HomeMy WebLinkAboutcoa.lu.co.401 E Cooper Ave.A065-99
CASE NUMBER
PARCEL ill #
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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"' 31
A065-99
2737-182-24013
401 E. Cooper Condominiumization of Parking Spaces
401 E, Cooper
Chris Bendon
Condominiumization
John Cheek
John Kelly
12/18/01
Application Withdrawn
12/18/01
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MEMORANDUM
TO:
File A 65-99
FROM:
Chris Bendon, Senior Planner
RE:
401 East Cooper Parking Condominiumization
DATE:
December 18, 2001
Activity on this case has ceased and the application is considered abandoned pursuant to
Section 26.304.070(F). Subsequent activity requires submittal of a ne:w land use application,
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THRU:
Joyce Ohlson, Deputy Director
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MEMORANDUM
TO:
Julie Ann Woods, Community Development Director
FROM:
Christopher Bendon, Senior Planner
RE:
Aspenhof Condominium Plat
DATE:
July 17, 2000
SUM~RY:
'".) \ John Cheek, represented by John T. lly, has applied for condominiumization of
0( l~T parking spaces located along the al ey of the Aspenhof building, 40 I East Cooper
~ . Avenue. These proposed sP,ac, es do not represent conformanc(~ with the applicable
, dimensional requirements for parking spaces and do not appear to be legal pre-
0:>( existing nonconformities. Approving this subdivision condominiumization plat
"\ would create several nonconformities and would thereupon represent an illegal
~ ~ subdivision.
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Staff recommends the Director deny this request to condlominiumize parking
spaces at the Aspenhofbuilding, 401 East Copper Avenue, and not approve
the subdivision condominiumization plat.
DISCUSSION:
Section 26.480 of the Land Use Code provides the purpose and procedure for which
subdivisions may be approved and the criteria in which such subdivisions must meet
in order to gain approval. Condominiumization is a form of subdivision and the
procedure and criteria for reviewing a subdivision condominiumization plat are
contained within: the Subdivision section of the LaJ:ld Use Code, Section 26.480.090.
Section 26.480.090(A) reads: "Where a proposed development is to include a
condominium form of ownership, or if an existing development is to be converted
to a condominium form of ownership, in whole or in part, a condominium
subdivision plat reflecting all condominiumized units, or that portion of the
development to be condominiumized, shall be submitted to the Community
Development Director for review and approval as a subdivision pursuant to the
terms and provisions of this section." (Emphasis added.)
Section 26.480.090(B) describes the process in which a condominium plat may be
approved and reads: "A development application for a condominiumization shall
be reviewed pursuant to the procedures and standards in this section and Common
Development Review Procedures set forth at Chapter 26.304." (Emphasis added.)
Section 26.480.020(C) describes prohibited subdivisions ofland and reads "No
interest in a parcel of land shall be transferred, conveyed, sold, subdivided or
I
The proposed spaces 5, 6, 7, & 8 do not meet the 8.5 foot width requirement for
parking spaces. These spaces are proposed as 7.3 feet wide, more than one foot more
narrow than the requirement. Upon several site visits, staff has observed no more
than three cars occupying this area with no room for a fourth car, much less a
motorcycle. The applicant has not demonstrated the lawfulltexistence of these
narrow spaces prior to the adoption of dimensional requirements for parking spaces
and staff does not consider the 7.3 foot width to be a dimension protected by the \
. -.r ~Nonconformities section of the Land Use Code. (,,j r _ ut- HVA-<-
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I / 0' ..;..-Y The proposed parking spaces 7 and 8 contain obstructions located on the ground
r-\J.!::t .if' (J~ representing approximately 5 feet of space and reducing the effective length of the
v- \(f . parking spaces to roughly 12.5 feet. Staff has conducted several site visits and has
v W 'f )...,J>'=ITOd ili', "_,ti~ forem, ~~ '" "'" ""b"",tiolly wifhin fh, oli" righ'.of.
. ~ \0 . ~~ way. The applicant has not demonstrated the lawfu1ft,existence of these shortened
... ~~ ,'" parking spaces prior to the adoption of dimensional requirements for parking spaces
'\ - \. rIf;J'JP and staff does not consider the 12.5 foot length too be a dimension protected by the
'lI Nonconformities section of the Land Use Code.
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acquired to create or extend a nonconformity, or to avoid or eircumvent any
provision of this Chapter." (Emphasis added.)
A Nonconforming Structure, as defined in the Land Use Code, is "a structure which
was originally developed in conformance with zoning and building codes or
Ordinances in effect at the time of development, but which no longer conforms to the
dimensional or other requirements imposed by this Title for the zone district in which
it is located." Nonconformities that were legally created are authorized to continue,
pursuant to Section 26.312 of the Land Use Code.
The area in which the proposed parking spaces are to be located appears to have been
developed some 30 years ago. The building provides approximately 17.5 feet from
the alley right-of-way to the edge of the building. This space is six inches short of
the current parking standard requiring spaces to be 18 feet de'~p. This dimension
does not represent a significant infraction and appears to be a circumstance created
with the original construction. If the applicant were to demonstrate parking spaces
existing in this, location prior to the adoption of dimensional requirements for parking
spaces, staff would consider these spaces as nonconformities authorized to continue
under the provisions of Section 26.312 of the Land Use Code. The applicant has not
demonstrated such.
Several of the proposed parking spaces have overhead encroachments into the 7.5
foot height requirement of parking spaces. No reference to the City approving such
encroachments into parking spaces exists in the building permit file or in any of the
documentation provided by the applicant. In fact, the applicant has stated during site
visits that the air handling equipment was installed by the restaurant operator
occupying the basement level of the building without approval from the applicant.
These encroachments force cars to be partially within the alley way when parked and
prohibit adequate access to the trash dumpster. The applicant has not demonstrated
the existence of the overhead encroachments as lawfully existing prior to the
adoption of dimensional requirements for parking spaces and staff does not consider
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the overhead obstructions to be dimensions protected by the Nonconformities section
of the Land Use Code.
Staff believes the subdivision condominiumization plat, as proposed, represents a
creation of nonconformities as specifically prohibited in the Subdivision section of
the Land Use Code. City staff has recommended, on several clccasions, the manner
in which the proposed condomirtiumization plat could be amended to address the
encroachment concerns. City staff has recommended the proposed four spaces
labeled as spaces 5, 6, 7, & 8 be combined to represent three spaces and the overhead
air handling equipment be relocated to exist above the 7.5 foot height limit. Staff has
also recommended the reconfiguration of proposed spaces 1, 2, & 3 into one space
parallel to the alley. With these amendments, staff believes the condominiumization
plat could be approved without this illegal creation of nonconformities.
The applicant is unwilling to amend the application in the manner described by staff
as acceptable, as indicated in writing, and staff believes the proposed plat represents
creation of nonconformities and an illegal subdivision. Therefore, staff recommends
this request for condominiumization be denied.
ApPLICANT:
John H. Cheek, Jr. Represented by John T. Kelly.
LOCATION:
AspenhofCondominiums, 401 East Cooper Avenue.
ZONING:
Commercial Core (CC)
REVIEW PROCEDURE:
Section 26.480.090. Subdivision Condominiumization plats representing consistency
with the terms and provision of the Subdivision section may b,: approved by the
Community Development Director.
RECOMMENDATION:
Staff recommends the Community Development Director deny the
condominiumization request and not approve the subdivision plat.
DENIAL:
I hereby deny the request to condominiumize the parking spaces located at the
Aspenhof building, 401 East Cooper Avenue, as such an action would illegally create
several nonconformities and represent an illegal subdivision.
date
Julie Ann Woods, Community Development Director
ATTACHMENTS:
Exhibit A
Application and proposed Subdivision plat.
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LeONARD M. OATiS
RICHARD A. KNE:i:EVICH
TED D, GAADEN$WA~rZ
oAvJb 5. K!!LlY
LAW OFFICES OF
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
I'FtOfl!'SSIONAI. CCR,.O".TION
THIRD FLDOR:, A,SPiN P\.A~ IUIl.DING .
IS~ ~ST HOPKINS AveNue
ASj:l.N, OOLORAce 81611
TEL.EP'HON! ('1'01 .20-1'100
F'ACslMILE (g,O) g2D-t 12'1
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Q~ COUNSEl.:
I,l'CHI\EL FEIOENEAUM
JOHN T. lI:il..l.Y
DAVID B. MlJHLEII:
June 12, 2000
Mr. John Worcester, Esq.
