HomeMy WebLinkAboutLand Use Case.220 W Main St.0019.2005.ASLU
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City of Aspen Community Development Dept.
CASE NUMBER
0019.2005.ASLU
PARCEL 10 NUMBER 2735-12-4-40-008
PROJECT ADDRESS 220 W MAIN ST
PLANNER
JAMES
LINDT
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CASE DESCRIPTION SUBDIVISION EXEMPTION - EXISTING TWO STORY BUILDING.
REPRESENTATIVE CURTIS B SANDERS 925-6300
DATE OF FINAL ACTION 6/3/2005
CLOSED BY Denise Driscoll
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City IASPEN Slato[C(l3 Zip 181611
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ApPLICANT:
ATTACHMENT 2 -LAND USE APPLICATION
A~pen M::iin. LLP
220 West Main Street, Aspen, CO 81611
(Indicate street address, lot & block number, legal description where appropriate)
2735-124-40008
Name:
Location:
ParcellD # (REQUIRED)
REPRESENTATIVE:
Curtis B. Sanders
Name:
Address:
Phone #:
925-6300
201 North Mill Street, Suite 201, Aspen, CO 81611
PROJECT:
Address:
AAppn M;::lin Off; ("P. r.onnominil1IDR
Name:
220 West Main Street. Aspen. CO 81611
Phone#: Attn: Cheryl L. Schmidt (970) 925-1677
TVPE OF APPLICATION: (please check all that apply):
o Conditional Use
o Special Review
o Design Review Appeal
o GMQS Allotment
o GMQS Exemption
o ESA - 8040 Greenline, Stream
Margin, Hallam Lake Bluff,
Mountain View Plane
o Lot Split
o Lot Line Adiustment
o Conceptual PUD
o Final PUD (& PUD Amendment)
o Conceptual SPA
o Final SPA (& SPA Amendment)
o Subdivision
!Xl Subdivision Exemption (includes
condominiumization)
o Temporary Use
o Text/Map Amendment
EXISTING CONDITIONS:
o Conceptual Historic Devt.
o Final Historic Development
o Minor Historjc Devt.
o Historic Demolition
o Historic Designation
o Small Lodge Conversion!
Expansion
o Other:
rovals, etc.)
Existing two story building. with subgrade space and off-street parking.
s, uses, modifications, etc.)
Arp' j ~!::Int- p,.-nprHH:>c ,..nnuQ.rr;ng t1bt:> hll; 1 cling int-n .Q rnnnnm;n;11m fnrm of m.rnprAnip_
FEES DUE: $ ~/ 157 ()()
Have you attached the following?
~ Pre-Application Conference Summary
~ Attachment # I, Signed Fee Agreement
o Response to Attachment #3, Dimensional Requirements Fonn
o Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards
CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT
A(!reement for Payment of City of AlDen Deve.ODmen! AnDlication Fees
CITY OF ASPEN (hereinafter CITY) and
Al:!p.::on
M!llin
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T T l)
(hereinafter APPLICANT) AGREE AS FOLLOWS,
I. APPLICANT has submitted to CITY an application for
f'nnrlnmin;t1m;.,.~t-"nn
(hereinafter, THE PROJECT).
2. APPLICANT understands and agrees that City of Aspen Ordinance No. 57 (Series of
2000) establishes a fee structure for Land Use applications and the payment of all processing fees is a
condition precedent to a detelTI1ination of application completeness.
3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed
project, it is not possible at this time to ascenain the full extent of the costs involved in processing the
application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT
make payment of an initial deposit and to thereafter pelTI1it additional costs to be billed to APPLICANT on
a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or
approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make
additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY
agrees it will be benefited through the greater cenainty of recovering its full costs to process
APPLICANT'S application.
4. CITY and APPLICANT further agree that it is impracticable for CITY staff to cnmplete
processing or present sufficient information to the Planning Commission and/or City Council to enable the
Planning Commission and/or City Council to make legally required findings for project consideration,
unless current billings are paid in full prior to decision.
5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to
collect full fees prior to a detenoination of application completeness, APPLICANT shall pay an initial
deposit in the amount of$ which is for hours of Community Development staff
time, and if actual recorded costs exceed the initial deposit, ApPLICANT shall pay additional monthly
billings to CITY to reimburse the CITY for the processing of the application mentioned above, including
post approval review at a rate of $21 0.00 per planner hour over the initial deposit. Such periodic payments
shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such
accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued
until all costs associated with case processing have been paid.
Julie Ann Woods
Community Development Director
AP~.~N
BY~ ,-/1L, ,_ ,4...<-
Date: .7.;/9- / /1 ~-
Billing Address and Telephone Number:
Reauired
p 0 Rny ?7;'P.
CITY OF ASPEN
By:
Aspen, CO 81612
g:\snpportlformslagrp.yas.doc
6/05/03
RET~NFORPERMANENTRECORD
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KRABACHER
5 AND E R 5 p.c.
Curtis 8. Sanders
csanders@krabacher.com
ATTORNEYS AND COUNSELORS AT LAW
B. Joseph Krabacher
Curtis B. Sanders
Jennifer M. Causing ^
Diana L. Godwin
Robert S. Hoover.
Jerome Professional Building
201 N. MILL STREET, SUITE 201
ASPEN, COLORADO B1611-1557
T(970) 925-630D
F(970) 925-1181
^ Also admitted in New YOiX and NeWJ8rsey
-AlsoadmittedlnllllllO/s
email/internet address:
krabacher@krabacher.com
May 23, 2005
Via Hand Delivery
James Lindt
City of Aspen
130 South Galena Street, Third Floor
Aspen, Colorado 81611
Re: 220 West Main Street Condominiumization
Dear James:
Pursuant to our meeting on August 19, 2004, with this letter
I attach the following materials on behalf of my client Aspen
Main, LLP, in connection with its proposed condominiumization of
the building currently located at 220 West Main Street, Aspen,
Colorado 81611.
1. Pre-Application Conference Summary dated August 19, 2004
(2 copies);
2. Application Deposit in the amount of $487.00;
3. Proof of Ownership (2 copies);
4. Signed Fee Agreement with City of Aspen (2 copies);
5. Completed Land Use Application Form (2 copies); and
6. Two original mylars depicting the Condominium Map.
Pursuant to the requirements of the Pre-Application
Conference Summary dated August 19, 2004, this letter will
confirm that the Applicant's name, address and phone number are
as follows:
Aspen Main, LLP
c/o Cheryl L. Schmidt
P.O. Box 2768
Aspen, Colorado 81612
(970) 925 -1677
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Finally, pursuant to the attached Limited Power of Attorney,
I am authorized, on behalf of the Applicant to execute, deliver
and process the Application and attached materials.
If you have any questions, please do not hesitate to give me
a call.
Very truly yours,
SANDERS P. C . ,
1 Corporation
By:
Enc.
cc: James Martin
Cheryl L. Schmidt
3070\lLindt.Ol
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Dec. 2. 2004 10:47AM
No.2440 p. 2
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THE PURPOSE OF THIS POWBR OF ATTORNEY IS TO GIVE THE PERSON
YOU DBSIGlG'l'E (YOUR -AGBNT-) BROaD POW.IRB '1'0 HAIIDLB YOUR. JiIROPBR'1'Y
AND AFFAIRS, WHICH MAY INCLOOB P01IDS '1'0 p1'.'lmr., SJILL, OR OTHBRWISB
DISPOSB OF ANY RBAL OR PBRSONAL PROPImTY WITHOUT ADVMfCB NOTICE TO
YOU OR APPROVAL BY YOU. THIS FORM DOES NOT IMPOSE A DUTY ON YOUR
~ 'l'O DBRCISB GRUITBD l'UWwcS, BOT WHD' POWIIB ARB 1n:~-CISBD,
YOUR MRII"1' MOST USE DUB CUB TO N:r l'OJl YOUR BBIIBJ'IT MID IJIJ
ACOORDAlfCB WIN 'l'Hli:. PROVISIONS OP THIS FORM AND MUST KEBP A REOORD
OF BClIP'l'S, DISBURSEMBNTS, AND SIGNIFICANT ACTIONS TAICBN AS ACUDrl'.
tIR'l'IL Y01J' RBVOItB THIS l'uwiSK OF M"lVICftIU OR A COUR.'l AC'l'IBG OB YOUR
'fIBHALF TIIRMlNATBS IT, YOUR AGIDIT IO.Y RDRCISB THE POWBRS Grvrat HBRB
'rHRCltl'GBOO'r YOUR LIPBTIME, EVEN AP'rBR. YOU MAY BECOME DISABLED,
~S YOU EXPRBSSLY LIMIT THE DURATION OF THIS POIIBR IN TIm MANNER
PROVIDBD BELOW.
YOU MAY HAVE OTHER. RIGHTS OR POWBRS UNDO COLORADO LAW NOT
SPBCIFIKD IN THIS FORM.
I, ASPEN MAIN, L. P., a Colorado limJ;ted partner.hip who..
addr... is 213 Rockridge Drive, Durango, CO 81301 appoint CUrtis
B. ~nd.rlil, wh08e addre.. i. 010 ltrabacher ... Sand.er8, P.C., 201
North Mill Street, SUite 201, Aspen, Colorado 81611 .. it. agent
(attorney-in-fact) to act for it in any lawful way with respect
to the following 8ubject.:
(a) To execute any and all docum.l1t. rea."".bly n.a....ry
for the condomin!um!zat!on of oertain improved real property
.ituate in the City and 'l'ownsite of Aspen, Pitkin County,
Colorado cwa.d by Allpen Main, L.P., delilcribed alii the "at cme-
half of Lot N, all of Lot 0, Block 51, City and TowDsite of
Aspen, Colorado, pitkin County, Colorado, and familiarly known &s
220 We.t Main Street, Aspen, Colorado 81611 (the "Property"),
specifically including the execution, delivery of any
correBpondeDcell to and from the City of Allpen reasonably neo..-.ry
for suoh purpo.e., exeoution and delivery of any land use
applications with the City of Aspen reasonably necessary for such
purposes, and the execution and delivery of a CondollliniUlll map
d.ep:Lct:Lt1C3 8uch cOndominiumhat ion ot the Property. .
THIS POWER 011' ATTORNEY: MAY BS .AMIiIlDBD IN ANY MANHBJl OR
RBVOKBD AT AMY TIME. AB8BW1' >>1.1111..._-" OR UVOCATIOII, 'l'BB
AU"J:IlUKlTY GR.AII'l'BD IN THIS POWBR 0" A'l"1'O!U(B!' IS BFnCTIVB WHBR
THIS 1'I.Jtf:&Y;Jt OF ATTORNBY IS SIGNED AND CONTIlm'ES I1Il'.1IP'PBCT U1Il'TIL
IIf.IIv 1. 2005.
