HomeMy WebLinkAboutcoa.lu.co.DRACO 425 Rio Grande Pl.A051-01
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CASE NUMBER
PARCEL ID #
CASE NAME
PROJECT ADDRESS
PLANNER
CASE TYPE
OWNER/APPLICANT
REPRESENTATIVE
DATE OF FINAL ACTION
CITY COUNCIL ACTION
PZ ACTION
ADMIN ACTION
BOA ACTION
DATE CLOSED
BY
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A051-01
2737-073-18001
DRACO Condominiumization
415 Rio Grande Place
Greg Woods
Condominiumization
Mill Sl. Development Inc.
Lennie Oates
6/14/01
Plat Recorded
7/5/01
J, Lindt
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LAW OFFICES OF
OATES, KNEZEVICH & GARDEN SWARTZ, P.C.
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
533 EAST HOPKINS AVENUE
ASPEN, COLORADO 81611
LEONARD M. OATES
RICHARD A. KNEZEVICH
TED D. GARDEN SWARTZ
DAVID B. KELLY
TELEPHONE (970) 920-1700
FACSIMILE (970) 920-1121
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Imoasst@okglaw.com
OF COUNSEL:
JOHN T. KELLY
MAY 0 7 2001
May 7, 2001
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Via Hand Delivery
James Lindt, Planning Technician/ Zoning Enforcement Officer
City of Aspen Community Development Dept.
130 South Galena Street
Aspen, CO 81611
Re: Mill Street CondominiumslDraco Affordable Housing Project
Dear James:
This letter shall constitute the application of Draco, Inc and Mill Street Development, Inc. for a
subdivision exemption for a "Condominium Conversion" for approval by the Community Development
Department Director pursuant to 26.88.030 A.3 and 26.88.070 of the Land Use Regulations of the City of
Aspen.
You will please find enclosed herewith two (2) copies of the proposed Condominium Map for the
above project, developed as a common interest community. The project is situate on Lots One and Two,
PUD/Subdivision Plat of Cap's Auto Boundary Parcel: an Amendment to the Original Plat of Cap's Auto
(Draco, Inc.)/City of Aspen Land Exchange Subdivision filed for records as Reception No. 447324 in Plat
Book 54 at Page 49. Please arrange for the Map to be circulated to the required referral agencies for
consideration and request that I be advised liS to what additions, deletions and modifications are required.
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Also enclosed is the application fee in the amount of $445.00 for an eight (8) unit project. The
project is developed with one (1) commercial unit and seven (7) deed restricted residential apartments.
Finally, enclosed is a copy of the proposed form of Condominium Declaration which will be recorded at the
same time as the original Plat.
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OATES, KNEZEVICH & GARDENSWARTZ, P.C.
James Lindt, Planning Technician/Zoning Enforcement Officer
May 7, 2001
Page 2
Very Truly Yours,
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
By ~--~ @k
Leonard M. Oates
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D:\DataIClientsIDRACO\Dev of Alfordab1e Housing-Cap's Auto ParcellLtr James Lindt 05.Q7.Ql.wpd
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CONDOMINIUM DECLARATION
FOR
MILL STREET CONDOMINIUMS
WHEREAS, DRACO, INC., a Colorado Corporation, and MILL STREET
DEVELOPMENT, INC., both Colorado Corporations, hereinafter called Declarants, are the owner
of certain real property situated in the County of Pitkin, State of Colorado, more fully described in
Exhibit "A" attached hereto and made a part hereof ("Real Property"), and
WHEREAS, Declarants desire to establish a condominium project under the Colorado
Common Interest Ownership Act, C.R.S. 38-33.3-lOt, et seq., as amended from time to time
("CCIOA," "Common Interest Act" or the "Act"); and
WHEREAS, Declarants do hereby establish a plan for the ownership in fee simple of the real
property estates constructed on said Real Property consisting of the area or space contained in each
of the air space units in the building improvements currently constructed and the co-ownership by
the individual and separate owners thereof, as tenants in common, of all of the remaining property
hereinafter defined and referred to as the Common Elements.
NOW, THEREFORE, Declarants hereby submit the above-described Real Property and
Building to condominium ownership under and pursuant to the provisions of the Act, as it may be
amended from time to time, and hereby publishes and declare that the following terms, covenants,
conditions, easements, restrictions, uses, limitations, and obligations shall be deemed to run with the
Real Property and Building, and shall be a burden and a benefit to Declarant, Declarants' successors
and assigns, and any persons acquiring or owning an interest in the Real Estate and Building, their
grantees, successors, heirs, personal representatives, executors, administrators, devisees or assigns.
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
of the Common Expenses of the Association allocated to such Condominium Unit and the votes in
the Association allocated to such Condominium Unit. As more fully set forth subsequently in this
Declaration, Allocated Interests for each Condominium Unit have been determined with respect to
each of the following: undivided interests in all Common Elements for each Condominium Unit (in
accordance with Article II and Exhibit "B" hereof); liability for Project Common Expenses (in
accordance with Article VII and Exhibit "B" hereof); and voting rights in the Association (in
accordance with Article V hereof).
1.2 Association. "Association" shall mean and refer to the Mill Street Condominium
Association, a Colorado nonprofit corporation, its successors and assigns. The Association shall act
by and through its Board of Directors, unless the Articles of Incorporation or Bylaws of the
Association or this Declaration specifically requires otherwise.
1.3 Building. "Building" means the building presently constructed and situated on the Real
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Property, together with (i) any additions or modifications or replacements that may hereafter be
made thereto; and (ii) all improvements and Fixtures contained within such building.
1.4 Bylaws. "Bylaws" means the 'instrument adopted by the Association for its regulation
and management, together with any amendments thereto.
1.5 Commercial Common Expenses. "Commercial Common Expenses" shall mean all
Common Expenses reasonably and equitably attributable to the Commercial Units and the portion
of the Building within which the same are situated but not to the Residential Units, as determined
by the Board of Directors 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 Mill Street
Condominiums.
1.6 Commercial Unit. "Commercial Units" shall mean and refer to the Commercial
Condominium as depicted on the Condominium Map, which shall be subject to the provisions
governing commercial use as more fully set forth in Section 12.2 hereof.
1.7 Common Elements. "Common Elements" shall mean the Real Estate and all
improvements constructed thereon, except the Units, and shall include without limitation the
following:
(a) The Real Property; and
(b) The mechanical installations of the Building which exist for common uses
of some or all of the Owners, including without limitation the equipment and materials
making up any services such as power, light, gas, hot and cold water, elevator systems,
heating, refrigeration and air conditioning (including the tanks, pumps, motors, fans,
compressors, pipes, vents, ducts, flues, chutes, conduits, wires, and other similar utility
installations used in connection therewith); and
(c) Any sidewalks, walkways, paths, grass, shrubbery, trees, driveways, private
streets, parking areas, signs and supporting structures for signs, landscaping and gardens,
if any, located on the Real Property and any such areas situated on real estate owned by
others as to which the Owners or any of them have a right of use by easement or license,
but not including leased Parking Spaces situated in The Benedict Commons
Condominiums constituting a part of and an appurtenance to six (6) of the Residential
Units; and
(d) In general, all other parts of the Project existing for the common uses of
some or all of the Owners and all other parts of the Project necessary or convenient to its
existence, maintenance or safety or normally in common use.
1.8 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 more fully defined in Article 7 hereof.
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1.9 Condominium Map. "Condominium Map" shall mean and refer to the condominium
map of the Real Estate and improvements that are subject to this Declaration and which are
designated as the Condominium Map for the Project, recorded or to be recorded in the records of the
office of the Clerk and Recorder of the County of Pitkin, Colorado.
1.10 Condominium Unit. "Condominium Unit" shall mean and refer to a Unit (whether
a Residential Unit or Commercial Unit), together with all fixtures and improvements therein
contained and together with the undivided interest in all of the Common Elements as shown on
Exhibit "B" attached hereto and incorporated herein by this reference.
1.11 Declarants. "Declarants" shall mean and refer collectively to Draco, Inc. and Mill
Street Development, Inc., both Colorado corporations, their successors and assigns, if such
successors and assigns are designated by the then Declarant to serve as a Declarants for any specified
purposes or for all purposes under this Declaration, in a written instrument duly executed by the then
Declarants and the designated successor or assignee and recorded in the office of the Clerk and
Recorder of the County of Pitkin, Colorado.
1.12 Declaration. "Declaration" shall mean and refer to this Condominium Declaration, as
it may be amended from time to time.
1.13 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.
1.14 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.
1.15. 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 under 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 will not be deemed to be a conveyance.
1.16 Limited Common Elements. "Limited Common Elements" shall mean and refer to
those parts of the Common Elements which are either limited to and reserved for the exclusive use
of the Owner or Owners of a particular Condominium Unit or are limited to and reserved for the
common use of the Owners of more than one, but fewer than all, of the Condominium Units.
Without limiting the foregoing, the Limited Common Elements shall include any balcony or patios,
vestibules and corridors on individual floors as designated on the Condominium Map.
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1.17. Member. "Member" shall mean and refer to each Owner of a Condominium Unit;
membership in the Association shall be appurtenant to, and may not be separated from, ownership
of a Condominium Unit.
