interests in all of the Common Elements for
each Condominium Unit immediately before termination.
(c)The proceeds available for distribution to the holders of interests in the Condominium
Units after a termination shall be allocated to each Condominium Unit in accordance with its
proportionate interest as provided above and each Condominium Unit's share of such proceeds
shall be deposited into a separate account identified by the Condominium Unit designation and
the name of the Owner and First Mortgagee thereof.From each separate account,the Association,
as attorney-in-fact, shall forthwith use and disburse the total amount of such account, without
contribution from one account to another, toward payment of the liens encumbering the
Condominium Unit represented by such separate account, in the following order: (a) for the
payment of taxes and special assessment liens in favor of any assessing entity; (b) for the
payment of any Association Common Expense assessments which take priority over the lien of a
First Mortgage pursuant to Section 7.9 of this Declaration and the Act; (c) for the payment of the
lien of any First Mortgage; (d) for the payment of unpaid Association Common Expense
assessments, other assessments, charges and fees, and all costs, expenses and fees incurred by the
Association, including customary expenses of sale; (e) for payment of junior liens and
encumbrances in the order of and to the extent of their priority; and (f) the balance remaining, if
any, shall be paid to the Owner(s) of the Condominium Unit.
13.3 Damage or Destruction. "Repair and reconstruction" of the improvements, as used
in the succeeding subparagraphs, means restoring the improvement(s) to substantially the same
condition in which they existed prior to their damage or destruction, with each Condominium
Unit and the General and Limited Common Elements having substantially the same vertical and
horizontal boundaries as before, and all improvements being reconstructed or repaired in
substantial conformance with the Project's original architectural plan and scheme, to the extent
then_reasonably and economically feasible. The proceeds-of-any insurance collected shall be
available to the Association for the purpose of repair, reconstruction, restoration or replacement,
in accordance with the provisions hereinafter set forth:
(a) Any loss covered by the property insurance policy maintained by the Association
must be adjusted with the Association, and the insurance proceeds will be paid to the Association
or an insurance trustee designated for such purpose and not to the holder of any Security Interest.
Y:Tiles M-Z\Mother Lode Investors,LLC\Declaration(2).doc 29
Y 7
The insurance trustee or the Association shall hold such insurance proceeds in trust for the
Owners and lienholders as their interest may appear. Subject to the provisions of subparagraph
(b) below, the proceeds must be disbursed first to the repair or restoration of the damaged
property, and the Association, Owners and lienholders shall not be entitled to receive payment of
any portion of the proceeds unless there is a surplus of proceeds after the property has been
completely repaired or restored or the Condominium is terminated in accordance with Section
13.2. The Association may adopt and establish written nondiscriminatory policies and procedures
relating to the submittal of claims, and such other matters of claims adjustment. The Association
shall have full authority, right and power as attorney-in-fact to cause the repair and reconstruction
of the improvements.Assessments for Common Expenses shall not be abated during the period of
insurance adjustments and repair and reconstruction.
(b)Any portion of the Project for which insurance is required under this Declaration must
be repaired or replaced promptly by the Association unless (i) the Condominium Project is
terminated in accordance with Section 13.2, in which case the provisions of that Section apply;
(ii) repair or replacement would be illegal under any state or local statute or ordinance governing
health or safety; (iii) the owners who hold sixty-seven percent (67%) of the votes in the
Association vote not to rebuild and every Owner of a Unit or Limited Common Element allocated
to a Unit that will not be rebuilt concurs; or (iv) prior to the conveyance of any Condominium
Unit to a person other than Declarant, the holder of a deed of trust or mortgage on the damaged
portion of the Project rightfully demands all or a substantial portion of the insurance proceeds.
(c) If the insurance proceeds are insufficient to repair and reconstruct the improvements,
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 a Special Assessment. Such
Special Assessment shall be assessed against all Condominium Units in accordance with Section
7.7 hereof. The Association shall have full authority, right and power, as attorney-in-fact,to cause
the repair, replacement or restoration of the improvements,using all of the insurance proceeds for
such purpose, notwithstanding the failure of an Owner to pay the aforesaid Special Assessment.
Notwithstanding the foregoing, the Association shall have authority to assess negligent Unit
Owners causing any loss all deductibles paid by the Association and any amount by which the
insurance proceeds are insufficient to pay the costs of repair and reconstruction.