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PAGE: 2
Dec. 2. 2UU~ lU:~8AM
No.2~~O p. 3
I agree that any third party who receives a copy of this
doc::umon~ may ac~ under i~. Ravocation of ~he po_r of attorney
is not effective ali to a third p.rty until the third party leal':Dll
of thll revocation. .I agree to indtl'lllnify the third party for any
claims that arise against the third party because of reliance on
this power of attorney.
Signed on QJ Un Ol
, :01004.
By:
ASPEN MAIR, L.P.. a COlorado
limited partnerlihip
Ja~art'{~,~ Partner
STATE OF ~O )
COtDl'1'Y OF ~ ~ SS.
This document _. acknowledged before me on ,R'PU1,1J' 'A-. 700L(
(date) by Ja_s T. Martin, Cieneral Partner o~. P.
(na1lle of principal) .
Witness My Hand and Seal
My Commis.ion Expires I
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Nota Pub :II
.
MELISSA S &lUAU
Notary PutlIIe
Stat. of CoIotado
Page :01 of :01
""',,_,,_''''''''''''''''', .",."""""" Tn. PAGE: 3
CONDOMINIUM DECLARATION
FOR THE ASPEN MAIN OFFICE CONDOMINIUMS
THIS CONDOMINIUM DECLARATION FOR THE ASPEN MAIN OFFICE
CONDOMINIUMS (the "Declaration") is made as of the _ day of , 2005,
shall be effective upon recordation in the Office of the Clerk and Recorder of Pitkin County,
Colorado.
RECITALS:
Aspen Main, LLP, a Colorado limited liability partnership (hereinafter referred to as
"Declarant") is the owner of certain improved real property situate in the City and Townsite of
Aspen, Pitkin County, Colorado, described as the East one-half of Lot N, all of Lot 0, Block 51,
City and Townsite of Aspen, Colorado, Pitkin County, Colorado, and familiarly known as 220
West Main Street, Aspen, Colorado 81611 (the "Property");
The Declarant desires to convert the improvements on the Real Property into a
condominium project in the form of a three level building to be known as the "Aspen Main Office
Condominiums", including a parking area, a basement level, a first floor level, and a second
floor level, all containing one (1) residential unit, twenty (20) professional office units, and four
(4) parking spaces, all of which units and parking spaces will be treated as integral parts of a
single condominium ownership project; and,
The Declarant desires to establish certain rights and easements in, over and upon the
Real Property for the benefit of itself and all future owners of any part of the real property, and
any air space unit or units thereof or therein contained; and to provide for the harmonious,
beneficial, and proper use and conduct of the property and all air space units.
NOW THEREFORE, the Declarant hereby makes the following grants, submissions, and
declarations:
1. Definitions. The following words when used in this Declaration, unless inconsistent
with the context of this Declaration, shall have the following meanings:
a. "Act" means the Colorado Common Interest Ownership Act as set forth in
Article 33.3, Title 38, Colorado Revised Statutes, as such act exists on the date hereof, except
to the extent that the applicability of future amendments to the Act are mandatory.
b. "Articles" mean the Articles of Incorporation for the Association, currently on
file with the Colorado Secretary of State, and any amendments which may be made to those
Articles from time to time.
c. "Assessments" means the Regular, Special, and other Assessments levied
pursuant to Paragraph 19 below. Assessments are also referred to as a "Common Expense
Liability" as defined under the Act.
d. "Association" means The Aspen Main Office Condominiums Association,
Inc., a Colorado nonprofit corporation, and its successors and assigns. The Association shall
act through its Executive Board unless a vote of the Owners is otherwise specifically required by
this Declaration or by the Articles or Bylaws.
Page 1 of 29
e. "Association Documents" means this Declaration, the Articles, and the
Bylaws, and any procedures, Rules and Regulations, or policies adopted under such documents
by the Association.
f. "BuildinQ" means the building improvements comprising a part of the Real
Property and containing Condominium Units, Parking Spaces and Common Elements, as
shown and described on the Map and any supplements thereto which may be filed in the Pitkin
County records.
time.
g. "Bvlaws" means the Bylaws of the Association, as amended from time to
h. "Common Elements" means all of the Project, except the portions thereof
which constitute a Condominium Unit or Parking Space. Without limiting the generality of the
foregoing, the following shall constitute Common Elements: (a) all entrances, exits, exterior
storage spaces (if any) not within any Condominium Unit; (b) all service and maintenance areas,
spaces, fixtures, installations and facilities for purposes of natural gas, electricity, telephone,
cable television and light which do not exist solely to serve a Condominium Unit in which they
may be located; and (c) all open space, landscaped areas, walkways, and the Parking Area
(exclusive of the Parking Spaces).
i. "Common Expenses" means (a) all expenses expressly declared to be
Common Expenses by this Declaration or the Bylaws; (b) all other expenses of administering,
servicing, conserving, managing, maintaining, repairing, or replacing the Common Areas; (c)
insurance premiums for the insurance carried under Paragraph 20 below; and (d) all expenses
lawfully determined to be Common Expenses by the Executive Board.
j. "Condominium Unit" means one (1) individual air space which is contained
within the unfinished perimeters walls, floors, ceiling, and the interior surfaces of windows and
doors in their closed position, as shown on the Condominium Map, including all fixtures and
improvements therein contained, together with all easements and rights-of-way appurtenant
thereto, and the undivided interest in the General Common Elements and the appurtenant
Limited Common Elements thereto.
k. "Declaration" means this Condominium Declaration for the Aspen Main Office
Condominiums, together with any supplement or amendment to this Declaration, recorded in the
Office of the Clerk and Recorder of Pitkin County, Colorado.
I. "Declarant" means Aspen Main, LLP, a Colorado limited liability partnership,
and its successors and assigns.
m. "Director" means a member of the Executive Board.
n. "Executive Board" means the governing body of the Association elected to
perform the obligations of the Association relative to the operation, maintenance, and
managem-ent of the Project and all improvements on the Project.
o. "General Common Elements" means all Common Elements except Limited
Common Elements, as hereinafter defined.
Page 2 of 29
p. "Guest" means any customer, agent, lessee, employee, independent
contractor, or invitee of an Owner, and any Person who has any right, title, or interest in a
Condominium Unit or Parking Space which is not the fee simple owner of title to the
Condominium Unit or Parking Space.
q. Limited Common Elements means any portion of the Common Elements
designated herein for the exclusive use of one or more Condominium Units, but fewer than all of
the Condominium Units.
r. "Manaaement Aareement" means any duly authorized and approved contract
or arrangement entered into by the Executive Board for purposes of discharging the
responsibilities of the Executive Board relative to the operation, maintenance, and management
of the Project.
s. "Manaaina Aaent" means a Person employed or engaged as an independent
contractor pursuant to a Management Agreement to perform management services for the
Project.
t. "Map" means "The Condominium Map of the Aspen Main Office
Condominiums ", recorded in Plat Book _' at Page _' Pitkin County, Colorado, and any
supplements and amendments thereto.
Association.
u. "Member" shall mean every Person who holds membership in the
v. "Mortaaae" shall mean any mortgage, deed of trust, or other document
pledging any Condominium Unit or interest therein as security for payment of a debt or
obligation.
w. "Mortaaaee" means any Person named as a mortgagee or beneficiary in any
Mortgage, or any successor to the interest of any such Person under such Mortgage.
x. "Owner" means any record owner of a fee simple title interest in and to any
Condominium Unit, together with an undivided interest in the General Common Elements and
the appurtenant Limited Common Elements thereto in the percentage specified and established
in this Declaration. Owner shall also mean any record owner of a fee simple title interest in and
to any Parking Space, but which shall not include an undivided interest in the General Common
Elements or Limited Common Elements.
y. "Parkina Area" means the parking area as shown on the Map, together with
marking, striping and drainage facilities thereof, but specifically not including any structural
components of the Building located hereon.
z. "Parkina Space" means one (1) of the individual parking spaces located
within the perimeter of each separately designated parking spaces, as shown on the Map, but
not including any structural components of the Building located hereon.
Page 3 of 29
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"
aa. "Person" means any natural person, corporation, partnership, limited liability
company, joint venture, trust, or other legal entity capable of holding title to real property in the
State of Colorado.
bb. "Proiect" shall mean the common interest community created by this
Declaration, consisting of the Property, the Condominium Units, the Parking Spaces, the
Common Elements and any other improvements constructed on the Project and as shown on
the Map.
cc. "Propertv" shall mean that certain improved real property situate in the City
and Townsite of Aspen, Pitkin County, Colorado, described as the East one-half of Lot N, all of
Lot 0, Block 51, City and Townsite of Aspen, Colorado, Pitkin County, Colorado, and familiarly
known as 220 West Main Street, Aspen, Colorado 81611;
dd. "ReQular Assessment" means the Assessment levied on a periodic basis.
ee. "Rules and Rellulations" means the rules and regulations governing the
use of the Condominium Units and the Common Elements as adopted by the Association from
time to time.
ff. "SharinQ Ratio" means the percentage allocated to an Owner's
Condominium Unit, as set forth on Exhibit "1" attached hereto and made a part hereof.
99. "Special Assessment" means an assessment levied pursuant to Paragraph
19.c below on an irregular basis.
Each capitalized term not otherwise defined in this Declaration or on the Map shall have
the same meanings specified or used in the Act.
2. Declaration and Effect Thereof.
a. Declaration. The purpose of this Declaration is to create a residential and
office condominium project pursuant to the Colorado Common Interest Ownership Act as set
forth in Article 33.3, Title 38, Colorado Revised Statutes.
b. Intention of Declarant. Declarant desires to: (a) protect the value and
desirability of the Project; (b) further a plan for the improvement, sales, and planned community
ownership of the Project; (c) create a harmonious and attractive residential and office
development within the Project; and (d) promote and safeguard the health, comfort, safety,
convenience, and welfare of the Owners of the Project.
Page 4 of 29
c. Division into Condominium Units and Parkin!! Spaces. The Project
is divided into the following fee simple estates: sixteen (16) separately designated
Condominium Units (including the one (1) MixeclUse CondQ!Ilini!Jm Unit described in
Paragraph 23 below) and four (4) separately designated Parking Spaces. Each
Condominium Unit shall consist of a separate fee simple estate in a particular
Condominium Unit and an appurtenant percentage ownership of an undivided fee simple
interest in the Common Elements as is specified on Exhibit "1" attached hereto and
incorporated herein by this reference. Each Parking Space shall consist of a separate
fee simple estate in a particular Parking Space, but shall not include an appurtenant
undivided fee simple interest in the Common Elements.
d. Description of a Condominium Unit or Parkina Space. Every deed,
lease, mortgage, trust deed, will or other instrument may legally describe a
Condominium Unit or Parking Space by its identifying number followed by the words
"ASPEN MAIN OFFICE CONDOMINIUMS", with reference to the recorded Declaration
and Map, which legal description shall be in the following form:
Unit _ [Parking Space --.J, ASPEN MAIN OFFICE CONDOMINIUMS, as defined and
described in the Condominium Declaration for the Aspen Main Office Condominiums,
recorded as Reception No. of the records of the Clerk and Recorder of
Pitkin County, Colorado, and the Condominium Map of Aspen Main Office
Condominiums, recorded in Plat Book _, at Page _' Pitkin County, Colorado.
