HomeMy WebLinkAbout8 - Motion to recommend to City Council, 9th & Canyon Financial Guaranty & CAGID/BURA Cooperation Ag, `~,~~~ City of Boulder
*~~i~yT- Downtown and University Hill Management Division
~ and Parking Services
Dow~~town Management Commission • Universiry Hill Generfd Improvement Dist~icC • Parking Services
Memorandum
TO: DMC
FROM: Molly Winter
RE: 9`h and Canyon Agreements
DATE: Apri12, 2003
At the meeting on Apri17, staff will be requesting that the DMC consider motions to
recommend to City Council the approval of certain agreements regarding the 9~h and
Canyon project. I am attached a matrix of all of the agreements regarding the project.
The following two agreements need a motion from the DMC.
G~~aranty Agreement between St. Julien and CAGID
At your March meeting you unanimously approved the major elements of the guaranty
and a draft format. Attached is an updated draft, but not complete. The elements remain
the same:
• Prepayment by St. 7ulien of the hotel garage portion (approximltely $2million)
• Prepayment of construction use tax on the hotel
• Pledge by St. Julien of the revenues from its parking in support of the TIF
guarantee.
Cooperation Agreement Ainong City of Boulder, County of Boulder, CAGID and
BURA
This agreement assigns the tax increment from this project to CAGID during the duration
of the Urban Renewal Plan. It also allows for the continuation of the city tax portion to
continue to flow to this project after the urban renewal period - after 2013 dependent on
annual Council appropriation. It also stipulates that the City of Boulder pay for the Civic
Use site infrastntcture costs and the repayment of those costs will be made from the tax
increment revenues. And finally, it states BURA will make a$40,000 contribution
towards the paving of the 10`h Street connector. Please note I have included a marked up
version with Joe de Raismes comments. BURA will be voting on the document on April
2, 2003.
I have also included copies of the 7oint Development Agreement and the 9`h and Canyon
Condominium Declaration for your review and comment.
1500 Pcurl, Sui~~c 302 Phone: (303) 413-7300
Roulder, Colorado R0302 Pxx: (303) A 13-7301
The Joint Development Agreement betweeiz CAGID and St. Julien includes the
following:
• Designation of SC. Julien Partneis as the Project Manager of the garage project
and listing of duties
• Establishment of a Construction Escrow Agreement
• Establishment of the allocation of wsts between the CAGID garage and hotel
garage
• Outline of payment process and insurances
• Designation of responsibility for environmental clean up and large boulder
removal.
This document has been substantially agreed upon except for clarification regarding cost
responsibilities for contingency if there are major costs of large boulder removal.
Condominium Declaralion
This document creates a condominium association after the substantial completion of the
garage. It outlines the association structure, creates common and limited common
elements and assigns pro rata shares for future costs. It includes the Civic Use Lease as
an attachment, as well as a condominium map. There are still items to be decided upon
including the allocation of pro rata shares and the final condominium map.
The documents you have before you are not final documents; we hope to finalize them
for presentation to City Council on May 6. I will bring to you the final documents at the
DMC meeting on May 5. You have the option of waiting to vote on them at that time.
However, I would appreciate your recommendation on the Cooperation Agreement and
the Financial Guaranty at the April meeting since these have the most direct effect on
project financing.
Tom Eldridge, George Karakehian and Phil Shull - the CAGID Elders - have been
participating in meetings regarding these agreements over the last several months.
George will be available for questions and comments at the meeting. Joe de Raismes will
be attending the DMC meeting to answer any questions.
9ih and Canyon Agreements
Status Update
4/2(2003
Condominium Dedaration (Attachment Joirrt Development Agreement)
Declaration
Civic Use Lease
Civic Use Operation Agreement
Common and Limited Common Elemenis
Contlo Map
Guaraniy Agreement Between St. Jutien and CAGID
Joint Development Agreement behveen St. Juiien & CAGID
Document Escrow Agreement
Special warranty deeds ?
Termination Agreement (Ground Lease)
Construction Escrow Agreement
Cost Allocations
Bylaws of 9JCanyon Condo Association
Articles of Incorporation of 9/Canyon Hotel & Parking Condo Assoc.
Air and Below Ground Lease
GEJohnsoNCAGID Construction Contract
CAGIDlBURA/COB Cooperation Agreemem
Draft Status DMC Review BURA Review Ciry Councii Review
6-May
HBC redrafting; JdR & MW reviewing 4/7 review
BP in discussion with VAC - by 4/4
HBC redrafting; JdR & MW reviewing
BP and MW reviewing; meeting 4/4
BP and MW reviewing; meeting 4/4
JdR & MW reviewing; draftto HBC, 4!2 7-Apr 6-May
Need letter from GEJ re rock 7-Apr 6-May
JdR & MW reviewing, 4/2
Neetl final costs by 4/4; need form
JdR and MW reviewing, 4/2
JdR and MW reviewing, 4/2
completed; need BP signatures then COB, 4/2 Approved
need review to early NTP, 4/2 Na
COB commenis to Irvin 4/2 7-Apr 2-Apr 6-May
S:\CMO\DUHMDPS\dmc\9CANYONWGREEMEN~Agreement Status Matrix
Final Sign off
BP to sign
ByPS&BP
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COOPERATION AGTt~~M~1VT
among
CITY OF BOTJY.n~R, COLOkADQ,
COUNTY OF BOIJT.p~Ti, CAY.QItqpQ
CTTY QF BOULDER CENTRAL AREA GEN$RAI. AVIPROVTLMENT DISTRICT
qpa
BQULD6R URBAN RENE'~'VAI. AC~TliORCTY
qated as oP ~, 2003
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i Moll , inter -,U oo eratio~ A reement.doc ..__,.,Pa~e S
Tabla of Contents
Pags
ARTICLE I
AEPINITIOIVS
Sectlon 1.01. DziSnitiona
ARTICLE II
SALES AND ACCOMMOAATIONS TA7C INCLtEMENT FINANCE
SecNon 2.01. Collacdon of Sales nnd Accommodsacins Tax and lncreme~tal Sa1es
and Accommodations Tax Revenues
Seecion 2.02. Acknowledgement of Sales and Accommodations Tax Base Amounc
and CalculaCion of Incremantal Sales nnd Accommodadons Tux
Revenues
Secaon 2.03. Determination oF Tncremental Sales and Accommodations Tax
Ytdvnnuns and Payment ot Same
Sacuon 2.00.. Supplemental Contributions Following End of Tax k~crement Poriod
Sectton 2.05. Amendment of Urban Renewal Plan
AR1TCi.~ III
PR~PFItTy TAX INCREMENT FTN'ANCE
Sectian 3.01. Collecrion of Incremental Properry Tax Rer+anues; Con6nuing
Cooperation
Sectioa 3.02. County Acknowledgmont of Plan nnd Tax lncrement Financing
Section 3,03. Calculacion of Incremental Propert,y Tax Revenues and Paymen[ oE
5ame
Saction 3.04. The County shall, promptly upon determination of ~ha Incremental
Property Tax Revenues and rocoipt of the same, pay the [noromental
Properry Tex Revenues to the pistrict, as ass{gnec of BURA pursuant
to this Cooperacion Agreemant
nar~c~ rv
OBLIGATION OF BURA; P1.EDGE ANb ASSIGNMENT BY BURA
sec~ion 4.01. Obligadon of BURA; Aisu9cYs Assistance in Carrying Ouc the Urban
Ranewal Plan
Section 4.02. Pledgc and Asaignment of Tax Jncremenc Revenuas by BURA
oz.iaio9i.us
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;,MollyWint~ e,~~URACooperatlonAgreement.doc ...____..._, ~,„ Pa e.;
ARTICLE V
CONTRIBUTIONS TO thc DISTRCT FOR CIVTC USE
Saction 5.01. Contribution by HURA
Section 5.02. Contribution by the City
.a-~rYCr.~ vi
MISCE~.,LANEOUS
6
6
Section 6.01. Right Ta Pledge Cooparation Agreement 6
Section 6.02. Tennination 6
SecHon 6.03. Amendmcnts and Waivers 6
3eCdon 6.04. 6oveming Iaw 6
Section 6,05. Haadings 6
Scction 6.06. Saverability 6
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COOp~RATION AGREEMENT
THIS COOPERATTON A~REEMENT (chc "Cooperadon Agreement"), dsted as of
_?A03, amoeg the CIT'Y OF HOUI,pER, COI.QRAPO (the "City"), a home rule
city and a municipal cotporation of the Stata of Colorado, BOULDER COUNTY ~
COC.OILADO (the "Counry"), a county and politicnl subdivislon of the State oP Colorado
OF BOULDE~t CENTRAI. ARTA GENERAL Il131PROVEMENT AISTI2I .(th~
"plstdcP'), a~enaral improvament disuict under the laws of the S[ate of Cotorudo and the City's
Chartor, and the BQiJL,p~R URBAN RENEWAL AIIT'ETORITY ("BURA"), a public bady
corporata end politic duty organized and exisHng as an urban renewai authority under the laws of
the Stata of Colol~ado (the "Stata").