1.18 Owner. "Owner" shall mean and refer to any record owner (including Declarants and
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including a contract vendor), whether one or more persons or entities, of a fee simple title interest
to 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 fee simple
title interest therein pursuant to foreclosure or any proceedings in lieu thereof).
1.19 Parking Space. "Parking Space" shall mean a leased condominium parking space
described in the Parking Condominium Declaration for the Benedict Commons Condominiums and
shown on the condominium map thereoffiled for record the records of Pitkin County, Colorado. A
parking space shall always be appurtenant to a Residential Unit. The Parking Spaces Nos.
are leased to the City of Aspen and in turn subleased to the respective Unit
Owners of six (6) of the seven (7) units in the project.
1.20 Project. "Project" shall mean and refer to the totality of all the Real Estate, Building,
Condominium Units and Common Elements.
1.21 Project Common Expenses. "Project Common Expenses" shall mean all Common
Expenses other than Residential Common Expenses and Commercial Common Expenses.
1.22 Real Property "Real Property" shall mean and refer to that certain property described
on Exhibit "A" attached hereto and incorporated herein by this reference, but expressly excluding
certain development rights appurtenant thereto, which Declarant has specifically reserved as more
fully set forth in Article 17 hereof.
1.23 Residential Common Expenses. "Residential Common Expenses" shall mean all
Common Expenses reasonably and equitably attributable to the Residential Units but not to the
Commercial Unit, as reasonably determined by the Board of Directors and the portion of the
Building within which the same are situated.
1.24 Residential Unit. "Residential Unit" shall mean and refer to deed restricted
Condominium Units 101,102,201,202,203,301,and 302, inclusive, as depicted on the Condominium
Map, which Units shall be subject to the provisions governing residential use as more fully set forth
in Section 12.1 hereof. Each Residential Unit, except Unit 201, shall also include one (1) designated
condominium parking space at Benedict Commons subleased from the City of Aspen. Such Parking
Space shall be inseparable from the Residential Unit to which it is appurtenant for all purposes and
may not be conveyed, assigned, transferred, encumbered, mortgaged, leased, or used for any reason
or purpose separate and apart from the parking of the vehicle of the occupant( s) of the Residential
Unit which it is appurtenant.
1.25 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, pledge of an ownership interest in an association, and any other consensual lien or title
retention contract intended as security for an obligation.
11.26 Special Declarant Rights. "Special Declarant Rights" shall mean and refer to the
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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.
11.27 Unit. "Unit" shaIl mean and referto the air space contained within the enclosed rooms
occupying part of a floor or floors in the Building, and bounded by the unfinished interior surfaces
of the perimeter waIls (or the demising waIls, if two or more Units adjoin each other), unfinished
interior surfaces of floors (or the lowermost floor in respect of the Units containing more than one
level), unfinished interior surfaces of ceilings (or the uppermost ceilings, in respect of the Units
containing more than one level), and the unfinished interior surfaces of windows and window
frames, doors and door frames of the Building, and which is separately identified on the
Condominium Map. The term "Unit" does not include any utility facility running through the Unit
that serves more than one Unit or any other Common Element or part thereofIocated within the Unit.
In the case of waIls, floors and ceilings that are designated as boundaries of a Unit, all lath, furring,
waIl board, plasterboard, plaster, paneling, tiles, waIlboard paint, soundproofing materials and
finished flooring and any other materials constituting any part of the finished surfaces thereof are
a part of the Unit, and all other portions of the walls, floors or ceilings are a part of the Common
Elements.
ARTICLE 2
DIVISION OF PROJECT INTO CONDOMINIUM OWNERSHIP
2.1 Division into Condominium Units. The Project is hereby divided into eight (8) separate
Condominium Units, comprised of one (1) Commercial Unit and seven (7) Residential Units all as
more particularly depicted on the Condominium Map. Each of Units shaIl have an undivided interest
in the Common Elements as identified on Exhibit "B" attached hereto, which undivided interest has
been as between the Residential Units and the Commercial Unit been allocated equaIly by the
Declarants; and computed for each Residential Unit by dividing the actual square footage of such
Residential Unit by the total actual square footage of all Residential Units without regard to
balconies or other Limited Common Elements, and then multiplying the quotient derived thereby
by 50 to obtain the percentages contained on Exhibit "B" under the column heading "Percentage
Interest in All Common Elements." The Percentage Interest of each Unit shaIl be final and shall not
be correctable if an error is later found. The Percentage Interest of each Unit shaIl be subject to the
undivided one-tenth of one percent (0.01 %) interest of APCHA in Parcel 2 as set forth in Section
2.2 of this Declaration.
2.2 Interest of APCHA. An undivided one tenth of one percent (0.1 %) interest in the
portion of the Common Elements constituting land, i.e., the portion ofthe Real Property, on which
the Residential Units are situated, i.e., Parcel 2, has been conveyed to The Aspen-Pitkin County
Housing Authority ("APCHA") by Quit Claim Deed recorded as Reception No. for
the sole purpose of establishing an ownership interest in APCHA in order that no assertion may be
made that APCHA does not have the right to regulate rents in the Project as provided in APCHA's
rules, regulations and guidelines. Declarant has as weIl made and granted for the benefit of APCHA,
the City of Aspen, Colorado, and Pitkin County, Colorado, a Master Deed Restriction Agreement
for the Occupancy of the Mill Street Condominiums recorded , 2001, as Reception No.
, further evidencing the right of APCHA to regulate rents in the Project. Said Quit Claim
Deed and Master Deed Restriction were given as the free and voluntary act ofthe Declarants and not
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as an exaction of APCHA, the City of Aspen or County of Pitkin, the Project at all times since its
inception having been proposed and intended by Declarants to be a deed restricted affordable
housing development. APCHA shall derive no benefit from the rental and/or sale of any Unit in the
Project; nor, shall it be necessary for it to join in any conveyancing deed, mortgage or other security
interest for any Unit in the Project in order for the Owner thereof to convey a Unit or encumber the
same for the benefit of a First Mortgagee or any other mortgage holder of a Unit in the Project.
APCHA shall have no possessory right to any Unit in the Project by virtue of its ownership of its
undivided one tenth of one percent (.0.1 %) interest in Parcel 2. APCHA will agree, however, to join
in any conveyance, mortgage or security interest of a Residential Unit by an Owner thereof; provided
that the grantee, mortgagee or encumbrance holder agrees upon request to confirm that the interest
of APCHA shall survive the conveyance or foreclosure, subject to the terms, conditions and
obligations of this Declaration. Any such joinder shall be by quit claim deed only without any
warrants of title whatsoever. APCHA shall have no obligation to pay any costs of ownership of the
Project for any reason. The Declarants (during the period of their ownership) and the Association
and each Owner of a Residential Unit in the Project, by the acceptance of a deed thereto agrees to
indemnify and hold harmless APCHA from any and all claims of any nature whatsoever arising by
virtue of the ownership by APCHA of its undivided one tenth of one percent (0.1 %) interest in
Parcel 2, said indemnity to include APCHA's reasonable attorney fees in defense of any such claim.
The said indemnity in the case of each Owner shall be limited to the undivided percentage interest
thereof the indemnifying Owner in the Common Elements, disregarding APCHA's and that of the
Owners of the Commercial Units interest therein. If, in the future, legislation repealing the laws
prohibiting or limiting the regulation of rents shall be enacted by the State of Colorado, APCHA has
agreed to convey its one tenth of one percent (0.1 %) interest in the Common Elements to the Owners
of the Residential Units in the Project in proportion to their respective interests in the Common
Elements as an appurtenance thereto, subject, however, to the terms, conditions and obligations of
the Master Deed Restriction and this Declaration.
2.3 Inseparability. Except as provided in Section 2.4 or Article 17 hereof, each
Condominium Unit and the appurtenances, rights and burdens connected 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.
2.4 Non-Partitionability. 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
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.
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2.5. Restricted Right to Relocate Boundaries of Condominium Units. Except as
hereinafter specifically provided with respect to Declarants, 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 the prior approvals mandated
by Article 16. 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. In
connection with any such relocation of boundaries, the Owners of the affected Condominium Units
shall have the right, with the prior written approval of the Board of Directors of the Association, to
redesignate, as part of a Unit or as a Limited Common Element, any portion of the Common
Elements or any 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 Common Interest Act. Notwithstanding any other
provisions of this Section 2.5, Declarants shall have the rights expressly provided in Article 17, and
no consent will be required from the Association, the Board of Directors or any other person for
Declarants to exercise such rights, and any amendment to this Declaration or the Condominium Map
that is required to implement such combination or division may be executed solely by Declarants.
Declarants' development rights set forth above shall terminate on the First to occur of the tenth
(10th) anniversary of the date this Declaration is recorded or the date of conveyance of title last
Condominium Unit by Declarants to the first purchaser thereof (other than Declarants).
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 land and a
land survey plat thereof, the location of the Building in reference to the exterior boundaries of the
land; the floor and elevation plans; the location ofthe 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. The Condominium Map shall contain the certificate of a registered
land surveyor (unless otherwise permitted under the Common Interest Act) certifying that the
Condominium Map substantially depicts the location and the horizontal and vertical measurements
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of the aforesaid information, together with all other required information, and an affirmation that the
Condominium Map was prepared 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.