This description shall be deemed good and sufficient for all purposes to sell, convey,
transfer, encumber or otherwise affect not only the Condominium Unit or Parking Space,
but also the Common Elements appurtenant to the Condominium Unit. This description
shall be construed to include a nonexclusive easement for ingress and egress
throughout the Common Elements appurtenant thereto to the exclusion of all third
parties not lawfully entitled to use the same.
e. Duration of Condominium Ownership. The condominium ownership of the
Project created under this Declaration shall continue until this Declaration is terminated
or revoked as hereinafter provided.
3. Map. In interpreting any and all provisions of this Declaration, the Association
Documents, subsequent deeds to and/or mortgages of Condominium Units, the actual
location of a Condominium Unit or Parking Space shall be deemed conclusively to be
the property intended to be conveyed, reserved or encumbered, notwithstanding any
minor deviations from the location of such Condominium Unit or Parking Space as
indicated on the Map.
4. Riaht to Combine or Divide Condominium Units: Riaht to Relocate
Common Unit Boundaries. Subject to the following provisions, an Owner shall have
the right to combine a Condominium Unit with one or more adjoining Condominium
Units, divide a Condominium Unit into two Condominium Units, or relocate a common
boundary wall or boundary walls depicted on the Map and which is shared by two (2) or
more Condominium Units, provided that any resulting Condominium Unit shall not
contain less than one hundred (100) square feet, measured from the interior surfaces of
the Condominium Unit's walls. Any Owner shall have such right only after obtaining prior
written approval from the Declarant for so long as the Declarant owns any Condominium
Unit in the Project, and thereafter, only with the prior consent of not less than seventy-
Page 5 of 29
five percent (75%) of the votes owned by Members of the Association. Additionally, the
Declarant shall the right to combine, divide, reconfigure Condominium Units, and to
create Common Elements, without having to obtain written approval from any other
Owners so long as the Declarant is the owner of the Condominium Unit(s) affected. by
such combination, division or reconfiguration, or creation of Common Elements. A
combination, division, or reconfiguration of a Condominium Unit, or creation of Common
Elements, shall become effective only when the Owner(s) of the Condominium Unit(s)
which are to be combined, divided or reconfigured prepares and arranges for (at the sole
cost of such Owner(s) the recordation in the Office of the Clerk and Recorder of Pitkin
County, Colorado a modification of the Map: (1) bearing the acknowledged signature of
the Owners approving such combination, division, or reconfiguration; (2) depicting the
Condominium Unit(s) being combined, divided, or reconfigured; (3) describing the
Condominium Unit number assigned to the combined Condominium Unit(s) being
combined, divided, or reconfigured; (4) describing any change in the Sharing Ratio(s)
assigned to the Condominium Unit(s) being combined, divided, or reconfigured; and (5)
declaring that the same are combined, divided, or reconfigured.
a. Combination of Condominium Units. In the event of combination of
two (2) or more Condominium Units, the individual spaces of each Condominium Unit so
combined shall be deemed one (1) individual space and the undivided interest in
Common Elements appurtenant to each of the Condominium Units so combined shall be
deemed combined and, as combined, appurtenant to the one (1) enlarged individual
space which results from the combination. In the event of such combination, any part of
the Building within the new perimeter boundaries of the combined Condominium Units
shall cease to be Common Elements if such part of the Building would not have
constituted Common Elements had the combined individual Spaces been originally
designated on the Map as a single individual space. The Sharing Ratios assigned to
each of the separate Condominium Units which are combined shall be assigned to the
combined Condominium Units, and the combined Condominium Units' new Sharing
Ratio shall be the sum of the Sharing Ratios for the separate Condominium Units so
combined as specified on Exhibit "1". Parking Spaces shall not be combined.
b. Division of a Condominium Unit. In the event of division of a
Condominium Unit into two (2) or more Condominium Units, the individual spaces of
each newly created Condominium Unit shall be deemed separate, individual spaces and
the undivided interest in Common Elements appurtenant to the Condominium Unit so
divided shall be deemed divided and, as divided, appurtenant to the new separate
individual spaces which result from the division. In the event of such division, any part of
the Building within the new perimeter boundaries of the divided Condominium Units shall
become Common Elements if such part of the Building would have constituted Common
Elements had the divided individual spaces been originally designated on the Map as
separate and individual spaces. All of the Sharing Ratio assigned to the Condominium
Unit as specified on Exhibit "1" which is being divided shall be reallocated and assigned
to the newly created Condominium Units on the basis of the relative square footage of
the newly created Condominium Units. Parking Spaces shall not be divided.
c. ReconfiQuration of Common Boundary Between Condominium
Units. In the event of a reconfiguration of the common boundary between two (2) or
more Condominium Units, the individual spaces of each newly reconfigured
Condominium Unit shall be deemed separate, individual spaces and the undivided
interest in Common Elements appurtenant to the Condominium Units so reconfigured
Page 6 of 29
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may be deemed reallocated to the Condominium Units so reconfigured. In the event of
such relocation, any part of the Building within the new perimeter boundaries of the
affected Condominium Units shall become Common Elements if such part of the
Building would have constituted Common Elements had the reconfigured individual
spaces been originally designated on the Map as separate and individual spaces. The
Sharing Ratios assigned to the Condominium Units affected as specified on Exhibit "1"
which are being reconfigured shall be reallocated and assigned to the newly
reconfigured Condominium Units on the basis of the relative square footages of the
newly reconfigured Condominium Units. Parking Spaces shall not be reconfigured.
5. Limited Common Elements. Subject to the definition of "Limited Common
Elements" hereof, any door, window, or other areas identified as Limited Common
Element on the Map and designated as appurtenant to a particular Condominium Unit or
Parking Space shall, without further reference thereof, be used in connection with the
Condominium Unit to which it is appurtenant to the exclusion of the use thereof by the
other Owners, except by invitation.
6. Inseparabilitv of a Condominium Unit. An Owner's undivided interest in the
Common Elements shall not be separated from the Condominium Unit to which it is
appurtenant and shall be deemed to be conveyed or encumbered with the Condominium
Unit even though the interest is not expressly mentioned or described in a deed or other
instrument.
7. Title. A Condominium Unit or Parking Space may be held and owned by more
than one (1) Person as joint tenants or as tenants in common or in any real property
tenancy relationship recognized under the laws of the State of Colorado.
8. No Partition. The Common Elements shall remain undivided and no Owner or
any other Person shall bring any action for partition or division of the Common Elements.
Similarly, no action shall be brought for the partition of a Condominium Unit or Parking
Space between or among the Owners thereof. Each Owner expressly waives any and
all such rights of partition such Owner may have by virtue of such Owner's Ownership of
a Condominium Unit or Parking Space. A violation of this provision shall entitle the
Association to personally collect, jointly or severally, from the parties violating the same
the actual attorney's fees, costs and other damages the Association incurs in connection
therewith.
9. Separate Taxation. Each Condominium Unit and Parking Space shall be
deemed to be a separate parcel and shall be subject to separate assessment and
taxation by each assessing Condominium Unit and special district for all types of taxes
authorized by law, including ad valorem levies and special assessments. Neither the
Building, the Property nor any use of the Common Elements shall be deemed to be a
parcel. The lien for taxes assessed to any Condominium Unit or Parking Space shall be
confined to that Condominium Unit or Parking Space. No forfeiture or sale of any
Condominium Unit or Parking Space for delinquent taxes, assessments or other
governmental charges shall divest or in any way affect the title to any other
Condominium Unit or Parking Space. In the event that such taxes or assessments for
any year are not separately assessed to each Owner and rather are assessed on the
Property as a whole, each Owner shall pay his proportionate share thereof in
accordance with such Owner's ownership interest in the Common Elements; and, in
such event, such taxes or assessment shall be a Common Expense. Without limiting
Page 7 of 29
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the authority of the Executive Board provided for elsewhere herein, the Executive Board
shall have the authority to collect from the Owners their proportionate share of taxes or
assessments for any year in which taxes are assessed on the Property as a whole.
10. Certain Work Prohibited. No Owner shall undertake any work in such
Owner's Condominium Unit or Parking Space which would jeopardize the soundness or
safety of the Project, reduce the value thereof, or impair an easement or hereditament
thereon or thereto. Structural alterations to the Project shall not be made by an Owner,
nor shall an Owner remove any additions, improvements or fixtures from the Building
without the prior written approval of the Executive Board (which approval may be
withheld for any reason) first having been obtained.
11. Liens Aaainst Condominium Units: Removal from Lien: Effect of Part
Payment.
a. No labor performed or materials furnished with the consent or at the
request of an Owner of a particular Condominium Unit or his agent shall be the basis for
the filing of a lien pursuant to law against the Condominium Unit or other property of
another Owner not expressly consenting to or requesting the same, in a writing signed
by the Owner except that express consent shall be deemed to be given by the Owner of
any Condominium Unit to the Managing Agent or the Executive Board in the case of
emergency repairs. Labor performed or materials furnished for the Common Elements,
if duly authorized by the Managing Agent or the Executive Board in accordance with this
Declaration or the Association Documents, shall be deemed to be performed or
furnished with the express consent of each Owner and shall be the basis for the filing of
a lien pursuant to law against each of the Condominium Units in the Project.
b. In the event a lien is asserted against two (2) or more Condominium
Units, the Owners of the separate Condominium Units may remove their Condominium
Units from the lien by payment of the fractional or proportional amount attributable to
each of the Condominium Units affected. Individual payment shall be computed by
reference to the percentages appearing in Exhibit "1" to this Declaration. Subsequent to
payment, discharge or other satisfaction, the Condominium Unit shall be released from
the lien paid, satisfied or discharged. Partial payment, satisfaction or discharge shall not
prevent the lienor from proceeding to enforce his rights against any Condominium Unit
not so released or discharged.
c. Each Owner shall indemnify and hold each of the other Owners
harmless from and against liability or loss arising from the claim of any lien against the
Condominium Unit of the Owner or any part thereof for labor performed or for materials
furnished in work on such Owner's Condominium Unit. At the written request of an
Owner, the Association shall enforce such indemnity by collecting from the Owner of the
Condominium Unit on which the labor was performed or materials furnished the amount
necessary to discharge any such lien and all costs incidental thereto, including
reasonable attorney's fees and costs. If not promptly paid, the Association may proceed
to collect the same in the manner provided for herein for the collection of Assessments
for the purpose of discharging the lien.
12. Use and Occupancy of Condominium Units. Each Owner shall be entitled
to the exclusive Ownership and possession of such Owner's Condominium Unit, subject
to the restrictions and reservations contained in this Declaration.