WITNBSS~TH:
WHEREAS, the CIry la a hom~ rule ciry and a municipal corporatton duty orgsnized and
existing under and pursuant to Article XX of thc Colorado Consticudon and tho Charter of the
City (the "Charter'7; and
WI~REAS, the County is a county and political subdivlsion of tha Suue oP Colorado,
Itav~ng all powePe grAnted to counties under the laws of the State of Colorado; and
WHF.REAS, the District is a general improveme~nt district duly organized and valtdly
axisting as a general improvement dietriet under the laws of the State of Colorado and the
Chartcr and municipal code of the Ctry; and
WIiEREAS, BURA Is n public hody corporate and palitic, and has ban duly crcatod,
organized, established and authorized by the C!ty to transACC business and exercise its powers as
an urban renewFtl authoriry, all under and pursuant to tha Colorado U[ban Renewal Law,
Sectfon 31 •25-101, et seq., Colorado Reviaed Statutes (the "Act") and the Chacrer, and
WHEREAS, ttie pistrict is cxpect~d to issua its general obligatlon bonds in tt pdncipal
amoun[ no[ to excead $12,500,000 (tagether with any bonds retLnding the samz, tha "Bonda")
for the purpose oP acqui~ing. conauucting, improving and aquipping a parking garage co be
awned by the Disttlee (the "District ProjecY'); and
Wt3EREAS, the Honds were au[hodzed by a voce of tha alectorate of tha Diskrict, and
pursuant to thc elcction question thorofoq the Honds are to bc payabi~ from rovenues of the .
bistrict Projeat, from Tex Incramenc Revenues (ns hereinafter defined), and YYam cettain other
payments ond eourcos, including without 1[mltadon A levy oP ad valorom proparty taxes by the
District; and
WFiFRBAS, che I3oulder City Council has approved pursuank to the Aet an urban ranawal
plan, known as the "l~inth and Canyon Urbaa Rencwal Ptan" (the "Urban Renewal Plan") for an
urban renewal project consistine oP the daveloprnent of a hotel to be locatad above tha Distdc[
Pro'e' (the "Urbun Renewal Project"), and locaked in c Urbnn Renvwal Aroa (as hereinafter
eflnad) as set foith in the Urban Renewal Plan: and
~cua
assp~: ~~'`~.~<~~~.~ ~',i; ~ Q~~~ <~o ~I a~.
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Moll Wint,e,r,- BURA Oao arat oi n A ree~RU~ ~"
... .Y , _ .... ,.,..,,.9 ment.doc. Pafle;
WHEREAS, as part of the Ur6an Renawal Plan, the City authorized ehe use of Tax
lncremenC ReVeoues to provide security for obligationS oP BURA, including the obNgacion of
HURA to provide eredit aupport for the Honds of tho District from the Tax Increment Revenues:
and
WHEI2EAS, pursuant to the laws of the Sfate of Colorado, including the ACt, the County
wlli dieburso the Incremantal Properry Tax Revenuea (as hereinafter defined) to BURA or its
assignee; and
WTiEREAS, both th~ Act and Seetion 1 B, Article XN, of the Colocado Constimdon
authorlu patties auch as the parties harzto to enter into coopsrativa agreemen[s, such as thia
Cooparation Agreement: and
W[-]EREAS, tho puties hercto are desirous of encering into this Cooperation Agreement
ta as[ablish certa[n matters relating to underralcings and acavities by the parties with respect to
the Urban Renewal plun, the Urban Ranawal Froject, tha Aistricc Project and the gonds;
NQW, TT~REFORE, in consideration of the foragoing reciWls, and the following wrms
And conditions, the City, tho County, the Aistrlct and BURA hereby agree as foliawa:
/",,,. ARTICT.E I
~
AEF[NITTQNS
Section 1.01. DedniNons. The terms defined in the rocitals of this Cooperatian
Agr~ment sha11 havo the meanings set forth tharein wherever used i~ tt~is CooperaNon
Agreement. Tn addition, for all purposes of this Cooperation Agnxment, the Pollowing tarms
shall havo the meaninge set forth below.
"Fdsca/ Y'ear" means the flscal yeaz of the City, which commences an Jsnuery 1 of each
calendaz yeaz and ends on Dacember 31 of ehe same c~lenddsirr year.
_~.^1~~ "incremen Properry Tax Revenues" menne, for each Fiscat YeAr through tha end of the
~ Tax Incre od, that portion oP ad valorem property taues producad by the levy at the caCe
t;xui eACh year by or for the Qoveming hodtes of tha various taxing Jurisd9etiona within or
overlapping the Tax Increment Aroa upon thaC po~tion of tho valustion for assessmant of ap
taxable property within the Tax Increment Area whieh is in excess af tho Property Tax Baso
Amount; provided, howeWer, thuk in thc ovent of a general reaesaesment of taxabla property in the
Tax Ineroment Area, tha valuation for aseessment oP tanabte proporty within tha Tan Increment
Area shali be proportionately adJueted in accordanca wlth auch general reassessm~nt ln the
manncr required by the Act.
`7ncrementa6 Salds ond Aeeom~nptkitions Tax Revenues" means For each Fiscal Year
through tha end of the Taz Incroment Period, aU Salcs and Accommodations Tax Revenues in
excess of the Sales and Accommodaaons Tax Bas~ Amount with respact to the Tax Incromont
Area.
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"Aroperry Tax &use Amount" moans $ , or such other amount as shall be
certiffed by the Assessor as fha valuation for assessment of all taxable property w9t}~in the Tax
incrument Area last certified by tha Assessor prlor to the adopdon of the Urban Renewal Plan,
adjusted and/or determined as provided in the AcC.
"Sules arul Accommodarlons Tax" means (a) the 1.6% sttles and use tax levied by tha City
from tima to time on thc rctail sala oE taxabla goods and services within the Tac Jncrement Aro0.
which 1.6% includas the 1.00% genaral sales and usa tax allocable to the City's deeeral Fund
and the 0.60% transpottation tux' allocable to the City's Transportarion Fund, eaah of which is a
permanent City sales and use tax and dces nac have a stated expir~tion date and (b) nau~h~lf~.f~.~
tha 5.5% accommodations tax in tha natut~ of a sales and uae Cax levied by the City on tha pdce
paid for the renta! of che hotel raoms located wiUun the Tu~c Increment Area; but shalt not
include any such tax if the sa[ne ls repealad.
"Sales and Accommodutiuns Tixr Ease AmaunP' means $--0--, adJust~d and/or dctetminad
as provided in the Act.