City QfAspen Attorney
Via Facsimile 920-5439
Re: Parking ~ndominiumiidtion - Aspenbof
, Dear John:
I have attached following a letter ,to Chris Bendon at City Planning. We have been in the process
of seeking City approval of a Plat of the parking spaces at the Aspenhof. Originally. only a change ill the
fonn of ownership was proposed. Chris could probably bring you up to speed on the City's "objections"
to date:
As you can see from the attached letter, the Applicant is willing to sacrifice one space to alleviate
? ~ County concerns. However, it is our position that due to an apprmdmate 30.year history of use without City
complaint, the City cannot now require the Applicant to comply withsubsec[uently enacted %oning.
, ' Further, under the Colorado Community Interest Ownership Act, sinC''c only a change in ownership
is proposed, I do not believe the City can raise any engineering hurdles to the signing of the Plat.
I have requested a meeting with your office and city planning to see if any additional objections can
b~ resolved and the Plat can be approved. My client will be in tOwn from JUIDe 26 to abOllt 1uly 7.
I would also be willing to accompany you on a site visit. I will be out (If the office next week. I look
forward to hearing from you.
cc; JohnT. Cheek
Sincerely,
OAT~S,KNEZEV[CH & ~~~c.
BY'~~~ ~ J7;c:...
10hn T. Kelly
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LAW OFFICiS OF
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
PROFESSIONA.L eORPOPl:AT10N
THIRD FLOOR, ASPEN pLAU aUILD1N!J
053 eAST HOPKINS AVf;NUe:
I'$PIM, eOL_CO ;1.11
TILIPHOMI liTO) 22..1Too
FAC,sIMILi (970) 1Il~.1121
~&ONARo. M. OATES
RICHMD A,KNI!I:f!VICH
TIlD D, GARPiNSWARTZ
DA.VID I. KI!LL. V
Dhkll(lrol,nel
OJ!' OOUNSEL:
MICHAel. P!IC!eN8AU'M
,JOHN T KeLL.Y .
MVID B. MUEL.l-I;R
June 12, 2000
'Mr: Chris Bendon
. Aspen City Planning
Fax 920-5439
Aspen, CO
Via l"acslmile 920-5439
Re: Parking condominiumization - 401 E. Cooper
Dear eluis;
As we discussed, the Applicant (John Cheek) is willing to amend the Plat as follows in order to
address the City's concerns over the alley parking space dimensions.
1. Reconfigure four spaces (numbered 5, 6, 7, and 8), which are pJ."~sent1y only 7.3 feet in width,
into thr..e spac..s that would be approximately 9.7 feet in width. Net effect: sacrificing one space.
2. Agr..e to move the ground mounted HV AC equipment encroachiing into spaces 7 & 8 upwards
ontl? a wall mounted rack in such a fashion that it would allow vehicles 11) pull completely forward into
spaces 7 & 8, thus allowing the full depth of 17.s feet. This would be an explicit provision of the
approval of the Plat. As the City Engineer indicated, this appears entirely feasible.
This would be a significant improvement over the existing conditions, and alieviate most of the problem
of "short" spaces, as well as all..viale the problem of "narrow" spaces.
What the Applicant is not willing to do is sacrifice two additional spaces for what we believe to be
unnecessary te-engineering of a currently functioning parking environment. As we ,have oft pointed Oqt-
all that is changing is the form of ownership- and not the use. Concerning these three spaces, if there is an
encroachment issue, or a trash access issue, it would have surfaced in the last thirty years, and frankly, it
hasn't.
3. Accordingly, the Applicant does not agree to reconfigure space!ll, 2, and 3 into one parallel
'space,. There is absolutely no trash removal issue, and the spaces are useable. Placing one vehicle in parallel
would effectively block that car off once a canvas in what is nOw space 4; th\lS, this solUtiOD is anon-starter.
'}UN 12 '00 01:31PM Q,H,K&G
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Mr. Chris Bendon
Aspen City Planning
June 12, 2000
Page 2
The Applicant has worked with your concerns concerning encroachments and Width, and has agreed to
saCrifice one space to accommodate your concerns., However, losing two additional spaces to address non-
, ,existent concerns, appears unreasonable to us.
Further, purchasers of the spaces will simply have to continue to conDorm their uSe to the size and
characteristics of the space. It is currently selfllolicing, and that will continue. Bach of our site visits has
ClJnfirmed that spaces 1,2,and 3 are functioning, fine, even for SUV' s. If a spal:le is in effect, a "compact car"
space, then so be it. Also, many of the folks currently clamoring to buy a space already rent the space.
There would for the most part be no change in use whatsoever.
Accordingly; we would like to schedule a meeting with city planning and the City Attorney between
June 26 and July 7 to discuss a rational, legal conclusion, and bring this ma,tter to closure. John is out of
town until1une 26, and I am leaving the firm. Accordingly, this matter is now in John's hands.
Please verify with John Kelly as to when a meeting is scheduled. 10hn will attend, along with the
Applicant, who will only be in town between June 26 and 1uly 7.
,Thanks.
Sincerely,
OATES, KNEZEVICH" GA8DENSWARTZ, P.C.
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David B. Mueller
" cc: John T. Cheek
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MEMORANDUM
To: Chris Bendon, Planner
Thru: Nick Adeh, City Enginee~
From: Chuck Roth, Project Engineer (!;12.
Date: October 4, 1999
Re: 401 East Cooper Condominium Plat - Parking Spaces,
The Development Review Committee has reviewed the above referenced application at their
September 8, 1999 meeting, and we have the following comments:
General- (1) These comments are based on the fact that we believe that the submitted site plan is
accurate, that it shows all site features, and that it is feasible. The wording must be carried forward
exactly as written unless prior consent is received from the Engineering Department. This is to halt
complaints related to approvals tied to "issuance of building pennit." (2) If there are any
encroachments into the public right-of-way, the encroachment must either be removed or be subject
to current encroachment license requirements.
~ The City Code requires parking spaces for buildings. The existing parking spaces should
serve the existing spaces within the existing building.
The existing parking spaces are non-conforming. The plat is misleading concerning
dimensional aspects of the parking spaces. It appears that over the years, air moving ductwork has
been installed into the spaces of the parking spaces in order to save leasable floor space within the
building. None of the spaces meets the 18' long by 8Yz' wide by 7' high dimensional requirements
of the Code.
Parking space number 3 is nearly unusable due to vertical obstructions. The vehicles that
were parked in spaces number 7 and 8 at the time of my site visit were both projecting into the alley
right-of-way and diminishing the 20' emergency access width required by City Code.
The propose<L1ftlS1nlocation is blocked by a parking space, which is not permissible.
DRC Attendees
Staff: Karma Borgquist, Tom Bracewell, Ed Van Walraven, Chuck Roth
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Phone # Phone # '2-
Fax # Fax #
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OATES, KNEZEVICH & GARDENSWARTZ
PROFESSIONAL CORPORATION
THIRD FLOOR, ASPEN PLAZA BUILDING
533 EAST HOPKINS AVENUE
ASPEN, COLORADO 81611
(970) 920-1700 Telephone
(970) 920-1121 Telefax
MEMORANDUM
to:
Chris Sendon
City of Aspen I Community Development Department
David B. Mueller
John H. Cheek / 401 East Cooper Condominiumizatiol1 of Parking Spaces
January 6, 2000
from:
subject:
date:
Dear Chris,
We are apparently currently at a stand still with regard to our client's application to
condominiumize parking at 401 East Cooper. There is a concern from the City that there are some
non-conforming spaces. However, it is our position that since these parking spaces have existed since
approximately 1969, the city code at 26.312.030 allows the continuing non-conforming parking.
Would you please schedule a meeting between engineering, planning, and any other interested
parties, John Kelly and myself, so that we can resolve any outstanding issues and move this
application forward. I believe when we last spoke, I had indicated that John Cheek was going to
move any equipment which was impacting any of those outside spaces. We will provide a progress
summary or be able to provide assurances that the equipment elements either have been or will be
removed in order to address the comments in the design review committee memo.
Please give me call at your earliest convenience to arrange for a meeting. Thank you.
David B. Mueller
From the desk oL
David B. Mueller
Oates, KnEiZevich & Gardenswartz, P,C,
533 East Hopkins Ave" 3"' Floor
Aspen, CO 81611
970-920-1700
Fax: 970-920-1121
E-mail:
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LAW OFF"lCES OF"
OATES, KNEZEVICH & GARDENSWARTZ, P.C.
TH':DR:~:::':::~::~::::T~~LND'NG ~ . 00 '11
533 EAST HOPKINS AVENUE "~
ASPEN, COLORADO 81611
...