3.3 Amendments. Declarants hereby reserve the right, from time to time, without obtaining
the consent or approval of any Owner or First Mortgagee, to amend the Condominium Map in order
to conform such Condominium Map to the actual location of any improvement(s) constructed,
installed or erected on the Real Estate, or to establish and designate any General Common Elements
as Limited Common Elements. The rights accorded to Declarants in this Section 3.3 shall expire on
the date of conveyance of the last Condominium Unit by Declarants to the first purchaser thereof
(other than Declarants), or ten (10) years after this Declaration is recorded, whichever occurs first.
The Condominium Map may also be amended, from time to time, as provided in Section 2.4 hereof
or in accordance with the provisions of this Declaration or the Common Interest Act relating to
amendments to the Declaration.
ARTICLE 4
OWNER'S PROPERTY RIGHTS IN COMMON ELEMENTS
4.1 Easement for Use of Common Elements; RightofIngress 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, 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
Association may deem to be appropriate, for such Member's infraction, or the
infraction by any Owner'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 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
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Association may determine is necessary or prudent; and
(d) The right of the Association to grant permits, licenses and easements over 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 such Owner's Condominium Unit.
4.3 Recreational Facilities. There are no recreational facilities currently existing on the Real
Estate or, at the time of recording, this Declaration, plaIlned to be built by Declarant on the Real
Estate.
ARTICLE 5
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION
5.1 Membership; Voting Rights. Every Owner of a Condominium Unit shall be a Member
of the Association and shall remain a Member for the period of such Owner's ownership of a
Condominium Unit. Each Residential Condominium Unit shall be entitled to one vote and the
Commercial Condominium Unit shall be entitled to seven (7) votes (based upon its greater size). The
vote for each Condominium Unit shall be exercised by the Owner or Owners as they determine. In
the event a Commercial Unit is ever subdivided into more Commercial or Residential Units pursuant
to Article 17 below, the votes allocated to the Commercial Unit shall be reallocated among the Units
into which said Commercial Unit is subdivided, proportionately in relation to their relative size,
rounded off to the nearest whole number so that there will be no fractional votes.
5.2 Board of.Directors. The affairs of the Association shall be managed by a Board of
Directors which shall consist of the number of members which is set forth in the Association's
Articles ofIncorporation, as the same may be amended ("Articles"), or Bylaws, as the same may be
amended ("Bylaws"), from time to time. From the date of formation of the Association until the
termination of Declarants' control as provided below, Declarants shall have the right to appoint and
remove all members of the Board of Directors and all officers of the Association. The period of
Declarants' control of the Association shall terminate upon the first to occur of sixty (60) days after
conveyance of 75% of the Condominium Units that may be created in the Project to Owners other
than Declarants or two (2) years after the last conveyance of a Condominium Unit by Declarants in
the ordinary course of business. Declarants may voluntarily surrender the right to appoint and
remove officers and members of the Board of Directors before termination of the period of
Declarants' control, but in that event Declarants may require, for the duration of the period of
Declarants' control, that specified actions of the Association or Board of Directors, as described in
a recorded instrument executed by Declarants, be approved by Declarants before they become
effective. Not later than sixty (60) days after conveyance of25% of the Condominium Units that in
the Project to Owners other than Declarants, at least one member and not less than 25% of the
members of the Board of Directors will be elected by Owners other than Declarants. Not later than
sixty (60) days after the conveyance of 50% of the Condominium Units in the Project to Owners
other than Declarants, not less than 33,113% of the members of the Board of Directors will be
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elected by Owners other than Declarants. Not later than the termination of the period of Declarants'
control as provided above, the Owners (including Declarants) shall elect a Board of Directors of at
least three (3) members, at least a majority of whom must be Owners other than Declarants or
designated representatives of Owners other than Declarants and the Board of Directors shall elect
the officers, with such Directors and officers to take office upon termination of the period of
Declarants' control. Within sixty (60) days after Owners other than Declarants elect a majority of
the Board of Directors, Declarants shall deliver to the Association all property of the Owners and
the Association held or controlled by Declarants, including without limitation those items specified
in Section 303(9) of the Common Interest Act.
ARTICLE 6
THE ASSOCIATION
6.1 Management and Maintenance Duties. Subject to the rights of Owners as set forth
in this Declaration and giving full effect to the powers enumerated in Section 302 of the
Common Interest Act, the Association shall:
(a) Be responsible for the management, control, maintenance, repair, replacement
and improvement of the Common Elements and any property owned by the
Association, including facilities, furnishings and equipment related thereto, and shall
keep the same in good, clean, attractive and sanitary condition, order and repair;
provided, however, that each Owner shall be responsible for exclusive maintenance,
repair and replacement of all fixtures, equipment and utilities installed or located
within such Owner's Unit, and all other equipment providing exclusive service
thereto or therefor and any service lines from such equipment to the Unit, including
without limitation all utility, heating, plumbing, air conditioning and domestic hot
water equipment and appurtenances, but only to the extent such fixtures, equipment
and utilities are owned by said Owner, and
(b) Maintain all grass, trees, shrubbery, flowers and other landscaping, if any,
constituting part of the Common Elements.
The expenses, costs and fees of such management, operation, maintenance, repair,
replacement and improvement by the Association, as provided in this Section 6. 1, shall be part of
the monthly assessments for Common Expenses levied by the Association; provided that the
Association may levy the costs and expenses associated with any of the following as an Individual
Purpose Assessment (as defined in Section 7.7 below) against the Owner(s) of the Unit(s) involved:
expenses for maintaining, repairing, replacing or improving any Limited Common Element allocated
to that individual Condominium Unit, expenses of maintaining, repairing and replacing all fixtures,
equipment and utilities which are Common Elements but provide exclusive service to such Owner's
Unit and any service lines from such equipment to the Unit, including without limitation all utility,
heating, plumbing, domestic hot water equipment and appurtenances. In addition, as more fully
provided in Article 7 below, the Association must reasonably allocate the costs and expenses of
maintaining, repairing, replacing or improving all Limited Common Elements allocated to the
Owner(s) of the Commercial Unit and the Owners of the Residential Units, as applicable, in
connection with assessments for Commercial Common Expenses and Residential Common
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Expenses. Except for the Owners' right to reject a budget as described in Section 7.3, the prior
approval of the Owners shall not be required in order for the Association to pay any such expenses,
costs and fees.
6.2 Owner's Negligence; Prohibition of Certain Activities.
(a) Notwithstanding anything to the contrary contained in this Declaration, in the
event that the need for maintenance, repair or replacement of the Common Elements,
or any portion thereof, is caused through or by the negligent or willful act or
omission of an Owner, an Owner's tenant or by any member of an Owner's or tenant's
family or by an Owner's or tenant's guests, invitees or licensees or concessionaires,
or as a result of any improvement constructed by an Owner in or upon the Limited
Common Elements, then the expenses, costs and fees incurred by the Association for
such maintenance, repair or replacement shall be the personal obligation of such
Owner and, if not repaid to the Association within ten (10) days after the Association
shall have given notice to the Owner of the total amount of such expenses, costs and
fees, or any portions thereof, from time to time, then the failure to so repay shall
automatically become a default assessment determined and levied against such
Condominium Unit.
(b) 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 or contract purchaser 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
such Owner, or the members of such Owner's family, such Owner's tenants guests,
invitees, licensees or contract purchasers, which is in violation of this Section 6.2(b),
including but not limited to any 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 that further action by it is proper), then
the amounts to be indemnified shall be and constitute a default assessment
determined and levied against the indemnifying Owner's Condominium Unit.
6.3 Management Agreements and Other Contracts. The Association may delegate
management of its business affairs. Any management contract, employment contract, any other
contract or lease between the Association and Declarants, or an affiliate of De cia rants 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 ofDeclarants' control of the Board of Directors, upon not less than ninety (90) days notice
to the other party.
6.4 Acquiring and Disposing of Real and Personal Property. The Association may
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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 Board Directors of the Association 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 all of 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 Board of Directors of the Association 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.
6.5 Promulgation of Rules and Regulations. The Board of Directors of the Association
may promulgate and enforce, including, without limitation, enforcement by levying and collecting
charges or fines for the violation thereof, reasonable rules and regulations governing the use of the
Condominium Units, or either class thereof (i.e., Commercial Units and Residential Units), Common
Elements and any property owned by the Association, which rules and regulations shall be consistent
with the rights and duties established in this Declaration.
6.6 New Additions to Common Elements. The Association shall have the right to construct
new additions to the Common Elements. Ownership of any such additions to the Common Elements
shall be apportioned among all Condominium Units in proportion to the respective undivided interest
in all of the Common Elements as shown on Exhibit "B" attached hereto, and shall be governed by
this Declaration. The Common Expenses for any such additions to the Common Elements shall be
apportioned among all Condominium Units as provided in-Article 7 hereof.
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 and Section 13.2(a) of this Declaration.
ARTICLE 7
ASSESSMENTS
7.1 Personal Obligation for Assessments, Taxes, Utilities, and Other Matters. All
Owners covenant and agree, and shall be personally obligated, to pay to the Association: (a) monthly
assessments for Common Expenses imposed by the Association for Project Common Expenses and
either Residential Common Expenses or Commercial Common Expenses (all as hereinafter defined
in Section 7.2 hereof) to meet the Common Expense and reserve requirements of the Association;
(b) Special Assessments, pursuant to Section 7.7 of this Declaration; (c) Individual Purpose
Assessments, pursuant to Section 7.8 of this Declaration; (d) all other charges, costs, interest, fees
and assessments, including without limitation default assessments, as provided in this Declaration.