"Sades and Accomrnodutions Tax Rvvznues" means tha amount to be derived by the Ciry
in each Piscal Year from tha levy oP the Sales and Ac_com~ ~odations Tsx within the Tax y-/~
tncrementAr ~~, ~~r avt J~"I~~r~ J~~ ~"'~~"~~"'~ ~~c AN~ (l~+~"~I
0~+1~ D~'s~v;«~' W.aut--~.~d~ Urla./ ~,/ow.•J ~~r ,~cf,
"Supplemental Conttlhutidns" meens, followi~g the end of the Tax ~creme Pettod, an ~j~
amounc equal to whac tha tncrementa] Saies and Accommodadons Tax lievenue would have y
been, calculated as described herein, bat for the end of the Tax Incremant Periad. P KO 7~j
"Tizx /ncrement Area" means the area coterminous with the Urban Renewal Area from ~~ ~~~~
which Incremantal Property Tax Revcouos und Incromtntal Salas and Accommodations Tax Y
Revenues pre derlved.
'"Tax Tnerement Period" means the period af timo from tha date heraof to and including
Dacamber 31, 2013.
"Tux lncrement Revenues" means, collectively, tha Ineromantal Salas and
Accommodtitiony Tax Revenues and the Ineramantal Property Tax Revenues.~~r
"Urban Renewal Area" meana the urea designated as nn urban ronawal area under the
provisions of the'(7rban Renew~l Plan as from time ro time amended in accordanee wit'~i the Ac[.
~~""~ ARTICLE II
SALE5 AND ACCOMMOpATIONS TAX INCREMENT FINANC$
SecHon 2.01. Collection of Sales attd Accommodatioas Tax and Ineremental Sales
and Accommodetions Tax Revenuev. The City hemby covenants And agrees to anforca the
Sales and Accommodation~ Tax as in effect, and to ussist HZJRA by pursuin~ al] of the lawfi~l
proeedures and r~m~dies available to it in order to collecc Che Sates and Accommodarions Tax
Ctevenues on a tlmely busis, Tha City further covenants and agrees ta daposiC the Incromertal
uz-iaian.i 6
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~~~
Molly WinYer- BURA Cqo ara4ion A reement,doc ___ . Page
Sales and AccommodAtions Tax Revenues with the District, es assignee oP BURA pursuank ko
thie Cooperatlon Agtt~mznc.
Sectlon 2.02. Aoknowledgemeut of Seles and Accommodadons Tax Buse Amount
and Caloulation of Incremental Sales and Accommodatione 1'arc Itevenues. The City and
URA hereby acknowltdge and agree that the Sales and Accommodations Tax Base Amount 1s
`"" ~°',-~Tho City and BURA also agree that, ainca BU12A shall no[ be entided co any (neremental
S81es end Accommodatlons Tax Revenues $om any fitturo inereases in tha Sales and
Accommodati ~T x, the Sales and Aeeommodations Tax Base Amount need not and shall not
be ndJasted. ~
6ection Z.Q3. DeterminaUon of Incremenlel 3ales and Accommodadons Tax
Revenues and Payment oP Same. Th~ City and BURA agree thut ths Tncremenwi Salas and
Accommodations Tax Revenues shall be dctarmined monthly on a cumulative cash basis (and
not on an auditzd or accrual basis), and tha Ciry shall pay an arnount equal to the Inaremental /~(vn p64R.g
l~' S~les and Accommodations Tax Revenuos so detarmined to the Dis[rict, as asaiQnea of BCJRA, ~.~„~~
~,~P,, on a monthly basis in arrears as soon ae pracqcal hWa~t4w. '[~.h.~~iay~ef~eaelrment~r~,~~s ~
f'
Section 2.04. Supplemental Contributions Notiowiu~ $nd of Tax Incremeat perlod. ~~.~
Following the end of thc Tax Tncrement Periaci, the Ciry Council may, in lts sole discrcHon,
consider paqing an amount to tha District :iss Supplamentnl Con[ribations, aubject toW~
appropriafion thereoP at the tima by the Clry Council. Yf made for any y~ar, such acC of C~J
appropdatlon shall be made on or prior to becember 31 of the yesr pdor to which such ~lQ~?0~
appropriaaon for SuppJementnt Cantribudo~s shall be in effect Such appropriation, if any, may ~
be in an amount equal to all or u pnrt of what the Tncremental Sales and Accomrnodations Tax ~Q ~
Ravenuea,, ould have been b t for cho end of the Tax Incroment T'eriod.
,~a ,•~~~.~~`~ c;r~ P~~~r~ ~~ v~~~~~s
The Clty wtd BURA ackno ledga d sgrea that the Supplemental Contribudona aha11
canstimte sa~ently appropriatcd axpenditures oP the Ciry. The City's obligatton Por
Supplemental Conttibutiona ehall noi crcate a generel obligation or othor indebtedness of the City
within the meaning of its chwter or any constitudonal debt limitation. Naither this Cooperation
Agreement nor nny other instrument shall obligate the City to mako Supplomental Contributions
bcyond those appropriaced from cime to time for the ihen current Fiscal Year.
Secqon 2.05. Amondmeat of Urban Reaewal Plan. T'he City covenants and agreas
thaC it shall oopperata with BURA in eatiying out and cnntinuing to completion, with alt
prncticabic dispatch, the Urban Rcnowal Froject in accotdunca wlth che C7rban Renawal Plan end
tha Act. The UrUnn Renewal Plen may be amcnded, but no amendment shaU be approved by the
City unlces BURA shall datermine that such amendmant would not substanriauy impair the
security for the pistrict Honds or the nbility of BURA to perform its obligations with respect
thereto.
~~ ARTICLE III
PROPPRTY TA7~L TNCR~M~NT FINANCE
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i Moll ., Winter - BURA Cooperation Agreament. oc ~ '~ Page,
~~.~ .~,t i~~vt~~ ~i~V `~l~ccrl ~ ~~, VCJcnIJtS
l I ,~../J./1
(~!^Sl5 W~' c/~ ~f CAr~S~ ~tX~~O~ ~ S SD(trKM~ .d Cp~'PV !I(/~'iah/5
Seetio 3.01. CollecttOn of Incremental ~roperty Tex Revenues; Conqnuin~ °~^~`f~r ~
Cooperatlo . The County hereby agmes to assist ~URA by pursuing aU oP tha lawful ~~
procedures nd rr~medies availabte to the County in order to collect the Incremental PropeRy Ta~c y
Revenues d cause the Incrcmental Property Tax Revenaes to bs applied in accordanca rvith Ghis ~~~~"'~
Coopera[fon Agreement, the Urban Renewal Plan and the Act.
Section 3.02. Coanty Acknowlerlgmeut oP Plan and Taz Inerement FYnencing. The
Counry acknowledges that the urbnn Renewal Plan contemplakes that property taxes are to be
dividad pursuent to Sec[ton 31-25•t07(9) of the Aot with resp~ct to the Urban Renewal Area
Sectton 3.03. CalculaHaa of Incremental Proporty Tax Revenues and Payment of
Same. The City rep~sents that the Urban Renewai Plan was origin~l~y approved by the City on
Ju1y i9, 1988. Based upon the records which exist ln the County Asaensor's oftice, the leat
ceni$catinn of valuatlon for a~sessment of all tttxable property in the Urban Rznewal Area prlor
to the adoption of the YJrban Renewnl Plan occurred on September 15, 1987. The valuation for ~
assassment of taxa6le prqpcrty witEdn the U~an Rcnewal Area on thaz dute wa~$''~"'~`+-'°f'' (tha
"Base Valuation"). Tha Base Vnluatian is required by the Aoc to be adjusted in the evenc of a
generai reass~,ssment of pmpetty within the Urban ReneWat Area, and the Base Valuation shall
only 6e adjusted in accordance with the procedures set out in the Asscssor's Hnndbook published
by thc Aepartment of L.ocat Govcmment of the State of Colorado. As so adjusted, as of the date
of this Cooporntion Agreement, the 8ase Valuation is acknowledgtd and agreed by the parties d~
here[o [o be ~^!a;: ~A"~;;,";? , ~
Secqon 3.04. The Counry ahall, promptly upon determination of the Incramental
Pmperry Ta~c 12avenues and receipt of ehe snme, pay thc Incremental Propeny Ta~c 'Ravenues to
the District, as aasignx af BIJTtA pursuant to this Cooperudon Agreemenc.
