CONDOMINIUM DECLARATION

 

FOR

 

THIRTEEN FORTY-NINE RACE CONDOMINIUMS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

Paragraph No.            Title                   Page No.

 

1.   Definitions                                  -1-

(a)Unit                                      -1-

(b)Condominium Unit                          -1-

(c)Owner                                     -1-

(d)Common Elements                           -2-

(e)Condominium Project                       -2-

(f)Declaration                               -2-

(g)Common Expenses                           -2-

(h)Association (of Unit Owners}              -2-

(i}Building                                  -2-

(j}Condominium Map                           -2-

 

2.   Division of Property into Condominium Units  -3-

 

3.   Limited Common Elements                      -3-

 

4.   Description of Condominium Unit              -4-

 

5.   Condominium Map                              -4-

 

6.   Inseparability of a Condominium Unit         -5-

 

7.   Separate Assessment and Taxation             -5- 

     Notice to Assessor

 

8.   Form of Ownership - Title                    -5-

 

9.   Non-Partitionability of General Common Elements   -5-

 

10.  Use of General and Limited Common Elements   -5-

 

11.  Use and Occupancy                            -5-

 

12.  Easements for Encroachments                  -6-

 

13.  Termination of Mechanic’s Lien Rights        -6-

     and Indemnification

 

14.  Thirteen Forty-Nine Race Condominium        -6-

     Association, Inc.

       

15.  Reservation for Access - Maintenance,       -6-

     Repair and Emergencies

 

16.  Maintenance Responsibility                  -7-

 

17.  Compliance with Provisions of               -7-

     Declaration, By-Laws of the Association

 

18.  Revocation or Amendment to Declaration      -8-

 

19.  Additions, Alterations and Improvements     -8-

     General and Limited Common Elements

 

20.  Assessment for Common Expenses              -8-

 

21.  Insurance                                   -9-

 

 

 

 

 

Paragraph No.            Title                Page No.

 

 

 

 

22.  Owner's Personal Obligation for            -11-

     Payment of Assessments

 

23.  Assessment Lien                            -12-

 

24.  Liability for Common Expenses upon         -13-

     Transfer of Condominium is Joint

 

25.  Encumbrances - Priority                    -13-

 

26.  Destruction, Damage or Obsolescence -      -14-

     Association as Attorney-in-Fact

 

27.  Condemnation                               -17-

 

28.  Reorganization                             -18-

 

29.  Reconstruction and Repair                  -18-

 

30.  Registration of Mailing Address            -18-

 

31.  Period of Condominium Ownership            -19-

 

32.  Assessment Reserves                        -19-

 

33.  Restrictive Covenants and Obligations      -19-

 

34.  Association Right to Acquire Additional Property -20-

 

35.  Exculpatory Clause                         -21-

 

36.  General Reservations                       -21-

 

37.  Title Subject to Declarant’s Reservations  -21-

 

38.  Acceptance of Provisions of all Documents  -21-

 

39.  Professional Manager                       -21-

 

40.  General                           -22-

 

 

  

-ii-

 

CONDOMINIUM DECLARATION

 

FOR

 

THIRTEEN FORTY-NINE RACE CONDOMINIUMS

 

KNOW ALL MEN BY THESE PRESENTS:

 

THAT WHEREAS, Chisholm Company, a Partnership (hereinafter called “Declarant”) is the owner of the real property described on Exhibit A, attached hereto and by reference expressly incorporated herein; and

 

WHEREAS, there presently exists on said real property a multi-story l2-unit apartment building, consisting of four one-bedroom apartments and eight two-bedroom apartments; which improvements are commonly known as 1349 Race Street, City and County of Denver, State of Colorado.

 

WHEREAS, Declarant desires to convert said apartment complex into a condominium and to establish a condominium project under the Condominium Ownership Act of the State of Colorado; and

 

WHEREAS, Declarant does hereby establish a plan £or the ownership in fee simple of the real property estates, subject to the easements, restrictions, reservations, conditions, taxes and assessments as set forth in this Declaration, consisting of the area or space contained in each of the air space units in the building improvements and the co-ownership by the individual and separate owner's thereof, as tenants in common, of all of the remaining property, which property is hereinafter defined and referred to as the “Common Elements”.

 

NOW, THEREFORE, Declarant does hereby publish and declare that the following terms, covenants, conditions, easements, restrictions, uses, reservations, limitations and obligations shall be deemed to run with the land, shall be a burden and a benefit to Declarant, its successors and assigns, and any person acquiring or owning an interest in the real property and improvements, their grantees, successors, heirs, personal representatives, devisees or assigns.

 

l.     Definitions.  Unless the context shall expressly provide otherwise:

 

(a)  “Unit” means one individual airspace which is contained within the windows, doors and unfinished perimeter walls, floors and ceilings of each Unit as shown on the Condominium Map to be filed for record. All lath, furring, wallboard, plaster, paneling, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof shall be deemed part of the Unit, and all other portions of the walls, floors or ceilings, including, without limitation, structural components shall be deemed part of the Common Elements. Subject to the provisions of paragraph 1(d)(2), all spaces, interior partitions, and other fixtures and improvements within the boundaries of a Unit are part of the Unit.

 

(b)      “Condominium Unit” means the fee simple interest and title in and to a Unit, together with the undivided interest in the Common Elements appurtenant to such Unit, and all other rights and burdens created by this Declaration.

 

(c)      “Owner” means a person, persons, firm, corporation, partnership, association or other legal entity, or any combination thereof, which own(s) an interest in one or more Condominium Units.

 

(d)      “Common Elements" means and includes all of the land described in Exhibit A and all the improvements thereto and thereon located, excluding Units. Common Elements shall consist of the General Common Elements and Limited Common Elements.

 

(1) “General Common Elements” means and includes the land described in Exhibit A; the structural components of the building; the service roads, if any; such improvements, portions of the Building and areas as are provided for community, recreation, utility and common use of all owners; and all other parts of such land and the improvements thereon necessary or convenient to its existence, maintenance and safety which are normally and reasonably in general common use, including the air above such land, all of which shall be owned, as tenants in common, by the Owners of the separate Units, each Owner of a Unit having an undivided interest in such General Common Elements as is hereinafter provided. General Common Elements shall include all tangible physical properties of the Condominium Project except Limited Common Elements and the Units.

 

(2) “Limited Common Elements” means those parts of the Common Elements which are either limited to or reserved for the exclusive use of an Owner of a Condominium Unit or are limited to and reserved for the common use of more than one but fewer than all of the Condominium Unit Owners. Any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, and all exterior doors and windows or other fixtures designed to serve a single Unit, but located outside the Unit's boundaries, are Limited Common Elements allocated exclusively to that Unit.  If any chute, flue, duct, wire, conduit, bearing wall, bearing column, or any other fixture lies partially within and partially outside the designated boundaries of a Unit, any portion thereof serving only that Unit is a Limited Common Element allocated solely to that Unit, and any portion thereof serving more than one Unit or any portion of the General Common Elements is a part of the General Common Elements.

 

(e) "Condominium Project" means all of the land and improvements initially submitted by this Declaration and subsequently submitted as is hereinafter provided.

 

(f) “Declaration" means this Declaration and supplements thereto, if any.

(g) “Common Expenses” means and includes (i) expenses of administration, operation and management, repair or replacement of the Common Elements; (ii) expenses declared Common Expenses by the provisions of this Declaration or by the By-Laws of the Association; (iii) all sums lawfully assessed against the Common Elements by the Board of Directors of the Association; and (iv) expenses agreed upon as Common Expenses by the Association of Unit Owners.

 

(h) “Association of Unit Owners” or “Association” means the Association formed as a Colorado not-for-profit corporation bearing the name of this Condominium Project, the Articles of Incorporation and By-Laws of which shall govern the administration of this Condominium Project, the members of which Association shall be all of the Owners of the Condominium Units.

 

(i) “Building” means a single building containing Condominium Units as shown on the Map.

 

(j) “Map”, “Condominium Map” or “Supplemental Map" means and includes the engineering survey of the land depicting and locating thereon all of the improvements; the floor and elevation plans and any other drawing or diagrammatic plan depicting

-2-

a part of or all of the improvements and land which are included in this Condominium Project.