LEONARD M. OATES
RICHARD A. KNEZEVICH
TED D. GARDENSWARTZ
DAVID B. KELLY
TELEPHONE (970) 920-1700
FACSIMILE (970) 920-1121
e-mailohkg@rof.net
July 27, 1999
DAVID B. MUELLER
J
OF COUNSEL:
JOHN THOMAS KELLY
Mr. Chris Bendon
City of Aspen Community Development Department
130 S. Galena St.
Aspen, CO 81611
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Re: Cooper Building Parking Condominiums Application: Summary Letter
Dear Mr. Bendon:
Enclosed please find the Application for condominiumizing the parking spaces at Aspenhof
Condominiums. I have included the Condominium Declaration for Aspenhof which is meant to satsfy the
requirement for "Proof of Ownership," as well as the old plat and the proposed new parking condominiumization
plat prepared by Aspen Survey Engineers and any applicable Attachments.
As I have indicated on the "Land Use Application" the proposed parking parking spaces set for
condominiumization all currently exist within and adjacent to the Aspenhof Condominiums. These parking
spaces have never been part of the condominium project, and, with the exception of the nine spaces dedicated
to resident owner's use in the Declaration, have been rented by John Cheek since approximately 1970. Currently
there are approximately 22 parking spaces, of which 9 are reserved for the use of the nine residents of the same
munber of residential units in the Aspenhof. The remaining spaces are leased. The proposal represents a change
in ownership solely; no structural modifications, alterations, or change in use is proposed. Regarding ownership:
the "Garage and Parking Areas" were all reserved from Association ownership and all "ownership, title and
control" was retained by the Declarant, Mr. Cheek and Aspen Construction Corporation. Since this application
represents a change in ownership alone, we believe that 38-33.3-106, C.R.S., is applicable and such
condominiumization is exempt from subsequently enacted zoning, subdivision, and other ordinances or
regulations concerning parking requirements. I have therefore not addressed thl: Code provisions, due to the fact
that the proposed condominiumization is exempt from such provisions.
Sincerely,
OATES, KNEZEVICH & GARDENSWARTZ, P.c.
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By: John T. Kelly
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LAND USE APPLlf'\TION
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PROJEcr:
NAME: AspenhofParking Condominiumization
LOCATION: (Aspenhof Condominiums; Cooper Building)
Legal: The basement garage area and ramp and other parking spaces all as shown on the Condominium
Map of the Aspenhofrecorded in Plat Book 4 at pages 136-139 and the First Amended Map of Aspenhof
recorded in Plat Book 6 at Page 10 and as described in the Condominium Declaration for Aspenhof
recorded in Book 252 at Page 49 and the First Amendment to the Condominium Declaration for the
Aspenhof (a Condominium) as recorded in Book 332 at Pa,ge 606 of the records of Pitkin County,
Colorado.
ApPLICANT:
Name: John H. Cheek, Jr.
Address: 5001 Clonmel Road
Nashville TN 37220
Phone #: 615-269-4771
REPRESENTATIVE:
Name: John T Kelly
Address: Oates, Knezevich & Gardenswartz, P,C.
533 East Hopkins Ave" 3'" Floor
Aspen, CO 81611
Phone #: 970-920-1700
TYPE OF ApPLICATION:
0 Conditional Use 0 Lot Line Adjustment 0 Text/Map Amendment
III Special Review 0 Conceptual PUD 0 Conceptual Historic Devt.
0 Design Review Appeal 0 Final PUD (& PUD Amendment) 0 Final Historic Development
0 GMQS Allotment 0 Conceptual SPA 0 Minor Historic Devt.
0 GMQS Exemption 0 Final SPA (& SPA Amendment) 0 Historic Demolition
0 ESA - 8040 GreenHne, Stream 0 Subdivision 0 Historic Designation
Margin, Hallam Lake Bluff, III Subdivision Exemption (includes 0 Small Lodge
Mountain View Plane condominiumization) ConversionlExpansion
0 Lot Split 0 Temporary Use 0 Other:
EXISTING CONDITIONS:
AspenhofCondominiums is a legally createdconfonning condominium complex located in the "Cooper Building" within the CC
Zone District comprising nine (9) residential units and commercial spaces. Currently nine (9) parking spaces are allotted to the
use of the nine (9) owners of residential units; the remaining spaces are leased. Approximately thirteen (13) parking spaces are
currently leased, Ownership of all 22 parking spaces is reserved in the Applicant separate and distinct from the Aspenhof
Condominiums.
PROPOSAL:
Applicant proposes to condominiumize and sell thirteen (13) parking spaces within and adjacent to the Aspenhof Condominiums
structure, including approximately ten (10) spaces along the North facing Alley Block 95, and three (3) spaces in the basement
(see enclosed condominium map.) Additionally, nine (9) units would be transferred to th,: Condominium Association for the use
of Condominium owners. No structural modifications are proposed or necessary. No change in use or location is proposed.
A TT ACHED PLEASE FIND:
IlIPre-Application Conference Summary
DAttachment #1, Signed Fee Agreement
DResponse to Attachment #2, Demensional Requirements Fonn
FEES DUE: $355.00
IlIResponse to Attachmf:nt #3, Minimum Submission Contents
IlIResponse to Attachmmt #4, Specific Submission Contents
DResponse to Attachment #5, Review Submission Contents
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CITY OF ASPEN
PRE-APPLICATION CONFERENCE SUMMARY
PLANNER:
Chris Bendon, 920.5072
DATE: 3.18,98
PROJECT:
REPRESENTATIVE:
OWNER:
TYPE OF APPLICATION:
DESCRIPTION:
Aspenhof condominiumization
John Kelly
John H. Cheek
Subdivision exemption for Condominiumization
Existing building has parking spaces not assigned to specific units. Owner wants to condo
spaces for sale purpose. Applicant should also be aware of parking requirements for the
cc Zone District and the Special Review process for reducing required number of spaces.
Land Use Code Section(s)
26.88.070 Condominiumization
26.32.030 Off-street parking requirements for CC Zone District
, .
26.64 Special Review
Public Hearing:
Referral Agencies:
Planning Fees:
ReferralAgency Fees:
Total Deposit:
Stafffor complete application, referral agencies for technical considerations, Community
Development Director for final approval. Special review is a hearing with the Commission
No.
Engineering (DRC)
Planning Flat Fee $245 (increases to $1080 deposit for a Special Review)
Engineering, minor ($110) ,
$355
Review by:
To apply, submit the following information:
,1. Total deposit for review of the application
2. Signed fee agreement
3. Proof of ownership
4. Applicant's name, address and telephone number in a letter signed by the applicant, which also states the name,
address and telephone number of the representative, Include street address and legal description of the property.
5. Summary letter explaining the request (existing conditions and proposed uses) and addressing the standards of
the Land Use Code sections listed above. . .
6. An 8 112" by 11" vicinity map locating the parcel within the City of Aspen.
7. Old (existing) plat if one exists. (from City Engineering or County Recorder)
8. Proposed plat from a registered land surveyor.
9, Copies of prior approvals (from City Clerk)
10. ..J-Copies of the complete application packet (items 3-9)
Process:
Apply. Planner reviews case for completeness and sends to Engineering. 1-2 weeks later plannefwill contact applicant
with the suggestions from Engineering for preparation of the Final Plat. The applieant's surveyor makes those changes
! and brings in 2 reproducible mylar copies to the planner. Planner reviews plat for consistency with Engineering
suggestions and the Director approves, approves with conditions, or denies application based on consistency with the
review criteria and technical considerations. Applicant then can record the final plat at the County Clerk and Recorder
(fee).
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CONDOMINIUM DECLARATION
FOR
ASPENHOF
KNOW ALL MEN BY THESE PRESENTS:
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THAT WHEREAS, JohnH. Cheek, Jr. and Aspen Construction Corporation, a Colo-
rado corporation, collectively hereinafter called "Declarant", the owners of the real
property described on the attached Exhibit "A", subject to the easements, reservations,
conditions and obligations as set forth therein, which Exhibit by this reference is made
a part hereof; and /'
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WHEREAS, Declarant desires to establish a condominium project under the Condo-
minium Ownership Act of the State of Colorado; and
,
WHEREAS, Declarant dOes her~by establish a plan for the ownership in fee simple
of the real' property estates consisting of the area or space contained in each of the air
space units in the building improvements and the co-ownership by the individual and
separate owners thereof, as tenants in common, of all of the remaining property, which
property is hereinafter defined and referred to as the general common elements;
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NOW THEREFORE, Declarant does'hereby publish and deelare that the following
terms, covenants, conditions,easements, restrictions, uses, limitations and obligations
shall be deemed to run with the land, shall be a burden and a benefit to Declarant, and
any person acquiring or owning an interest in the real property and improvements, their
grantees, su'ccessors, heirs, executors, administrators, devisees or assigns.
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1. Definitions, unless the context sh~ll expressly provide otherwise.