13.4 Obsolescence. Owners holding sixty seven percent (67%) of the votes in the
Association may agree that the Common Elements are obsolete and adopt a plan for the renewal
and reconstruction thereof. If a plan for renewal or reconstruction is adopted, notice of such plan
shall be recorded with the Clerk and Recorder for the County of Pitkin, Colorado, and the
expenses of renewal and reconstruction shall be payable by all of the Owners as a Common
Expense, whether or not they have previously consented to the plan of renewal and
reconstruction. The aforesaid Common Expense assessment for the renewal and reconstruction of
the Common Elements shall be a debt of each Owner and a lien on his Condominium Unit, and
may be enforced and collected as provided in Sections 7.9 and 7.10 hereof.
13.5 Condemnation. If at any time during the continuance of condominium ownership
pursuant to this Declaration, all or any part of the Project shall be taken or condemned by any
public authority, or sold or otherwise disposed of in lieu of or in avoidance thereof, the following
provisions of this Section 13.5 shall apply:
(a)All compensation, damages or other proceeds therefrom (the "Condemnation Award")
shall be payable to the Association.
YAHes M-Z\Mother Lode Investors,LLODeclaration(2).doc - 30
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(b)In the event that the entire Project is taken, condemned, sold or otherwise disposed of
in lieu of or in avoidance thereof, the condominium ownership pursuant to this Declaration shall
terminate. The Condemnation Award shall be apportioned among the Owners by the Executive
Board the same as if there had been a termination of the Project under Section 13.2; provided,
however, that if a standard different from the value of the Project as a whole is employed as the
measure of the Condemnation Award in the negotiation, judicial decree or otherwise, then in
determining such shares the same standard shall be employed to the extent it is relevant and
applicable. 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, in the same manner as provided in Section 13.2
hereof.
(c) Subject to the provisions of Article 16 hereof, in the event that less than the entire
Project is taken, condemned, sold or otherwise disposed of in lieu of or in avoidance thereof, the
condominium ownership hereunder shall not terminate. Each Owner shall be entitled to a share of
the Condemnation Award, to be determined in the following manner: as soon as practicable, the
Association shall reasonably, and in good faith, allocate the Condemnation Award between
compensation, damages or other proceeds and shall apportion the amounts so allocated among the
Owners, as follows: (i)the total amount allocated to taking of or injury to the Common Elements
shall be apportioned among the Owners in accordance with the undivided interest in all of the
Common Elements for each Condominium Unit; (ii) the total amount allocated to severance
damages shall be apportioned to those Condominium Units which were not taken or condemned;
(iii) the respective amounts allocated to the taking of or damage to a particular Condominium
Unit, including but not limited to the Limited Common Elements allocated thereto, and to the
improvements an Owner has made within his Condominium Unit, shall be apportioned to the
particular Condominium Unit involved; and (iv) the total amount allocated to consequential
damages and any other takings or injuries shall be apportioned as the Association determines to
be equitable in the circumstances, or as determined by judicial decree. Notwithstanding anything
to the contrary contained in this Declaration, the allocation of the Condemnation Award to each
affected Condominium Unit shall be based on the comparative values of the affected
Condominium Units as they existed immediately prior to the condemnation, using such evidence
of the appraised values as is then available, including, but not limited to, recent MAI appraisals of
the affected property or comparable property. If the allocation of the Condemnation Award is
already established in negotiations, judicial decree or otherwise, then in allocating the
Condemnation Award, the Association shall employ such allocation to the extent it is relevant
and applicable. Apportioned proceeds shall be disbursed, as soon as practicable, in the same
manner as provided in Section 13.2 hereof.
(d)In the event a partial taking results in the taking of a complete Condominium Unit,the
Owner(s) thereof shall automatically cease to be a Member(s), shall cease to hold any right, title
or interest in the remaining Common Elements, and shall execute any and all documents
necessary to accomplish the same. Thereafter,the Association shall reallocate all of the Allocated
Interests according to the principles employed in this Declaration at its inception, and shall
submit such reallocation to the Owners of all remaining Condominium Units for amendment of
this Declaration. The Condemnation Award as to each such completely taken Condominium Unit
shall be paid into a separate account and disbursed, as soon as practicable, in the same manner as
provided in Section 13.2 hereof.