~-r... ARTICLE IV
OBLIGATT~N OF BURA; PLEDCrE AND ASSIGIVMUNT BY BURA
Sectloa 4.01. Ob1i~aUoa of BURA; Diatrict~s A~~Istapce in Carryin~ Out the Urban
Renewal Plan. In ordor to assist in carrying aut the Urbun Rtsnawal Plan, BURA hereby agrees
to pay all amounts oP Tax Tncremene Revenues to which it is endtled to the Districk. 17te Aistdet
^ ~ hereby agtees to use such 0m0un~6 to puy debt serviCe , o use the proceeds of
~~ [he Bonds to acqulre, construct, improvo and ~quip th pIstrict Projec ereby cariying out a
~~, ,,,a/ porUon oP [he Urban Renewal Ptan. ~K~ ,~~y;~'~'u( ~Ci ~i~~/aC~
N,,,~
~~ S~ction 4.02. Pledge and Asaignment oP Tax Increment Revenues by BURA. HCtRA
heroby pladgas and assigns directly to thc Aisarct all right, title and incarost of BURA tn and to
~,~.L the Tax Increment Revanues, BLTRA acknowledges that such amounts shull. pursuant Co this
y Cooperation Agreement, be paid by the City and the County, as ppplicable, to the District in
~, ~~r~ order to Pu18U the obligazions of BURA under Section 4.01 hereof.
02-10109L1 S
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From: Brad Power
To: p., Irvin, Roban; de Raismas, Joseph; Osika, 6op; Winter, Molly
Date: 3/26/03 2:26PM
Subject: Re: 9th and Canyon Cooperatlon Agreement
Bob:
Thanks for sending ths draft Ninth and Canyon cooperation agreemant, I had one minor suggestion for
Article V, Contributions to the DistricY for Civio Use, Seotion 5.Q1 Coniribudon by BURA. The $40,000
grant, which I expect to be authorized by the BURA 8oard on 4/2 will be desiqnated for surfaoe
peving/treatment improvmments for the pedestrian aocess way along the tOth Street corridor portlon of the
projeot. 7ho grant monies wlll not be dlrected to the civic use fn}rastructure Improvementa, as the
agreement ourrentlY impliee. The source of the alvia infras o ure fundin Is oor Ifled In Sectlon
b.02. T winp could be subst ta Ia n order o eae s In elfecting the
nawal Plan Inso ar as relates to providing accees and pedeatrian olroulation, BURA agrees to make a
grant to tha plstrlct of $40,00a, and the Dietrlot agrees to use the same to pay costs o} surface treatment
Lmprovementa within the 10th Straet pedestrlan corridor" „~„1
Brad Power ~~~'~"'~"'r~
BURA Executive Oireotor
»> "Irvllt. RObart D." <BQbei3,1ry1n~KutakRock.com> 03/24/03 05:56PM »r
Attached ia a draft of a Cooperation Agreement for this transactio~. It is a fvur party agreament among
the City, GAGID, BURA and the County. I've tried to cover all of the rslatlo~ahips that I thi~k need to be
addressed between the parties, which include:
1. Sales and Accommodations Tax relationships,
2. F~ropertyTax Relationahips.
3. Asafgnment ot right to receive TIF from BURA to CAQID, and agreament of County and City to pay
TIF directly to CAOID.
4. 8upplemental appropriations by the Ciry, subjxt to appropriatfon eaoh year, of amounts equal to
TIF aiter TIF period ends.
5. Advances by BURA and the Ciiy for civic use purpos~s,
I am enly sending this to the City, BURA and CAGIC7 people at thls time. I} I hsve missed aomeone who
should receive this first draR, please fonvard It to them. Aher we pet any comments, we oan expand the
group. Various of the deffnitions used in thie Agrsement parallel the defined terme we're uainp in the bond
resolution of CAQip which we are in the prooess of drafting.
sab
c<BURA Cooperation Agreement.doc»
Robert p. Irvin
Kutak Ftock LLP
8ulte 3100
1801 Cali}ornia Street
Denver, CO 8d202•2658
Phone 303-292-7811
Fax 303-282-7y99
+~NMN1~~i##R####NHN1iM#~F~NM#N1i############Ii##11#1i#HNHIpMNM~i~lk1 i1 fNM#NNMiiN#####
The informatlon contained in this electro~ic mail transmission
(Inolud(ng any accompanying attachmmnts) is intend~d solely for Its
authorixed recip(ent(s), and may be confidential and/or legally
APR-02-2003 WED 09~08 AM BOULDER CITY ATTORNEY FAX N0, 3034413859
P, 1~/14
~ Molly W inter. BURA Ooo eratlon, Agreemen;.doc ~., Page S
C~- ARTICLE V
CONTRIBUTIONS x~ the DISTRCT FOR CIVIC USE
~~ Secdon S.OI. CantrlbuUon by BURA. In or assist in eff~ctinp thd Urban Renow~l
Plan insofa~' as it relates to civic use infrastntc or [hc Distrlct ProJect, BURA agraes to makz
~( a graec to cho Diatrict of $40.000, and strict agrees to use the same eo pay cos~s of che civic
~ use ipfrastmcturo for tha Dis ' o~ect.
5ection 5.02. ConMbudon by the City. In order to aesist in effecting tha Urban
Renewal Pian insofar as it rolates to certain civic usa infxastructure for the District Project, the
City hereby appropristes aed agrees to provide to the p[strict, within the current ~iscai 'YeAr, the
sum of $357,970, and the District agrees to use tha sa~tto to pay eoscs oP tth~e~ civic use /
infrastructure`orthq~istrict rojcct. ~"` G;ty t(R+ll pAr i~~~-F ffK4~G -~aw Sv~N .
CoS~~+ ~01~ -W~~ "+"iC'" s^~~S `~'~J ~ ARTICL VIi-aK vN~cNV~S ~ fa ~/Me CY`J~'w~
~~/~,r JG b-~-' s~r~~•~r o r/ ~ja,rds ~
~Q'Y" ~vt,~y~G~/~ MLSCEY.LANEOU5
~ Sectioa 6.01. Rlght To Ptodye CoopcraNon AIIreemant. Tha parCies harcto consenc to
and acknowledge SURA's pledge and assignment of ecrtain of its rlghts pursuant to Saction 4A2
hereof co the Distdet as secuairy for the Bonds und, upon such aseignment, tha Diatrict shall be
entitled co errforce the obliyutions of thc other parties under this Cooporation Ageement either
directly or as assignee of BUR.A.
Section 6.02. TerminaHon. This Caoperation shull terminate upon payment in Pull of
tha Bonds, or tha dePeasance thereof in accordanca with any proceadings aulharizing the issuance
of the Bonds.
Sectiaa fi.03. Ameadments aud Waivnrs. No amenament a,~d waiver of any provision
a4 this Cooperation Agreement, nor coneent to any deparcure herefrom, in eny event shall be
cffec~ivc unless the same shull be in writing and signed by the puties herew, and [hen such
waiver or consent shall be effective only in thn speclfic instanc~ end Por the specif9c purpose for
which given.
3ection 6.04. Governin~ Y.dw. Thia Cooperarion Agnemcnt shall be governed by, and
construed in accordanca with, the laws of the Stste of Colorada.
$ection 6.05. Headin~s. Sation headingb in this Cooparation Agreemont arc included
herein For convenience of reference only and shall not constitute u part of this Creneral
Cooperntton Agreament for any othe~ purpose.
Section 6.06. Severa611ity. Any provision oP this Cooperation Agreemenc which is
prohibited, unanforesable or not authorizad in any juriadiction ehall, as to ~uCh Judsdicdon, be
ineffoctive to tho extent af eueh prohibiuoo, unenforceability or lack of authorization without
affectin~ thn validity, enfomaability or legality of such proviaion in any otherjurisdiction.
oaia~oo~.i
APR-02-2003 WED 09~08 AM BOULDER CITY ATTORNEY FAX N0, 3034413859
P, 13/l4
.
oll .. inter,- BURA,Cooperation Agraement doc...,__.. .. . Pa9e 1f
IN WiTNESS WHEREOF, the partizs hereto have cansed this CooperAtian Agreement to
be duly executed and delivered by their raspective officera thereunto duly authorized as of the
date Frst above written.