Page 8 of 29
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13. Use of General Common Elements and Limited Common Elements.
Each Owner may use the General Common Elements and such Owner's appurtenant
Limited Common Elements in accordance with the purpose for which they are intended
without hindering or encroaching on the lawful rights of the other Owners. The
Association and/or the Executive Board may, from time to time, adopt Rules and
Regulations for the use of General Common Elements, Limited Common Elements,
Condominium Units, and Parking Spaces, and such Rules and Regulations shall be
uniform and nondiscriminatory. Each Owner, by the acceptance of his deed or other
instrument of conveyance or assignment, agrees to accept and be bound by any such
adopted Rules and Regulations.
14. Various Riahts and Easements.
a. Owner's Riahts in Limited Common Elements. Subject to the other
provisions of this Declaration, each Owner and such Owner's Guests shall have an
exclusive right to use and enjoy the Limited Common Elements designated on the Map
as appurtenant to the Condominium Unit owned by such Owner.
b. Association Riahts. The Association, the Executive Board and the
Managing Agent shall have a nonexclusive right and easement to make such use of and
enter into or on the General Common Elements, the Limited Common Elements, the
Condominium Units, and Parking Spaces as may be necessary or appropriate for the
performance of the duties and functions which they are obligated or permitted to perform
under this Declaration, the Articles, the Bylaws and/or Rules and Regulations as
adopted or amended hereafter.
c. Owner's Easements for Access. Support and Utilities. Each
Owner shall have a nonexclusive easement for access between such Owner's
Condominium Unit and Parking Space (if any) and the roads and street adjacent to the
Project and the roads, streets and driveways in the Project, over and on the halls,
corridors, stairs, walks, bathrooms, and exterior access and other easements which are
designated on the Map as part of the General Common Elements. Each Owner shall
have a nonexclusive easement in, on and over the General Common Elements,
including the General Common Elements within the Condominium Unit of another
Owner, for horizontal and lateral support of the Condominium Unit which is part of such
Owner's Condominium Unit, for utility service to that Condominium Unit, including and
not limited to water, sewer, gas, electricity, telephone and cable service and for the
release of smoke arising from any fireplace within a Condominium Unit through the flue
leading therefrom.
d. Easements for Encroachments. If any part of the General Common
Elements encroaches or shall hereafter encroach on a Condominium Unit, an easement
for such encroachment and for the maintenance of the same shall and does exist. If any
part of a Condominium Unit encroaches or shall hereafter encroach on the General
Common Elements or on another Condominium Unit, the Owner of that Condominium
Unit shall and does have an easement for such encroachment and for the maintenance
of the same. Such encroachments shall not be considered to be encumbrances either
on the General Common Elements or on a Condominium Unit for purposes of
marketability of title or otherwise. Encroachments referred to herein include and are not
limited to encroachments caused by error in the original construction of the Building, by
Page 9 of 29
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error(s) in the Map, by settling, rising or shifting of the earth, or by changes in position
caused by repair or reconstruction of the Project or any part thereof.
e. Easements for Repair. Maintenance and Emeraencies. Some of
the General Common Elements are or may be located within a Condominium Unit or
may be conveniently accessible only through a particular Condominium Unit or Parking
Space. The Association, the Executive Board, and the Managing Agent and each
Owner shall have an easement, which may be exercised for any Owner by the
Association, the Executive Board or the Managing Agent, as such Owner's agent, for
access through each Condominium Unit and Parking Space and to all General Common
Elements, from time to time, during such reasonable hours as may be necessary for the
location, placement, existence, maintenance, repair or replacement of any of the
General Common Elements located therein or accessible therefrom or for making
emergency repairs therein necessary to prevent damage to the General Common
Elements or to another Condominium Unit or Parking Space or for making repairs or
replacements. Damage to the interior of any part of a Condominium Unit or Parking
Space resulting from the maintenance, repair, emergency repair or replacement of any
of the General Common Elements or as a result of emergency repairs within another
Condominium Unit, at the instance of the Association, the Executive Board or the
Managing Agent, shall be a Common Expense of all of the Owners. No diminution or
abatement of Assessments shall be claimed or allowed for inconvenience or discomfort
arising from the making of repairs or improvements or from action taken to comply with
any law, ordinance or order of any governmental authority. Restoration of the damaged
improvements shall be substantially the same as the condition in which they existed prior
to the damage. Notwithstanding the foregoing, if any such damage is the result of the
carelessness, negligence, or deliberate acts of any Owner, such Owner shall be solely
responsible for the costs and expenses of repairing such damage.
f. Easements Deemed Appurtenant. The easements, uses and rights
herein created for an Owner shall be appurtenant to the Condominium Unit or Parking
Space of that Owner; and all conveyances of and other instruments affecting title to a
Condominium Unit or Parking Space shall be deemed to grant and reserve the
easements, uses and rights as are provided for herein, even though no specific
reference to such easements, uses and rights appear in any such conveyance.
g. Emeraency Easement. A nonexclusive easement for ingress and
egress is hereby granted to the Managing Agent and its employees and to all police,
sheriff, fire protection, ambulance and other similar emergency agencies or Persons now
or hereafter servicing the Project to enter the Project and the Property in the
performance of their duties.
15. Condominium Unit Owners' Maintenance Responsibility. For purposes of
maintenance, repair, alteration and remodeling, an Owner shall be deemed to own and
shall have the right and obligation to maintain, repair, alter and remodel the Owner's
Condominium Unit (including the finished surfaces of the perimeter walls, ceilings and
floors within the Condominium Unit and the Condominium Unit's doors and windows and
any and all new additions to a Condominium Unit made by the Owner thereof). In order
to preserve a uniform and attractive appearance of the Project, no Owner shall,
however, make any changes or alterations of any type or kind to the exterior surfaces of
the doors or windows to such Owner's Condominium Unit which may be visible from
outside the Condominium Unit without the prior written approval of the Executive Board,
Page 10 of 29
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which approval may be withheld by the Executive Board in its sole and absolute
discretion. An Owner shall not be deemed to own any Common Elements located
through such Owner's Condominium Unit, except as a tenant in common with the other
Owners. Each Owner shall have the obligation to replace any finish or other materials
removed with similar or other types or kinds of materials. An Owner shall maintain and
keep in good repair and in a clean, safe, attractive and slightly condition the interior of
such Owner's Condominium Unit, including the fixtures, doors and windows thereof and
the improvements affixed thereto and such other items and areas as may be required in
the Bylaws. All fixtures, appliances and equipment installed within a Condominium Unit
commencing at a point where the utilities enter the Condominium Unit shall be
maintained and kept in repair by the Owner thereof. If any Owner fails to carry out or
neglects the responsibilities set forth in this Paragraph 15, the Executive Board or the
Managing Agent may fulfill the same and charge such Owner therefor. Any expense
incurred by an Owner under this Paragraph 15 shall be the sole expense of the Owner.
16. Compliance with Provisions of Declaration. Articles and Bvlaws of the
Association. Each Owner shall comply strictly with and shall cause each of such
Owner's Guests to comply strictly with all of the provisions of this Declaration and the
Articles and Bylaws and the decisions, Rules and Regulations and resolutions of the
Association or the Executive Board adopted pursuant thereto, as the same may be
lawfully adopted or amended from time to time. Failure to comply with any of the same
shall be grounds for an action to recover sums due and for damages or injunctive relief
or both, along with costs of suit and reasonable attorney's fees, maintainable by an
aggrieved Owner, the Managing Agent, or the Executive Board in the name of the
Association on behalf of the Owners.
17. The Association.
a. General Purposes and Power. The Association, through the
E~cutive Board or the Managing Agent, shall perform functions and hold and manage
the Property as provided in this Declaration so as to further the interests of Owners of
Condominium Units in the Project. It shall have all powers necessary or desirable to
effectuate such purposes.
b. Membership. The Owner of a Condominium Unit shall automatically
become a Member of the Association. Ownership of a Parking Space shall not include
membership in the Association. A Condominium Unit Owner's membership is
appurtenant to the Owner's Condominium Unit and the ownership of the membership for
a Condominium Unit. Each Owner shall automatically be entitled to the benefits and
subject to the burdens relating to the membership for such Owner's Condominium Unit.
If the fee simple title to a Condominium Unit is held by more than one (1) Person, each
Owner of a Condominium Unit shall be a Member of the Association. Memberships in
the Association shall be limited to Owners of Condominium Units in the Project.
c. Executive Board. The affairs of the Association shall be managed by
an Executive Board which may by resolution delegate any portion of its authority to an
executive committee or to a director or Managing Agent for the Association. There shall
be not less than three (3) or more than seven (7) members of the Executive Board, the
specific number to be set forth from time to time in the Bylaws, all of whom shall be
Owners elected by Owners.
Page 11 of 29
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d. VotinQ of Owners. The total number of votes in the Association shall
be one hundred (100), with the number of votes appurtenant to each Condominium Unit
being the Sharing Ratio allocated to such Condominium Unit as set forth on Exhibit "1"
attached hereto and incorporated herein by this reference, multiplied by one hundred
(100).
e. Bvlaws and Articles. The purposes and powers of the Association
and the rights and obligations with respect to Owners as set forth in this Declaration may
be supplemented or amplified by the provisions of the Articles and Bylaws of the
Association, but in the event of any inconsistency, the provisions of this Declaration shall
control.
f. Declarant Control. The Declarant shall have the reserved power to
appoint and remove officers and members of the Executive Board for the period of time
(hereinafter referred to as the "Period of Declarant Control") beginning on the date of
incorporation of the Association and ending not later than either: (i) sixty (60) days after
conveyance of seventy-five percent (75%) of the Condominium Units to Owners other
than the Declarant; or (ii) two (2) years after Declarant has last conveyed a
Condominium Unit to an Owner other than the Declarant in the ordinary course of
business. At any time in which the Declarant is also an Owner, the approval of the
Declarant shall be a condition to an amendment of this Declaration, amendment to the
Articles, amendment to the Bylaws, and to any merger, consolidation or dissolution of
the Association. Notwithstanding the above, (i) not later than sixty (60) days after
conveyance of twenty-five percent (25%) of the Condominium Units to Owners other
than Declarant, at least one (1) member and not less than twenty-five percent (25%) of
the members of the Executive Board must be elected by Condominium Unit Owners
other than the Declarant; and (ii) not later than sixty (60) days after the conveyance of
fifty percent (50%) of the Condominium Units to Owners other than the Declarant, not
less than thirty-three and one-third percent (33 1/3%) of the members of the Executive
Board must be elected by Condominium Unit Owners other than the Declarant.