(e) Any reconstruction and repair necessitated by condemnation shall be governed by the
procedures specified in Section 13.3 hereof.
YAFiles M-Z\Mother Lode Investors,LLCOcclaration(2).doc 31
(f) If a Unit is acquired by eminent domain or part of a Unit is acquired by eminent
domain leaving the Owner with a remnant which may not practically or lawfully be used for any
purpose permitted by the Declaration, the award will include compensation to the Owner for that
Unit and its undivided interest in all of the Common Elements, whether or not any Common
Elements are acquired. Upon acquisition, unless the decree otherwise provides, all of that Unit's
Allocated Interests (other than voting rights) will be automatically reallocated to the remaining
Units in proportion to the respective Allocated Interests of those Units before the taking. Any
remnant of a Unit remaining after a part of a Unit is taken pursuant to this subsection (f) will
thereafter be a Common Element.
(g) Except as provided in subsection (f) above, if part of a Unit is acquired by eminent
domain, the award must compensate the Owner for the reduction in value of the Unit and its
undivided interest in all of the Common Elements, whether or not any Common Elements are
acquired. Upon acquisition, unless the decree otherwise provides, the Unit's undivided interest in
the Common Elements and share of assessments for Project and Commercial or Residential
Common Expenses shall be reduced and determined by dividing the square footage of the
remainder of the Unit by the total square footage of all Units in the Project after the taking, but
the Unit's vote shall remain the same.
(h) The reallocation of Allocated Interests pursuant to this Section shall be confirmed by
an Amendment to this Declaration prepared, executed and recorded by the Association.
ARTICLE 14: BURDENS AND BENEFITS OF DECLARATION
14.1 Covenants Running with Real Estate. The benefits, burdens, and all other
provisions contained in this Declaration shall be covenants running with and binding upon the
Real Estate.
14.2 Binding Effect. The benefits, burdens and all other provisions contained in this
Declaration shall be binding upon, and inure to the benefit of, Declarant, the Association, and all
Owners, together with their respective heirs, executors, administrators, personal representatives,
successors and assigns. Any right or any interest reserved or contained in this Declaration to or
for the benefit of Declarant may be transferred or assigned by Declarant, either separately or with
one or more of such rights or interests, to any person, corporation, partnership, association or
other entity, in accordance with the provisions of the Common Interest Act.
ARTICLE 15: AMENDMENT OF DECLARATION
15.1 Amendment. Subject to any limitations that may be set forth elsewhere in this
Declaration, and except for Amendments that may be executed by Declarant or by the
Association under the provisions of this Declaration or the Act, the provisions of this Declaration
and/or the Condominium Map may be amended, in whole or in part, at any time and from time to
time, by vote or agreement of Owners holding at least two-thirds (66.66%) of the votes in the
Association. Every Amendment to the Declaration and/or the Condominium Map must be
recorded in the Office of the Clerk and Recorder of the County of Pitkin, Colorado and shall be
effective only upon recording. Except to the extent expressly permitted by the Act and provided
for in this Declaration, no Amendment may create or increase any special Declarant's rights,
increase the number of permitted Units in the Project, or change the boundaries of any Unit or the
Allocated Interests of a Unit, or alter the uses to which any Unit is restricted, in the absence of a
vote or agreement of Unit Owners to which at least two-thirds (66.66%) of the votes in the
Association are allocated, including two-thirds (66.66%) of the votes allocated to Units not
YAHes M-Z\Mother Lode Investors,LLC\Declaration(2).doc 3
Y �
owned by Declarant. Amendments to the Declaration required by this Article to be recorded by
the Association shall be prepared, executed, recorded and certified on behalf of the Association
by an officer of the Association designated for that purpose or, in the absence of designation, by
the President of the Association. No consent of any mortgage or trust deed holder shall be
required to accomplish any such Amendment. The provisions of this Section 15.1
notwithstanding, no Amendment shall be effective to change, limit, impair, reduce or eliminate
any right of Declarant as reserved or otherwise provided in this Declaration unless such
Amendment is approved in advance in writing by Declarant.