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(a) 'Unit' means an individual air space which is contained within the interior perim-
eter ,walls, floors, ceilings, windows and doors of each unit as shown on the Condominium
Map to be filed for record, together\vith all fixtures and improvements therein contained
but not including any of the structural components of the building, if any, located within
the unit.
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a.1 'Residential Unit' means a unit to ):Ie used for residential purposes.
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a.2 'Commercial Unit' means a unit to be used for commercial purposes.
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(b) 'Condominium Unit' ,means the fee simple i,:,terest and title in and to a unit to-
gether' with the undivided interest in the general common elements and the appurtenant
limited common elements thereto.
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(c) 'Owner'means a person, persons, firm, corporation, partnership, association
or other legal entity, or any combination thereof, who'own(s) an interest in one or more,
condominium units.
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(d) 'General Common Elements" means and includes the land described in Exhibit
"A", the structural components of the building and all othe r parts of the land and the
improvements whi~h are submitted to this condominium prnject and reasonably in com-
mon use, all of which shall be owned; as tenants in common, by the owners' of the sepa-
rate units, eaoh owner having an undivided interest in such general common elements
as provided hereinafter.
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'(f) 'Condominium Project' mean's all of the land and improvements submitted by
this Declaration.
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(e) 'Limited Common Elements' means those parts of the general common elements
which are ",ither limited to and reserved for the exclusive use of an owner of a condo-
minium unit or are limited to and r,eserved for the common use of mo're than one but
fewer than all of the condominium ~nits owners.
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(g) 'CemnlOn Expenses' means and includes expenses fer maintenance, repair,
eperatien, n1anagelnent and administration; expenses declared cemmen expenses by
the provisions ef this Declaration and the By-Laws ef the Cendeminium Asseciatien,
and all sums lawfully assessed against the gli!ltiifi':!li commen elements by the Beard of
Managers ef the Asseciatien.
(h) 'Asseciatien ef Unit Owners' er 'Asseciatien' means the Associatien fermed
as a Ce1erade not-fer'-prefit cerperatien bearing the name of this condeminium preject,
the Certificate of Incorperatien and By-Laws ef which shall govern the administration
ef this cendeminium preperty, the members ef whichAsseciatien shall be all ef the
owners ef the cendeminium units.
(i) 'Building' means the single building contairlJrig units as shown en the Map.
(j) 'Map', 'Condominium Mapl er 'Supplemental Map' means and includes the
engineering surv~y of the land depicting and,lecating thereen all ef the imprevements,
the fleer and elevation plans and any ether drawing er diagrammatic plan depicting a
part ef er all ef the imprevements and land.
2. .Map. The Map may be filed fer recerd in whele er in parts er sectiens, frem time
to, tirpe, as the stages ef censtruct:ien of the units and ether imprevements are substan-
tially completed. Each sect:ion of the Map filed subsequent to, the first er initially filed
Map shall be termed a Supplement to, such Map and the numerical sequence ef such sup-
plements shall be shown thereen. The Map er any part er sectien thereef depicting
units shall not be filed for recerd until the building in which the units are 1ecated has
been substantially cemp1eted in erder to permit the Ie cation thereef, both horizontally
and vertically. E<Lch such Map shall be fnedfer recerd prier to, the cenveyance ef a
condeminium unit to, a purchaser. . ~ach such Map shall depict and shew at least the
fellewing: The legal descriptien of the land and a survey thereef; the 10catien ef the ,
building(s); the fleor and elevation plans; the 1ecatien ef the unit within the building, beth'
he':izentally and vertically; the thickness ef the cemmen walls between or separating the i
units; the 10catien ef any structural cempenents or supperting elements ef a building
1ecated within a unit; and, the unit designatiens and the building symbel. The Map shall
cbntai;' the certificate ef a registeredprefessiena1 engineer '0,1' licensed architect:, er
both, certifying that the Map substantially depicts the 1ecatien and the herizenta1 and
vertical measurements ef the building, the units, the unit designatiens, the dimensiens
of the units, the e1evatiens ef the unfinished fleers and ceilings as censtructed, the build-
ing symbe1, and that such Map was prepared subsequent to substantial cemp1etien ef the
imprevements. Each supplemental and/er any amendment shall set ferth a like certifi-
cate when apprepriate. In interpreting the Map, the existing physical boundaries ef each
separate unit, as censtruct:ed, 'shall be cenclusive1y presumed to, be its beundaries.
Declarant reserves the right to, amend the Map, from time to, time, to, cenferm the same
according to, the actua11ecation of any of the construct:ed improvements and to establish,
vacate ~nd relocate easements, aClc~:ss road easements and on-site parking areas.
3. Division ef Preperty into Condeminium Units. The real property described in Exhibit
"A" and the imprevements thereon are hereby divided into the fee simple estates consist-'
ing of the separately designated units and the undivided percentage interest in and to, the'
general commen elements appurtenant to, each unit as is set forth on the attached Exhibit
"B", which by this reference is made a part hereef.
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Declarant reserves the right to, (i) physically cembine the space within ene unit
with the space within ene or more adjeining units. (ii) to, cembine a part of er combina-
tien ef parts ef the space within one unit with p~ "r~ ",. parts ef the space within ene 3r
Tore adioining units" and (iii)tn divide int-o,spn;:j l":=Itp ""ltc t~~ cnacp.of one unitr ~e
aggregate or divided undivided interests in the general commen elements resulting.
therefrom shall be reflected by an,amendment to, Exhibit liB II hereef and to the Map.
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4. Limited Common Elements. A portion ef the general cemrnen elements is reserved
for the. exclusive use ef the individual owners of the respective units, and such areas are
referred to as 'limited common elements'. The limited commen elements so, reserved
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shall be identified on the Map. All of the?"",i1~~~ ,()f~ondominium units in this condo_
minium project shall have a nan-exclusive ifghFfll'common with all of the other Owners
to Use of sidewalks,pathways, deck-walkways, arcade, elevator, stairways, halls,
roads and streets located within the, el;>tire condominium project. No reference thereto,
whether such limit~d common elements are exclusive or non-exclusive, need be made
in any deed, instrument of conveyanc~, or other instrument, and reference is made to
the provisions of paragraph 7 of this Declaration. '
5. Garage and Parking Areas. The basement garage area and ramp and other parking
spaces are not general common elements. Ownership, title' and control thereof shall re-
main with the Declarant; provided, however, that nine parking spaces in the basement
parldng garage area shall be under the control of the Association for use thereof by the
nine owners of the residential condom~nium units. The location of such nine parking
spaces shall be made "nd designated by the Declarant/and the location thereof may be
changed from time to#me; provided; 'however, that/there shaJ1 always be nine such
paces for the purposes provided her'~in. The nine basement parking garage spaces
eferred to herein, need not be depiCted on the Map.
6. Inseparability of a Condominium Unit. Each unit, the appurtenant undivided interest
in the general common elements and the appurtenant limited common elements shall to-
gethl;'r comprise one condominium unit, shall be inseparable and may be conveyed, leased,
de\[is~d or encumbered only as a condominium unit.
7. Description and Conveyance of a Condominium Unit. Subsequent to the filing of the Map
and the recording of the Declaration, every contract, deed, lease, mortgage, trust deed;
wil~ or other' instrument may legally describe a condominium unit by its identifying unit
designation, followed by the name of this condominium, with further reference to the Map ~
thereof filed for record and the recorded Declaration. Every such description shall be
good and sufficient for all purposes to sell, convey, transfer, encumber or otherwise
affect not only the unit but also the general common elements and ,the limited common
elements appurtenant thereto. Each such description shall be construed to include a non,
exclusive easement for ingress and egress to an owner's unit and use of all of the general
common elements together with the right to the us e of the limited common elements, sub-
ject to the easements, reservations', conditions, and obligations as provided in Exhibit "A"
and the terms, covenants, conditions"easements, restrictions, uses, limitations and obli-
gations contained in this Declaration and the Map. The initial deeds conveying each condo- ,
miniu'm unit may contain reservations, exceptions and exclusions which the Declarant'
deems to be consistent with and in the best interests of all condo,minium unit owners and'
the Association. .'
8. Separate Assessment and Taxation - Notice to Assessor. Declarant shall give writ-
ten notice to the Assessor of Pitkin County, Colorado, of the creation of condominium
ownership in this property, as is provided by law, so that each unit and, the undivided
interest in the general common elements appurtenant thereto shall be deemed a parcel
and subject to separate assessment and taxation.
9. Ownership - Title. A condominium unit may be held and owned in any real property
tenancy relationship recognized under the laws of the State of Colorado.
10. Non- Partitionability of General Common Elements. The general common elements
shall be owned in common by all of the owners of the units and shall remain undivided,
and ,no owner shall bring any action for partition or division of the general common ele-
ments. Nothing contained herein shall be construed as a limitation of the right of parti-
tion of a condominium unit between the owners thereof, but such partition shall not affect
any other condominium 'unit.