 

2.      Division of Property into Condominium Units.

 

(a) The real property described on Exhibit A including the improvements thereon is hereby divided into twelve fee simple estates as is set forth on Exhibit B, attached hereto and incorporated by reference herein. Each such estate shall, consist of the separately designated Unit and the undivided interest in and to the Common Elements appurtenant to such Unit as therein set forth.

 

(b) Right to Combine Condominium Units. Declarant hereby reserves the right to physically combine the area or space of one Unit with the area or space of one or more adjoining Units; provided, however, that Declarant shall not exercise right without the written consent of any mortgagee having an interest in said Units. In the event of any such physically combining of Units to create a combined Unit, such combined Unit shall also include the combining of the fixtures and improvements and of the undivided interests in Common Elements appurtenant to the Units so combined. Declarant reserves the right to designate and convey an easement to any purchaser of any such combined Condominium Unit, as additional Limited Common Elements thereto, any walls, floors or other structural separations between the Units so combined, or any space which would be occupied by such structural separations but for the combination of such Units; provided, however, that such walls, floors or other structural separations or such space shall automatically become General Common Elements if the combined Condominium Units become subject to separate ownership in the future. If it shall become necessary, as determined by the Board of Directors, to amend the Map to show that what were formerly two or more Units are now a single Unit, the Owner of the combined Units shall be required to pay the cost of amending and recording the amended Map.

 

3.     Limited Common Elements.

 

Subject to the definition thereof, the Limited Common Elements shall be identified on the Map. Any balcony, porch, or patio which is accessible from, associated with and adjoin(s) a Unit shall, without further reference thereof, be used in connection with such Unit to the exclusion of the use thereof by the other Owners of the Common Elements, except by invitation. Similarly, certain heating, air conditioning and hot water heating equipment which is contained within an individual Unit or situated in the basement area or on the roof of the building in which said Unit is situated, which heating, air conditioning and hot water heating equipment shall serve only one Unit, shall be a Limited Common Element appurtenant to such Unit and shall be maintained, repaired and operated solely by the owner or Owners of such Unit. Further, certain vehicular parking space(s) shall be assigned by Declarant and upon such assignment will be appurtenant to the Unit purchased and shall be for the exclusive use of the Owner of such Unit. Declarant has caused to be attached hereto and incorporated herein by reference Exhibit C which sets forth an initial assignment of certain vehicular parking space(s). Declarant hereby reserves the right, subsequent to the date of the recording of this Declaration, to assign all other parking space(s) within the Project to the Owner or Owners of Units within the Project and upon such assignment, said parking spaces shall be Limited Common Element(s) appurtenant to the Unit to which it has been 'assigned. Except as provided above, all of the Owners of Condominium Units in the Condominium Project shall have a non-exclusive right in common with all of the other Owners to use of sidewalks, any recreational facilities, streets and drives located within the entire Condominium Project.

 

- 3 -

 

 

In addition to rights of use herein described and elsewhere described in this Declaration, the Association, Board of Directors and Managing Agent shall have the unrestricted irrevocable easement to traverse, cross and utilize any portion of the common elements which may be necessary in order to maintain, repair or replace General and/or Limited Common Elements. Except as specifically hereinabove required, no reference thereto, whether such Limited Common Elements are exclusive or non-exclusive, need be made in any instrument of conveyance or other instrument in accordance with paragraph 4 of this Declaration.

 

4. Description of Condominium Unit.

 

(a) Every contract for the sale of a Condominium Unit written prior to the recordation of the Map and this Declaration may legally describe a Condominium Unit by lots identifying Unit designation, followed by the words "Thirteen Forty-Nine Race Condominiums". The location of such Condominium Unit shall be depicted On the Map subsequently recorded. Upon recordation of the Condominium Map in the County of Denver, Colorado, such description shall be conclusively presumed to relate to the thereon described Condominium Units.

 

(b) After the Condominium Map and this Declaration have been recorded in Denver County, Colorado, every contract, deed, lease, mortgage, trust deed, will or other instrument may legally describe a Condominium Unit as follow: Condominium Unit No. _____, Thirteen Forty-Nine Race Condominiums, in accordance with the Declaration, recorded on _____________________, 19___, in Book ______ at Page, _____, and Condominium Map recorded on _______________, 19___, in Book ___ at Page of the Denver County records, together with the exclusive right to use the following Limited Common E1ements: parking space ______. Every such description shall be good and sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit, but also the undivided interest in the Common Elements appurtenant to said Unit and all other appurtenant properties and property rights, and incorporate all of the rights and burdens incident to ownership of a Condominium Unit and all of the limitations thereon as described in this Declaration and Condominium Map. Each such description shall be construed to include a non-exclusive easement for ingress and egress to and from an Owner’s Unit and use of all of the Limited Common Elements appurtenant to said Unit as well as all the General Common Elements.

 

(c) The reference to the Map and Declaration in any instrument shall be deemed to include any supplements or amendments to the Map or Declaration, without specific reference(s_ thereto.

 

5. Condominium Map. The Map may be filed for record in whole or in parts or sections. Each such Map shall be recorded prior to the conveyance of the Condominium Units shown thereon. Each such Map shall. depict and show at least the following: the legal description of the land and a survey thereof; the location of the Building; the floor and elevation plans; the location of the Unit within the Building, both horizontally and vertically; and the Condominium Unit designations. Each such Map shall contain the certificate of a registered professional engineer, licensed architect or registered land surveyor certifying that the Map substantially depicts the location and the horizontal and vertical measurements of the Units, the Unit designations, parking and storage spaces and the elevations of the constructed unfinished floors and ceilings, and that such Map was prepared subsequent to substantial completion of the improvements. In interpreting the Map, the existing physical boundaries of each separate Unit as constructed shall be conclusively presumed to be its boundaries. Declarant reserves the right to amend the Map, from time to time, to conform the same

-4-

according to the actual location of any of the constructed improvements and to establish, vacate and relocate easements as required by the providing utility companies.

 

6.      Inseparability of a Condominium Unit. Each Unit, the appurtenant undivided interest in the Common Elements and the appurtenant Limited Common Elements, as well as all other appurtenances, rights and burdens, shall together comprise one Condominium Unit; shall be inseparable and may be conveyed, leased, devised or encumbered only as a Condominium Unit.

 

7.      Separate Assessment and Taxation - Notice to Assessor. Declarant shall give written notice to the Assessor of the County of Denver, Colorado, of the creation of condominium ownership in this property, as is provided by law, so that each Unit and the undivided interest in the Common Elements appurtenant thereto, shall be deemed a separate parcel for purposes of separate assessment and taxation.

 

8.      Form of Ownership - Title. A Condominium Unit may be held and owned in any real property tenancy relationship recognized under the laws of the State of Colorado.

 

9.      Non-Partitionability of General Common Elements. The Common Elements shall be owned in common by all the Owners of the Units and shall remain undivided. Each Owner specifically waives his right to institute and/or maintain a partition action or any other action designed to cause a division of the Common Elements, and each Owner specifically agrees not to institute any action therefor. A violation of this provision shall entitle the Association to personally collect, jointly and severally, from the parties violating the same, the actual attorney fees, costs and other damages the Association for itself and as agent and attorney-in-fact for all Owners incurs in connection therewith. In addition to the foregoing any decree of partition or proceeding to obtain such a decree shall be void.

 

10.      Use of General and Limited Common Elements. Each Owner shall be entitled to exclusive ownership and possession of his Unit. Each Owner may use the appurtenant General and Limited Common Elements and other appurtenances to his Unit, in accordance with the purpose for which they are intended, without hindering or encroaching upon the lawful rights of the other Owners. The Association may adopt rules and regulations governing the use of General and Limited Common Elements, but such rules and regulations shall be uniform and non-discriminatory and shall constitute a part of this Declaration. It is anticipated that one or more Owners may desire to construct improvements upon Limited Common Elements appurtenant to his Unit. Such improvements may be constructed by an Owner provided that the Board of Directors, prior to such construction, shall have granted in writing its approval as to the type and design of such improvements. When so constructed, such improvements shall become part of the Limited Common Elements upon which they are constructed and deemed incorporated therein.