15.2 Technical Amendment. To the extent allowed by the Act, Declarant hereby
reserves and is granted the right and power to record, without the approval or consent of any
Owner or any other person or entity, technical amendments to this Declaration,the Condominium
Map, Articles of Incorporation and/or Bylaws of the Association, at any time prior to the
conveyance of the last Condominium Unit by Declarant to the first Owner thereof(other than
Declarant) or ten (10) years from the date this Declaration is recorded in the County of Pitkin,
Colorado, whichever occurs first, for the purposes of correcting spelling, grammar, dates,
typographical errors, or as may otherwise be necessary to clarify the meaning and intent of any
provisions of this Declaration.
15.3 Amendment in the Event of Sale of the Affordable Housing Units. In the event
the Association conveys one or both of the Affordable Housing Units to a Qualified Buyer, as
that term is defined in the Master Deed Restriction Agreement for the Occupancy and Resale of
the Affordable Housing Units recorded in the Pitkin County real property records under reception
number (the "Master Deed Restriction"), this Declaration and Exhibit B hereto
must be amended to provide for the following:
(a) The voting rights and Allocated Interests for the Affordable Housing Units shall be
established on the same basis as the voting rights associated with the other Units.
(b) The Executive Board shall include at least one owner of an Affordable Housing Unit.
(c) The percentage share of general common expenses of the Association for
maintenance, repair, and replacement of the common elements, administration of the Association,
insurance, etc., assessed against the Affordable Housing Units shall not exceed that percentage of
the total assessed valuation of all Units represented by the Affordable Housing Units.
(d) No assessments shall be made against the Affordable Housing Units for
improvements such as alterations, upgrades, or additions to the general common elements without
prior written approval of the Aspen Pitkin County Housing Authority.
(e) Amendments to the Declaration must be consistent with the requirements of this
Section 15.3 and the Master Deed Restriction.
Any amendment to the Declaration made pursuant to the provisions of this Section 15.3
may be accomplished by the affirmative vote of a majority of the Executive Board at the time of
suet)amendment,pursuant to a properly noticed and held meeting therefor.
15.4 Recording of Amendments. To be effective, all amendments to or revocation or
termination of this Declaration or the Condominium Map must be recorded in the Office of the
Clerk and Recorder of the County of Pitkin, Colorado, and must contain evidence of the required
approval thereof. The recordation of a certificate of the Secretary of the Association, certifying
Y.Tiles M-Z\Mother Lode Investors,LMDeclaration(2).doc 33
Y .1
that Owners representing the requisite percentage of the Condominium Units have given
notarized written consent to the amendment shall satisfy the requirement of evidence of the
required approval. The Secretary must further certify that originals of such written consents by
Owners, along with the recorded amendment, are in the corporate records of the Association and
available for inspection.
ARTICLE 16: RIGHTS OF FIRST MORTGAGEES
16.1 Rights of First Mortgagees. Upon the filing of a written request therefor with the
Association, the holder of a First Mortgage on any Condominium Unit in the Project shall be
entitled to:
(a) Written notice from the Association that the Owner of the subject Condominium Unit
is delinquent in the payment of Assessments thereon.
(b)Inspect the books and records of the Association during normal business hours;
(c)Receive copies of annual Association financial statements;
(d) Receive written notice of meetings of the Association where matters will be
considered that, if approved,will require the consent of First Mortgagees or some of them;
(e) Receive written notice of condemnation proceedings affecting any Common
Elements; and
(f)Receive written notice of the lapse of any insurance that the Association is required to
maintain under this Declaration; In addition, any first Mortgagee shall be entitled to pay any taxes
or other charges which are in default and which may or have become a lien against the Common
Elements and may pay any overdue premiums on hazard or general liability insurance policies
covering the Common Elements, and shall be entitled to immediate reimbursement therefor from
the Association,unless the Association is contesting any unpaid taxes or other charges and has set
aside sufficient funds to pay the contested amounts if necessary.
ARTICLE 17 DEVELOPMENT RIGHTS AND ADDITIONAL SPECIAL
DECLARANT RIGHTS
17.1 Additional Declarant Rights. In addition to the provision of this Article 17, but
subject to the provisions of Section 15.2, Declarant shall have and be entitled to exercise all other
development rights or special declarant rights specifically reserved to Declarant elsewhere in this
Declaration.
17.2 Additional Declarant Rights. In addition to the provisions of this Article 17,
Declarant shall have and be entitled to exercise all other development rights or special declarant
rights specifically reserved to Declarant elsewhere in this Declaration.