11. Use of General and Limited Common Elements. Each owner shall be entitled to
exclusive ownership and possession of his unit. Each Owner may use the general and
limited common elements in accordance with the purpose for which they are intended,
without hindering or encroaching upon the lawful rights of the other owners.
12. Use and Occupancy of Residential Units. The residential units as shown on the
Map shall be used and occupied by the owner, his family and their guests. The com-
mercial units may be used for such business and commercial purposes allowed by the
c'ity of Aspen; Colorado.
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Declarant and Declarallt's en1 eSi rel:iresentabvcs, agents and contractors may
maintain a business and sales offke,' construction facilities and yards, model units
and other developer's facilities ne'cessary or required durin:g the const'ruction and
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sales periods. The Managing Agent may maintain an office in one of the units in the
condominium project for the purpose of managing the condominium units within this
condominium project.
13. Easements for Encroachments. If any portion of the general common elements
encroaches upon a unit or units. a valid easement for the encroachment and for the
maintenance of same. $0 long as it stands, shall and does exist. If any portion of a
unit encroaches upon the general c,ommon elements, or upon an adjoining unit or units.
a valid easement 'for the encroachment and for the maintenance of same, so long as it
stands, shall a'nd does' exist. Such encroachments and easements shall not be ,considered
or determined to be encumbrances either on the gel}era1 common elements or on the units
for purpos es of marketability of title.
14. Termination of Mechanrc's Lien Rights and Indemnification. Subsequent to the com-
pletion of the improvements described on the Map, no labor performed or materials fur-
nished and incorporated in a unit with the cons ent or at the request of the unit owner, hi~
agent, his contractor or subcontractor shall be the basis for filing of a lien against the
uni,t of any other unit owner not expressly consenting to or re!'juesting the same, or against
tJ,e general common elements. Each owner shall indemnify a.nd hold harmless each gfthe
other owners from and against all liability arising from the claim of any lien against the
unit of any other o'wner or against the general common elements for construction performeG
or for labor, materials, services or other products incorporated in the owner's unit at
s\lch owner"s request. The provisions herein contained are subject to the rights of thE'!
Managing' Agent or Board ()f Managers of the Association as set forth in paragraph 17.
15. Administration and Management. The administration and management of this con~o-
minium property 'sh~ll be' governed by the By~Laws of the Association. An owner of a
condominium unit. upon becoming an OWner, shall be a member of the Association and
shall remain a member for the pei-iod of his ownership. The As sociation shall be initially
, governedby a B~ard of Managers as is provided in the By-Laws of the Association. Tile
Association 'may delegate by written agreem~nt any of its duties, powers ,and functions to
an'y person or firm to act as Managing Agent at an agreed compensation.
16. Certificate of Identity. There shall be recorded from time to time a Certificate of
Identity and the addresses of the persons then comprising the management body (Managers
nlid Officers) together with the identity and address of the Managing Agent. if any. Sneh
Certificate shall be conclusive evidence thereof in favor of any person relying thereon in
good faith regardless of time elapsed since date thereof. The first such Certificate shall
be recorded on or before ninety (90) days after recording this Declaration.
17. Reservation for Access - Maintenance, Repair and Emergencies. The owners shall
have the irrevocable right. to be exercised by the Managing Agent or Board of Managers
of the Association, to have access to each unit from time to time during reasonable hours
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as may be necessary for the maintel}ance, repair or replacement of any of the general
common elements therein or accessible therefrom, or for making emergency repairs
therein necessary to prevent damage to the general common elements or to another unit.
Damage tothe inte~ior or any part of a unit resulting from the maintenance, repair.
emergency repai~ or replacement' of any of the general common elements or as a result'
of emergency repairs withill another' unit, at the instance of the Association, shall be a'
common expense of all of the owners; provided, however, that if such damage is the re-i
suIt of the misuse or negligence of a unit owner, then such \lnit owner shall be responsible
and liable for all of suchdar:nage. All damaged improvements shall be restored substan-
tially to the same condition in which they existed prior to the damage. All maintenance,
repairs and replacements as to the general common elements" whether located inside or
outside of units (unless necessitated by the negligence or misuse of a unit owner, in which
case such expense shall be charged to such unit owner), shall be the common expense of
all of the owners. '
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18. Owner's' Maintenance Respon'sibility. For purposes o{m,aintenance, repair, altera'-
tion and remodeling,an owner s~'i'llbe deemed to own the interior non-supporting walls,
the'materials (such as, but not 1irpited to, plaster, gypsum d'ry wall, paneling, wallpaper,
paint. wall and floor tile and floorin:g, but not including the sub-flooring) making up the
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finished surfaces of the perimeter walls, ceiJingS~11~, floors within the unit, including
unit doors and windows. The OW11er shall not"be dce'rned to own lines, pipes, wires,
conduits or systems (which for brevity arc herein and hereafter referred to as utilities)
running through his unit which serve one or more other units except as a tenant in com-
n10n with the other owners. "Such utilities shall not be disturbed or relocated by an owner
without the written consent and approval of the Board of Managers. Such right to repair,
alter and remodel is coupled with the obligation to replace any finishing or other materials
rernoved with similar or other types or kinds of materials. An owner shall maintain and
keep in repair the interiol" of his own unit, including the fixtures thereof. All fixtures
and equipment installed within the unit commencing at a point where the utilities enter
the unit shall be maintained and kept in repair by the owner thereof. An ,owner shall do
no a,ct nor any work that will impair the structural soundness or integrity of the building
or impair any easement or hereditament. All other maintenance or repairs to any limited
common elements, except as caused or yermitted by/the owner's negligence, misuse or
neglect thereof, shall be a common expense of all of the owners.
19. Compliance with Provisions of Declaration, By-Laws of the Association. Each
own'er shall comply strictly with the provisions of this Declaration, the Certificate of
Incorporation and By-Laws of the As sociation, and the decisions and resolutions of the
Association adopted pursuant thereto as the same may be lawfully amended from time
to time. Failure to comply with any of the same shall be grounds for an action to recover
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sUrr)s,due, for damages or injunctive relief or both, and for reimbursement of all attorney's
fees incurred in connection therewith, which action shall be m,aintainab1e by the Managing
Agent or Board of Managers in the name of the Association on behalf of the owners or, in
a proper cas,e, by an aggrieved owne~.
20., R~"ocation or 'Amendment to De~laration. This DeelaraH'on shall not be revoked
un1",ss all of the owners and all of tpe holders of any recorded mortgage or deed of trust
cov~ring or affecting any or all of the condominium units unahimously consent and agree i
to such revocation by instrument(s)' duly recorded. This Declaration shall not be amended
unless the owners representing an aggregate ownership interest of sixty percent, or more, '
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of the general common elements and all of the holders of any recorded mortgage or deed i
of trust covering or affecting any or all condominium units consent and agree to such '
amendme,nt by instrument(s} duly recorded; provided, however, that the percentage of the
undivided ,interest in the general common elements appurtenant to each unit, as expres sed
in this Declaration, ,shall have a permanent character and shall not be altered without
the consent of all of the unit owners expressed in an amended Declaration duly recorded,
and provided, further, that revocation of this Declaration shall always require the consent
of all of the qwners.
21. Additions, Alterations and Improvements of General and :Limited Common Elements.'
There shall be no additions, alterations or improvements of or to the general and limited
common elements by, the Association requiring an expenditure in excess of Two Thousand
Dollars {which sum shall be allocated according to each owner's percentage interest in
the general common elements} in anyone calendar year without prior approval of a majority
of the owners, and such expenditure(s} shall be a common expense. Such limitation shall
notbe applicable to the replacement, repair, maintenance or obsolescence of any general
or limited common element or comrrlon personal property.
22. Assessment for Common Expenses. All owners shall be obligated to pay the assess-
ments, either estimated 01' actual, imposed by the Board of Managers of the Association
to meet the common expenses. The assessments shall be madeaccording to each owner's
percentage interest in and to the general common elements. The limited common ele-
ments shall be maintained as general common elements, and owners having exclusive
use thereof shall not be subject to any special charges or assessments for the repair
01' maintenance thereof. Assessments for the estimated common expenses shall be due
in advance on the first day of each calendar quarter, or more frequently as may be
determined by the Board 'of Managers or Managing Agent. The Managing Agent or Board
of Managers shall prepare and deliver or mail to each owner a statement'for the esti-
mated or actual c'ommon expenses.
: In the event the ownership of a condominium unit, title to which is derived from
De:clarant, commence's on a day 'other than the first day of the assessment period, the
assessment for that period shall be prorated.