 

11.      Use and Occupancy. Each owner shall be entitled to the exclusive ownership and possession of his Unit. Each Unit shall be used for residential purposes only except as hereinafter provided in this paragraph. No Unit shall be used at any time for any business or commercial activity, except as follows: (i) the Owner thereof may lease or rent such Unit for private residential, living or sleeping purposes except no Unit shall be leased for transient or hotel purposes; no less than the entire Unit shall be leased at any one time; all leases shall be in writing and shall provide that the terms of the lease shall be

-5-

 

 

 

subject in all respects to the Declaration and By-Laws and that any failure by the lessee to comply with the terms of such documents shall be a default under the lease; (ii) any Unit may be used as an employee's or manager's unit or for any other commercial use permitted by law and approved by Declarant or the Association, and (iii) the Association shall have the right but not the obligation to purchase and own any Unit for storage, recreation, or conference area or any other use which the Association determines is consistent with the operation of the entire condominium improvements, and the Association may also maintain offices within the General Common Elements.

 

12.      Easements for Encroachments. If any Unit or Common Element encroaches on any other Unit or Common Element, a valid easement for the encroachment shall exist so long as it stands. Such easement shall not relieve the Unit Owner of liability in case of his willful misconduct.

 

13.      Termination of Mechanic’s Lien Rights and Indemnification. Subsequent to the completion of any alterations, modifications or additions to the improvements described on the Map, no labor performed or materials furnished and incorporated in a Unit with the consent or at the request of the Unit Owners, his lessee, his agent, his contractor or subcontractor, shall be the basis for filing of a lien against the Unit of any other Unit Owner not expressly consenting to or requesting the same, or against the Common Elements. Each Owner shall indemnify and hold harmless each of the other Owners from and against all liability arising from the claim of any lien against the Common Elements for construction performed or for labor, materials, services or other products incorporated in the Owner’s Unit at such Owner's request. The provisions herein contained are subject to the rights of the Managing Agent or Board of Directors of the Association as set forth in paragraph 15. Notwithstanding the foregoing, any mortgagee of a Unit who shall become the Owner of such Unit pursuant to a lawful foreclosure sale shall not be under any obligation to indemnify and hold harmless any other Owner against liability for claims arising prior to the date such mortgagee becomes an Owner.

 

14.      Thirteen Forty-Nine Race Condominium Association, Inc. The interests of all Owners of Condominium Units shall be governed and administered by the Articles of Incorporation and By-Laws of the Thirteen Forty-Nine Race Condominium Association, Inc. An Owner of a Condominium Unit upon becoming an Owner, shall be a member of the Association and shall remain a member for the period of his ownership. The Declarant expressly reserves the right to act as the Managing Agent or to appoint, in writing, such person, party or entity to fulfill such function or to assign this right to a third party, which right shall be exclusive and shall continue until such time as all of the Condominium Units have been sold by the Declarant, or five years after the date hereof, whichever is sooner.

 

15.      Reservation for Access – Maintenance, Repair and Emergencies.

(a) The Owners shall have the irrevocable right, to be exercised by the Managing Agent or the Association’s Board of Directors or officers, or custodian, to have access to each Unit from time to time during reasonable hours as may be necessary for the maintenance, repair or replacement of any of the Common Elements therein or accessible therefrom, or at any hour for making emergency repairs, maintenance or inspection therein necessary to prevent damage to the common Elements or to another Unit.

 

-6-

 

 

(b) Damage to the interior or any part of a Unit resulting from the maintenance, repair, emergency repair or replacement of any of the Common Elements or as a result of emergency repairs within another Unit, at the instance of the Association, shall be a Common Expense of all of the Owners; provided, however, that if such damage is caused by negligent or tortious acts of a Unit Owner, members of his family, his agent, employee, invitee, licensee or tenants, then such Unit Owner shall be responsible and liable for all of such damage and the cost thereof shall forthwith become said Unit Owner’s obligation, which must be timely paid. Said obligation shall be a Common Expense as it relates to said Unit Owner(s), only, and is subject to the provisions elsewhere herein provided. All damaged improvements shall be restored substantially to the extent reasonably practical, to the same condition in which they existed prior to the damage. All maintenance, repairs and rep1acements of the Common Elements, whether located inside or outside of Units (unless necessitated by the negligence, misuse or tortuous act of a Unit Owner, in which case such expense sha11 be charged to such Unit owner), shall be the Common Expense of all of the Owners. However, the Association shall not be obligated to seek redress for damages caused by a negligent Owner and this covenant shall not abrogate the insurance provisions of this Agreement.

 

16. Maintenance Responsibility.

 

(a) Owner:

(1) An Owner shall be responsible for the maintenance of the interior non-supporting walls, the materials such as, but not limited to, plaster, gypsum drywall, paneling, wallpaper, paint, wall and floor tile and flooring, but not including the sub-flooring, which make up the finished surfaces of the perimeter walls, ceilings and floors within the Unit, including Unit doors and windows. The Owner shall not be responsible for the maintenance of lines, pipes, wire, conduits or systems (which are General Common Elements and for brevity are herein and hereafter referred to as "Utilities") running through his unit which serve one or more other Units except as a tenant in common with the other Owners. Such utilities shall not be disturbed or relocated by an Owner without the written prior consent and approval of the Board of Directors.

 

(2) An Owner shall maintain and keep in repair the interior of his own Unit, including the fixtures thereof to the extent current repair shall be necessary in order to avoid damaging other Unit Owners. All fixtures and equipment installed within the Unit commencing at a point where the Uti1ities enter the Unit shall be maintained and kept in repair by the Owner thereof. An Owner shall do no act nor any work that will impair the structural soundness or integrity of the Building or impair any easement or hereditament. An Owner shall always keep any balcony area adjoining and appurtenant to his Unit and any other Limited Common Elements appurtenant thereto in a clean, orderly and sanitary condition.

 

(b) Association: The Association shall have the duty of maintaining and repairing all of the Common Elements within the Condominium Project and the cost of said maintenance and repair shall be a Common Expense of all of the Owners.

 

17. Compliance with Provisions of Declaration, By-Laws of the Association. Each Owner shall comply strictly with the provisions of the Declaration, the Articles of Incorporation and By-Laws of the Association, and the decisions and resolutions of the Association adopted pursuant thereto as the same may be lawfully made and amended and/or modified from time to time.

-7-

Failure to comply with any of the same shall be grounds for an action to recover sums due, for damages or injunctive relief or both, and for reimbursement of all attorney’s fees incurred in connection therewith, which action shall be maintainable by the Managing Agent or Board of Directors in the name of the Association on behalf of the Owners, or, in a proper case, by an aggrieved Owner.

 

18. Revocation or Amendment to Declaration.

 

(a) Except as is otherwise provided, this Declaration shall not be revoked unless the Owners representing an aggregate Unit ownership interest of seventy-five percent (75%) or more of the Common Elements and one hundred percent (100%) of the holders of recorded first mortgages or deeds of trust consent and agree to such revocation by instrument(s)duly recorded. This Declaration shall not be amended unless the Owners representing an aggregate Unit ownership of at least seventy-five percent (75%) or more, of the Common Elements and one hundred percent (100%) of the holders of recorded first mortgages or deeds of trust consent and agree to such amendment by instrument(s) duly recorded; provided, however, that the undivided interest in the Common Elements appurtenant to each Unit as expressed in the Declaration, shall have a permanent character and shall not be altered without the consent of all of the Unit Owners and all of the first mortgagees as expressed in an amended Dec1aration duly recorded. The consent(s) of any junior mortgagee shall not be required under the provisions of this paragraph.

 

(b) The Association shall at least thirty (30) days prior to the effective date of any amendment to this Dec1aration notify the holders of all recorded mortgages or deeds of trust affecting a Condominium Unit(s) of such amendment, at the address, if any, stated in such recorded mortgage or deed of trust.

 

19. Additions, Alterations and Improvements - General and Limited Common E1ements. There shall be no capital additions, alterations or improvements of or to the Common Elements by the Association requiring an expenditure in excess of $200.00 per Unit in any one calendar year without prior approval of the Owners except in the event of an emergency. Said amount per Unit shall never be less than the aforesaid limitation but shall be increased to the extent applicable, every second year hereafter prior to the anniversary date hereof proportionate to any increase in the Consumer Price Index for all Urban Consumers (CPI-U), using the factor for June, 1979, as the base criterion as promulgated by the U.S. Department of Labor for the area of Denver-Boulder, Colorado, or such other comparable index if the foregoing is not available. Such limitation, as adjusted, shall be in addition to the customary operating and ownership common expenses elsewhere defined in this Declaration.