All Owners of each Condominium Unit shall be jointly and severally liable to the Association for
the payment of all assessments, charges, costs, interest and fees attributable to their Unit. The
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payment of any and all assessments is an independent covenant, with all assessments payable in full,
when due, without notice (except as otherwise expressly provided in this Declaration) or demand,
and without setoff or deduction. The personal obligation for delinquent assessments shall not pass
to an Owner's successors in title or interest unless expressly assumed by them. No Owner may waive
or otherwise escape personal liability for the payment of the assessments, charges and fees provided
for herein by nonuse of the Common Elements or the facilities contained therein or by abandonment
or leasing of such Owner's Unit. In addition to the foregoing assessments, charges and fees, each
Owner shall have the obligation to pay real property ad valorem taxes and special assessments
imposed by Colorado governmental subdivisions against such Owner's Condominium Unit, as well
as all charges for separately metered utilities servicing such Owner's Condominium Unit. The
charges for utilities which are not separately metered to an individual Condominium Unit by the
applicable utility company may be collected by the Association as part of the Common Expenses;
however, the charges for such utilities shall be allocated among the Condominium Units based on
actual usage, if such is measured, or in accordance with Section 7.3 hereof if the same is not
measured.
7.2 Allocation of Common Expenses.
(a) Allocation of Proiect Common Expenses. All Project Common Expense
assessments for each Condominium Unit shall be calculated by multiplying the total
annual amount of the assessment due, pursuant to Section 7.3 and Section 7. 7 (as the
case may be), times the percentage undivided interest in the Common Elements
appurtenant to such Condominium Unit as shown on Exhibit "B" attached hereto.
Project Common Expenses shall be those which relate to and are for the benefit of
both the Residential Condominium Units and the Commercial Condominium Unit.
(b) Allocation of Residential Common Expenses. Residential Common Expense
assessments shall be .allocated among the Residential Units according to the
percentages set forth in Exhibit "B", with respect to each Residential Unit under the
column heading "Allocated Residential Unit Percentages." The allocated Residential
Unit Percentages have been computed for each Residential Unit by dividing the
actual square footage of such Unit by the total actual square footage of all Residential
Units, without regard to balconies or other Limited Common Elements, and then
multiplying the quotient derived thereby by 100. All Residential Common Expense
assessments for each Residential Unit shall be calculated by multiplying the total
annual amount of the assessment due, pursuant to Section 7.3 and Section 7.7 (as the
case may be), times the Allocated Residential Unit Percentage assigned to such
Residential Unit as shown on Exhibit "B" attached hereto. Residential Common
Expenses shall be those which relate to and are made for the benefit of the
Residential Condominium Units only.
(c) Allocation of Commercial Common Expenses. All Commercial Common
Expense assessments shall be allocated in full to the Commercial Unit. Expenses
which shall be those which relate to and are for the benefit of the Commercial
Condominium Unit only.
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7.3 Assessments for Common Expenses; Budgets.
(a) Until the Association makes an assessment for Common Expenses,
Declarants shall pay all Common Expenses. After any assessment has been made by
the Association, assessments shall be payable monthly, with the maximum annual
common expense assessment based upon the Association's advance budget of all cash
requirements to be determined by the Board of Directors from time to time (but no
less frequently than annually) based on a budget adopted from time to-time by the
Association (but no less frequently than annually). The Board of Directors shall
prepare each proposed budget assuming the Association's books and records are
maintained on an accrual basis, to provide for the payment of all estimated expenses,
costs and fees for the duties described in Section 6.1 of this Declaration and for other
costs, Fees and expenses, related to or connected with the administration,
maintenance, ownership, repair, operation, addition, alteration and improvement of
the Project, the Common Elements, real or personal property owned by the
Association, and any other obligations which may be undertaken by the Association.
The amount of said advance budget may include, but shall not be limited to expenses
of management; premiums for insurance; landscaping and care of the common
grounds, trash removal; snow removal; water, sewer, and storm sewer fees; common
lighting and heating; maintenance, repair, replacement and renovation of the
Common Elements; maintenance of elevator systems; wages; taxes; legal and
accounting fees; management fees; costs, expenses and liabilities incurred by the
Association's Board of Directors on behalf of the Owners or otherwise arising under
or by reason of this Declaration, the Articles of Incorporation or Bylaws of the
Association; the creation of reasonable reserves, working capital and/or sinking
funds; reimbursement for or payment of any operating deficit, loss, or unbudgeted
expense incurred by the Association; and any and all other costs and expenses
relating to the Common Elements, real or personal property owned by the
Association, and/or any other obligations undertaken by the Association. In preparing
a proposed budget, the Association shall make reasonable attempts to designate
constituent items of the budget in relation to Project Common Expenses on the one
hand and either Residential Common Expenses or Commercial Common Expenses
on the other hand.
(b) Within thirty (30) days after adoption of any proposed budget, the Board of
Directors shall mail, by ordinary first class mail, or otherwise deliver a summary of
the budget to all Owners and shall set a date for a meeting of Owners to consider
ratification of the budget not less than fourteen (14) nor more than sixty (60) days
after mailing or other delivery of the summary. Unless at that meeting a majority of
all Owners reject the budget, the budget is ratified, whether or not a quorum is
present. In the event the proposed budget is rejected, the periodic budget last ratified
by the Owners must be continued until such time as the Owners ratify a subsequent
budget proposed by the Board of Directors.
(c) The Association may at any time and from time to time during any annual
common expense assessment period, levy an actual common expense assessment in
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an amount less than the maximum for that assessment period; provided, however,
that written notice of any change in the amount of the actual common expense
assessment (whether in an amount less than or equal to the maximum) shall be sent
to every Owner subject thereto at least thirty (30) days in advance of the effective
date of such change.
7.4 Reserves. The Association shall establish an adequate reserve fund for the maintenance,
repair and replacement of those Common Elements that must be periodically maintained, repaired
or replaced, and for payment of insurance deductibles. Such reserves shall be included in the budget
and funded through the monthly assessments for Common Expenses, and shall be reasonably
allocated with respect to anticipated Project Common Expenses, Residential Common Expenses or
Commercial Common Expenses.
7.5 Date of Payment of Bi-Monthly Common Expense Assessments. The monthly
assessments for Common Expenses shall be due and payable on the first day of each month, in
advance, or on such other dates, and with such frequency (but no less frequently than annually), as
may be set by the Board of Directors of the Association from time to time. Any person purchasing
a Unit between monthly assessment due dates shall pay a pro rata share of the last assessment due.
7.6 Rate of Assessment. Both monthly assessments for Common Expenses and any Special
Assessments shall be fixed at such rates as will be sufficient to meet the advance budget of the
Association, as provided in Sections 7.3 and 7.7 hereof.
7.7 Special Assessments. In addition to the monthly assessments for Common Expenses
authorized above, the Board of Directors of the Association may at any time and from time to time,
determine, levy and assess a special assessment for the purpose of defraying, in whole or in part,
payments for any operating deficit, loss or unbudgeted expense, and/or unbudgeted costs, fees and
expenses of any construction, reconstruction, repair, demolition, replacement, management,
administration, or maintenance of the Common Elements, including without limitation any fixtures
and personal property related thereto. Any Special Assessments shall be reasonably allocated with
respect to the actual or anticipated Project Common Expenses, Residential Common Expenses and
Commercial Common Expenses. Such Special Assessment(s) shall be due and payable as
determined by the Association's Board of Directors. Prior to the conveyance by Declarants of the last
Condominium Unit to the first Owner thereof (other than Declarants), or prior to ten (10) years
following the date this Declaration is recorded in the real property records of Pitkin County,
Colorado, whichever occurs first, any Special Assessment for Capital Improvements shall require
also the written approval of Declarants. "Capital Improvements" as used herein shall mean the
construction, erection or installation of substantial structure( s) or other substantial improvements on
the Real Estate, but shall not include the construction, reconstruction, erection, installation,
maintenance, repair or replacement of Common Elements presently located in the Project or which
may hereafter be constructed, erected or installed in the Project by Declarants in their development
of the Project. Notice in writing setting forth the amount of such Special Assessment for each
Condominium Unit and the due date for payment thereof shall be given to the Owners not less than
thirty (30) days prior to such due date.
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7.8 Individual Purpose Assessments.
(a) In addition to assessments for Common Expenses and Special Assessments
as hereinabove provided, the Board of Directors of the Association may at any time,
or from time to time, levy and collect assessments against anyone or more, but fewer
than all, of the Condominium Units for any matters of maintenance or repair,
replacement or improvement applicable only to such Condominium Units and not to
all the Condominium Units. Such Individual Purpose Assessments may be levied
against individual Condominium Units to pay in advance or reimburse the
Association for any costs, expenses, fees, and other charges, incurred or reasonably
anticipated to be incurred by the Association, for maintenance, repair, replacement
and improvement, provision of insurance, or any other purpose, with respect to the
Condominium Unit(s) against which such Individual Purpose Assessment is levied
which are not applicable to all the Condominium Units.
(b) The amounts determined, levied and assessed pursuant to this Section 7.8
shall be due and payable as determined by the Board of Directors of the Association,
provided that written notice setting forth the amount of such individual purpose
assessment for each Condominium Unit and the due date(s) for payment thereof shall
be given to the Owners of the affected Condominium Units not less than thirty (30)
days prior to the due date.