18. Certain RiQhts and ObliQations of the Association.
a. Association as Attornev-in-Fact for Owners. The Association is
hereby irrevocably appointed attorney-in-fact for the Owners and each of them to
manage, control and deal with the interest of each Condominium Unit Owner in the
Common Elements so as to permit the Association to fulfill all of its duties and
obligations hereunder and to exercise all of its rights in connection with the Project on its
destruction or obsolescence as hereinafter provided and to grant utility easements
through any portion of the Common Elements. The acceptance by any Person of any
interest in any Condominium Unit shall constitute an appointment of the Association as
attorney-in-fact as provided above and hereinafter. The Association is hereby granted
all of the powers necessary to govern, manage, maintain, repair, rebuild, administer and
regulate the Project and to perform all of the duties required of it. Notwithstanding the
above and subject to the provisions contained in this Declaration, unless at least three-
fourths (3/4) of the Mortgagees of Condominium Units and at least seventy-five percent
(75%) of the Association's votes have given their prior written approval, the Association
shall not be empowered or entitled to:
(1) by act or omission seek to abandon or terminate the Project;
Page 12 of 29
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(2) change the pro rata interest or obligations of any individual
Condominium Unit for the purpose of levying Assessments or charges or allocating
distributions of hazard insurance proceeds or condemnation awards;
(3) by act or omission seek to abandon, partition, subdivide, encumber,
sell or transfer (excluding the granting of easements for public utilities or other public
purposes consistent with the intended use of the General Common Elements) any of the
General Common Elements or Limited Common Elements; or
(4) use hazard insurance proceeds for loss to the Project (whether
Condominium Units, Parking Spaces, or General Common Elements) for other than
repair, replacement or reconstruction thereof.
Provided, however, no action set forth in Paragraphs 18(a)(1)-(5) above may be
taken without the prior written approval of the Owner and Mortgagee of the specific
Condominium Unit(s) or Parking Space(s) being affected.
b. Common Elements. The Association shall provide for the care,
operation, management, maintenance, repair and replacement of the Common
Elements, except as is provided for in Paragraph 16 herein. Without limiting the
generality of the foregoing, the obligations shall include the keeping of such General
Common Elements in a good, clean, attractive and sanitary condition, order and repair;
removing snow and any other materials from such Common Elements which might
impair access to the Project or the Condominium Units; keeping the Project safe,
attractive and desirable; and making necessary or desirable alterations, additions,
betterments or improvements to or on the Common Elements.
c. Other Association Functions. The Association may undertake any
activity, function or service for the benefit of or to further the interests of all, some or any
Owners on a self-supporting, Special Assessment or Regular Assessment basis. Such
activities, functions or services may include the providing of security services, the
providing of cleaning service, and those services reasonable and necessary to operate a
first-class facility.
d. Labor and Services. The Association: (1) may obtain and pay for the
services of a Managing Agent to manage its affairs or any part thereof to the extent it
deems advisable, as well as such other personnel as the Association shall determine to
be necessary or desirable for the proper operation of the Project, whether such
Personnel are furnished or employed directly by the Association or by any Person with
whom or which it contracts; (2) may obtain and pay for legal and accounting services
necessary or desirable in connection with the operation of the Project or the enforcement
of this Declaration; and (3) may arrange with others to furnish lighting, heating, water,
trash collection, sewer service and other common services necessary and proper for the
operation of a first-class facility.
e. Property of Association. The Association may pay for, acquire and
hold or lease tangible and intangible personal property and may dispose of the same by
sale or otherwise. Subject to the provisions of this Declaration and Rules and
Regulations of the Association, each Owner and each Owner's Guests may use such
property. On termination of the Project and dissolution of the Association, if ever, the
beneficial interest in any such property shall be deemed to be owned by the Owners of
Page 13 of 29
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Condominium Units as tenants in common in the proportion as their respective interests
in the General Common Elements. A transfer of a Condominium Unit shall transfer to
the transferee Ownership of the transferor's beneficial interest in such property without
any reference thereto. Each Condominium Unit Owner may use such property in
accordance with the purposes for which it is intended, without hindering or encroaching
on the lawful rights of the other Owners. The transfer of title to a Condominium Unit
under foreclosure shall entitle the purchaser to the beneficial interest in such property
associated with the foreclosed Condominium Unit.
f. Association Riaht to Lease and License General Common
Elements. The Association shall have the right as provided by law to lease or license or
permit the use of by less than all Owners or by non-Owners on either a short-term basis
or long-term basis and with or without charge as the Association may deem desirable
any portion of the General Common Elements or any Condominium Unit owned by the
Association. The rights granted to the Association in this subparagraph shall only be
used in the promotion of the collective best interests of the Owners. Further, the
Association shall have the right to grant utility easements under, through or over the
General Common Elements which are reasonably necessary to the ongoing
development and operation of the Project.
g. Mortaaaee Notification. The Association shall notify each Mortgagee
of any proposed material amendment of the Association's Articles or Bylaws at least ten
(10) days prior to the effective date of such amendment or change.
h. Enforcement bv Association. The Executive Board may suspend
any Condominium Unit Owner's voting rights in the Association during any period or
periods during which such Condominium Unit Owner fails to comply with the
Association's Rules and Regulations or with any other obligations of such Owner under
this Declaration. The Association may also take judicial action against any Owner to
enforce compliance with such Rules and Regulations, the obligations hereunder, or in
the Bylaws, or may obtain damages for any such noncompliance, all to the extent
permitted by law. The Executive Board may impose a fine, not to exceed Fifty Dollars
and no/100 ($50.00) upon any Owner for each violation or act of noncompliance by any
such Owner or such Owner's Guest which charges shall constitute a lien on the Owner's
Condominium Unit as per the provisions of Paragraph 19.9 below.
i. Certificate. The Executive Board may, from time to time, record a
certificate of the identity and the mailing addresses of the Persons then comprising the
Executive Board, together with the identity and address of the Managing Agent (if any).
Such certificate shall be conclusive evidence thereof in favor of any Person relying
thereon in good faith regardless of the time elapsed since the date thereof.
j. ImDlied Riahts. The Association and its Managing Agent shall have
and may exercise any right or privilege given to it expressly by this Declaration, the
Articles or the Bylaws or reasonably to be implied from the provisions of those
documents or given or implied by law or which may be necessary or desirable to fulfill its
duties, obligations, rights or privileges.
Page 14 of 29
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19. Assessment for Common Expenses.
a. Assessments. Each Condominium Unit Owner shall be obligated to,
and shall pay to the Association the amounts hereinafter provided for in the proportions
among the Owners as set forth in this Paragraph 19, which amounts are herein called
Assessments. Assessments shall include, but not be limited to Regular and Special
Assessments. No Condominium Unit Owner may exempt himself for liability for such
Owner's contribution towards the Common Expenses or any Assessment by waiver of
the use or enjoyment of the General Common Elements or by abandonment of such
Owner's Condominium Unit.
Subject to the provisions hereof, the Executive Board of the Association
shall have the power and authority to determine all matters in connection with
Assessments, including, without limitation, power and authority to determine where,
when and how Assessments should be paid to the Association, and each Condominium
Unit Owner shall comply with all such determinations.
b. Determination of Budaet and Assessments. The fiscal year of the
Association shall be the calendar year. Within thirty (30) days prior to the
commencement of each fiscal year of the Association, the Executive Board shall
determine the total amount to be raised by Regular Assessments during such fiscal year.
The amount to be raised by Regular Assessments for any fiscal year shall be that
amount necessary to cover the costs and expenses of fulfilling the functions and
obligations of the Association in that fiscal year, plus the amount necessary to provide
for a capital reserve fund for contingencies, exterior maintenance, replacements, and
capital improvements, and plus an amount sufficient to provide a reasonable carry-over
for the next fiscal year. The amount to be raised by Regular Assessments shall include
amounts necessary to cover obligations made in connection with, or contemplated
under, any previously approved budget. The total amount required to be raised by
Regular Assessments for any fiscal period less than a full fiscal year shall be the total
amount required to be raised for the fiscal year determined as above multiplied by a
fraction, the numerator of which is the number of days in the fiscal year period and the
denominator of which is the number of days in that fiscal year.
To determine the total amount required to be raised by Regular
Assessments, the Executive Board shall prepare or cause to be prepared and approved
a budget for the fiscal year showing, in reasonable detail, the estimated costs and
expenses which will be payable in that fiscal year, the amount necessary for the capital
reserve and maintenance fund, if any, and for a reasonable carry-over reserve. The
Executive Board shall subtract from such estimated costs and expenses an amount
equal to the anticipated surplus (exclusive of any reserve funds) attributable to Regular
Assessments collected but not disbursed in the fiscal year immediately preceding the
fiscal year for which such estimate has been prepare. Within thirty (30) days after
adoption of any proposed budget, the Executive Board shall mail, by ordinary first-class
mail, or otherwise deliver a summary of the budget to all the Condominium Unit Owners
and shall set a date for a meeting of the Condominium Unit 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
Condominium Unit Owners reject the budget, the budget is ratified, whether or not a
quorum is present. In the event that the proposed budget is rejected, the periodic
budget last ratified by the Condominium Unit Owners must be continued until such time
Page 15 of 29
-..
as the Condominium Unit Owners ratify a subsequent budget proposed by the Executive
Board.
If the Executive Board fails to determine or cause to be determined the
total amount to be raised by Regular Assessments in any fiscal year, and/or fails to
notify the Condominium Unit Owners of the amount of such Regular Assessments for
any fiscal year, then funds held by or on behalf of the Association, including capital
reserve and maintenance funds, may be used for the operation of the Project.