 

20. Assessment for Common Expenses.

(a) All Owners shall be obligated to pay the estimated assessments imposed by the Board of Directors or Managing Agent of the Association to meet the Common Expenses and reserves. The assessments shall be made in proportion to each Owner's interest in and to the Common Elements. Subject to specific provisions elsewhere provided in this Declaration, the Limited Common Elements shall be maintained as General Common Elements, (except, however, this shall not impose upon the Association the obligation to clean balconies and interior storage lockers), and Owners having exclusive use thereof shall not be subject to any special charges or assessments for the repair or maintenance thereof. Assessments for the estimated Common Expenses shall be due in

 

-8-

advance on the first day of each calendar month, or less frequently as may be determined by the Board of Directors or Managing Agent. The Managing Agent or Board of Directors shall cause to be prepared, delivered or mailed to each Owner at least once each year a payment statement setting forth the estimated common assessments. Regarding any special assessments, the Board of Directors may implement such procedure as they deem appropriate.

 

(b) In the event the ownership of a Condominium Unit, title to which is derived from Declarant, commences on a day other than the first day of the assessment period, the assessment for that period will be prorated.

 

(c) Assessments shall be based upon the cash requirements deemed to be such aggregate sum as the Managing Agent or the Board of Directors of the Association shall from time to time determine is to be paid by all of the Condominium Unit Owners, including Declarant, to provide for the payment of all estimated expenses growing out of or connected with the maintenance, repair, operation, additions, alterations and improvements of and to the Common Elements and community personal property owned by the Association, which sum may include, but shall not be limited to, expenses of management; taxes and special assessments until separately assessed; premiums for insurance; landscaping and care of grounds; common lighting and heating; repairs and renovations; trash collections; wages, common water and sewer charges; legal and accounting fees; management fees; expenses and liabilities incurred by the Managing Agent or Board of Directors on behalf of the Unit Owners under or by reason of this Declaration and the Articles of Incorporation and By-Laws of the Association; for any deficit remaining from a previous period; for the creation of a reasonable contingency, reserve, working capital and sinking funds as well as other costs and expenses relating to the Common Elements.

 

(d) The omission or failure to fix the assessment or deliver or mail a statement for any period shall not be deemed a waiver, modification or a release of the Owners from their obligations to pay the same.

 

(e) The Association shall establish a reserve fund for replacement of the Common Elements and such reserve fund shall be funded through the monthly payments of the Common Expenses and not by extraordinary special assessments.

 

21. Insurance

 

(a} The Board of Directors, or Managing Agent, shall obtain and maintain, to the extent obtainable, policies involving standard premium rates, established by the Colorado Insurance Commissioner, and written with companies licensed to do business in Colorado and having insurors with a rating of Class VI or better under Best's Key Rating Guide or such comparable rating in compliance with this paragraph 21. The types of coverages to be obtained and risks to be covered are as follows, to-wit:

 

(1) Fire insurance with extended coverage and multi-peril endorsements, which endorsements shall include endorsements for vandalism, malicious mischief, sprinkler leakage, debris removal, windstorm, water damage and repair and replacement, boiler and machinery insurance, with a minimum endorsed amount equal to the amount of the insurance in effect pursuant to paragraph 2l(c) hereof, insuring the entire condominium improvements and any other property, the nature of which is a Common Element (including al of the Units, fixtures therein initially installed by the Declarant but not including furniture, furnishings or other personal property supplied by or installed by Unit Owner) together with all service equipment contained therein

 

-9-

in an amount equal to the full rop1acement value (i.e. 100% of current replacement cost exclusive of land, foundation and excavation) without deduction for depreciation, and which shall contain an "Agreed Amount Endorsement” or its equivalent, and a standard non-contributory mortgage clause in favor of each mortgagee of a Condominium Unit which shall provide that the loss, if any, thereunder, shall be payable to the Thirteen Forty-Nine Race Condominium Association, Inc. for the use and benefit of mortgagees as their interest may appear. The Board of Directors may require additional insurance protection, but not less than the foregoing.

 

[2) A comprehensive policy of public liability insurance covering all of the common areas and commercial spaces in the Condominium Project, with a “Severability of Interest Endorsement" or equivalent coverage which would, preclude the Insurer from denying the claim of a Unit Owner because of the negligent acts of the Thirteen Forty-Nine Race Condominium Association, Inc. or another Unit Owner with such limits as may be determined by the Board of Directors from time to time, but not less than $1,000,000.00 covering all claims for personal injury and/or property damage arising out of a single occurrence such coverage to include protection against water damage liability, liability for non-owned and hired automobile, liability for property of others, elevator collision, garagekeeper's liability, if such exposure exists, and host liquor liability.

 

(3) Workmen’s Compensation and employer's liability insurance and all other similar insurance in respect to employees of the Association in the amounts and in the forms now or hereafter required by law.

 

(4) Fidelity Insurance.  The Thirteen Forty-Nine Race Condominium Association, Inc. shall maintain adequate fidelity coverage to protect against dishonest acts on the part of officers, directors, trustees and employees of the Association and all others who handle or are responsible for handling funds of the Association. Such fidelity bonds shall name the Association as an obligee; shall be written in an amount equal to at least 150% of the estimated annual operating expenses of the Condominium Project, including reserves; shall contain waivers of any defense bond based upon the exclusion of persons who serve without compensation from any definition of "employee” or similar expression; and shall provide that they may not be cancelled or substantially modified (including cancellation for non-payment of premium) without at least thirty (30) days prior written notice to mortgagees.

 

(5) Other.  The Association may obtain insurance against such other risks, of a similar or dissimilar nature, as it shall deem appropriate with respect to the Condominium Project, including plate or other glass insurance and any personal property of the Association located thereon.

 

(b) All policies of insurance shall contain waivers of subrogation and waivers of any defense based on coinsurance or invalidity arising from any acts at the Thirteen Forty-Nine Race Condominium Association, Inc., a Condominium Unit Owner and/or their respective agents, employees or tenants and shall provide that such policies may not be cancelled or modified without out at least ten (10) days prior written notice to all of the insureds, including mortgagees. Duplicate originals of all policies and renewals thereof, together with proof of payments of premiums, shall be delivered to all mortgagees at least ten (10) days prior to expiration of the then current policies.

 

-10 –

 

The insurance shall be carried in blanket form naming the Thirteen Forty-Nine Race Condominium Association, Inc. as the insured, as attorney-in-fact for all of the Condominium Unit Owners, which policy or policies shall identify the interest of each Condominium Unit Owner (Owner’s name, Unit number and Building designation).

 

(c) Prior to obtaining any policy of fire insurance or renewal thereof, the Board of Directors shall obtain an appraisal from a duly qualified real estate or insurance appraiser, which appraisal shall reasonably estimate the full replacement value of the entire condominium improvements, without deduction for depreciation, for the purpose of determining the amount of the insurance to be effected pursuant to the provisions of this insurance paragraph. In no event shall the insurance policy contain a coinsurance clause for less than eighty percent (80%) of the full replacement cost. Determination of maximum replacement value shall be made annually by one or more written appraisals to be furnished by a person knowledgeable of replacement cost, and each first mortgagee shall be furnished with a copy thereof within thirty (30) days after receipt or such written appraisals. Said amounts of insurance shall be contemporized annually in accordance with their currently determined maximum replacement value. In no event shall the insurance coverage obtained and maintained pursuant to the requirements herein be brought into contribution with insurance purchased by the Owners of the Condominium Units or their mortgagees. All policies of insurance shall provide that coverage shall not be prejudiced by any act or neglect of the Owners of Condominium Units when such act or neglect is not within the control of the Thirteen Forty-Nine Race Condominium Association, Inc. or by failure or the Thirteen Forty-Nine Race Condominium Association. Inc. to comply with any warranty or condition with regard to any portion of the premises over which the Thirteen Forty-Nine Race Condominium Association, Inc. has no control. All policies of property insurance shall provide that, notwithstanding any provisions thereof which give the carrier the right to elect to restore damage in lieu of making a cash settlement, such option shall not be exercisable without the prior written approval of the Thirteen Forty-Nine Race Condominium Association, Inc.