C1TY OF BOULDER, COL012AD0
ATT$ST:
Hy
Mayor
By
Clork
A'T'T'~ST:
COC7NTY OP BOULAER, COLORAAO
sy
cidtk
ATTEST:
By
Secrettuy
ATTEST:
By
Secretary
Hy
Chair, Board of Commissioners
CTCY OF HOULABR C~NTRAL ARBA
G~NERAI.. R~PRO'VEMENT DISTRICT
By ~~„ , w;,.,~ Z,
~r. /~ f,..;` ,
lJ.^'.u. ~.
HOUI.APR URRAN R~NEWAI-
ACJTTiORTT'Y
By
Chair
oz~ia~u~i,i 10
JOINT llEVELOPM~NT AGRE~MENT
THIS JOINT D~VELOPMENT AGRE~MENT (the "AgreemenP') between the CITY OF
BOULDER CENTRAL AREA GENERAL IMPROVEMENT DISTRICT, a general
improvement district formed pursuant to Chapter 8-4, B.R.C. 1981, ("CAGID"), and St. JULIEN
PARTNERS LLC, a Colorado limited liability company ("St. Julien"), is entered into as of the
day of , 2003 (the "Effective Date").
RECPI'ALS
WHEREAS, CAGID owns certain real property at the soufheast corner of Walnut Street and
Ninth Street in the downtown area of the City, a legal description of which is attached and
marked as Exhibit A(the "CAGID Property"); 1nd
WHEREAS, St. Julien owns certain real property nt the northeast corner of Canyon Boulevard
and Ninth Street in the downtown area of the City that is adjacent to the CAGID property, a legal
description of which is attached and marked as Exhibit B("the St. Julien Property;" the CAGID
Property and the St. Julien Property, are referred to collectively as the "Development Properry");
and
WHEREAS, the parties desire to jointly develop the Development Property with a hotel, an
underground parking garage and other improvements - all as further described herein.
NOW, THEREFORE, in consideration of the promises and obligations set forth herein, the
parties agree as follows:
ARTICL~ I.
Relationship and Purpose
11. Purpose: Relationshi~ of Parties. The purpose of this Agreement is solely to
jointly develop a real estate project on the Development Property as described in Section 2.1
below (the "Project"). The parties are entering into this Agreement solely for the purpose of
completing the Project and allocating common costs in association with the construction and
development of the Project. The parties are not forming any joint venture or partnership, nor are
they making any agreement to undertake any other project, activity, or business other than to
complete the Project. To the extent permissible by law, the parties do not intend the Project to
constitute a separate enterprise or unincorporated entity for accounting, income tax, or other
puiposes. The parties do not intend to share profits and losses, and each party shall maintain
control over its own assets and resources.
1.2. Name. The name of the Project shall be the "Ninth & Canyon Development
Project." The portion of the Project pertaining to the construction of a four-story, 200
guest-room hotei shall be the "Hotel". The portion of the Project pertaining to the construction
of the below-grade parking garage and related gnrage and parking elements shall be the
"Garage."
~ W07343G5 DMP~
13. Term. The term of this Agreement shall be from the Effective Date oP this
Agreement and shall continue in full force and effect until terminated in accordance with the
provisions of this Agreement.
1.4. Other Interests. Either party may have other business interests and may engage in
any other business, trade, profession, or employment whatsoever, on its own account, or in
partnership or joint venture with any other person, firm, or corporation, or in any other capacity,
including, without limitation, the ownership, financing, leasing, operation, management,
syndicaCion, brokerage, or development of any real property whether or not in tbe vicinity of the
Development Property. St. Julien and CAGID shall be required to devote to the ProjecYs affairs
only such amount of time as is reasonably required in the performance of their duties under this
Agreement.
ARTICLE II.
The Project
2.1. Conclomi~zium Declaration. When the construction of the Garage is substantially
complete (as defined below), the parties agree that, as the owners of the Development Property,
they shall cause the Condominium Declaration in the form attached as Exhibit C(the
"Condominium Declaration") to be recorded in the office of the Clerk and Recorder of Boulder
County, Colorado (the date of said recording of the Condominium Declaration shall be referred
to as the "Conversion Date"), whereby each party shall convey good and marketable title, free
and clear of all liens and encumbrances, except as set forth below, to all of its interest in the
Development Property, including improvements, to the Ninth and Canyon Hotel and Parking
Condominium Association ("Association"). The Association shall in turn convey, on the
Conversion Date, good and marketable title, free and clear of all liens and encumbrances, except
as set forth below, in Unit HG (the "Hotel Parking UniY') and in Unit H(the "Hotel Unit") and
the Hotel Expansion Space (within which the primary portion of the hotel will be constructed) to
St. Julien, and in Unit G(the "Garage Unit") to CAGID. The following liens and encumbrances
,hall be permitted: (i) zoning, subdivision, building, use, or occupancy resolutions, regulations,
ordinances or requirements adopted by any governmental or other authority having jurisdiction,
including any restrictions imposed by the Condominium Declaration itself; (ii) general taxes and
special assessments for the year of conveyance and all subsequent years; (iii) any drainage,
utility and sanitary sewer easements of record; and (iv) any other liens and encumbrances
permitted by this Agrcement, including. a~ to each party's resPective property, permitted liens
and encumbrances arising out oi' any financing of th,~C part~~'s allocable share of the costs of the
Project.
A. For purposes of this Agreement, the Garage shall be dcemed "substantially
complete" on the date upon which the Garage is sufficiently complete such that the surveyor for
the Project is able to perform necessary surveys and certify that both the Hotel Parking Unit and
the Garage Unit are complete as required by C.R.S. §38-33.3-201(2) of the Colorado Common
Interest Community Act and that the Hotel Unit is adjacent to the Hotel E:xpa~,ion Space.
Promptly following substantial completion of the Garage, St. Julien shal~ cause the surveyor to
2
671 I 99_3 ~ W 0734365 DM P ~
perform necessary surveys and comple[e the Map for the Condominium Declaration. The Map
shall be subject to prompt review and approval by the parties, such approval not to be
unreasonably wiChheld. Once the Map is approved, Che parties and any lender with a lien on the
Project or any portion thereof ("Lender") shnll execute the Map and deliver it to Escrow Agent
(as defined below) for recording with the Condominium Declaration. The date upon which the
Map has been delivered to Escrow Agent shall be referred to as the "Date of Garage
Completion".
B. Following the Date of Garage Completion and recording of the Condominium
Declaration, St. Julien shall complete the Hotel portion of the Project within the Hotel Expansion
Space attached to the Hotel Unit and expand Unit H as provided in the Condominium
Declaration. St. Julien, as a Declarant under the Condominium Declaration, shall be entitled to
execute and record an amended Map to the Condominium Declaration expanding the Hotel Unit
upon substantial completion of the Hotel.
C. For purposes of this Agreement, the Project will be deemed substantially
complete when (i) the Garage is sufficiently complete such that it is ready for utilization and
continuous commercial operation for the uses and purposes intended, subject only to minor
punch list items (the noncompletion of which does not interfere with the occupancy, use or
continuous commercial operation of the Garage), and the Hotel core and shell construction is
complete (exclusive of interior partitions, fixtures and finish), and (ii) the architecY for the Project
and the architect for any Lender have each certified, without reservation, to such substantial
completion of the Project, on the standard AIA form for such certification (each, an "Architect's
Certificate"). The date upon which substantial completion of the Project has been achieved shall
be referred to as the "Date of Project Completion".