7.9 Lien for Assessments.
(a) Under the Act, the Association has a statutory lien on a Condominium Unit
for any assessments levied against that Condominium Unit and for fines imposed
against its Owner from the time each assessment or fine becomes due. In addition,
fees, charges, late charges, attorneys' fees, fines and interest charged pursuant to this
Declaration or the Act are enforceable as assessments. If an assessment is payable
in installments, the full amount of the assessment is a lien from the time the first
installment thereof becomes due.
(b) The statutory lien for assessments is prior to all other liens and encumbrances
on a Condominium Unit except: (i) liens and encumbrances recorded before the
recordation of this Declaration, (ii) a lien of a First Mortgage which was recorded
before the date on which the assessment sought to be enforced became delinquent;
and (iii) liens for real estate taxes and other governmental assessments or charges
against the Condominiurn Unit. Notwithstanding the foregoing, the statutory lien for
assessments is also prior to the lien of a First Mortgage to the extent of (A) an
amount equal to the assessments based on a periodic budget adopted by the
Association pursuant to Section 7.3 which would have become due, in the absence
of any acceleration, during the six months immediately preceding institution of an
action to enforce the statutory lien, but not including attorney's fees and costs being
incurred in an action to enforce the statutory lien, but in no event shall the priority
accorded under this subsection (b )(iii)(A) to such statutory lien exceed 150% of the
average monthly assessment during the immediately preceding fiscal year multiplied
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by 6; and (B) attorneys' fees and costs being incurred in an action to enforce the
statutory lien.
( c) The recording of this Declaration constitutes record notice and perfection of
the statutory lien. No further recordation of any claim of lien or assessment 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 Owner and such Owner's Condominium
Unit as a default assessment.
7.10 Effect of Non-Payment of Assessments. Any assessments, charges, costs or fees
provided for in this Declaration, including, without limitation, any default assessment arising under
any provision of this Declaration, which are not fully paid within ten (10) days after the due date
thereof, will bear interest from the due date at the rate of twenty-one percent (21 %) per annum, or
at such other rate as may be set by the Association from time to time (subject to any limits imposed
by law), and the Association may also assess a monthly late charge thereon. Further, the Association
may bring an action at law or in equity, or both, against any Owner personally obligated to pay such
overdue assessments, charges, costs or fees,.and may also proceed to foreclose its lien against such
Owner's Unit in the manner of a mortgage upon such property, an action at law or in equity by the
Association against an Owner to recover a money judgment for unpaid assessments, charges, costs
or fees, may be commenced and pursued by the Association without foreclosing or in any way
waiving, the Association's lien therefor. In the event that any such assessment, charge, cost or fee,
is not fully paid when due and the Association shall commence such an action (or shall counterclaim
or cross claim for such relief in any action) against an Owner personally obligated to pay the same,
or shall proceed to foreclose its lien against the particular Unit, then all unpaid assessments, charges
and fees, any and all late charges and accrued interest under this Section 7.10, the Association's
costs, expenses and reasonable attorneys' fees incurred in collection efforts, and the Association's
costs of suit, expenses and reasonable attorneys' and other professional fees incurred for any such
action and/or foreclosure proceedings, and any other costs which may be authorized by a court of
competent jurisdiction, shall be taxed by the court as a part of the costs of any such action or
foreclosure proceeding and shall be recoverable by the Association from any Owner personally
obligated to pay the same and from the proceeds of the foreclosure sale of such Owner's Unit.
Foreclosure or attempted foreclosure by the Association of its lien shall not be deemed to estop or
otherwise preclude the Association from thereafter again foreclosing or attempting to foreclose its
lien for any subsequent assessments, charges, costs or fees, which are not fully paid when due. The
Association shall have the power and right to bid on or purchase any Unit at foreclosure or other
legal sale, and to acquire and hold, lease, mortgage, vote the Association votes appurtenant to
ownership thereof, conveyor otherwise deal with the same. In any action brought by the Association
(or counterclaim or cross claim brought by the Association) to collect assessments or to foreclose
a lien for unpaid assessments, the Association shall be entitled to have a receiver of the Owner
appointed to collect all sums alleged to be due from the 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 pendency of tile action to the extent of the Association's assessments of any kind or nature
permitted hereunder.
7.11 Successor's Liability for Assessments. Notwithstanding any terms and provisions of
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this Declaration to the contrary, the sale or transfer of any Condominium Unit shall not affect the
lien for assessments, charges, costs or fees levied hereunder, except that sale or transfer of a
Condominium Unit pursuant to foreclosure of a First Mortgage or any proceeding in lieu thereof,
shall extinguish the lien of Association assessments but not the personal obligation of the Owner for
the payment of assessments, which became due after the recording of the First Mortgage and prior
to any such sale or transfer or foreclosure, or any proceeding in lieu thereof except to the extent the
lien of the Association has priority over the First Mortgage under Section 7.9; provided, however,
that any such assessments, charges, costs or fees which are extinguished as provided herein may be
reallocated and assessed to all Units as a Common Expense. A First Mortgagee may be personally
liable for any unpaid assessments, charges, costs or fees, or portion thereof, accruing against a Unit
prior to the time such First Mortgagee takes title to such Unit, but only to the extent that the lien of
the Association has priority over the First Mortgage under Section 7.9. No such sale, transfer,
foreclosure or any proceeding in lieu thereof, shall relieve any Owner from liability for any
assessments, charges, costs or fees, or any portion thereof, thereafter becoming due, nor such
Owner's Unit from the lien for such subsequent assessments, charges, costs and fees.
7.12 Homestead Waiver. The Association's lien on a Condominium Unit for assessments,
charges, costs and fees, provided for herein, shall be superior to any homestead exemption which
is now or may hereafter be provided by state or federal law. The acceptance of a deed to a
Condominium Unit shall constitute a waiver of the homestead exemption against all such
assessments, charges, costs and fees.
7.13 First Mortgagees May Pay Assessments and Cure Defaults. If any assessment on
a Condominium Unit is not paid by the Owner thereof within thirty (30) days after the same is due,
or if a default by any Owner of any provision of this Declaration, the Articles of Incorporation or
Bylaws of the Association is not cured within thirty (30) days after written notice thereof is given
to such Owner, then any First Mortgagee may (but shall not be required to) pay such assessment,
together with any other amounts secured by the Association's lien created by this Article 7, and may
(but shall not be required to) cure any such default.
7.14 Statement RegardingAssessments. The Association shall furnish to an Owner or such
Owner's designee or to a holder of a Security Interest or its designee upon written request, delivered
personally or by certified mail, postage prepaid, return receipt requested, to the Association's
registered agent, a statement setting forth the amount of any unpaid assessments currently levied
against such Owner's Condominium Unit. The statement shall be furnished within fourteen (14)
business days after receipt of the request and is binding on the Association, the Board of Directors
and every Owner. If no statement is furnished to the Owner or holder of a Security Interest or their
designee, delivered personally or by certified mail, postage prepaid, return receipt requested, to the
inquiring party, then the Association shall have no right to assert a priority lien upon the
Condominium Unit for unpaid assessments which were due as of the date of the request.
7.15 Liens. In accordance with the requirements of the Act, as amended, Declarants 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.
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ARTICLE 8
INSURANCE
8.1 Insurance on Common Elements. Commencing not later than the time of the first
conveyance of a Condominium Unit to a person other than Declarants, the Association shall
maintain the following types of insurance for the benefit of the Owners to the extent that such
insurance is reasonably available, considering the availability, cost and risk coverage provided by
such insurance, and the cost of said coverage shall be paid by the Association as a part of the
Common Expense. Notwithstanding any of the specific insurance requirements contained in this
Article 8, the Association must also consider and comply with, in determining the types and amounts
of insurance it needs to obtain, the existing applicable requirements of the Agencies with respect
to their insurance, guaranty, or purchase of First Mortgages.
a) A policy of property insurance covering all insurable improvements located
within the Project (including the Units, but not including furniture, wall trimmings,
improvements, equipment, fixtures, additional or other personal property supplied
or installed by Owners) except for land, foundation, excavation and other matters
normally excluded from coverage, in an amount not less than the full insurable
replacement cost of the insured property less applicable deductibles at the time the
insurance is purchased and at each renewal date. Further, said policy shall contain a
"Replacement Cost Endorsement" providing that any claim will be settled on a full
replacement cost basis without deduction for depreciation, and include an "Inflation
Guard Endorsement" (if obtainable), an "Agreed Amount Endorsement," a
"Construction Code Endorsement" (if applicable), and if the Project has central
heating or air conditioning, a "Steam Boiler and Machinery Coverage Endorsement"
with minimum coverage per accident equal to the lesser of $2,000,000 or the
insurable value of the Building The Association will also purchase endorsements
and/or coverage on personal property owned by the Association, including fixtures
and building service equipment, furnishings, common personal property and
supplies. Such insurance shall afford protection against at least the following:
(i) loss or damage by Fire and other perils normally covered by the
standard extended coverage endorsement; and
(ii) such other risks as shall customarily be covered with respect to
projects similar in construction, location and use, including all perils
normally covered by the standard "all risk" endorsement, where such is
available.