 

(d)  Unit Owners may carry other insurance for their benefit and at their expense, provided that all such policies shall contain waivers of subrogation, and provided further that the liability of the carriers issuing insurance obtained by the Board of Directors shall not be affected or diminished by reason of any such additional insurance carried by any Unit Owner.

 

(e)  Insurance coverage on furnishings, including carpet, draperies, oven, range, refrigerator, wallpaper, disposal and other items of person or other property belonging to an Owner and public liability coverage within each Unit shall be the sole and direct responsibility of the Unit Owner thereof, and the Board of Directors, the Association and the Managing Agent have no responsibility therefor.

 

(f)  In the event that there shall be any damage or destruction to, or loss or taking of a Condominium Unit which exceeds $1,000.00 or any damage or destruction to, or loss or taking of the Common Elements which exceeds $10,000.00, then notice of such damage, loss or taking shall be given by the Association to each mortgagee of said Unit.

 

22. Owner’s Personal Obligation for Payment of Assessments.

The amount of the Common Expenses assessed against each Condominium Unit shall be the personal and individual debt of the Owner thereof.  No Owner may exempt himself from liability for his contribution

 

-11-

for the Common Expenses by waiver of the use or enjoyment of any of the Common Elements or by abandonment of his Unit. Both the Board of Directors and Managing Agent shall have the responsibility to take prompt action to collect any unpaid assessment which remains unpaid for more than twenty (20) days from the due date for payment thereof. In the event of default in the payment of the assessment, the Unit Owner shall be obligated to pay interest at the rate of eighteen percent (18%) per annum on the amount of the assessment from due date thereof; together with all incurred expenses, including attorney's fees, together with such late charges as shall be provided by the By-Laws of the Association. In addition to the foregoing, the Association shall require a defaulting Owner to pay any unpaid assessment. A suit to obtain a money judgment or an action for injunctive relief, for unpaid Common Expenses shall be maintainable without constituting an election of remedies or waiving the lien securing said debt.

 

23. Assessment Lien.

 

(a) All sums assessed but unpaid for the share of Common Expenses chargeable to any Condominium Unit shall constitute a lien on such Unit superior to all other liens and encumbrances, except only for real estate taxes and special assessments liens on the Condominium Unit in favor of any public or quasi-public assessing entity, and all sums unpaid on a first mortgage or first deed of trust of record, including all unpaid obligatory sums as may be provided by such encumbrances. To evidence such lien, the Board of Directors or the Managing Agent shall prepare a written notice of lien assessment setting forth the amount of such unpaid indebtedness, the amount of the accrued interest and late charges thereon, the name of the Owner of the Condominium Unit and a description of the Condominium Unit. Such a notice shall be signed by one of the Board of Directors, or by one of the officers of the Association or by the Managing Agent and shall be recorded in the office of the Clerk and Recorder of the County of Denver, Colorado. Such lien shall attach on the date the Notice of Assessment is recorded. Such lien may be enforced by the foreclosure of the defaulting Owner's Condominium Unit by the Association in like manner as a mortgage on real property upon the recording of a notice or claim thereof.

 

(b) The Owner shall be required to pay the costs, expenses and attorney's fees incurred in regard to any such default by an Owner and for preparation and filing the lien and, in the event of foreclosure proceedings, all additional costs, expenses and reasonable attorney's fees incurred. The Owner of the Condominium Unit being foreclosed shall be required to pay to the Association the monthly assessment for the Condominium Unit during the period of foreclosure, and the Association shall be entitled to a receiver to collect the same. The Association shall have the power and authority to bid for the Condominium Unit at a foreclosure or other legal sale and to acquire and hold, lease, mortgage, vote the votes appurtenant to, convey or otherwise deal with the same during such proceeding and its ownership thereof.

 

(c) Any encumbrancer holding a lien on a Condominium Unit may pay; but shall not be required to pay, any unpaid Common Expenses payable with respect to such Unit, and upon such payment, such encumbrancer shall have a lien on such Unit for the amounts paid of the same rank as the lien of his encumbrance without the necessity of having to record a notice or claim of such lien. Upon request of a mortgagee, the Association shall report to the mortgagee of a Condominium Unit any unpaid assessment remaining unpaid for longer than thirty (30) days after the same is due;

 

-12-

or other default not cured within thirty (30) days; provided, however, that a mortgagee shall have furnished to the Managing Agent, if any, and to the Board of Directors, notice of such encumbrance.

 

(d) The recorded lien may be released by recording a Release of Lien to be executed by an officer of the Association or by a duly authorized representative of the Managing Agent on behalf of the Association.

 

24. Liability for Common Expenses upon Transfer of Condominium is Joint.

 

(a} The grantee of a Condominium Unit shall be jointly and severally liab1e with the grantor for all unpaid assessments against the latter for the unpaid common assessments up to the time of the grant or conveyance, without prejudice to the grantee's rights to recover from the grantor the amounts paid by the grantee therefor; provided, however, that upon payment of a reasonable fee periodically established by the Board of Directors, and upon written request, any such prospective grantee shall be entitled to a statement from the Managing Agent or Board of Directors of the Association, setting forth the amount of the current monthly assessment, the date that such assessment becomes due and credits for any advanced payments of Common Expenses and prepaid items, such as insurance premiums, but not including accumulated amounts for reserves, if any, which statement shall be conclusive upon the Association. Unless such request for such a statement shall be complied with within twenty (20) days from receipt therefor, then such requesting grantee shall not be liable for, nor shall the Unit conveyed be subject to a lien therefor, together with all costs of collection, interest, penalties and reasonable attorney's fees.

 

(b) Upon payment to the Managing Agent, or if there is no Managing Agent, then to the Board of Directors of the Association, of a reasonable fee periodically established by the Board or Directors, and upon the written request of any Owner or any mortgagee or prospective mortgagee of a Condominium Unit, the Association, by its Managing Agent, of it there is no Managing Agent, then by an officer of the Association, shall issue a written statement setting forth the amount of the unpaid Common Expenses, if any, with respect to the subject Unit, the amount of the current monthly assessment and the date that such assessment becomes due, credit for any advanced payments of common assessments and for prepaid items (such as insurance premiums, but not including accumulated amounts for reserves, if any), which statement shall be conclusive upon the Association in favor of all persons who rely thereon in good faith. Unless such request for a statement of indebtedness shall be complied with within twenty (20) days from receipt thereof, all unpaid Common Expenses which become due prior to the date of making such request shall be subordinate to the rights of the person requesting such statement.

 

(c) Notwithstanding the terms and conditions of paragraph 24(a), supra, in the event of any default on the part of any Owner under any first mortgage or first deed of trust which entitles the holder thereof to foreclose the same, any sale under such foreclosure, including delivery of a deed to the first mortgagee in lieu of such foreclosure, shall be made free and clear of the provisions of paragraph 24(a) relating to the liability of a grantee for the unpaid assessments of his grantor.

 

25. Encumbrances – Priority.  The Owner of a Condominium Unit may create a junior mortgage (junior to the lien, deed of trust or other encumbrance of the first mortgagee), liens or encumbrances on his Condominium Unit; provided, however, that

 

-13-

any such junior mortgages, liens or encumbrances shall always be subordinate to the prior and paramount lien, of the Association for Common Expenses and all of the terms, conditions, covenants, restrictions, uses, limitations and obligations under this Declaration, Association Articles of Incorporation and By-Laws, and provided further that such junior encumbrancer(s) shall release, for purposes of restoration of any improvements upon the encumbered Condominium Unit, all of his right, title and interest in and to the proceeds under all insurance policies upon said premises by the Association. Such release shall be furnished forthwith by a junior mortgagee upon written request of the Association, and if such request is not granted, such release may be executed by the Association as attorney-in-fact for such junior mortgagee.