Except as emergencies may require, the Association shall make no
commitment or expenditures in excess of the funds reasonably expected to be available
to the Association.
c. Special Assessments. In addition to Regular Assessments, the
Association may levy Special Assessments, payable over such period as the Association
may determine: (a) for the purpose of defraying, in whole or in part, to the extent the
amounts in the capital reserve fund are insufficient thereof; (b) for the purpose of
defraying any other Common Expense incurred or to be incurred as provided in this
Declaration; (c) to cover the deficiency, in the event that, for whatever reason, the
amount received by the Association from regular Assessments is less than the amount
determined and assessed by the Association; and (d) to the Owners of the Parking
Spaces for the purpose of insuring, maintaining, and repairing the Parking Area and the
Parking Spaces as provided for in Paragraph 24 below.
d. Other Assessments. In addition to Regular Assessments and Special
Assessments, the Association may levy other Assessments against Condominium Unit
Owners, payable over such period as the Association may determine for the purpose of
enforcing the provisions of this Declaration.
e. Apportionment of ReQular and Special Assessments. The amount
of the Regular Assessments for any fiscal period or any Special Assessments payable
by the Owner of a Condominium Unit is hereby allocated to each of the Condominium
Units in proportion to the percentages appearing in "Exhibit 1" to this Declaration,
subject to the provisions of this Declaration regarding the combination, division or
reconfiguration of Condominium Units.
f. Time for Payment. The amount of any Assessment, charge, fine,
penalty or other amount payable with respect to any Owner, or such Owner's Guest shall
become due and payable as specified by the Executive Board of the Association and, in
any event, thirty (30) days after any notice of the amount due as to such Assessment,
charge, fine, penalty or other amount shall have been given by the Association to such
Owner, and any such amount shall bear interest at the rate of twelve (12%) percent per
annum from the date due and payable until paid. The Executive Board may impose a
late charge on such defaulting Owner in an amount not to exceed Fifty Dollars and
no/100 ($50.00) to cover the extra cost and expenses involved in handling such
delinquent assessments.
g. Lien for Assessments and Other Amounts. If the Owner does not
pay such Assessment or sum of any installment thereof when due, the Owner shall be
deemed to be in default and upon recording a notice of default describing said
Condominium Unit in the Office of the County Clerk, Pitkin County, Colorado, the
Page 16 of 29
~
Association shall have a lien against such Condominium Unit or Parking Space to
secure payment of any Assessment, or other amount due and owing to the Association,
with respect to such Owner's Guest, Condominium Unit, or Parking Space, plus interest
from the date due and payable, plus all costs and expenses for collecting the unpaid
amount including reasonable attorney's fees. The lien may be foreclosed in the manner
for foreclosures of mortgages in the State of Colorado. In any such foreclosure, the
Owner shall be required to pay the costs and expenses of such proceedings, the costs
and expenses for filing the notice or claim of lien and all reasonable attorney's fees and
court costs. The Executive Board shall have the right to bid on the Condominium Unit or
Parking Space at a foreclosure sale and to acquire and hold, lease, mortgage and
convey same. If any Owner is deemed to be in default hereunder and fails to cure such
default within thirty (30) days, the Association shall give written notification of such
default to any Mortgagee of the Condominium Unit or Parking Space owned by such
Owner whose name and address is expressly provided in the recorded mortgage, deed
of trust or other lien.
h. Estoppel Certificate. The Association shall furnish to an Owner or
such Owner's designee or to a holder of a security interest or its designee upon written
request, delivered personally or by certified mail, first-class postage prepaid, return
receipt, to the Association's registered agent, a written statement setting forth the
amount of unpaid Assessments currently levied against such Owner's Condominium Unit
or Parking Space. The statement shall be furnished within fourteen (14) calendar days
after receipt of the request and is binding on the Association, the Executive Board, and
every Owner. If no statement is furnished to the Owner or holder of a security interest or
such Owner's designee, delivered personally or by certified mail, first-class postage
prepaid, return receipt requested, to the inquiring party, then the Association shall have
no right to assert a lien upon the Condominium Unit or Parking Space for unpaid
assessments which were due as of the date of the request. The Association may charge
a reasonable fee for preparing statements of any unpaid Assessments. The amount of
this fee and the time of payment shall be established by resolution of the Executive
Board. Any unpaid fees may be assessed as a Common Expense against the
Condominium Unit or Parking Space for which the certificate or statement is furnished.
i. Liabilitv of Owners, Purchasers and Encumbrancers. The amount of
any Assessment, charge, fine or penalty to the Association by an Owner under this
Declaration shall be a joint and several obligation to the Association of such Owner and
such Owner's heirs, personal representatives, successors and assigns. A party
acquiring fee simple title to a Condominium Unit or Parking Space shall be jointly and
severally liable with the former Owner for all amounts which had accrued and which
were payable at the time of the acquisition of fee simple title to the Condominium Unit or
Parking Space by such party without prejudice to such party's right to recover any of said
amounts paid from the former Owner. Each such amount, together with interest thereon,
may be recovered by suit for a money judgment by the Association without foreclosing or
waiving any lien securing same.
j. Assessment Reserves for Condominium Unit Owners. The
Association may (but shall be under no obligation to) require a Condominium Unit Owner
to deposit with the Association an additional amount not exceeding the amount of the
original estimated quarterly Regular Assessment, which sum shall be held by the
Association as a reserve to be used for paying such Condominium Unit Owner's
quarterly Regular Assessment and for working capital. This deposit shall not accrue any
Page 17 of 29
,.-.,
interest for the benefit of the Condominium Unit Owner. Such advance payment shall
not relieve an owner from making the payment of Regular Assessments due. On the
transfer of the Owner's Condominium Unit, an Owner shall be entitled to a credit from
the Owner's transferee for any unused portion thereof. Such reserves shall, at all times,
remain as capital of the Association.
20. Insurance.
a. Insurance Reauirements Generallv. The Association shall obtain
and maintain in full force and effect at all times certain casualty, liability and other
insurance as hereinafter provided. All such insurance shall be obtained, to the extent
possible, from responsible companies duly authorized to do insurance business in the
State of Colorado. All such insurance shall name as insured the Association, the
Executive Board of the Association, the Association's officers, employees and agents,
and, if practicable, the Owners. All such insurance shall protect each of the insured as if
each were separately insured under separate policies. To the extent possible, such
casualty insurance shall: (a) provide for a waiver of subrogation by the insurer as to
claims against the Association, its directors, officers, employees and agents and against
each Owner and each Owner's employees and Guests; (b) provide that the insurance
cannot be canceled, invalidated or suspended on account of the conduct of the
Association, its directors, officers, employees and agents and against each Owner and
each Owner's employees and Guests; (c) provide that any "no other insurance" clause in
the insurance policy shall exclude any policies of insurance maintained by any Owner or
Mortgagee and that the insurance policy shall not be brought into contribution with
insurance maintained by any Owner or Mortgagee; (d) contain a standard mortgage
clause endorsement in favor of the Mortgagee of any Condominium Unit, Parking Space
or part of the Project except a Mortgagee of a Condominium Unit, Parking Space, or part
of the Project who is covered by other and separate insurance; (e) provide that the policy
of insurance shall not be terminated, canceled or substantially modified without at least
ten (10) days' prior written notice to the Association and to each Owner and to each
Mortgagee covered by any standard mortgage clause endorsement; and (f) provide that
the insurer shall not have the option to restore the premises if condominium ownership
of the Project is to be terminated in accordance with the terms of this Declaration or the
Project is to be sold in its entirety in accordance with the destruction, condemnation and
obsolescence provisions of this Declaration. To the extent possible, public liability and
property damage insurance shall provide for coverage of any cross liability claims of
Owners against the Association or other Owners and of the Association against Owners
without right of subrogation. Any insurance policy may contain such deductible
provisions as the Executive Board of the Association deems consistent with good
business practice.
The Association shall perform a determination of the replacement value of
the Project on an annual basis; provided however, that said determination may (but need
not) be performed by a certified appraiser.
Certificates of insurance coverage or copies of insurance policies shall be
issued to each Owner and each Mortgagee who makes written request to the
Association for any such certificate or copy of an insurance policy.
The cost and expense of all insurance obtained by the Association,
except insurance covering additions, alterations or improvements made to a
Page 18 of 29
Condominium Unit by an Owner or other insurance obtained at the request of and
specifically benefitting any particular Owner, shall be an expense of the Association.
b. Casualtv Insurance. The Association shall obtain and maintain
casualty insurance covering the Project and each Condominium Unit covering loss or
damage by fire and such other hazards as are covered under standard extended
coverage policies, with building code upgrade endorsements, and with vandalism and
malicious mischief endorsements, and if available and if deemed appropriate by the
Association, war risk, for the full insurable replacement cost of the Project, including
each Condominium Unit. Any such policy of casualty insurance shall also include a
building-code upgrade endorsement. The Association shall not be obligated to apply
any insurance proceeds to restore a Condominium Unit to a condition better than the
conditions existing prior to the making of additions, alterations or improvements as
aforesaid.
c. Public Liability and Property Damaae Insurance. The Association
shall obtain and maintain comprehensive public liability and property damage insurance
covering personal liability and property damage liability of the Association, its officers,
directors, employees and agents, and of each Owner and each Owner's employees and
Guests, arising in connection with ownership, operation, maintenance, occupancy or use
of the Project with limits of not less than $1,000,000 for each occurrence involving bodily
injury liability and/or property damage liability.
d. Worker's Compensation and Emplover's Liabilitv Insurance. The
Association shall obtain and maintain workmen's compensation and employer's liability
insurance as may be necessary to comply with applicable laws.
e. Insurance bv Owners. Except to the extent coverage therefor may be
obtained by the Association and be satisfactory to an Owner, each Owner shall be
responsible for obtaining insurance he deems desirable, including, without limitation,
casualty insurance covering furnishings and personal property belonging to that Owner
and insurance covering personal liability of that Owner and that Owner's employees and
Guests. Any insurance policy obtained by an Owner shall be such that it will not
diminish or adversely affect or invalidate any insurance or insurance recovery under
policies carried by the Association and shall, to the extent possible, contain a waiver of
the right of subrogation by the insurer as to any claim against the Association, its
officers, directors, agents and employees and Guests. A copy of any insurance policy
obtained by an Owner shall be furnished to the Association.
f. Receipt and Application of Insurance Proceeds. Except as some
particular Person has a legal right to receive insurance proceeds directly, all insurance
proceeds and recoveries shall be paid to and received by the Association. All insurance
proceeds or recoveries received by the Association shall be applied by the Association:
first, as expressly provided elsewhere in this Declaration; second, to the Owners or
Persons whom the Association may determine are legally or equitably entitled thereto;
and third, the balance, if any, to Owners in proportion to their respective interests in
Common Elements.
g. Other Insurance bv Association. The Association shall have the
power or authority to obtain and maintain and other additional insurance coverage,
including casualty insurance covering personal property of the Association, fidelity bonds
Page 19 of 29
or insurance covering employees an agents of the Association and insurance
indemnifying officers, directors, employees and agents of the Association.
h. Owner-Increased Premiums. In the event that, as a consequence of
the hazardous use of any Condominium Unit, or any Owner-installed improvements to
any Condominium Unit, the premiums of any policy of any insurance purchased by the
Association are increased, or a special policy is required, the cost of such increase or
specific policy shall be payable by the Owner of such Condominium Unit.
21. Destruction. Condemnation. Obsolescence. and Restoration or Sale of
Proiect.
a. Certain Definitions. The following terms have the following definitions:
(i) Substantial and Partial Destruction. "Substantial Destruction"
shall exist whenever, as a result of any damage or destruction to the Project or any part
thereof. the excess of Estimated Cost of Restoration (as herein after defined) over
Available Funds (as herein after defined) is fifty percent (50%) percent or more of the
Estimated Restored Value of the Project (as herein after defined). "Partial Destruction"
shall mean any other damage or destruction of the Project or any part thereof.
(ii) Substantial and Partial Condemnation. "Substantial
Condemnation" shall occur whenever a complete taking of the Project has occurred or a
taking of part of the Project under eminent domain or by grant or conveyance in lieu of
condemnation has occurred, and the excess of the Estimated Costs of Restoration over
Available Funds is fifty percent (50%) percent or more of the estimated Restored Value
of the Project. "Partial Condemnation" shall mean any other such taking by eminent
domain or grant or conveyance in lieu of eminent domain.