(b) A comprehensive policy of public liability insurance covering the Project
insuring the Association in an amount not less than Five Million Dollars
($5,000,000.00) covering bodily injury, including death to persons, personal injury
and property damage liability arising out of a single occurrence, Such coverage shall
include, without limitation, legal liability of the insureds for property damage, bodily
injuries and deaths of persons in connection with the operation, maintenance or use
of the Project (including but not limited to Common Elements), legal liability arising
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out of lawsuits related to employment contracts of the Association and protection
against liability for non-owned and hired automobiles; such coverage may also
include, if applicable, comprehensive automobile liability insurance, liability for
property of others, host liquor liability, water damage liability, contractual liability ,
workmen's compensation insurance for employees of the Association and such other
risks as may customarily be required by private institutional mortgage investors with
respect to condominium projects similar in construction, location and use,
( c) A policy providing comprehensive fidelity coverage or fidelity bonds to
protect against dishonest acts on the part of officers, directors, trustees and
employees of the Association and all others who handle or. are responsible for
handling funds of the Association, in an amount at least equal to two months current
assessments plus reserves. Such fidelity coverage or bonds shall meet the following
in the aggregate requirements:
(i) all such fidelity coverage or bonds shall name the Association as an
obligee;
(ii) such fidelity coverage or bonds shall contain waivers of any defense
based upon the exclusion of persons who serve without compensation from
any definition of "employee" or similar expression.
In the event the Association has delegated some or all of its responsibility for the handling
of funds to a managing agent, the Association must require the managing agent to purchase at its
own expense, a policy of fidelity insurance or bonds which fully comply with the provisions of this
subparagraph (c), unless the Association names such agent as an insured employee under a policy
of fidelity insurance or fidelity bonds in accordance with subparagraph (c) above.
(d) A policy providing personal liability insurance to protect directors and
officers of the Association from personal liability in relation to their duties and
responsibilities in acting as directors and officers on behalf of the Association.
(e) In addition, the Association may obtain insurance against such other risks of
a similar or dissimilar nature as it shall deem appropriate, to the extent that such
coverage is reasonably available.
8.2 General Provisions of Insurance Policies. All policies of insurance carried by the
Association shall be carried in blanket policy form naming the Association as insured, or its designee
as trustee and attorney-in-fact for all Owners and First Mortgagees, and each Owner shall be an
insured person under such policies with respect to liability arising out of such Owner's interest in the
Common Elements or membership in the Association. The policy or policies shall recognize any
applicable Insurance Trust Agreement and shall contain a standard non-contributory First
Mortgagee's clause in favor of and specifically naming each First Mortgagee and a provision that
it cannot be canceled or materially altered by either the insured or the insurance company until thirty
(30) days' prior written notice thereof is given to the insured and each First Mortgagee under the
Declaration, The Association shall furnish a certified copy or duplicate original of such policy or
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renewal thereof, with proof of premium payment and a certificate identifying the interest of the
Owner in question, to any party in interest, including First Mortgagees under the Declaration, upon
request. All policies shall contain waivers of any defense based on invalidity arising from any acts
or neglect of an Owner or the Association. The policies shall also contain a waiver by the insurer of
any right to claim by way of subrogation against the Owners, Declarants, the Association, and their
respective officers, directors and members and any of such parties' respective families, agents,
employees or tenants. The liability insurance policy provided for under Section 8.1(b) shall insure
the Board of Directors, the Association, any management agent and their respective employees,
agents and all persons acting, as agents. Declarants shall be included as an additional insured in their
capacity as an Owner and member of the Board of Directors. The Owners shall be included as
additional insureds but only for claims and liabilities arising, in connection with the ownership,
existence, use or management of the Common Elements. Such liability insurance shall cover claims
of one or more insured parties against the other insured parties.
8.3 Deductibles. No policy of insurance of which the Association or its designee is the
beneficiary shall include a deductible clause in an amount which is greater than the lesser of
$10,000.00 or 1 % of the face amount of the policy. Any loss falling within the deductible portion
of such policy shall be a part of the Common Expenses shared by the Owners in accordance with the
applicable provisions of Article 7 of this Declaration. To the extent reasonably possible, the
premiums shall be allocated as between the categories of Common Expense by the Association's risk
manager, whose determination shall be binding on the Association. Notwithstanding the foregoing,
after notice and hearing and review, and consideration of evidence documenting a monetary loss,
the Association may determine that a loss, either in the form of a deductible to be paid by the
Association or an uninsured loss, resulted from the act or negligence of an Owner, and assess such
loss as a default assessment against such negligent Owner and such Owner's Unit, subject to all
provisions of this Declaration against such negligent Owner and such Owner's Unit, applicable to
such assessments.
8.4 Insurance Trustee. The Board of Directors shall have authority to authorize an
insurance trustee to assist and consult on matters concerning the insurance required under this
Declaration, to negotiate and compromise settlement of losses under any insurance, and to collect
the proceeds from any insurance, hold such proceeds in trust for the Owners and their First
Mortgagees as their interest may appear and dispose of such proceeds as provided in Article 8 of this
Declaration and the Common Interest Act.
8.5 Association Insurance as Primary Coverage. If at the time of any loss under any
policy which is in the name or the Association, there is other insurance in the name of any Owner
and such Owner's policy covers the same property or loss, or any portion thereof, which is covered
by such Association policy, such Association policy shall be primary insurance not contributing with
any of such other insurance. An Owner shall be liable to the Association for the amount of any
diminution of insurance proceeds payable to the Association as a result of policies of insurance of
such Owner; provided that if such amount(s) are not repaid to the Association within ten (10) days
after the Association shall have given notice to the Owner of the total of such amount(s), from time
to time, then the failure to so repay shall automatically become a default assessment determined and
levied against such Unit and Owner.
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8.6 Acceptable Insurance Companies. Any hazard insurance policy purchased by the
Association must be written by a hazard insurance carrier which has a current rating by Best's
Insurance Reports (or a comparable rating by any successor or generally accepted substitute for
Best's) of NYI or better, or a financial rating of Class V provided it has a general policy holder's
rating of at least A, and is authorized by law to do business in the State of Colorado. The Association
shall not obtain any policy where (a) under the terms of the insurance company's charter, bylaws,
or policy, contributions or assessments may be made against the mortgagor or mortgagee's designee
or (b) under the terms of the carrier's charter, bylaws, or policy, loss payments are contingent upon
action by the carrier's board of directors, policy holders or members, or ( c) the policy includes any
limiting clauses (other than insurance conditions) which could prevent mortgagees or any Owner
from collecting insurance proceeds.
8.7 Insurance to be Maintained by Owners. Insurance coverage on all personal property
and furnishings, including carpet, draperies, kitchen and other appliances, wallpaper, trade fixtures
and other items of personal property belonging to an Owner of a Condominium Unit, and public
liability coverage within each Condominium Unit, shall be the sole and direct responsibility of the
respective Owner( s) thereof, and the Association, its Board of Directors and/or the managing agent
of the Association shall have no responsibility therefor; provided, however, that the Board of
Directors of the Association may elect to include any such coverage in any Association policy and
any costs of such coverage not allocable to the Owners on a uniform basis (or in respect of
ownership of Residential Units or the or Commercial Unit) shall be assessed as an Individual
Purpose Assessment.
8.8 Annual Review oflnsurance Policies. All insurance policies carried by the Association
shall be reviewed at least annually by the Board of Directors of the Association to ascertain that the
coverage provided by such policies adequately covers those risks insured by the Association. Prior
to obtaining any policy of fire insurance or renewal thereof, the Board of Directors or the managing
agent of the Association may obtain a written appraisal from a duly qualified real estate or insurance
appraiser, or other person knowledgeable as to replacement costs, which appraiser shall reasonably
estimate the full replacement value of the improvements to the insured for the purpose of
determining the amount of insurance required pursuant to the provisions of this Article. Any First
Mortgagee shall be furnished with a copy of such appraisal upon request.
8.9 Notice of Cancellation. If any insurance required in this Article 8 to be obtained by the
Association is not reasonably available or is canceled or not renewed without a replacement policy
having been obtained, the Association promptly shall cause notice of that fact to be hand delivered
or sent prepaid by first class U.S. Mail, postage prepaid, to all Owners.
ARTICLE 9
CONVEYANCES AND TAXATION OF CONDOMINIUM UNITS
9.1. Contracts Entered into Prior to Recording of Condominium Map and Declaration.
A contract or other agreement for the sale of a Condominium Unit entered into prior to the filing for
record of the Condominium Map and/or this Declaration in the office of the Clerk and Recorder of
the County of Pitkin, Colorado, may legally describe such Condominium Unit in the manner set
forth in Section 9.2 hereof and may indicate that the Condominium Map and/or this Declaration are
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to be recorded. Upon recordation of the Condominium Map and this Declaration in the County of
Pitkin, Colorado, such description shall be conclusively presumed to describe the corresponding
Condominium Unit shown on the Condominium Map and such Condominium Unit shall be subject
in all respects to this Declaration.
9.2 Contracts Entered into Subsequent to Recording of Condominium Map and
Declaration. Subsequent to the recording of the Condominium Map and this Declaration, 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:
Residential Condominium Unit _ (or the Commercial
Condominium), Mill Street Condominiums according to the
Condominium Map thereof, recorded on , 2001, at
Reception No. in the records of the office of the
Clerk and Recorder of the County of Pitkin, Colorado, and as defined
and described in the Condominium Declaration for Mill Street
Condominiums recorded on , 2001, at Reception
No, , in said records.