D. The pairties acknowledge that the Condominium Declaration and Map may require
amendment from time to time to correct deficiencies or to address unanticipated circumstances
or changes to the Project. The parties agree to cooperate in good faith, with respect to such
matters and to execute reasonable amendments fi•om time to time to permit each party full and
reasonable utilization of its respective facilities being constructed as part of the Project. The
provisions of this section shall survive termination of this Agreement.
2.2. Project.
A. The ProjecY shall contain, wiYhout limitaCion, the following elemenCs:
1. Hotel:
• 150,000 square feet (approximately)
• 200 guest rooms
• 55 foot tall building, plus appurtenances
• 8,500 square feet of ineeting, prefunction & circulation space
(approximately)
• Walnut Street drop-off area
3
671199_3(wo~sa3e5 oM~~
2. Underground Parkina Garage:
• Approximately 230,000 square feet containing an area for CAGID's use
(approx. 194,000 s.f. for 556 total parking spaces), and an area for hotel
use, (approx. 36,000 s.f. for 100 parking spaces for hotel use and
storage/mechanical) as set forth in the Condominium Declaration
• 10`h Street parking garage entry
3. 10`h Street Corridor:
• Allowing for separation of service functions, vehicles and pedestrians
• Lighting
• Connections to new Walnut Street and Canyon Boulevard pedestrian
crossings
4. Other Imnrovements:
• The Project shallinclude open space,landscaping, and an 11,700 square
foot (approximately) building pad for a potential Civic Use Building
(which may be constructed after the Project has been completed), utility
connections for the Civic Use Building, and structural support in the
underground parking garage for the Civic Use Building and the Hotel. It
is acknowledged and agreed that the Civic Use Building is not part of the
Project. The rights and obligations of the parties conceming a Civic Use
on the St. Julien Property aze set forth in the Ninth and Canyon Urban
Renewal Plan and the proposed Civic Lease, appended to this Agreement.
B. The Project shall be completed in accordance with the approval of the Boulder
Planning Board on February 17, 2000, in Site Review #51-1999-12 and Use Review #UR-1999-
I5, as amended and modified now and in the future.
C. Until the Condominium Declaration is filed and title to the Development Property
is conveyed, CAGID shall own all right, title and interest in and to the CAGID Property and St.
Julien shall own all right, title and interest in and to the St. Julien Property. The ownership of
property shali, however, be subject to the rights, duties, and obligations created by this
Agreement and the reciprocal leases entered into through the Lease Agreement appended to this
Agreement.
2.3 Escrow Agreement. Concurrently with the execution of this Agreement, the
parties shall enter into an Escrow Agreement with Commonwealth Land Titie Insurance
Company ("Escrow Agent") in the form attached as Exhibit D(the "Escrow AgreemenY'),
whereby St. Julien and CAGID shall execute and deposit with Escrow Agent all documents
required in order to cause the conveyances described in Section 21 of this Agreement, including
without limitation a termination agreement in the form aCtached as Exhibit E(the "Termination
Agreement") with respect to the Lease Agreement (as defined in Section 4.3 of this Agreement),
the Condominium Declaration (together with a pro forma Map), deeds from the Association to
4
671 199_3 ~ W0734365 DM P ~
St. 7ulien and CAGiD Car their respective condominium units and any other documents
reasonably required by Escrow Agent or Lender. On the Date of Garage Completion, Escrow
Agent shall cause the documenfs described above to be recorded pursuant fo the terms of the
Escrow AgreemenY, substiCuCing the actual certified Map for the pro forma Map as provided in
Section 2.1.A of this Agreement.
ARTICLE III.
Project Management
3.1. Project Manager. The general management of the Project shall be entrusted to St.
Julien, lcting through its members, partners, officers, employees, or agents as it may aC any time
or from time to time designate, subject to the conditions set forth Uelow. CAGID, subject to the
restrictions set forth in this Agreement, hereby constitutes and appoints St Julien as its attorney-
in-fact to exercise or perform any act, power, duty, right or obligation whatsoever that CAGID
now has or may hereafter acquire relating to the development of the Project, including, without
limitation, the duties set forth in Section 3.4 below. This power of attorney is coupled with an
interest and is irrevocable, and shall automatically transfer to any Lender succeeding in interest
to St. Julien through foreclosure or otherwise. St. Julien, when acting on its own behalf and in its
capacity as attorney-in-fact for CAGID with respect to the general management of the Project,
shall be referred to herein as the "ProjecC Manager".
3.2. Routine Decisions. It is the intention of the parties that CAGID and St. Julien
share equally in Major Decisions (as defined in Section 33 of this Agreement) affecting the
Garage, but that otherwise St. Julien shall be in charge of managing and accounting for the day
to day affairs of the Project, including performance of the duties set forth in Section 3.4 below.
St. Julien shall have full power and authority to carry out the day-to-day management, conduct,
and operation of the Project's endeavors in all respects, including, without limitation, the power
to enter into contracts concerning the Project and its development, and disposition and the power
to execute, acknowledge, deliver, file and record on behalf of itself and CAGID any and ail
instruments required therefor. Notwithstanding the foregoing, CAGID's representative, as
designated in the CAGID construction contract, must approve any payment order or change
order to the CAGID construction contract in excess of $5,000. No person dealing with CAGID
or St. Julien with respect to the Project shall require any evidence of the authority of St. Julien to
enter into any of the foregoing transactions, and such authority is fully confirmed hereby.
33. Major Decisioris. Notwithstanding the provisions of this Article, St. Julien shall
consult with CAGID and obtain its consent, which consenf shall not unreasonably be withheld,
prior to (i) entering into any conCr ut or incurring any expenditure which may obligate CAGID in
an amount over $5,000; (ii) borrowing money and as security therefor encumbering any portion
of the CAGID Property in any way, or refinancing, increasing, modifying, consolidating, or
extending any such loan or encumbrance, provided that CAGID hereby acknowledges its consent
to the financing contemplated in that certain Real Estate Loan Agreement between St. 7ulien and
Pullman Bank and Trust ("Pullman") dated as of January _, 2003 (the "Loan AgreemenP');
(iii) engaging on behalf of CAGID, any acco~intant, attorney, general construcCion contractor, or
5
67 I I ~9_3 ~ W W 343fi5 UMP ~
const~~uction manager; or, (iv) bringing or mainCaining any action, suit, counterclaim or cross-
claim on behalf of CAGID. CAGID shall be deemed to have consented to requests made for
items under phrase (i) of this plragraph if it has not objected to the request within five business
days from the request. CAGID and St. Julien acknowledge that they have each engaged an
architect, Urban Design Group, Inc., for the Project. Any decision to engage another architect
for the Garage to replace or supplement Urban Design Group, Inc. may be made only with the
consent of CAGID and St. Julien. The parties agree that they shall use their respective
reasonably diligent efforts to have the construction of the Garage substantially completed and the
construction of the entire Project substantially completed in accordance with the construction
schedules contained in the respective construction contracts.
3.4. Project Manager's Duties. Subject to Uie limitatio~s set forth in this Article, St.
Julien, acting as Project Manager, shall have the authority and duty to perform the following
functions:
A. Promptly submif and diligently pursue obtaining all approvals and permits
necessary for the construction and completion of the Project to the best of its knowledge and
ability.
B. Obtain and maintain such insurance as is prudent for the Project. Such insurance
shall include coverage of the improvements hereafter erected on the Development Property
insured against loss by fire or hazards included within the term "extended coverage" in an
amount at least equal to the insurable value of the Development Property and commercial
liability policies in reasonably amounts naming the parties as additional insureds. During the
period of construction, standard builders' risk insurance shall be maintained. Subject to the
requirements and claims of any Lender with respect thereto, insurance proceeds shall be applied
to restoration or repair of the Development Property damaged, provided such restoration or
repair is economically feasible, and St. Julien will exercise a fiduciary duty for itself and CAGID
in utilizing such proceeds in effecting such reconstruction or repair.
C. Communicate with, and direct, as necessary, the Project's general construction
contractor and any project manager or construction manager, representing CAGID, 'St. Julien or
both entities as the case may be.