(iii) Substantial and Partial Obsolescence. "Substantial
Obsolescence" shall exist whenever the Project or any part thereof has reached such a
state of obsolescence or disrepair that the excess of Estimated Costs of Restoration
over Available Funds is fifty percent (50%) or more of the estimated Restored Value of
the Project. "Partial Obsolescence" shall mean any sate of obsolescence or disrepair
which does not constitute Substantial Obsolescence.
(iv) Restoration. "Restoration", in the case of any damage or
destruction, shall mean restoration of the Project to a condition the same or substantially
the same as the condition in which it existed prior to the damage or destruction; in the
case of condemnation, shall mean restoration of the remaining portion of the Project to
an attractive, sound and desirable condition.
(v) Restored Value. "Restored Value" shall mean the value of the
Project after Restoration.
(vi) Estimated Costs of Restoration. "Estimated Costs of
Restoration" shall mean the estimated costs of restoration.
(vii) Available Funds. "Available Funds" shall mean any
proceeds of insurance or condemnation awards or payments in lieu of condemnation
and any uncommitted income or funds from the capital reserve fund and the carry-over
Page 20 of 29
..._~._~--,------
reserve fund. Available Funds shall not include the portion of insurance proceeds legally
required to be paid to any party other than the Association, including a Mortgagee, or
that portion of any condemnation award or payment in lieu of condemnation payable to
the Owner for the condemnation or taking of that Owner's Condominium Unit.
b. Determination bv the Executive Board. Upon the occurrence of any
damage or destruction to the Project or any part thereof, or upon complete or partial
taking of the Project under eminent domain or by grant or conveyance in lieu of
condemnation, the Executive Board shall make a determination as to whether the
excess of Estimated Costs of restoration over Available Funds is fifty percent (50%) or
more of the estimated Restored Value of the Project. In addition, the Executive Board
shall, from time to time, review the condition of the Project to determine whether
Substantial Obsolescence exists.
c. Restoration of the Proiect. Restoration of the Project shall be
undertaken by the Association without a vote of Condominium Unit Owners in the event
of Partial Destruction, Partial Condemnation or Partial Obsolescence but shall be
undertaken in the event of Substantial Destruction, Substantial Condemnation or
Substantial Obsolescence only with the consent of the members holding seventy-five
percent (75%) of the total voting power in the Association and the unanimous consent of
all Mortgagees. In the event the insurance proceeds actually received exceed the cost
of restoration when such restoration is undertaken pursuant to this Article, the excess
shall be paid and distributed to all of the Condominium Unit Owners, in proportion of
their undivided interest in the Common Elements.
d. Sale of the Proiect. The Project shall be sold in the event of
Substantial Destruction, Substantial Condemnation or Substantial Obsolescence unless
consent to Restoration has been obtained from the members holding seventy-five
percent (75%) of the total voting power of the Association and the unanimous consent of
to Restoration of all Mortgagees has been obtained. In the event of such sale,
condominium ownership under this Declaration shall terminate and the proceeds of the
sale and any insurance proceeds, condemnation awards or payments in lieu of
condemnation shall be distributed by the Association (i) to each Condominium Unit
Owner in accordance with such Condominium Unit Owner's percentage interest in the
Common Elements; and (ii) to the Parking Space Owners pro rata to their respective
ownership of Parking Spaces. Payments to be made to Owners hereunder shall be
made jointly to Mortgagees as to Condominium Units which are mortgaged at the time of
such payment.
e. Authoritv of Association to Restore or Sell. The Association, as
attorney-in-fact for each Owner, shall have full power and authority to restore to sell the
Project and each Condominium Unit and Parking Space in the Project whenever
Restoration or sale, as the case may be, is undertaken as herein above provided. Such
authority shall include the right and power to enter into any contracts, deeds or other
instruments which may be necessary or appropriate for Restoration or sale, as the case
may be.
f. Pavment of Proceeds. All insurance proceeds or proceeds of the sale
shall be paid to the Association, as trustee for all of the Owners and all Mortgagees, as
the interest of such Owners and such Mortgagees may appear, SUbject to the obligation
of the Association to restore the Project as provided herein.
Page 21 of 29
^'_ _~___'___.~_'____'~____~____"""N-"_'__~___~~'~~__'___
g. Special Assessments for Restoration. Whenever Restoration is to
be undertaken, the Association may levy and collect Assessments from each Owner in
proportion to each Owner's undivided interest in the Common Elements, payable over
such period as the Association may determine, to cover the costs and expenses of
Restoration to the extent not covered in Available Funds. Such Special Assessments
shall be secured by a lien on the Condominium Unit of each such Owner as in the case
of Regular Assessments. Notwithstanding any other provisions in this Declaration to the
contrary, in the case of Substantial Obsolescence, any such special assessments shall
not be a personal obligation of any such Owner who did not consent to Restoration, but,
if not paid, may be recovered only by foreclosure of the lien against the Condominium
Unit of such Owner.
h. Receipt and Application of Condemnation Funds. All
compensation, damages or other proceeds constituting awards for a complete taking of
the Project or a taking of part of the Project under eminent domain or by grant or
conveyance in lieu of condemnation shall be payable to the Association. The amount
thereof allocable to compensation for the taking of or injury to a Condominium Unit,
Parking Space or to improvements of an Owner therein shall be apportioned to the
Owner of that Condominium Unit or Parking Space. The balance of the award shall be
applied to costs and expenses of Restoration, if undertaken, and, to the extent not so
applied, shall be allocated as follows: first, any portion of the award allocable to their
respective undivided interests in the Common Elements; second, the amounts allocable
to severance damages shall be apportioned to Owners of Condominium Units which
were not taken or condemned, or which were not fully taken or condemned, in proportion
to their respective undivided interests in the Common Elements; and third, the amounts
allocated to consequential damages or for other purposes shall be apportioned as the
Association determines to be equitable under the circumstances.
i. Reoraanization in the Event of Condemnation. In the event all of a
Condominium Unit or Parking Space is taken in condemnation, the Condominium Unit or
Parking Space shall cease to be part of the Project, the Owner thereof shall cease to be
a member of the Association, and the undivided interest in Common Elements
appurtenant to the Condominium Unit so taken shall automatically become vested in the
Owners of the remaining Condominium Units in proportion to their respective undivided
interests in the Common Elements. In the event part of a Condominium Unit is taken in
condemnation, the undivided interests of Owners in Common Elements and the voting
rights and assessment obligations of all Owners shall automatically be adjusted
according to said adjustment in square footage.
22. Use and Occupancy. The Declarant makes the following provisions
regarding use and occupancy of the Project.
a. No ImperilinQ of Insurance. No Owner and no Owner's Guests shall
do anything or cause anything to be kept in or on the Project which might cause
cancellation of any insurance effected and placed on the Project by the Association.
b. Use and Occupancy. Each Condominium Unit and Parking Space
may be used and occupied for such professional business or service purpose or
purposes as may be provided for herein and which are lawful and allowable under
applicable laws, ordinances, or the rules of any lawful public authority including
Page 22 of 29
".,
conditions imposed upon the project by the City of Aspen at the time of governmental
approval thereof; provided, however, that Condominium Unit 210 may be also be used
for residential purposes, but subject to applicable laws, ordinances, or the rules of any
lawful public authority including conditions imposed upon the project by the City of
Aspen at the time of governmental approval thereof.
c. No Noxious, Offensive. Hazardous or Annovina Activities. No
noxious or offensive activity shall be carried on any part of the Project; nor shall anything
be done or place on or in any part of the Project which is or may become a nuisance or
cause embarrassment, disturbance or annoyance to other Owners or their Guests. No
activity shall be conducted on any part of the Project and no improvements shall be
conducted on any part of the Project which are or might be unsafe or hazardous to any
Person or property. No sound shall be emitted on any part of the Project which is
unreasonably loud or annoying. No odor shall be emitted on any part of the Project
which is noxious or offensive to others. No light shall be emitted from any part of the
Project which is unreasonably bright or cause unreasonable glare.
d. No Unsiahtliness. No unsightliness or waste shall be permitted on or
in any part of the Project. Without limiting the generality of the foregoing; no Owner shall
keep or store anything (except in designated storage areas) on or in any of the General
Common Elements; no Owner or Owner's Guest shall bring a bicycle into the Building;
no Owner shall hang, erect, affix or place anything on any of the General Common
Elements; and, nothing shall be placed on or in windows or doors of units, which would
or might create an unsightly appearance. Each Condominium Unit Owner shall be
obligated to maintain and keep that Owner's own Condominium Unit, its windows and
doors, including exterior and interior surfaces thereof, and the Limited Common Element
or Elements with respect to such Condominium Unit, in good, clean order and repair.
e. Restriction on Animals. No animals of any kind, including
domesticated dogs or cats, livestock, reptiles and birds shall be kept on any part of the
Project unless each is expressly permitted by the Bylaws of the Association and
regulated by Rules and Regulations promulgated by the Association.
f. Restriction on Siqns. No "For Sale" or "For Rent" signs, advertising or
other displays shall be maintained or permitted on any part of the Project except at such
location and in such form as shall be approved in writing by the Executive Board of the
Managing Agent. The right is reserved by the Declarant, or its agent or agents, to place
"For Sale" or "For Rent" signs on any unsold or unoccupied Condominium Units owned
by it, and on any part of the General Common Elements with respect to the availability of
such Condominium Units and the right is hereby given to any Mortgagee, who may
become the Owner of any Condominium Unit, to place such signs on any Condominium
Unit owned by such Mortgagee. So long as any Condominium Unit is owned by it, the
Declarant shall be entitled to access, ingress, and egress to the Building and the Project
as it shall deem necessary in connection with the construction of or sale of the Building
or any Condominium Unit. The Declarant shall have the right to use any unsold
Condominium Unit or Condominium Units as a model or for sales or display purposes.