9.3 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.
9.4 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 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.
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ARTICLE Hi
MECHANIC'S LIENS
10.1 Mechanic's Liens. No labor performed and/or materials furnish~d for us~ 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 such
Owner's Condominium Unit.
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 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 default assessment determined and levied
against such Condominium Unit.
ARTICLE 11
EASEMENTS
11.1 Recorded Easements. In addition to all easements and rights-of-way ofrecord 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 Planned Unit Development Plat of the Real Property
recorded in Plat Book 54 at Page 49 of the records of Pitkin County, Colorado, and as shown on the
recorded Condominium Map.
1.2 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 anyone or more of the Units, the Building or other
improvements comprising part of the Common Elements are partially or totally destroyed and are
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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 6.2 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 7.3. 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 (1) Condominium Unit shall
be the expense of the Owner whose unit such utility lines and pipes serve and such expense may be
reimbursed through an Individual Purpose 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, subject to approval by the Association
following review 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
proposing improvement or alteration at such Owner's sole cost and expense.
11.9 Declarant's Rights Incident to Completion of the Project. Declarants, for themselves
and their 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 or improvement of the Project, the performance of Declarants' obligations hereunder,
the sale of the Units and the exercise of Declarants' special rights under Section 12.2 and Article 17
hereof, provided, however, that no such rights shall be exercised by Declarants in such a way as to
unreasonably interfere with the occupancy, use, enjoyment or access by any Owner, such Owner's
family members, guests or invitees, to or of such Owner's Condominium Unit or the Common
Elements. The rights of De cia rants under this section shall terminate upon conveyance by Declarants
of the last Condominium Unit to an Owner other than Declarant or ten (10) years after the recording
of this Declaration, whichever occurs first.
11.10 Easements Deemed Created. All conveyances of Units hereafter made, whether by
Declarants 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.
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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,
and shall not be used at any time for business, commercial or professional purposes; provided,
however, that the Owner may use such Owner's 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. Furthermore, the Residential Units shall be subject at
all times to the rules and restrictions contained the Aspen/Pitkin County Affordable Housing
Guidelines in effect from time to time under applicable deed restrictions made in connection
therewith for the benefit of the APCHA.
12.2 Commercial Use of the Commercial Unit. The Commercial Unit may be used for any
use permitted by zoning, including all permitted accessory uses.
12.3 Declarants' Use. Notwithstanding, anything to the contrary contained in this
Declaration, it shall be expressly permissible and proper for Declarants, their employees, agents, and
contractors, to perform such reasonable activities, and to maintain upon portions of the Project such
facilities as Declarants deem reasonably necessary or incidental to the completion and sale of
Condominium Units, specifically including without limiting the generality of the foregoing,
maintaining business offices, storage areas, signs, model units, sales offices, parking areas and
lighting facilities. The rights retained by Declarants in this Section 12.3 shall terminate upon
conveyance by Declarants of the last Condominium Unit to an Owner other than Declarants or
twenty (20) years after the recording of this Declaration, whichever occurs first.
12.4 Household Pets. No animals, livestock, poultry, or insects, of any kind, shall be raised,
bred, kept, or boarded in or on the Project; provided, however, that the Owners of each Residential
Unit may keep a reasonable number of dogs, cats, fish, or other domestic animals which are bona
fide household pets, so long as such pet( s) are not kept for any commercial purpose and are not kept
in such number as to create a nuisance to any resident(s) of the Project. Notwithstanding the
foregoing, the Association shall have, and is hereby given, the right and authority to determine in
its sole discretion that dogs, cats, or other household pets are being kept for commercial purposes
or are being kept in such number or in such manner as to be unreasonable or to create an
unreasonable source of annoyance to any resident(s) of the Project or that an Owner is otherwise in
violation of the provisions of this Section 12.4, and to take such action or actions as it deems
reasonably necessary to correct the same. An Owner's right to keep household pets shall be coupled
with the responsibility to pay for any damage caused by such Owner's pet(s).
12.5 Use of Common Elements. Subject to the rights of Declarants 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 Declarants in their completion
of the Project, and except as provided in Section 12.2 and Article 17 hereof, nothing shall be altered
on, constructed in or removed from the Common Elements without the prior written approval of the
Board of Directors of the Association. Such approval may be conditioned upon the Owner who
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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.
12.6 Exterior Changes. Except for those improvements erected, constructed or installed by
Declarants in their completion of the Project, 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 Board of Directors of the Association 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, 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,
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 Declarants in connection with its sale of
Condominium Units shall be permissible. Notwithstanding the foregoing, the Owners of the
Commercial Unit may install and maintain signs in their Units 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 the 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. The term "lease" as used herein shall include any agreement for the leasing or
rental of a Condominium Unit and shall specifically include, without limitation, a month-to-month
rental. The Owner of a Condominium Unit shall have the right to lease such Owner's Residential
Condominium Unit under the following, conditions:
(a) All leases shall be in writing and a copy of the lease delivered to the Board
of Directors of the Association 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 Condominium Units 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.
( c) Leases of Residential Units shall comply with all applicable provisions of the
AspenlPitkin County Affordable Housing Guidelines in effect from time to time and
deed restrictions applicable to the Residential Units.
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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 IIsed herein, the term "nuisance" shall not include
any activities of Declarant In regard to the completion of the Project, or any activities in the
Commercial Condominium Units that are customarily associated with the operation of a bank and
general business or professional office uses including all noises and smells normally associated with
such activities. 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. All
valid laws, ordinances and regulations of all governmental bodies having jurisdiction over the
Project, or any portion thereof, shall be observed.
12.10. Parking for Residential Units. No ansite parking is provided for the Residential
Units. Parking for six (6) of the seven (7) Residential Units is provided offsite by Parking Spaces
at Benedict Commons Condominiums subleased by the City of Aspen to the Unit Owners of
Residential Units, except Residential Unit 201.
12.11 Parking for Commercial Units Parking for the Commercial Units is provided in the
( ) spaces as designated on the Condominium Map as "Commercial Unit Parking." Parking for
the Residential Units shall not be permitted on the Commercial Unit Parking. Upon further
subdivision of the Commercial Unit and conveyance by the Declarant Draco, Inc. of subdivisions
of the Commercial Unit, said Declarant may assign the right to exclusive use of parking spaces the
Commercial Units Parking, the effect of which shall be to designate the same as Limited Common
Elements. Until such designation is made, the Commercial Unit Parking shall constitute a Limited
Common Element and for the benefit of the Commercial Unit
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
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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 sixty-seven percent (67%) 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%) ofthe 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 each Owner's successors in interest have an
exclusive right to occupancy of a portion of the real estate that formerly 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 Common Interest 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 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 ofliens 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 twenty-five percent (25%) of the total votes in the Association. The
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proportion of any Owner's interest to that of all Owners is determined by
dividing the fair market value ofthat 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 Common Interest 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. The insurance trustee or the Association shall
31
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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 Project 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 eighty percent (80%) 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 Declarants, 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 ofthe 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.
3.4 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
32
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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.
(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 Board of Directors of the Association 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 such Owner's 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
33
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to, recent MAl appraisals of the affected property or comparable property. If the
allocation ofthe 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.
(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.
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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, Declarants, 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 Declarants may be transferred or assigned by Declarants, 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 Act.
ARTICLE 15
AMENDMENT OF DECLARATION
15.1 Amendment. 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 sixty-seven percent (67%) 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 is effective only upon
recording. Except to the extent expressly permitted by the Common Interest Act and provided for
in this Declaration, no Amendment may create or increase any special Declarant's rights, increase
the number of 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 unanimous consent of
the Owners; nor, shall any amendment impair the right of any First Mortgagee specifically contained
in Article 16 hereof or elsewhere in this Declaration without the written consent of such First
Mortgagee 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.
15.2 Technical Amendment. To the extent allowed by the Act, Declarants hereby reserve
and are 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 Declarants to the first Owner thereof (other than Declarants) 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 of any provisions of this Declaration.
15.3 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
35
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thereof. The recordation of a certificate of the Secretary of the Association, certifying 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 and First
Mortgagees, 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)
hours;
Inspect the books and records of the Association during normal business
(c)
(d)
Receive copies of annual Association financial statements;
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 mayor 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 AND ADDITIONAL SPECIAL DECLARANTS RIGHTS
17.1 Additional Declarants Rights. In addition to the provisions of this Article 17,
Declarants shall have and be entitled to exercise all other development or special Declarants rights
specifically reserved to Declarants elsewhere in this Declaration in accordance with the provisions
establishing such rights.
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17.2 Development Rights. Without consent of the individual Owners, Declarants expressly
reserve to themselves and their successors and assigns, the right, at any time, to subdivide the
Commercial Unit and to convert such Unit into Commercial Units or Residential Units, or any
combination of both, subject to Section 17.6 and applicable land use regulations.
17.3 Amendment of this Declaration. Upon Declarants' exercise of any of their
Development Rights and/or other special Declarants rights set forth in this Article 17 or elsewhere,
Declarant shall record an amendment to this Declaration (including but not limited to Exhibit "B"
hereof) 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 Declarants rights and
reallocating the Allocated Interests as required thereby. No consent will be required from the
Association, the Board of Directors of the Association, or any other person for Declarants to exercise
such rights and any amendment to this Declaration required to implement the same may be executed
solely by Declarants.