D. Consult with CAGID, as needed, about the construction of the Garage and the
interfaces between the Garage and the other elements of the Project.
E. Promptly deliver to CAGID copies of any and all invoiced amounts, in whole or
in part, pertaining to the consCruction of the Garage.
F. Meet with the representatives of CAGID at least monthly during construction of
the Garage and quarterly thereufter to review the status of construction, budget expenditures, any
modifications to the Project, the construction schedule, and other matters relevant to the
completion of the Project.
6
671 199_3~ W073h36S UMPj
G. Endorse, if any, checks, drafts, or other evidence oP indebtedness necessary to
complete the Project.
H. Pay taxes, assessments or charges of 1ny governmentai authority as to the Project.
I. Execute and deliver contracts and documents relating to the Project.
J. Pay all amounts properly due and payable with respect to the Project to any
person or entity.
K. Employ or engage such agents, officers, employees, accountants, attorneys,
consultants and other persons necessary or appropriate to carry out the business and affairs of the
Project, and to pay fees, expenses, salaries, wages and other compensation to such persons.
L. Pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend or
compromise any obligation, suit, liability, cause of action or claim, including taaces, either in
favor of or againsC the Project.
M. P1y any and all reasonable fees and to make any and all reasonable expenditures
which it deems necessary or appropriate in connection with the organization of the Project, the
management of the affairs of the Project, and the carrying out of St. Julien's obligations and
responsibilities under this Agreement.
N. Exercise any other powers specifically granted to the Project Manager in this
Agreement.
O. Post on the Property one or more notices conforming with C.R.S. §38-22-105(2)
indicating that a portion of the Project is being constiucted on property under lease Yrom CAGID.
3.5. Risk. The management, conduct, and operation of the ProjecYs endeavors shall
be at the expense and risk of St. Julien and CAGID, in accordance with their respective shares of
the Project. CAGID agrees and covenants not to sue St. Julien for any and all losses, damages,
claims or causes of action incurred or suffered by St. Julien in carrying out its duties as Project
Manager of the Garage portion of the Project as set forth herein, unless and except to the extent
arising as a result of St. Julien's willful misconduct, breach of fiduciary duty, breach of this
Agreement, or gross negligence.
3.6. Cooperation. The parties shall cooperate in good faith to achieve goals mutually
important to development and completion of the Project.
ARTICLE IV.
Contributions and Cost Allocations
7
671 I 99_3 ~ W0734365 DM P ~
4.1. Garage: Contributions; Treatvr~ent of Funcls. All money contributed, if any, by
the parties, and all money received in conneetion with the Garage shall be treated and regarded
as, aad are declared to be, trust funds for the performance and completion of the Garage, and for
no other purpose, until the Garage shall have been fully con7pleted and the parties shall have
made all required payments. CAGID and St. Julien shall each make payments of expenses and
costs incurred for the construction of the Garlge according to Section 4.5.
4.2. ConsCruction Escrow. All payments made by CAGID and SC. Julien, or a Lender
on their behalf, to any contractors, architects, engineers and consultants, and to other parties
performing work on the Project under a contract or other anangement with CAGID or St. Julien,
shall be made through a construction escrow agreement with Escrow Agent in the form attached
as Exhibit F(fhe "Construction Escrow"). The Construction Escrow shall be executed by
CAGID, St. Julien and Escrow Agent, shall set forth payment procedures reaeonably satisfacYory
to CAGID, St. Julien and Lender(s), and shall require, as a condition precedent to the
disbursement of any funds, the submission of sworn statements, lien waivers and any other
documentation required so as to protect the Project froin false claims and from mechanics' or
similar liens or claims.
43. Ground Lenses; Use of'Properties. CAGID shall retain its right, title and interesC
in and eo the CAGID Property and St. Julien shall retain its righC, Citle, and inCerest to the St.
Julien Property until the Date of Garage Completion. However, concurrently with the execution
of this Agreement, CAGID and St. Julien shall enter into a Lease Agreement whereby CAGID
shall grant to St. 7ulien a 20 year leasehold estate in the CAGID Property, and St. Julien shall
grant to CAGID a 20 year leasehold estate in the St. Julien Property (the "Ground Leases") so
that both parties and their respective agents, assigns and contractors may enter onto all of the
Development Property to allow for the construction and substantial completion of the Project.
CAGID agrees that, without further consent, St. Julien may pledge its interest as lessee under the
Ground Leases to Pullman as collateral for St. Julien's independent financing, all as
contemplated in the Loan Agreement. The Ground Leases shall terminate, pursuant to the
Termination Agreement, when the Garage has been substantially completed and the
Development Property conveyed to the Association as provided in Article II.
4.4. Allocation of Project Costs. CAGID and St. Julien shall pay for the costs oF
constructing the Garage, as well as the cost of foundations and utility connections for the Civic
Use Building according to the cost allocations as set forth in Exhibit G attached. CAGID, St.
Julien, the City of Boulder and the Boulder Urban Renewal Authority may recover the costs of
foundations and utility connections from the civic users in like proportion to each party's
respective payment of such costs. The general construction contractor engaged to construct the
Project shall be directed to attribute the construction cost of the entire Project to the various
elements mentioned above and then assist CAGID and St. Julien with the allocation of the entire
Garage cost between CAGID and St. 7ulien. For the purpose of determining costs to the parties,
the cost of construction shall be deemed to include the costs of all construction, including general
contracts, subcontracts, labor, material, plant and equipment purchased or rented, bonds,
insurxnce, taxes on labor or material, imposts, charges, liabilities not secured by insurance, and
all other expenses and obligations incurred or suffered in and about the completion of the Project
8
6~ ~ I~)_3l W0734365 DMP ~
oP any nature under sound accounting practices, buc excluding legal fees unless specifically
provided by this Agreement.
4.5. Payment of Costs. CAGID and St. Julien shall each pay into the Construction
Escrow by wire transfer their respective portions (as allocated to them under this Agreement) of
periodic payment requests by any wnstruction manager, the general construction contractor, and
other contractors as required to complete the Project and pay other costs and expenses on behalf
of the Project, provided that each such request shall have been approved by both parties. If any
payment from St. Julien includes an amount allocable to CAGID, St. Julien shall deliver a
statement to CAGID advising it of such amount. If any payment from CAGID includes an
amount allocable to St. Julien, CAGID shall deliver a sCatement to St. Julien advising it of such
amount. Each parCy agrees to p1y its allocable portion into the Construction Escrow within ten
(10) business days of receipt of such statement.
A. If the building permit for construcCion of the Garage is available and the
contractor commences constniction activity on all of the Development Property on or before
April 30, 2003, St. Julien shall fund the contractor's initial invoices for 111 of the Garage
consCruction costs, including without limitation the amotimt allocable to CAGID, until the earlier
of: (i) CAGID's abiliry to fund its allocable portion of the ConsCruction Escrow, or (ii) St. Julien
funding its entire portion of the Garage construction costs as specified on Exhibit G.
B. In the event Chat CAGID is unable within six months from the date of this
Agreement to obtain necessary bond financing for its portion of the Project for reasons beyond
CAGID's reasonable control, then either party may terminate this Agreement by giving written
notice of termination to the other. In the event of termination, the parties shall assess and
consider the extent of excavation or constiuction then performed, the likelihood that the Project
may be recommenced, the costs of restoration and alternatives thereto, and whether interim uses
of the Development Property (such as commercial parking) on a shared basis is feasible under
the circumstances. The parties shall use reasonably diligent efforts to find reasonably feasible
and economic interim uses of the Development Property. Unless the parties agree otherwise
within sixty days following termination, the Development Property shall be restored to its
original condition (graded dirt on the St. Julien Property and asphalt paved lot on the CAGID
Property) and each of the parties shall pay one-half of the restoration costs, the costs paid by St.
Julien under Section 4.S.A above, if any, and any other expenses incurred on the parties' joint
behalf to effectuate the terms of this Agreement; provided, however, that either party may elect
not to have its own property restored.