17.3 Development Rights. Until ten (10) years following the date of recording of this
Declaration, without any consent of the individual Owners or of the Association being required,
Declarant expressly reserves to itself, its successors and assigns, the right to further develop the
Project. Without limiting the generality of the foregoing, in the exercise of such reserved rights
Declarant shall have the right to convert General Common Elements to Units or to Limited
Common Elements, to convert Limited Common Elements to Units or to General Common
Y:Tiles M Ylother Lode Investors,LLC\Declaration(2).doc 34
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Elements, and to create General Common Elements or Limited Common Elements, and no
consent will be required from the Association, the Executive Board, any Owner, or any other
person for Declarant to exercise such rights.
17.4 Amendment of this Declaration. Upon Declarant's exercise of any of its
development rights and/or other special declarant rights set forth in this Article 17 or elsewhere in
this Declaration, Declarant shall record an amendment to this Declaration (including but not
limited to Exhibit B hereto) and/or the Condominium Map reflecting the changes in this
Declaration and/or the Map occasioned by the exercise of such development rights and/or other
special declarant rights and reallocating the Allocated Interests as required thereby. No consent
will be required from the Association, the Executive Board, any Owner, or any other person for
Declarant to exercise such rights and any amendment to this Declaration required to implement
the same may be executed solely by Declarant.
17.5 Amendment of Condominium Map. Contemporaneously with the amendment of
this Declaration, Declarant shall file an amendment of the Condominium Map reflecting all
changes resulting from exercise of the development rights or other special declarant rights and
which changes are required or desirable to be shown on the Condominium Map. No consent will
be required from the Association, the Executive Board, any Owner, or any other person for
Declarant to exercise such rights and any amendment to the Condominium Map that is required to
implement the same may be executed solely by Declarant.
17.6 Interpretation.Recording of amendments to this Declaration and the Condominium
Map in the Office of the Clerk and Recorder for the County of Pitkin, Colorado, shall
automatically give effect to those matters contained in such amendments and, among other things,
shall immediately vest in the existing and future Owners and holders of Security Interests an
undivided interest in any of the Common Elements subsequently created.
17.7 Maximum Number of Units. The maximum number of Condominium Units
created or to be created in the Project shall not exceed five (5) Condominium Units. Declarant
shall not be obligated to expand the number of Condominium Units beyond those initially created
by this Declaration and the Condominium Map. (o 0 z2Q(t w"-
17.8 Construction Easements. Declarant expressly reserves the right to perform repairs
and construction work and to store materials in secure areas in the General Common Elements,
together with the future right to control such repairs and construction and the right of access
thereto, until completion, or to permit the exercise of its development rights and/or other special
declarant rights without the consent or approval of any other Owner or of the Association.
Declarant's reserved construction easement includes the right to grant easements to public utility
companies and to convey improvements within those easements anywhere within the General
Common Elements.
17.9 Termination of Development Rights and Special Declarant Rights. The
development rights and other special declarant rights reserved by Declarant for itself, its
successors and assigns, pursuant to this Article 17, shall expire ten (10) years from the date of
recording this Declaration, unless the Development Rights or other special declarant rights are(a)
extended if allowed by law, or (b) reinstated or extended by the Association, subject to whatever
terms, conditions, limitations the Executive Board may impose on the subsequent exercise of the
Development Rights and other special declarant rights of Declarant.
Y:Tiles M-Z\Mother Lode Investors,LLCOeclaration(2).doc 35
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arbitrate and other agreements, or Declarant's election, to arbitrate with an additional person or
entity shall be specifically enforceable in accordance with applicable law and any court having
jurisdiction thereof.
(iii) The award rendered by the arbitrator or arbitrators shall be final, and judgment may
be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
(iv) All filing fees and AAA costs associated with the arbitration itself shall be paid for
by the party who files the notice of arbitration; provided,that all such expenses may be recovered
by the prevailing party subject to the discretion of the arbitrator panel. Any issues regarding who
is the prevailing party shall be determined by the arbitrator panel. The prevailing party shall also
be entitled to recover from the non-prevailing party all attorney's fees and costs, including fees
and costs for legal assistants and expert witnesses, and including all fees and costs incurred
relative to any challenge or appeal of the arbitration award, or confirmation by a court of law.