 

26. Destruction, Damage or Obsolescence - Association as Attorney-in-Fact.  This Declaration does hereby make mandatory the irrevocable appointment of an attorney-in-fact to deal with the property upon its destruction or damage, for its repair, reconstruction or obsolescence and to maintain, repair, replace and improve the Condominium Units, Buildings and Common Elements, or any portion thereof. Title to any Condominium Unit is declared and expressly made subject to the terms and conditions hereof, and acceptance by any grantee of a deed or other instrument of conveyance from the Declarant or from any Owner or grantor, shall constitute appointment of the attorney-in-fact herein provided. All of the Owners irrevocably constitute and appoint the Association as their true and lawful attorney in their name, place and stead, to manage, control and deal with the interests of each such Owner in the General Common Elements so as to permit the Association to fulfill all of its duties and obligations hereunder and to exercise all of its rights hereunder, to maintain, repair, replace and improve the Condominium Units, buildings, and Common Elements, or any portion thereof, to grant utility easements through any portion of the General Common Elements, and to deal with the Condominium Project upon its damage or destruction or obsolescence as is hereinafter provided. The Association as such attorney-in-fact shall have all of the powers necessary to govern, manage, maintain, repair, administer and regulate the Condominium Project and to perform all of the duties required of it hereunder. Consequently, as attorney-in-fact, the Association, by its President and Secretary or Assistant Secretary or its other duly authorized officers and agents, shall have full and complete authorization, right and power to make, execute and deliver any contract, deed or other instrument with respect to the interest of a Condominium Unit Owner which are necessary and appropriate to exercise the powers herein granted. In the event that the Association is dissolved or becomes defunct, a meeting of all of the Condominium Unit Owners shall be held within thirty (30) days of either such event. At such meeting a new attorney-in-fact, to deal with the property upon its destruction, damage or obsolescence, shall be appointed. Said appointment must be approved by the Owners representing an aggregate ownership interest of Seventy percent (70%), or more, of the Common Elements. Repair and reconstruction of the improvements as used in the succeeding subparagraphs means restoring the improvement(s) to substantially the same condition in which they existed prior to the damage, with each Unit and the General and Limited Common Elements having substantially the same vertical and horizontal boundaries as before. The proceeds of any insurance collected shall be available to the Association for the purpose of repair, restoration, reconstruction or replacement unless all of the Owners and all first mortgagees agree not to rebuild in accordance with the provisions hereinafter set forth.

 

(a) In the event of damage or destruction due to fire or other disaster, the insurance proceeds, if sufficient to re-

 

-14-

construct the improvement{s), shall be applied by the Association, as attorney-in-fact, to such reconstruction and the improvement(s) shall be promptly repaired and reconstructed. The Association shall have full authority, right and power as attorney-in-fact, to cause the repair and restoration of the improvement(s). Assessments for Common Expenses shall not be abated during the period of insurance adjustments and repair and reconstruction.

 

(b) If the insurance proceeds are insufficient to repair and reconstruct the improvement(s), and if such damage is not more than fifty percent (50%) of the total replacement cost of all of the Condominium Units in this Condominium project, not including land, such damage or destruction shall be promptly repaired and reconstructed by the Association, as attorney-in-fact, using the proceeds of insurance and the proceeds of a special assessment to be made against all of the Owners and their Condominium Units. Such deficiency assessment shall be a Common Expense and made pro rata according to each Owner’s interest in the Common Elements and shall be due and payable within thirty (30) days after written notice thereof. The Association shall have full authority, right and power, as attorney-in-fact, to cause the repair, replacement or restoration of the improvement(s) using all of the insurance proceeds for such purpose, notwithstanding the failure of an Owner to pay the assessment. The assessment provided for herein shall be a debt of each Owner and a lien on his Condominium Unit and may be enforced and collected as is provided in paragraph 23. In addition thereto, the Association, as attorney-in-fact, shall have the absolute right and power to sell the Condominium Unit of any Owner refusing or failing to pay such deficiency assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Condominium Unit of the delinquent Owner shall be sold by the Association, as attorney-in-fact, pursuant to the provisions of this paragraph. Assessments for Common Expenses shall not be abated during the period of insurance adjustment and repair and reconstruction. The delinquent Owner shall be required to pay to the Association the costs and expenses for filing the notice, interest at a rate which is periodically promulgated by the Board of Directors or its agents on the amount of the assessment and all reasonable attorney’s fees. The proceeds derived from the sale of such Condominium Unit shall be used and disbursed by the Association, as attorney-in-fact, in the following order:

 

(1) For payment of taxes and, special assessments liens in favor of any assessing entity and the customary expenses of sale;

{2) For payment of the balance of the lien of any first mortgage;

(3) For payment of unpaid Common Expenses and all costs, expenses and fees incurred by the Association;

(4) For payment of junior liens and encumbrances in the order of and to the extent of their priority; and

(5) The balance remaining, if any, shall be paid to the Condominium Unit Owner.

 

(c) If the insurance proceeds are insufficient to repair and reconstruct the damaged improvement(s) and, if such damage is more than fifty percent (50%) of the total replacement cost of all of the Condominium Units in this Condominium Project, not including land, such damage or destruction shall be promptly repaired and reconstructed by the Association, as attorney-in- fact, using the proceeds of insurance and the proceeds of a special

 

-15-

assessment to be made against all of the Owners and their Condominium Units, providing, however, that Owners representing an aggregate ownership interest of seventy-five percent (75%) or more of the Common Elements and at least seventy-five percent (75%) of the first mortgagees of record may agree not to repair or reconstruct the improvements; and in such event, the Association shall forthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Association's President and Secretary or Assistant Secretary, the entire remaining premises shall be sold by the Association pursuant to the provisions of this paragraph, as attorney-in-fact for all of the owners, free and clear of the provisions contained in this Declaration; the Map, Articles of Incorporation and the By-Laws. Assessments for Common Expenses shall not be abated during the period prior to sale. The insurance settlement proceeds shall be collected by the Association, and such proceeds shall be divided by the Association according to each Owner's interest in the Common Elements, and such divided proceeds shall be paid into separate accounts, each such account representing one of the Condominium Units. Each such account shall be in the name of the Association, and shall be further identified by the Condominium Unit designation and the name of the Owner. From each separate account the Association, as attorney-in-fact; shall forthwith use and disburse the total amount (of each) of such accounts; without contribution from one account to another; toward the partial or full payment of the lien of any first mortgagee against the Condominium Unit represented by such separate account. Thereafter, each such account shall be supplemented by the apportioned amount of the proceeds obtained from the sale of the entire property. Such apportionment shall be based upon each Condominium Unit Owner's interest in the Common Elements. The total funds of each account shall be used and disbursed, without contribution from one account to another, by the Association, as attorney-in-fact, for the same purposes and in the same order as is provided in subparagraph (b) (1) through (5) of this paragraph.

 

(d) In the event of such damage or destruction under subparagraph (c) of this paragraph, and if a plan for repair; replacement and reconstruction is adopted as therein provided; then all of the Owners shall be bound by the terms and other provisions of such plan. Any assessment made in connection with such plan shall be a Common Expense and made pro rata according to each Owner's interest in the Common Elements and shall be due and payable as provided by the terms of such plan, but not sooner than thirty (30) days after written notice thereof. The Association shall have full authority, right and power, as attorney-in-fact, to cause the repair, replacement or restoration of improvements using all of the insurance proceeds for such purpose, notwithstanding the failure of an Owner to pay the assessment. Assessments for Common Expenses shall not be abated during the period of insurance adjustment and repair and reconstruction.

 

The Assessment provided for herein shall be a debt of each Owner and a lien on his Condominium Unit and may be enforced and collected as is provided in paragraph 23. In addition thereto, the Association, as attorney-in-fact, shall have the absolute right and power to sell the condominium Unit of any other refusing or failing to pay such assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Condominium Unit of the delinquent Owner shall be sold by the Association. The delinquent Owner shall be required to pay to the Association the costs and expenses for filing the notices, interest at the rate as periodically promulgated by the Board of Directors or its agents of the amount of the assessment, and all reasonable attorney's fees. The proceeds derived from the sale of the Condominium Unit shall be used and disbursed by the Association, as attorney-in-fact, for the same purposes and in the same order as is provided in subparagraph (b) (1) through (5) of this paragraph.