17.4 Amendment of Condominium Map. Contemporaneously with the Amendment of this
Declaration, Declarants shall file an Amendment of the Condominium Map reflecting all changes
resulting from exercise of the Development Rights or other special Declarants rights and which
changes are required or desirable to be shown on the Condominium Map. No consent will be
required from the Association, the Board of Directors, or any other person for Declarants to exercise
such rights and any amendment to the Condominium Map that is required to implement the same
may be executed solely by Declarants.
17.5 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.
17.6 Construction Easements. Declarants 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 their development rights and/or other special Declarants
rights without the consent or approval of any other Owner. Declarants' 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.
17.7 Termination of Development Rights and Special Declarants Rights. Any development
rights and other special Declarants rights reserved by Declarants for themselves, their successors and
assigns, pursuant to this Article 17, except the right to subdivide the Commercial Unit for which
right no time limit shall apply, shall expire ten (10) years from the date of recording this Declaration,
unless the development rights or other special Declarants rights are (a) extended if allowed by law,
or (b) reinstated or extended by the Association, subject to whatever terms, conditions, limitations
the Board of Directors may impose on the subsequent exercise of the development rights and other
special Declarants rights of Declarants.
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17.8 Transfer of Development Rights and Other Special Declarant Rights. Any
Development Rights and other special Declarants rights created or reserved under this Article 17 for
the benefit of Declarants may be transferred in whole or in part to any person by an instrument
describing the rights transferred and recorded in the office of the Clerk and Recorder for the County
of Pitkin, Colorado. Such instrument shall be, executed by Declarants and their transferee.
ARTICLE 18
MISCELLANEOUS
18.1 Period of Condominium Ownership. The condominium ownership created by this
Declaration and the Condominium Map shall continue until this Declaration is terminated in any
manner provided in this Declaration or by law.
18.2 Supplement to Statutory Law. The provisions of this Declaration shall be in addition
and supplemental to the Act and the Colorado Condominium Act, as they may be amended from
time to time, and to any other applicable provisions of law.
18.3 Conveyance of Condominium Units. All Condominium Units, whether or not the
instrument of conveyance or assignment shall refer to this Declaration, shall be subject to the
covenants, conditions, restrictions, easements, reservations, rights-of-way and all other terms and
provisions contained in this Declaration, as it may be amended from time to time.
18.4 Enforcement. Enforcement of the covenants, conditions, restrictions, easements,
reservations, rights-of-way, liens, charges and other provisions contained in this Declaration, the
Articles of Incorporation, Bylaws or rules and regulations of the Association, as amended, shall be
by any proceeding at law or in equity against any person or persons (including but not limited to the
Association) violating or attempting to violate any such provision. The Association and any
aggrieved Owner shall have the right to institute, maintain and or prosecute any such proceedings,
and the Association shall further have the right to levy and collect charges for the violation of any
provision of any of the aforesaid documents, which charges shall be a perpetual lien in favor of the
Association against each Condominium Unit, as more fully provided in Article 7 hereof, in any such
action instituted or maintained under this Section, the prevailing party shall be entitled to recover
such Party's costs and reasonable attorneys' fees incurred pursuant thereto, as well as any and all
other sums awarded by the court. Notwithstanding the Association's right to use summary abatement
or similar means to enforce the covenants, conditions, restrictions, easements, reservations, rights-of-
way, liens, charges and other provisions contained in this Declaration, the Articles of Incorporation,
Bylaws or rules and regulations of the Association, as amended, the Association must initiate
appropriate judicial proceedings before any items of construction of a permanent nature previously
made by or on behalf of an Owner can be altered or demolished.
18.5 Notices; Registration of Mailing Address. Each Owner and each First Mortgagee
shall register a mailing address with the Association, and notices or demands intended to be served
upon the Association, any such Owner or First Mortgagee shall be delivered by messenger or sent
by first class mail, postage prepaid, addressed to the Association at its address set forth below (or
such other address of which it gives notice) or to such other person or entity addressed in the name
of such person or entity, at such registered address. However, if any Owner fails to so notify the
38
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Association of a registered address, then any notice or demand may be delivered or sent, as
aforesaid, to such Owner at the address of such Owner's Condominium Unit. Until the same has been
changed, the address for the Association shall be: c/o Oates, Knezevich & Gardenswartz, P.c., 533
E. Hopkins Avenue, Aspen, Colorado 81611.
18.6 Non-Waiver. Failure by Declarants, the Association, any Owner, First Mortgagee or
any other person or entity to enforce any covenant, condition, restriction, easement, reservation,
right-of-way or other provision contained in this Declaration shall in no way or event be deemed to
be a waiver of the right to do so thereafter.
18.7 Severability. The provisions ofthis Declaration shall be deemed to be independent and
severable, and the invalidity of anyone or more of the provisions hereof, or any portion thereof, by
judgment or court order or decree shall in no way affect the validity or enforceability of any of the
other provisions, which other provisions shall remain in full force and effect.
18.8 Number and Gender. Unless the context provides or requires to the contrary, the use
of the singular herein shall include the plural, the use of the plural shall include the singular, and the
use of any gender shall include all genders.
18.9 Captions. The captions to the Articles and Sections and the Table of Contents at the
beginning of this Declaration are inserted herein only as a matter convenience and for reference, and
are in no way to be construed to define, limit or otherwise describe the scope of this Declaration or
the intent of any provision hereof.
18.10 Conflicts in Documents and Law. In case of any conflict between this Declaration
and the Articles ofIncorporation or Bylaws of the Association, this Declaration shall control. In case
of any conflict between the Articles of Incorporation and Bylaws of the Association, the Articles of
Incorporation shall control. In the event of any conflict between any of the foregoing and the
Common Interest Act or the Colorado Condominium Act, the latter shall govern, and as between
those two (2) statutes, the Common Interest Act shall prevail.
18.11 Rule Against Perpetuities. Unless exempted from the application of the rule against
perpetuities under the provisions of the Act, any interest in property granted under this Declaration
shall vest, if at all, within the period measured by the life of the survivor of the grandchildren of
George W. Bush, Sr., former President of the United States of America, who are living on the date
of recording of this Declaration in the office of the Clerk and Recorder of the County of Pitkin,
Colorado, plus twenty one (21) years.
18.12 Matters of Record. All matters of record affecting the Real Property are as set forth
on Exhibit "c" attached hereto and made a part hereof.
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IN WITNESS WHEREOF, the undersigned, being Declarants herein, have hereunto set
their hands and seal this _ day of , 2001.
MILL STREET DEVELOPMENT, INC.
a Colorado Corporation
By:
D. Stone Davis, President
DRACO, INC., a Colorado Corporation
Company
By:
D. Stone Davis, President
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JOINDER BY ASPEN-PITKIN COUNTY HOUSING AUTHORITY
The Aspen-Pitkin County Housing Authority joins this Declaration for the limited purposes of
submitting its undivided one tenth of one percent (0.01%) interest in Parcel 2 of the Common
Elements thereunder and agrees to be bound by the provisions of Section 2.2 of Article II hereof.
ASPEN-PITKIN COUNTY HOUSING AUTHORITY
Bv:
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STATE OF COLORADO
)
) ss.
)
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this _day of ,
2000, by D. Stone Davis, as President of Draco, Inc., a Colorado Corporation, and as President of
Mill Street Development, Inc., a Colorado Corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
STATE OF COLORADO
)
)ss.
)
COUNTY OF PITKIN
The foregoing instrument was acknowledged before me this _ day of , 2001,
by , as ofthe Aspen-Pitkin County Housing Authority.
Witness my hand and official seal.
My commission expires:
Notary Public
CONSENT OF LIENHOLDER:
The undersigned holder of a deed of trust on the property described on Exhibit "A" hereof
executes this Declaration for the purpose of consenting to the dedications, easements and covenants
contained herein.
COMMUNITY BANKS OF COLORADO
By:
Title:
42
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(')
STATE OF
)
) ss.
)
COUNTY OF
The foregoing instrument was acknowledged before me this
, 2001, by , as
of Community Banks of Colorado a
day of
Witness my hand and official seal.
My commission expires:
Notary Public
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PERCENTAGE INTEREST IN ALL COMMON ELEMENTS
Unit Number Percentage Interest In Allocated Residential Unit
All Common Elements Percentage
Commercial Unit 50%
101 8.765 17.53
102 6.02 12.04
201 5.73 11.46
202 6.115 12.23
203 6.115 12.31
301 8.085 16.17
302 9.13 18.26
Total 100% Total 100%
EXHIBIT "B"
D:\Data\Clients\DRACO\Dev of Mfordable Housing-Capls Auto Parcel\CondominimumDec1aration.FINAL.wpd
44
MEMORANDUM
To: Greg Woods, Planner
From: Richard Goulding, Project Engineer
Date: May 21, 2001
Re: Mill Street Condominiums
1. The trash storage is not shown on the PLAT
2. The following Certificates need to be completed:
Owners Cert.
Mortgagee's Cert.
Title Cert.
Surveyor's Cert.
3. Change South to North on Mill Street
4. A note on the Plat stating that parking is to be provided off site at Benedict Commons
5. Update the map to show the new sidewalk arrangement
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