Each business establishment operated in a Condominium Unit or any part
thereof shall be entitled to place one (1) sign of reasonable size and in a dignified
manner containing the business name of such establishment upon the entrance door of
such establishment, or at such other place as shall be permitted by the Executive Board
Page 23 of 29
of Directors or Managing Agent. Additional signs may be placed only as permitted by
the Executive Board of Directors which permission may be granted or withheld in the
sole discretion of the Executive Board of Directors.
g. No Violation of Rules and Reaulations. No Owner and no Owner's
Guests shall violate the Rules and Regulations adopted from time to time by the
Association, whether relating to the use of units, the use of general or limited common
elements or otherwise.
h. Owner Caused DamaCles. If, due to the act or neglect of an Owner or
such Owner's Guests, loss or damage shall be caused to any Person or property,
including the Project or any unit therein, such Owner shall be liable and responsible for
the same except to the extent that such damage or loss is covered by insurance
obtained by the Association and the carrier of the insurance has waived its rights of
subrogation against such Owner. The amount of such loss or damage may be collected
by the Association from such Owner as an Assessment against such Owner by legal
proceedings or otherwise, and such amount (including reasonable attorney's fees) shall
be secured by a lien on the Condominium Units of such Owner as provided herein above
for Assessments or other charges.
i. Restrictions on ParkinCl and StoraCle. No part of the Project,
specifically including the Project's Common Elements, Limited Common Elements, and
Parking Area, unless specifically designated by the Association therefor, shall be used
for storage of skis, snowboards, ski or snopwboard equipment, bicycles, automobile
tires, or other personal property of Owners or Guests. This restriction applies in
particular to the three (3) foot wide Common Elements located between the Building and
the Parkins Spaces, which area shall be kept clear at all times for purposes of ingress to
and egress from the Building.
j. Toilet and Washroom Areas. Toilet and washroom areas designated
on the Map as "General Common Element Restrooms" shall be Common Elements, but
their use may be restricted from time to time, as in the case of Limited Common
Elements, to the exclusive use by Owners or Guests of Condominium Units located on
the same floor of the Building without impairing their character as General Common
Elements for all other purposes.
k. General Common Element Mechanical Spaces. "General Common
Element Mechanical" spaces designated on the Map between ceiling surfaces of each
floor or level and floor surfaces on the next higher floor or level, and similarly designated
vertical spaces within the main walls of the Building and wall interspaces within walls or
proposed walls shown on the Map as dividing Units expressly so designated or other
spaces within the Building are General Common Elements for the exclusive purpose of
installation, use, repair, maintenance of or connection to mechanical, electrical,
plumbing, sprinkling, telephone, cable, wiring and similar apparatus as may be
reasonably required either for the convenient use of occupation of a Condominium Unit,
or for the convenient use and occupation of the Common Elements, insofar as the same
may be accomplished without damage to or unauthorized encroachment upon the air
space within a Condominium Unit
Page 24 of 29
----
Determination with respect to whether a particular activity or occurrence
shall constitute a violation of this Paragraph shall be made by the Executive Board and
shall be final.
23. Mixed Use Condominium Unit. Unit 207 shall constitute the "Mixed Use
Condominium Unit" referred to herein. The Mixed Use Condominium Unit may be used
for residential purposes, office, or commercial purposes, or a combination thereof. Not
more than four (4) Persons may be permanent residential occupants of the Mixed Use
Condominium Unit at any time.
24. ParkinCl Spaces. Ownership, use, and maintenance of the Parking Area
and the Parking Spaces shall be subject to the following:
a. Ownership of ParkinCl Spaces. A Parking Space may only be owned
by an Owner of a Condominium Unit.
b. ParkinCl Area. With the exception of the separately owned Parking
Spaces, the Parking Area shall be a General Common Element of the Project.
d. Responsibility for Insurance. and Maintenance of ParkinCl Area
and ParkinCl Spaces. The Association shall be responsible for insuring, repairing,
striping, snow removal and maintenance of the Parking Area and the Parking Spaces,
provided that any expenses of insuring, repairing, striping, snow removal and
maintenance of the Parking Area and Parking Spaces shall be shared by the Owner(s)
of the Parking Spaces in proportion to the number of Parking Spaces which the Parking
Space Owners respectively own, and any expenses of the Association related to such
obligations shall be assessed by the Association to such Parking Space Owners as
Special Assessments.
e. Maintenance Decisions. All decisions regarding the maintenance of
the Parking Area and the Parking Spaces shall be made with the prior unanimous
consent of the Parking Space Owners.
25. Miscellaneous.
a. Duration of Declaration. Each provision contained in this Declaration
which is subject to the laws and rules sometimes referred to as the rule against
perpetuities or the rule prohibiting unreasonable restraints on alienation shall continue
and remain in full force and effect for the period of twenty-one (21) years following the
death of the survivor of James T. Martin and the now living children of said Person or
until this Declaration is terminated as hereinafter provided, whichever first occurs. All
other provisions contained in this Declaration shall continue and remain in full force and
effect until condominium Ownership of the Project and this Declaration is terminated or
revoked as hereinafter provided.
b. Amendment and Termination. Except in cases of amendments that
may be executed by the Association as provided for under the Act or by the district court
for any county that includes all or any portion of a Common Interest Community alsCJ as
provided for under the Act, this Declaration, including the Map, may be amended only by
vote or agreement of Owners of Condominium Units to which at least seventy-five
percent (75%) of the votes in the Association; provided, however, in no event shall the
Page 25 of 29
-,.._---~.._,~-~.~>~------"'-
undivided interest of an Owner in the General Common Elements be decreased without
the unanimous consent of all of the Condominium Unit Owners. The Association shall,
at least ten (10) days prior to the effective date of any amendment to this Declaration,
notify all Mortgagees of record of such amendment. Provided however, that this
Declaration and condominium ownership of the Project shall not be terminated or
revoked, nor shall this Paragraph 25(b) be amended unless all of the Condominium Unit
Owners and all Mortgagees consent and agree to such termination, revocation, or
amendment by written instrument duly recorded.
Notwithstanding any provision in this Declaration to the contrary,
Declarant, acting alone, reserves to itself the right and power to modify and amend this
Declaration to the fullest extent permitted under the Act, including, without limitation, to
correct clerical, typographical or technical errors, or to comply with the requirements,
standards, or guidelines of recognized secondary mortgage markets, the Department of
Housing and Urban Development, the Federal Housing Administration, the Veterans
Administration, the Federal Home Loan Mortgage Corporation, the Government National
Mortgage Association, or the Federal National Mortgage Association.
c. Effect of Provisions of Declaration. Each provision of this
Declaration, and any agreement, promise, covenant and undertaking to comply with
each provision of this Declaration, and any necessary exception or reservation or grant
of title, estate, right or interest to effectuate any provision of this Declaration: (a) shall be
deemed incorporated in each deed or other instrument; (b) shall, by virtue of acceptance
of any right, title or interest in the Project or in any Condominium Unit or Parking Space
by an Owner, be deemed accepted, ratified, adopted and declared as a personal
covenant of such Owner, and, as a personal covenant of an Owner, shall be deemed a
personal covenant to, with and for the benefit of the Association but not to, with or for the
benefit of any other Owner; (c) shall be deemed a real covenant and also an equitable
servitude, running, in each case, as a burden with and upon the title to the Project and
each Condominium Units; and (d) shall be deemed a covenant, obligation and restriction
secured by a lien in favor of the Association, burdening and encumbering the title to the
Project and each Condominium Units in favor of the Association.
d. Enforcement and Remedies. In addition to any other remedies
herein provided, each provision of this Declaration with respect to an Owner or the
Condominium Unit(s) or Parking Space(s) of an Owner shall be enforceable by the
Association by a proceeding for a prohibitive or mandatory injunction or by a suit or
action to recover damages. If any court proceedings are instituted in connection with the
rights of enforcement and remedies provided in this Declaration, the prevailing party
shall be awarded from the losing party its costs and expenses in connection therewith,
inclUding reasonable attorney's fees.
e. Protection of Encumbrancer. No violation or breach of, or failure to
comply with, any provision of this Declaration and no action to enforce any such
provision of this Declaration and no action to enforce any such provision shall affect,
defeat, render invalid or impair the lien of any mortgage, deed of trust or other lien on
any Condominium Units taken in good faith and for value and perfected by recording in
the Office of the Clerk and Recorder of Pitkin County, Colorado prior to the time of
recording in said Office of an instrument describing the Condominium Units and Parking
Spaces and listing the name or names of the Owner or Owners of fee simple title to the
Condominium Units and Parking Spaces and giving notice of such violation, breach or
Page 26 of 29
failure to comply; nor shall such violation, breach or failure to comply or action to enforce
affect, defeat, render invalid or impair the title or interest of the holder of any such
mortgage, deed of trust, or other lien or the title or interest acquired by any purchaser
upon foreclosure of any such mortgage, deed of trust or any lien or by the deed in lieu of
foreclosure or result in any liability, personal or otherwise, of any such holder or
purchaser. Any such purchaser on foreclosure or by deed in lieu of foreclosure shall,
however, take subject to this Declaration except only: (a) violations or breaches of, or
failures to comply with, any provisions of this Declaration which occurred prior to the
vesting of fee simple title in such purchaser shall not be deemed breaches or violations
hereto or failures to comply herewith with respect to such purchaser, such Owner's heirs,
personal representatives, successors or assigns and (b) such purchaser shall take the
property free of any claims for unpaid Assessments or other amounts against or
applicable to the encumbered Condominium Units and Parking Spaces (except for
claims for a pro rata reallocation of such Assessments or amounts to all Condominium
Units including such encumbered Condominium Unit).
f. Numbers and Gender. 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.
g. Rellistration bv Owner of Mailinll Address. Each Owner shall
register such Owner's mailing address with the Association and except for quarterly
statements and other routine notices which shall be personally delivered or sent by
regular mail, all other notices or demands intended to be served on an Owner shall be
delivered personally or sent by either registered or certified mail, postage prepaid,
addressed in the name of the Owner at such registered mailing address. All notices,
demands or other notices intended to be served on the Executive Board or directors of
the Association or the Association shall be sent certified mail, postage prepaid, to the
Association at the following address:
h. Successors in Interest. This Declaration shall be binding on and shall
inure to the benefit of the Association and each Owner and the heirs, personal
representatives, successors and assigns of each of them.
i. Severabilitv. Invalidity or unenforceability of any provision of this
Declaration in whole or in part shall not affect the validity or enforceability of any other
provision or any valid and enforceable part of a provision of this Declaration.
j. Captions. The captions and headings in this Declaration are for
convenience only and shall not be considered in construing any provision of this
Declaration.
k. No Waiver. Failure to enforce any provision of this Declaration shall
not operate as a waiver of any such provision or of any other provision of this
Declaration.
Executed as of the _ day of
,2005.
ASPEN MAIN, LLP, a Colorado limited liability
partnership
Page 27 of 29
By:
James T. Martin, its general partner
COUNTY OF
)
) ss.
)
STATE OF
The foregoing instrument was acknowledged before me this day of
, 2005, by James T. Martin as general partner of Aspen Main, LLP, a
Colorado limited liability partnership.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Page 28 of 29
EXHIBIT 1 TO CONDOMINIUM DECLARATION
FOR THE ASPEN MAIN OFFICE CONDOMINIUMS
Condominium Unit
TOTAL
B1
B2
B3
B4
B5
B6
B7
101
102
103
104
105
106
107
201
202
203
204
205
206
207
208
100%
3.73
5.61
3.58
7.38
2.58
2.22
1.65
2.65
13.12
2.60
3.61
3.80
3.46
3.46
3.63
3.99
2.63
3.68
3.73
3.70
15.58
3.61
100%
Sharina Ratio
Page 29 of 29