-16-

(e) The Owners representing an aggregate ownership interest of eighty percent (8O%) or more, of the Common Elements in this Condominium Project may agree that the Common Elements are obsolete and adopt a plan for the renewal and reconstruction, which plan has the approval of seventy-five percent (75%) of the first mortgagees of record at the time of the adoption of such plan. If a plan for the renewal or reconstruction is adopted, notice of such plans shall be recorded, and the expense of renewal and reconstruction shall be payable by all of the Owners as a Common Expense, whether or not they have previously consented to the plan of renewal and reconstruction. The Association as attorney-in-fact, shall have the absolute right and power to sell the Condominium Unit of any Owner refusing or failing to pay such assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Condominium Unit of the delinquent Owner shall be sold by the Association. The delinquent Owner shall be required to pay to the Association the costs and expenses for filing the notices, interest at the rate which shall be periodically promulgated by the Board of Directors or its agents on the amount of the assessment, and all reasonable attorney's fees. The proceeds derived from the sale of such con- dominium Unit shall be used and disbursed by the Association, as attorney-in-fact, for the same purposes and in the same order as is provided in subparagraph (b) (1) through (5) of this paragraph.

 

(f) The Owners representing an aggregate ownership interest of eighty percent (80%) or more of the Common Elements may agree that the Condominium Units are obsolete and that the same should be sold. Such plan or agreement must have the approval of seventy-five percent (75%) of the first mortgagees. In such instance, the Association shall forthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Association's President and Secretary or Assistant Secretary, the entire premises shall be sold by the Association, as attorney-in-fact, for all of the Owners, free and clear of the provisions contained in this Declaration, the Map, the Articles of Incorporation and the By-Laws. The sale proceeds shall be apportioned among the Owners on the basis of each Owner’s interest in the Common Elements, and such apportioned proceeds shall be paid into separate accounts, each such account representing one Condominium Unit. Each such account shall be in the name of the Association and shall be further identified by the Condominium Unit designation and the name of the Owners. From each separate account, the Association, as attorney-in-fact, shall use and disburse the total amount (of each) of such accounts, without contribution from one account to another, for the same purposes and in the same order as is provided in subparagraph (b) (1) through (5) of this paragraph.

 

27. Condemnation. If at any time or times during the continuance of the condominium ownership pursuant to this Declaration all or any part of the Condominium Project shall be taken or condemned by any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, the following provisions of this Article shall apply:

 

(a) Proceeds. All compensation, damages or other proceeds therefrom, the sum of which is hereinafter called the "Condemnation Award" shall be payable to the Association.

 

(b) Complete Taking.

(1) In the event that the entire Condominium Project is taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the condominium ownership

 

-17-

pursuant hereto shall terminate. The Condemnation Award shall be apportioned among the Owners on the same basis of each Condominium Unit Owner's interest in the Common Elements provided that if a standard different from the value of the property as a whole is employed as the measure of the Condemnation Award in the negotiation, judicial decree or otherwise, then in determining such shares the same standard shall be employed to the extent it is relevant and applicable.

 

(2) On the basis of the principle set forth in the last preceding paragraph, the Association shall as soon as practicable determine the share of the Condemnation Award to which each Owner is entitled. Such shares shall be paid into separate accounts and disbursed as soon as practicable in the same manner provided in Section 26(b)(1) through (5).

 

(c) Partial Taking. In the event that less than the entire Condominium Project is taken or condemned, or sold or otherwise disposed of in lieu of or in avoidance thereof, the condominium ownership hereunder shall not terminate. Each Owner shall be entitled to a share of the Condemnation Award to be determined in the following manner: As soon as practicable the Association shall, reasonably and in good faith, allocate the Condemnation Award between compensation, damages or other proceeds and shall apportion the amounts so allocated among the Owners, as follows: (a) the total amount allocated to taking of or injury to the Common Elements, Common Elements shall be apportioned among the Owners on the basis of each Owner's interest respectively in the Common Elements; (b) the total amount allocated to severance damages shall be apportioned to those Condominium Units which were not taken or condemned; (c) the respective amounts allocated to the taking of or injury to a particular Unit and to improvements an Owner has made within his own Unit shall be apportioned to the particular Unit involved and (d) the total amount allocated to consequential damages and any other takings or injuries shall be apportioned as the Association determines to be equitable in the circumstances. If an allocation of the Condemnation Award is already established in negotiation, judicial decree or otherwise, then in allocating the Condemnation Award the Association shall employ such allocation to the extent it is relevant and applicable. Distribution of apportioned proceeds shall be disbursed as soon as practicable in the same manner provided in Section 26(b) (1) through {5).

 

28. Reorganization. In the event a partial taking results in the taking of a complete Unit, the Owner thereof automatically shall cease to be a member of the Association and shall cease to hold any right, title or interest in the Condominium Project. Thereafter, the Association shall reallocate the ownership, voting rights and assessment ratio in accordance with this Declaration according to the same principles employed in this Declaration at its inception (square footage ratio) and shall submit such reallocation to the Owners and of first mortgagees of remaining Units for amendment of this Declaration provided in Section 18.

 

29. Reconstruction and Repair. Any reconstruction and repair necessitated by condemnation shall be governed by the procedures specified in Section 26.

 

30. Registration of Mailing Address. Each Owner and first mortgagee shall register his mailing address with the Association and notices or demands intended to be served upon an Owner shall be sent by mail, postage prepaid, addressed in the name of the Owner and first mortgagee at such registered address. Copies of such notices shall be sent to first mortgagees in a like

 

-18-

manner, except when such notices pertain to matters specifically relating to mortgagee(s), in which case such notice shall be sent certified, return receipt requested or registered.

 

31. Period of Condominium Ownership.  The separate condominium estates created by this Declaration and the Map shall continue until this Declaration is revoked in the manner and as is provided in paragraph 18 of this Declaration or until terminated in the manner and as provided in paragraph 26 and 27 of this Declaration.

 

32. Assessment Reserves.  Each Owner, other than the Declarant, shall be required to deposit at time of initial purchase and thereafter to maintain with the Association a sum up to three times the amount of the estimated monthly common assessment, which sum shall be used for the Managing Agent or Board of Directors as a reserve for paying such Owner’s monthly common assessment, for capital repairs and/or replacements, purchase of equipment and for extraordinary common Expenses. Such advance payment shall not relieve an Owner from making the regular monthly assessment as the same come due. Upon the sale of his Condominium Unit, an Owner shall be entitled to a credit from his grantee for any unused portion thereof. Failure to so maintain said fund shall constitute a default on behalf of an Owner. Said funds may be co-mingled and/or invested in common investments. Any interest accruing on such deposit shall not be required to be distributed by the Association. However, such interest, if any, for tax purposes is hereby recognized and declared to be a constructive receipt received by an Owner.

 

33. Restrictive Covenants and Obligations.

 

(a) Subject to subparagraph (d) hereof, the property is hereby restricted to residential dwellings for residential use and uses related to the convenience and enjoyment of such residential use. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used or permitted to be kept or stored on any portion of the premises at any time either temporarily or permanently.

 

(b) Notwithstanding any provisions herein contained to the contrary, it shall expressly be permissible for the Declarant, his agent, employees and contractors to maintain during the period of sales of the Condominium Units, upon such portion of the property as Declarant may choose, such facilities as in the sole opinion of the Declarant may be reasonably required, convenient or incidental to the alteration and improvement and sale or rental of Condominium Units and interests, including, but without limitation, a business office, storage area, construction yards, signs, model units, sales office, construction office, parking areas and lighting.

 

(c) No animals, livestock or poultry of any kind shall be raised, bred or kept on the property, except that dogs, cats, or other household pets may be kept, provided, however, that the right to keep a household pet shall be coupled with the responsibility to pay for any damage caused by an Owner's pet. Every Owner of a pet shall maintain strict control over his pet and shall prohibit the pet from making loud, disturbing noises or any other behavior reasonably annoying to other Owners. The Association may adopt rules and regulations to supplement this covenant.

 

(d) No advertising signs (except as permitted in certain areas periodically designated by the Board of Directors), unsightly objects or nuisances shall be erected, placed or permitted to remain on the premises, nor shall the premises be used

 

-19-

in any way or for any purpose which may endanger the health or unreasonably disturb the Owner of any Condominium Unit or any resident thereof. Further no business activities of any kind whatever shall be conducted in any Building or in any portion of the property except those permitted by law and the Board of Directors (the exercise of its discretion may be inconsistent) only if such activities are categorized as "household occupations”; provided, further that the foregoing covenants shall not apply to the business activities, signs and billboards or the construction and maintenance of Buildings and improvements, if, any of the Declarant, its agents, contractors and assigns during the construction and sale and rental period and of the Association, its successors and assigns, in furtherance of its powers and purposes as hereinafter set forth; provided, further that notwithstanding anything to the contrary, a mortgagee on obtaining title to a Condominium Unit shall be allowed to post signs pertaining to the sale or rental of the Unit.