If Declarant chooses not to elect mandatory and binding arbitration, then all Claims shall
be adjudicated in the Pitkin county District Court. THE PARTIES AGREE THAT ANY AND
ALL CLAIMS SHALL BE HEARD BY THE COURT SITTING WITHOUT A JURY AND
ALL PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
(c) No Contractual Duty to Repair. With the exception of Declarant's Limited
Warranty set forth in Article 18 above, nothing contained in this Declaration shall establish any
contractual duty or obligation on the part of Declarant to perform any inspection or repair or to
replace or cure any defect in the Project, nor shall this Article 19 be deemed to modify or enlarge
Declarant's legal obligations to the Owners or the Association.
ARTICLE 20: COMPLIANCE; ENFORCEMENT
20.1 Compliance; Enforcement. Every Unit Owner in the Project and every other
person who may be an authorized occupant or user of any part of the Project, shall fully and
faithfully observe, abide by, comply with and perform all of the covenants, conditions and
restrictions set forth in this Declaration, the Rules and Regulations, the Articles and Bylaws, and
with any approvals granted by the Executive Board, as the same or any of them may be amended
from time to time. In addition to any other rights or remedies that may be provided to any person
under the terms and provisions of this Declaration, Declarant(for so long as it holds any reserved
rights under this Declaration), the Association through its Executive Board, and every Owner
(except an Owner that is delinquent in the payment of Assessments hereunder), shall have the
right, acting alone or together with others having such right, to enforce, by any proceeding at law
or in equity, any or all of the covenants, conditions, restrictions, assessments, charges, liens,
servitudes, easements and other provisions now or hereafter contained in or imposed by said
documents, and approvals granted by the Executive Board. Notwithstanding any provision to the
contrary contained in this Article 20 or elsewhere in this Declaration, requests for warranty
service and repairs shall be directed in accordance with the Limited Warranty, and all other
claims or disputes relating to the sale, condition, design or construction of any portion of the
Project shall be governed and resolved by the provisions of Article 19 above.
Such enforcement rights shall include without limitation the right to bring an injunctive
action for any form of injunctive relief available under Colorado law (including specific
performance), or an action for damages, or both. Injunctive relief may include,without limitation,
orders to stop work, orders to remove improvements constructed in violation hereof, orders to
compel performance, and any other orders appropriate under the circumstances.
Y:\Files M-Z\Mother Lode Investors,LI,Meclaration(2).doc 38
EXIBIT B
ALLOCATED INTERESTS
Unit No. Square Percentage Percentage Votes: for
Footage Interest in Interest in Unit's
Floor Common Common Executive
Area Elements Expenses Board
Representative;
for all other
matters
101 (Commercial): 2794 26.55% 29.83% 1/29.83
102 (Commercial) 1486 14.12% 15.87% 1/15.87
200 1677 15.93% 17.91% 1/17.91
201 (Affordable) 564 5.38% 0% 0
202 (Affordable) 593 5.63% 0% 0
300 3409 32.39% 36.39% 1/36.39
YAHes M-Z�Mother Lode Investors,LLC\DecIwation(2).doc
43
THE CITY OF ASPEN
Land Use Application
Determination of Completeness
Date: January 30, 2012
Dear City of Aspen Land Use Review Applicant,
We have received your land use application and reviewed it for completeness. The case number
and name assigned to this property is 004.2012.ASLU — 314 E. Hyman, Mother Lode
Condominiums. The planner assigned to this case is myself.
❑ Your Land Use Application is incomplete:
We found that the application needs additional items to be submitted for it to be deemed
complete and for us to begin reviewing it. We need the following additional submission
contents for you application:
Please submit the aforementioned missing submission items so that we may begin reviewing
your application. No review hearings will be scheduled until all of the submission contents listed
above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the
land use application.
Your Land Use Application is complete:
If there are not missing items listed above, then your application has been deemed complete
to begin the land use review process.
Other submission items may be requested throughout the review process as deemed necessary by
the Community Development Department. Please contact me at 429-2759 if you have any
questions.
Tha You,
Jennifer P lien, Deputy Director
City of Aspen, Community Development Department
For Office Use Only: Qualifying Applications:
Mineral Rights Notice Required SPA PUD COWOP
Yes No� Subdivision(creating more than 1 additional lot)
GMQS Allotments Residential Affordable Housing
Yes No Commercial E.P.F.