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The assessments made shall be basecl\lp5nmgc'a~hrequirements deemed to be such
aggregate sum as the Managing Agent, or if there is no Managing Agent, then the Board.
of Managers of the Association, shall from time to time determine is to be paid by all of
the condominium unit owners, including Declarant, to provide for the payment of all :
estimated expenses growing out of or connected with the maintenance, repair, operation',
additions, alterations and improvements of and to the general common elements, which
sum may include, but shall not be'litnited to, expenses of management; taxes and special G
assessments until separately assessed; premiums for fire insurance with extended coverag. i
and vandalism and malicious mischief with endorsements attached issued in the amount ,
of the maximum replacement value of all of the condominium units (including .all fixtures; ,
interior walls and partitions; decora'ted and finished surfaces of perimeter walls, floors
and ceilings; doors, windows and other elements or materials comprising a part of the
units); casualty and public liability and other insurance prerriiums; landscaping and care.
of grounds; common lighting and heating; repairs<j.nd renovations; trash and garbage
collections; wages; common water and sewer charges; legal and accounting fees; manage-
ment and rental fees; expenses and liabilities incurred by the Managing Agent or Board
of Managers on behalf of the unit owhers under or by reason of this Declaration and the
By-Laws of the Assodation; for any deficit remaining from a previous period; the creation
ofa reasonable contingency, reserve, working capital and sinking funds as well as other
costs and expenses relating to the :genera1 common elements. The omission or failure
of1:he Board of Managers to fix the assessment for any period shall not be deemed a waiv"r
modification or a release of the owners from thelr obligation to pay the same. The Asso-
ciation may require each owner to deposit and maintain with the Association an amount
equal to one quarterly estimated assessment for use. as working capital.
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23. Insurance. The Managing Agent, or if there is no Managing Agent, then the Board
of Managers of the Association; shall obtain and maintain at a,ll times insurance of the
type and kind provided hereinabove and including for such other risks, of a similar or
dissimilar nature, as are or shall' hereafter customarily be covered with respect to other
condominium buildings, fixtures, equipment and personal property, similar in construc-
tion, design and use, issued by responsible insurance companies authorized to do business
inthe State of Colorado. The insur'ance shall be carried i,n blanket policy form naming
the Association the insured, as attorney-in-fact for all of the condominium unit owners,
which policy or policies shall identify the interest of each condominium unit owner (owner's
name, unit number, building designation), and which policy or policies shall provide a
standard, non-contributory mor'tgagee clause in favor of each first mortgagee. It shall
also provide that the policy cannot be cancelled until after ten days prior written notice is
first given to each owner and each first mortgagee. The Managing Agent, or if there is
no Managing Agent, tJien the Doard of Managers, shall also obtain and maintain, to the
extent obtainable, public liability insurance in such limits as may from time to time be,
determined, covering each unit owner, each member of the Board of Managers, the
Managing Agent, and the resident manager. Such public liability coverage shall also
cover cross liability claims of one insured against another' and shall contain waivers
of subrogation. Each owner may obtain additional insurance .at his own expense for his
own benefit provided that all such p'olicies shall contain waivers of subrogation and
provided, further, that the liability of the carriers issuing insurance shall not be affected
or diminished by reason of any such insurance carried by any unit owner.
Insurance coverage on the furnishings and other items of personal property belonging
tO,an owner and casualty and public liability insurance coverage Within each individual
unit shall be the responsibility of the owner thereof.
24. . Owners' Personal Obligation for Payment of .Assessments. The amount of the common
expenses assessed against each condominium unit shall be the personal and individual debt
of the owner,thereof. No owner may exempt himself from liability for his contribution
towards the common expenses by waiver of the use, or enjoyment of any of the common
elements or by abandonment of his unit. Both the Board of Managers and Managing Agent
shall have the responsibility to take prompt action to collect any unpaid assessment which
remains unpaid mo,:" than 15 days f~om the due date for payment thereof. In the event of
default in the ,payment of the' assessment, the unit owner shall be obligated to pay interest
at. the rate of twelve per cent per annum on the amount of the as ses sment from due date
thereof, together with all expenses,,' including attorney's fees, incurred together with
iJch latechargesas pro'lided by th~:By..La\Vs of the Association.. Suit to recover a
money judgment for unpaid common 'expenses shall be mainta},nable without foreclosing
waiving the,lie'nsecuring same,
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25. Asscssmcnt Lien. All sums assessed 'but unpaid for the share of common expenses
chargeable to any condominium unit shall constitute,a lien on such unit superior to all
other liens and encumbrances, except only for tax and special assessments liens on the'
unit in favor of any.assessing unit, and all sums unpaid on a first mortgage or first deed
of trust of record, 'including all unpaid obligatory sums as may be provided by such en-
cumbrance. 'To evidence such lien, the Board of Managers or the Managing Agent shall
prepare a written notice of lien assessment setting forth the amount of such unpaid in-
debtedness, ,the amount of the accrued interest and late charges thereon, the name of
the owner of the condominium unit and a description of the condominium unit. Such a
notice shall be signed by one of the Board of Managers or by one of the officers of the
Association or by the Managing Agent and shall be recorded in the office of the Clerk
and Recorder of the County referred to in Exhibit "A". Such lien shall attach from the
due date of the 'assessment. Such: lien may be enforced by the foreclosure of the default-
ing owner's condominium unit by the Association in like manner as a mortgage on real
property upon the recording of a notice or claim thereof. In any such proceedings the
owner shall be required to pay the costs, expenses and attorney's fees incurred for filing
the lien, and in the event of foreclosure proceedings" all additional costs, all expens es
and reasonable attorney's fees incurred but not less than the amount recommended by
the Bar Association of said County according to the then current published and recommen-
ded fee schedule for foreclosure proceedings (for foreclosure proceedings through Court).
The,owner of the condominium 'unit being foreclosed shall be required to pay to the Asso-
ciation the monthly assessment for the condominium unit during the period of foreclosure,
and the Association shall be entitled to a receiver to collect the same. The Association
shall have the power to bici in the condominium unit at foreclosure or other legal sale
and to acquire and hold, lease, mortgage, vote the votes appurtenant to, conveyor
otherwise deal with the same. Any encumbrancer holding a lien on a condominium unit
may pay, but shall not be required to pay, any unpaid common expenses payable with
respect to such unit, and upon such payment such encumbrancer shall have a lien on
such unit for the amounts paid of the same rank as the lien of his encumbrance without
th'e necessity of having to record a notice or claim of such lien. Upon request of a
mortgagee, the Association shall report to the mortgagee of a condominium unit any
unpaid assessments remaining unpaid for longer than' twenty..five days after the same
are due; provided, however, that a mortgagee shall have furnish,ed to the Managing Agent
or to the Board of Managers notice of such encumbrance.
26. Liability for Common Expense Upon Transfer of Condominium 'Unit is Joint. Upon
payment to the Managing Agent, or if there is no Managing Agent, then to the Board of
Managers of the Association, of a reasonable fee not to exceed Twenty-Five Dollars,
and upon the written request of any owner or any mortgagee or prospective mortgagee
of a condominium unit, the Ass ociation, by its Managing Agent, or if there is no Managing
Agent, then by the financial officer of the Association, shall issue a written statement
setting forth the amount of the unpaid common expenses, if any, with respect to the subject
unit, the amount of the current monthly assessment and the date that such assessment
becomes due, credit for any adva,nced payments of common assessments, for prepaid
items, s;:'ch as insurance'premiums', but not including accumulated amounts for reserves
or sinking funds, if any, which statement shall be'conclusive upon the Association in '
favor of all persons who rely thereon in"good faith. Unless such request for a statement
of indebtedness shall be complied !with within ten days, all unpaid common expenses
which become due prior fo the date of making such request shall be subordinate to the
rights of the person requesting su~h statement. The grante'e of a condominium unit shall
be jointly and severally liable ,with the grantor for all unpaid assessments against the
latter for the unpaid common assessments up to the time of the grant or conveyance,
without prejudice to the grantee's right to recover from the grantor the amounts paid
by the grantee therefor; provided, however, that upon payment of a reasonable fee not
t,o exc;:eed Twenty-Five Dollars, as is provided hereinabove, and upon written request,
any such prospective grantee shall he entitled to a statement from the Managing Agent,
or if there is no Managing Agent, then from the Board of Managers of the Association,'
setting forth the amount of the unpaid assessments, if any, ~vith respect to the subject
condominium unit, the amount of the ,current monthly assesslCnent, the date that such
assessment becomes due, and credits for any advanced payrnents of common assess-
ments, prepaid items, such' as insurance premiums, which'statement shall be conclu-
sive upon the Association. Unless such request for such a statement shall be complied
with within ten days after such request, then such requesting grantee shall not be liable
fo'r, nor shall the unit conv,eyed be subject to a lien for any unpaid assessments against
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the subject unit. The provisions set'forth in this paragraph shall not apply to the initial
sales and conveyances of the condominium units made by Declarant, and such sales shall
be free from all common expenses to the date of conveyance made or to a date as agreed
upon by Declarant and Declarant's grantee.