 

(e) No nuisance shall be allowed on the Condominium property, nor any use or practice which is the source of annoyance to residents or which interferes with the peaceful enjoyment or possession and proper use of the property by its resident. All parts of the property shall be kept in a clean and sanitary condition, and no rubbish, refuse or garbage be allowed to accumulate nor any fire hazard to exist. No Unit Owner shall permit any use of his Unit or make use of the Common Elements which will increase the rate of insurance upon the condominium property. The Association may adopt By-Laws and Rules and Regulations relative to abatement and enjoinment of nuisances.

 

{f) No immoral, improper, offensive or unlawful use shall be permitted or made of the condominium property or any part thereof. All valid laws, ordinances and regulations of all governmental bodies having jurisdiction shall be observed.

 

(g) Except for those improvements erected or installed by the Declarant, no exterior additions, alterations or decorating to any buildings, nor changes in fences, hedges, walls and other structures shall be commenced, erected or maintained without the prior written approval of the Board of Directors.

 

(h) Additional and supplemental rules and regulations may be adopted by the Board of Directors concerning and governing the use of the General and Limited Common Elements; provided, however, that such rules and regulations shall be furnished to Unit Owners prior to the time that they become effective and that such rules and regulations shall be uniform and non-discriminatory except to the extent the Board has discretionary rights specifically given to it in this Declaration. The implementation of additional or supplemental rules and regulations which shall modify any of the provisions of this Section 33 must be done in accordance with Section 18 of this Declaration.

 

34. Association Right to Acquire Additional Property.

 

(a) The Board of Directors may acquire and hold for the benefit of all of the Condominium Unit Owners tangible personal property and may dispose of the same by sale or otherwise. The beneficial interest in any such property shall be owned by all of the Condominium Unit Owners in the same proportions as their respective interests in the Common Elements, and such interest therein shall not be transferable except with a conveyance of a Condominium Unit. A conveyance of a Condominium Unit shall transfer to the grantee ownership of the grantor's beneficial interest in all such property interests associated with and appurtenant to the subject Condominium Unit.

 

-20-

 

 

(b) The Owners of the Condominium Units described in Exhibit B shall have a perpetual non-exclusive easement in common with all other Condominium Unit Owners in this Condominium Project, on, over and across driveways and extensions thereof which are located on the Condominium Project for purposes of ingress and egress to and from the Units from the public street which adjoins the Condominium Project and any other Common Element (e.g. area and facility) so designated on the Map or Maps; subject, however, to reasonable regulations adopted and amended by the Association.

 

35. Exculpatory Clause.  The initial Owners who acquire title to a Condominium Unit from the Declarant hereunder acknowledge and agree that the Declarant makes no warranty as to the fitness of said Units or the electrical, plumbing, heating and any air-conditioning systems situate therein. Furthermore, Declarant does not make any warranties concerning the structural integrity, footings, foundations or roofs of the Buildings, or the condition of any facilities on the Property.

 

36. General Reservations.

 

(a) Declarant reserves the right to establish easements and reservations consistent with the condominium ownership of the Condominium Project and for the best interest of all of the Condominium Unit Owners, including the Declarant, in order, to serve the entire Condominium Project.

 

(b) Notwithstanding any other provisions expressly or impliedly to the contrary contained in this Declaration, the Articles of Incorporation or By-Laws of the Association, Declarant reserves the right to exercise the rights, duties and functions of the Board of Directors of the Association until all of the Condominium Units in the entire Condominium Project have been sold. During such period of development and sale, but in any event not later than two years after the closing of a first sale, the monthly assessment for Common Expenses shall be based upon the actual cost, and may include any estimated amount for contingencies, reserves or sinking funds. Declarant shall pay its pro rata share of the expenses based on its ownership of Condominium Units.

 

(c) Notwithstanding any other provisions expressly or impliedly to the contrary contained in this Declaration, Declarant reserves the exclusive right to appoint and discharge, from time to time, the Managing Agent until Declarant sells all of said Condominium Units in the Condominium Project. Each purchaser of a Condominium Unit accepts the terms and provisions of the Management Agreement as if the same were fully set forth herein.

 

37. Title subject to Declarant’s Reservations. Title to and ownership of each Condominium Unit is expressly subject to the reservations set forth in paragraph 36.

 

38. Acceptance of Provisions of all Documents. The conveyance or encumbrance of a Condominium Unit shall be deemed to include the acceptance of all of the provisions of this Declaration, the Articles of Incorporation and Association By-Laws and Rules and Regulations and Management Agreement and shall be binding upon each grantee or encumbrancer without the necessity of inclusion of such an express provision in the instrument of conveyance or encumbrance.

 

39. (a) Professional Manager. The Association may employ a professional

 

-21-

 

manager for the management of this Condominium Project. Such professional manager is referred to in this Declaration as the Managing Agent.

 

(b) Contracts. Any agreement for professional management of the Condominium Project, or any other contract providing for services of the Declarant or the Condominium Project developer, sponsor or builder, may not exceed three (3) years. Any such agreement must provide for termination by either party without cause and without payment of a termination fee on ninety (90) days or less written notice.

 

40. General.

 

(a) If any of the provisions of this Declaration or any paragraph, sentence; clause, phrase or word, or the application thereof in any circumstances be invalidated, such invalidity shall not affect the validity of the remainder of this Declaration, and the application of any such provision, paragraph, sentence, clause, phrase or word in any other circumstances shall not be affected thereby.

 

(b) “Declarant” as used herein means the named Declarant, its successors and assigns.

 

(c) The provisions of this Declaration shall be in addition to and supplemental to the Condominium Ownership Act of the State of Colorado and to all other provisions of law.

 

(d) That whenever used herein, unless the context shall otherwise provide, the singular number shall include the plural, the plural the singular and the use of any gender shall include all genders.

 

(e) Paragraph titles are for convenience of reference and are not intended to limit, enlarge or change the meaning of the contents of the various paragraphs.

 

IN WITNESS WHEREOF, Declarant has duly executed this Declaration this

__10^th__ day of __December__, 19_79_.

 

CHISHOLM COMPANY, a Partnership

 

                                Original signed by Alice Ely Menas

By ____________________________________

                    general partner    

 

STATE OF                        )

COUNTY OF             ) ss.

                    )

 

 The foregoing instrument was acknowledged before me this __10^th__ day of __December__. 19_79_, by Alice Ely Menas as a general partner of Chisholm Company, a Partnership.

 

WITNESS my hand and official seal.

 

My commission expires : __8-28-81___

 

                                Original signed by Shirley R. Ferguson

                                ______________________________________

                                Notary Public

 

-22-

 

 

 

 

 

 

 

EXHIBIT A

 

 

 

 

Lots 7 and 8,

Block 41,

WYMAN’S ADDITION TO THE CITY OF DENVER,

STATE OF COLORADO.

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT B

 

The Real property described in Exhibit A is hereby divided into the following fee simple estates:

 

(a) Twelve fee simple estates consisting of twelve separately designated Units, each such unit being identified by number on the Map.

 

(b) The remaining portion of the entire premises referred to as the Common Elements which shall be held (in fee simple) in common by the Owners, each such undivided interest being appurtenant to one of the twelve units. Declarant does hereby establish each undivided interest in the Common Elements appurtenant to each of the Units as follows:

 

Unit Number                Appurtenant Undivided Interest

                                  (Percentage)

 

lA                                  5.7905

 

2A                                  5.8012

 

3A                                  5.7743

 

4A                                  5.7850

 

1                                   9.6127

 

2                                   9.5941

 

3                                   9.5495

 

4                                   9.5893

 

5                                   9.6236

 

6                                   9.6121

 

7                                   9.5865

 

8                                   9.6812

                                   ______

    100.0000

 

 

 

 

 

 

 

 

EXHIBIT C

 

 

Unit                      Parking Space

 No.                         No.    

 

1A                            1

 

4                             4

 

8                             8

 

7                             6