~
27. Mortgaging a Condominium Unit - Priority. An owner she,ll have the right from
time to time to mortgage or encumber his interest by deed of trust, mortgage or other
sec,irity instrument. A first mortgage shall be one which 'has first and paramount priori~,y
under applicable law. The owner of a condominium unit may create junior mortgages,
liens or encumbrances on the following conditions; (1) that any such junior mortgages
shall always be subordinate to all of the terms, conditions, covenants, restrictions, uses,
limitations, obligations, lien for common expenses, and other obligations created by this
Declaration, the Certificate of Incorporation and the By-Laws of the Association; (2)
that the mortgagee under any junior mortgage shall release, for the purpose of restora-
tion of any improvements upon the mortgaged premifi'es, all of his right, title and interest
'in ard to the proceeds under all insurance policies upon saidpremises by the Association.
Such release shall be fur,nished forthwith by a junior mortgagee upon written request of
one or more of the members of the Board of Managers of the Association, and' i~ such
requ.est is not granted, such release may be executed by the Association as attorney-in-
fact'for such junior mortgagee.
28., Association as' Attorney-in-Fact. 'J'his Declaration does hereby make mandatory
the irrevocable a,ppointment of an atto,rney-in-fact to deal with the property upon its
destruction, for repair, reconstruction, or obsolescence.
Title to any condominium unit is declared and expressly made subject to the terms
and' conditions h<;:reof, and acceptance by any grantee of a deed or bther instrument of
conveyance from the 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 their true and lawful attorney in their name, place and stead for
the purpose of dealing with the property upon its destruction or obsolescence as is here-
inafter provided. As attorney-in-fact, the Association, by its President and Secretary
or ,Assistant Secretary, shall have full and complete authorization, right and power to
make, execute and ,deliver any contract, deed or any other instrument with respect to
the interest of a condominium unit owrier which are necessary and appropriate to exercise
thepowers herein granted. Repair and reconstruction of the impr-ovement(s) as used in
the succeeding subparagraphs means restoring the improvement(s) to substantially the
same condition in which they existed prior to the damage, with each unit and the general
and limited common elements having substantially the' same vertical and horizontal
boundaries as before. The proceeds of any insu'rance collected. shall be available to
the Association for the purpose of repair, restoration, reconstruction or replacements
unless the owners and all first mortgagees agree not to rebuild in accordance with the'
provisions set forth hereinafter.' , ,
(a) ,In the event of damage or destruction due to fire or other disaster, the insurance
proceeds, if sufficient to reconstruct the improvement(s), shall be applied by the Asso-
ciation, as attorney-in-fact, to such reconstruction, and the im,provement(s) shall be
promptly repaired and reconstructed. The Associ~tion shall have full authority, right
and power, as attorney-in-fact, 'to cause the repair and restoration of the improvements.
, (b) If the insurance proceeds are ii1.i3ufficicnt to repair and reconstruct the improve-
ment(s). and if such damage is not more than sixty per cent of all of the condominium
units (the whole property). not including' land, such damage or destruction shall be
promptly r~paired and reconstructed by the Association, as attorney-in-fact, using the
proceeds of insurance and the proceeds of an assessment to be made against all of the
owners and their condominium units. Such deficiency assessment shall be a common
expense and made pro rata, according to each owner's percentage interest in the general
common elements 'and shall be due and payable within thirty days after written notice
thereof. The Association shall have full authority, right and power, as attorney-in-fact,
to cause the repair or restoration of the improvement(s) using all of the insurance proceeds
for such purpose notwithstanding the failure of an owner to pay the assessment. The
as Sessment provided for herein shall be a debt of each owner and a lien on his condo-
minium unit and may be enforced and collected as is provided in paragraph 25. In addition
thereto, the Association, as attorney~in-fact, shall have the absolute right and power to
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sell the condominium unit of any owner :refusing or failing to pay such d~ficiency assess-
ment within the time provided, and if not so paid, the Association shall cause to be
recorded a notice that the condominium unit of the delinquent owner shall be sold by the
Association, as attorney-in-fact, pursuant to the provisions of this paragraph. The
delinquent owner shall be required to pay to the Association the costs and expenses for
filing the notices ,interest at the rat~ of eight per cent per annum on the amount of the
assessment and all reasonable attorney's fees. The proceeds derived from the sale of
such condominium unit shall be used and disbursed by the 'Association, as attorney-in-
fact, in following order:
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(I) For payment of taxes and special assessments liens in favor of any assessing
entity and the customary expense of sale;
(2) For payment of the balance of the lien at any first mortgage;
(3) For payment of unpaid common expen~es and all costs, expenses and fees
incurred by the Association;
(4) For payment of junior' liens and encumbrances in the order of and to the
extent of their priority; and
(5) The balance remaining, if any, shall be paid to 'the condominium unit owner,
'(c) If the insurance proceeds are insufficient to repair and reconstruct the damaged
improvement(s), and if such damage is more than sixty per cent of all of the condominium
units (the whole property), not including land, and if the owners representing an aggregate
ownership interest of fifty-one per cent, or more, of the gen,eral common elements do not
voluntarily" within, one hundred days thereafter, make provisions for reconstruction, which
plan must have the unanimous approval or consent of every first mortgagee, the Associa-
tion shall forthwith record a notice setting forth such fact or facts, and upon the record-
ing of such notice by the Association's President and Secretary or Assistant Secretary,
the entire remaining premises shall be sold by the Association pursuant to the provisions
of this paragraph, as attorney-in-fact for all of the owners, free and clear,of the pro-
visions contained in this Declaration, the Map and the By-Laws'. The insurance settle-
ment proceeds shall be collected by the Association, and such proceeds shall be divided
by the Association according to each owner's percentage interest in the general common
elements, and such divided proceeds shall be paid into separate accounts, each such
account representing one of the condominium units. Each such account shall be in the
name of the Association, and shall be .further identified by the condominium unit designa-
tion and the name of the owner. From each separate account'the Association, as attorney-
,in-fact, shall forthwith use and di'sburse the total amount (of each) of such accounts, with-
out contribution from one account to another, t,oward the partial or full payment of the
lien of any first mortgage against the condominium unit represented by such separate
account. Each such account shall be 'supplemented by the apportioned amount of the pro-
ceeds obtained from the sale of the entire property. Such apportionment shall be based
upon each condominium unit owner's percentage interest in the general common elements.
The total funds of each account shall be used and disbursed, without contribution from
one .account to another, by the Association, as attorney-in-fact, for the' same purposes
and in the same order as is provided in subparagraph (b) (I) through (5) of this paragraph. '
If the owners representing an aggregate ownership interest of fifty-one per cent, or
more, of the general common elements adopt a plan for reconstruction, which plan has
the una,nimous approval of all first mortgagees, then all of the owners shall be bound by
th" terms and other provisions of such plan. Any assessment made in connection with
such plan shall be a common expense and made pro rata according to each owner's per-
centage interest in the general common elements and shali be due and payable as provided
by the terms of such plan, but not sooner than thirty days after written notice thereof.
The Association shall have full authority, right and power, as attorney-in-fact, to cause
the repair or restoration of improvements using all of the insurance pI'oceeds for such
purpose notwithstanding the failure of an owner to pay the assessment. The assessment
provided for herein shall be a debt of each owner and a lien on: his condominium unit and
may be enforced and collected as is provided in paragraph 25. In addition thereto, the
Association, as attorney-in-fact, shall have the absolute right and power to sell the con-
dominium unit of any owner refusing or failing to pay s'uch as ses sment within the time
provided, and if not so paid,the Association shall cause to be recorded a notice that the
condominium unit of the delinquent owner shall be sold by the Association. The delinquent
owner shall be required to pay to the Association the costs and expenses for filing the '
notices, interest 'at the rate of eight per cent per a!lnum, on the amount of the assessment
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and all reasonable attorney's fees. The proceed;; derived from the sale of such condo-
minium unit shall be used and disbursed by the Association, as attorney-in-fact, for the
same purposes and in the same order as is provided in subparagraph (b) (I) through (5)
of th.is paragraph.
(d) The owners representing an aggregate ownership interest of eighty per cent, or
more, of the general common elements may agree that the gen,eral common elements are
obsolete and adopt a plan for the renewal and reconstructiqn, which plan has the unani-
mous approval of all first mortgagees ,of record at the time of the adoption of such plan.
If a plan for the renewal or reconstruction is adopted, notice of such plan shall be recorded,
and the expense of renewal and reconstruction shall be payable by all of the owners as
common expenses; provided, however, that an owner not a party to such a plan for re-
newal or reconstruction may give written notice to the Association within' fifteen (l5) days
after the date of adoption of such plan that such unit,sh.all be purchased by the Association
for the fair market value thereof. TheAssociatici~ shall then have thirty days (thereafter)
within which to cancel such plan. , 'If such plan is not cancelled,' the condominium unit of
the requesting owner shall be purchased according to the following procedures. If such
owner and the Association can agree on the fair market value thereof, then such sale shall
be consummated ,within thirty days thereafter. If the parties are unable 'to agree, the date
when either party notifies the other that he or it is unable to agree with the other shall be
the '''commencement date" from which all periods of time mentioned herein shall be
m'easured. Within ten days following the commencement date, ea'ch party shall nominate
in writing (and give notice of such nomination to the other party) an appraiser. If either
party fails to make such a nomination, the appraiser nominated shall, within five days
after default by the other party, appoint and as sociate with him another apprais er. If the
two designated or selected appraisers are unable to agree, they shall appoint another
appraiser to be umpire between them, if they can agree on such person. If they are unable
to agree upon such umpire, each appraiser previously appointed shall nominate, two
appraisers, and from the names' of the four appraisers so nominated one shall be drawn
by lot by any judge of any court of record in Colorado, and the name so drawn shall be
,
such umpire. The nominations from whom the umpire is to be draWl} by lot shall be
submitted within ten days of the failure of the two appraisers to agree, which, in any
event, shall not be later than twenty days following the appointment of the second appraiser.
The decision of the appraisers as tb the fair market value, or in the case of thei I' dis-
'agreement, then such decision of the,umpire, shall be final and binding. The expenses
and fees of such appraisers ,shall be borne equally by the Association and the owner. The
sale shall be consummated within fifteen days thereafter, and the Association, as attorney-
in-fact, shall disburse such proceeds for the same purposes and in the same orde r as is
provided in subparagraph (b) (l) tHrough (5) of this paragraph, except as modified herein.
(e) The owners representing an aggregate ownership interest of eighty-five pe I' cent,
or more, of the general common elements may agree that the condominium units are
obsolete and that the same should be sold. Such plan must have the unanimous approval
of every first mortgagee. In such instance, the Association shall forthwith record a
notice setting forth such fact or facts, and upon the re'cording of such notice by the Asso-
ciation's President and Secretary or Assistant Secretary, the entire premises shall be
sold by the Association, as attorney-in-fact for all of the owners, free and clear of the
provisions contained in,this Declaration, the Map and the :By-Laws. The sales proceeds
shall be apportioned between the owners on the'basis of each owner's percentage interest
in the general common elements, and such apportioned proceeds shall be paid into
separate accounts, each such account representing one condorninium unit. 'Each such
account shall be in the name of the Association, and shall be'further identified by the
condominium unit designation and the name of the owner. From each separate account
the Association, as attorney-in-fact, shall use and disburse the total amount (of each) of
such accounts, without contribution from one account to anoth,er, for the same purposes
and in the same order as is provided in subparagraph (b) (1) through(5) of this paragraph.
29. Personal Property for Common Use. The Association, as attorney-in-fact for all
of the owners, may acquire and hotdfor the us e 'and benefit of all of the condominium
unit own,ers, real, tangible and intangible personal property and may dispose of the same'
by sale or otherwise. The beneficial interest in any such property shall be owned by all
of ,the condominiu!,!, unit ownersin'the same proportion as their respective interests in
the general common elements, and such interest therein shall not be transferable except
with a conveyance of a cond,ominium unit., A conveyance of a condominium unit shall
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'; ''.-''18[er to the gra,('), ownersllip of t11.e grantor I s b0ficial interest in such property
without any reference thereto in the deed. Each owner may USe such property in accord.
ance with the purpose for which it is intended without hindering or encroaching upon the
lawful rights of the other owners. The transfer of title to a condominium unit under
foreclosure shall entitle the purchaser to the beneficial interest in such personal property
as sociated with the foreclosed condominium unit.
30. Registration of Mailing Address. Each owner shall register his mailing address
with ,the Association, and notices or demands intended to be served upon an owner shall
be sent by mail, postage prepaid, addressed in the name of the owner at such registered
mailing address.
31. Period of Condominium Ownership. The separate condominium estates created by
this' Declaration and the Map shall continue until this Declaration is revoked in the manner
and as is provided in paragraph 20 of this Declaratio~or until terminated in the manner
and as is provided in subparagraph (c) or (e) of para'graph 28 of this Declaration.
32. General Reservations. Declarant ,reserves the right to install signs identifying the
buildings and the right to grant to occupants of the commercial units the right to install
signs (on the general common elements) for 'identification purposes; provided, however,
that \,11 signs shall comply with any applicable ordinances of Aspen, Colorado. In addition,
Decl,nant reserves the right to establish easements, reservations, exceptions and exclu-
sioI).s consistent with the condominium; ownership of the condominium project and for the
best interests of the condominium unit; owners and the As sociation in order to serve the
entire condominium project.
33. General.'
(a) If any of the provlslons of this Declaration or any paragraph, sentence, clause,
phrase or word, or the application thereof in any circumstance be invalidated, such in-
validity shall not affect the validity of the remainder of this Decla.ration, and the applica-
tion of any such provision, paragraph, sentence, clause, phrase or word in any other
circumstances shall not be affected thereby.
(b) The provisions of this Declaration shall be in addition to and supplemental to the
Condominium Ownership Act of the State of Colorado and to all other provisions of law.
(c) That whenever used herein, unless the context shall otherwise provide, the
singular number shall include the plural, the plural the singular, and the use of any
gender shall include all genders.
IN WITNESS WHEREOF, Declarant has duly executed this Declaration this
day of November , 1970.
.:? 77.1i
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STA:T')E\5~:'G:o:i;9RADO ) ss
City andCoUhty,6f Denver )
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J eek, Jr.
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ASPEN CONSTR UCTI'UN CORPORATION
B0~ /2, 1L.~ ; a=.
;/ John~. Huebinger, Pr~de ,
,j.e.
The above and foregoing instrument was acknowledged before me this :l 77-'1
day of November , 1970, by John H. Cheek, Jr. and John B. Huebinger as
President and y"J',ris J. .^.11i68n as Assistant Secretary of Aspen Constru, ction
.' tPB$.le7" k/. C4/..vC
CorporatlOn, a Colorado corporation.
Witness my hand and official
MyComm'ission expires:
seaL
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eL (J'~ae~
Notary Public , '
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EXHIBIT "A"
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The Easterly 23.75 feet of Lot N, all of Lots 0 and P, and the Westerly 28.25 feet of
Lot Q, Block 95, City and Townsite of Aspen, County of Pitkin, State of Colorado,
subject to easements for overhanging eaves of the building adjoining the Easterly
line of subject property and the right to,'permit snow and water removal therefrom
upon the subject property, as reserved by instrument recorded in Book 186, Page
354; easement for placement of a fuel tank at the Northerly end of said Lot Q, pro-
vided that the owners of said Lot Qmay relocate said tank at their own expense, as
'rcserved by instrument recorded in Book 186, Page 354; subject to the rights of the
owners of the property adjoining the subject property/on the West arising from the
existence of a party wall as described in Agreement in Warranty Deed recorded in
Book 243, Page 279; conditions and obligations of agreements and reservations in
Book 183, Page 292" Book Zll, Page 493, Book 240, Page 805; reservation for 30
years of an area on the North end of the subject property to accommodate the park-
ing of 5 standard size automobiles by instruments recorded irt Book 211, Page 493
and Book 240, Page 805, subsequently amended by instrument :~ecorded in Book 247,
Page480, providing for an area 18 feet by 50 feet on the North end of the subjeCt
property.
EXHIBIT "B"
Type of Unit
Unit
Number
Appurtenant Undivided
, , Interest (Percentage)
Commercial
Comme rcial
Commercial
Commercial
Commercial
Commercial'
Comme rcial
Commercial
Commercial,
Commercial
RB-l
C-l
C-2
C-3
C-4
C-5
C-6
C-?
C-8
C-9'
11. 8956
6.7181
4.0168
9.1822
2.8328
3. 0126
2. 9121
7.0294
, 4.3806
4.8201
Residential
Residential
Residential
Residential
Resideritial
Residential
Residential
Residential
Residential
301
302
303
304
305
306
402
403
406
5.3621
4.5189
4.5189
5. 3621
5.3621
4.5189
4.5189
4.5189
4.5189
100.0000%