4.6. Other Construction-Relatecl Costs. Each Party has entered into a separate
agreement with the architect, Urban Design Group, Inc., for the design of its elements of the
Project. CAGID shall pay its allocated portion within ten days of receiving notice thereof from
St. Julien, for any invoiced amounts, in whole or in part, paid by St. Julien pertaining to an
expense allocated to CAGID under this Agreement. Similarly, St. Julien shall pay its allocated
portion within ten days of receiving notice thereof f'rom CAGID, for any invoiced amounts, in
whole or in part, paid by CAGID pertaining to an expense allocated to St. Julien under this
Agreement.
9
671199_3~wo~3a3es ~nnP)
4.7. Other Operation Expenses. Neither party shall charge the Project for office space
or any other operating expenses not described herein. However, all other reasonable expenses
necessary for Che constn~ction of Che Project, including withont limitation the cost of filing the
Condominium Declaration and preparing and filing the Map, shall be shared by CAGID and St.
Julien according to their respective allocation of costs set forth in this Agreement. Each party
shall invoice the other for its share of these expenses no more frequently than once a month.
Each party shall pay its allocated portion within Cen (10) business days of receipt of an invoice
from the other party.
4.8. Taxes. During the term of this Agreement, each party shall be responsible for the
payment of any real property taxes allocable to the CAGID Property (or the Garage Unit) and St.
7ulien Property (or the Hotel Parking Unit), respectively, based on the assessed value of the
particular property. As used herein, the term "real property taxes" shall mean all taxes and
assessments, general and special, and all other impositions of every nature and kind whatsoever,
which may be levied, assessed, or imposed upon the CAGID Property (or the Garage Unit) and
the St. Julien Property (or the Hotel Parking Unit) and shail include any form of assessment,
license fee, rent tax, levy, penalty, or taac (other than income, inheritance, or estate taxes), now or
hereafter imposed by any authority having the direct or indirect power to tax, including any city,
county, state, or federal government, or any school, agricultural, lighting, drainage, or other
improvement district.
4.9. Independent Finuncing. The financing of each party's development and
construction costs shall be independent of the other. Each pai~ty agrees to take any and all
reasonable actions in connection with the efforts of the other party to obtain suitable financing
for its share of the costs of the Project, including any reasonable amendments to this Agreement
required by any Lender or investors. Each party shall be solely responsible for any obligations,
liabilities, expenses, and costs of any kind or character assumed by or charged to such party in
connection with its respective financing of its allocable costs of the Project.
4.10. Adjustment of Accounts. The parties agree from time to time, as requested, to
settle and adjust all accounts in connection with the construction of the Project, and to pay, each
to the other, such sums as will result in each of the parties bearing that proportion of all costs and
expenses arising from the completion of the Project as allocated to it under this Agreement. In
the event of any dispute or claim between the parties as to said adjustments and payments or
otherwise with respect to this Agreement, the parties shall proceed diligently with their
respective obligations under this Agreement pending final resolution of such claim or dispute.
Any controversy, claim or dispute arising out of or related to the Agreement that is not resolved
between the parties within thirty (30) days after delivery of written notice thereof, shall be settled
by arbitration in accordance with Section 6.5 below.
4.11. Environrnental Mutters.
A. CAGID represents and warrants to SC. Julien that as of the date of this Agreement
the CAGID Property (including surface water, ground water and improvements) is free of all
Hazardous Substances (as defined below) and is free of underground storage tanks us defined by
C.R.S. § 8-20.5-101(17) (Supp. 1996), as amended or any successor statute. St. Julien
t0
C71 199_3I WO73a365 oMV~
represents and warrants to CAGID that as of Yhe date oF this Agreement Che St. Julien Piroperry
(including surfaee waCer, ground waCer 1nd improvements) is free of all Hazardous Substances
(as defined below) and is free of underground storage tanks as defined by C.R.S. § 8-20.5-
101(17) (Supp. 1996), as amended or any successor statute. Each party agrees to indemnify and
defend the other party in accordance with the terms of this Section 4.11 of this Agreement from
and against any costs, fees or expenses (includiug, wiChouC limitation, clean-up expenses, Chird
party claims and environment2l impairment expenses, ~nd reasonable attorneys' fees and
expenses) incurred in connection with a breach of its representations and warranties of this
Section. This indemnification shall survive the terminaCion or expiraCion of this Agreement.
Without limiting the foregoing, if the presence of any Hazardous Substances on the Development
Property caused or permitted by either party results in any contaminlCion of the Development
Piroperty, such party shall promptly take all actions at its sole expense as are necessary to return
the Development Property to the condition existing prior to the introduction of any such
Hazardous Substances to the Development Property.
B. As use in this Agreement, "Hazardous Substances" shall mean (i) "hazardous
substances" as defined in the Comprehensive Environmental Response, Compensation and
Liability Act, as amended, or as defined in applicable state law provisions, (ii) "PCBs" as
defined in 40 C.F.R. 761, et se~c and "TCDD" as defined in 40 C.F.R. 775, et seg, or, in either
case, analogous regulations promulgated under the Toxic Substances Control Act, as amended,
(iii) "asbestos" as defined in 29 C.F.R. 1910.1001, et se~c , or analogous regulations promulgated
under the Occupational Safety and Health Act of 197Q as amended, (iv) oil and petroleum based
products, (v) "hazardous wastes" as deFined in Resource Conservation and Recovery Act, as
amended; (vi) "hazardous substance" as defined in the Federal Water Pollution Control Act; (vii)
"hazardous wa,te" as defined in the Federal Resource Conservation and Recovery Act; and (viii)
"regulated substance" as defined in Subchapter IX, Solid Waste Disposal Act (Regulation of
Underground Storage Tanks), as such acts may be amended from time to time, and as such terms
may be expanded by addifional legislation of a similar nature.
C. Eaeh party's indemnification obligation is limited to $150,000.00.
4.12. Inclemnification.
A. Except For each party's independent financing, all financial obligations assumed
by Che parties, or either of Chem, in eonnection with Che Project, all other obligations and
liabilities of any kind or character assumed by or charged to the parties, or either of them, in
connection with the Project, shall be shared by the parties proportionutely and in accordance with
their respective allocations as set forth in this Article. Each parry shall, on demand, promptly
indemnify and hold harmless the other party from and against any losses, damages, liabilities,
deficiencies and expenses (including reasonable attorneys' fees) incurred by the other party by
reason or arising out of any failure by the other party co perform any obligation or duty required
to be performed by it under any provision of this Agreement. Similarly, each party shall, on
demand, promptly indemnify and hold harmless the other party from and against any losses,
damages, liabilities, deficiencies and expenses (including reasonable attorneys' fees) incurred as
a result of the filing of any mechanic's lien against che other party's property by reason or arising
out oP any work done by the lien claimanC aY Che request or for benefit of the indemnifying party.
An indemnifying party may satisfy its obligation by providing a sufficient bond to cause release
671 199_3( W0734365 DMP~
of the recorded lien statement. CAGID's mechanids lien indemnification obligation is limited to
$150,000, minus any amount required Co satisfy its obligaCion under Section 4.11.
B. If, during excavation of the Development Property, boulders are encountered that
are sufficienCly large to result in the conCractor obtaining an increase in the fixed-price contract
price for additional excavation seivices, the parties shall share equally in the contract price
increase from their respective shares of the Garage contingency allowance; provided, however,
that if the contract price increase is greater than $100,00Q then either party may terminate this
Agreement and invoke the provisions of Section 4.S.B. If St. Julien's share of the Garage
contingency allowance is exhausted through operation of this provision, it shall not be obligated
to contribute funds for additional contract price increases until all of the Garage contingency
allowance is exhausted.
C. In the event that any claim in writing is asserCed by a third party which may entitle
any party hereto to indemnification under this Agreement, the party hereto against whom such
claim is asserted (the "Indemnified Party") shall give notice thereof to the party hereto obligated
to provide indemnification (the "Indemnifying Party"), which notice shall be accompanied by a
copy or statement of the claim. Following such notice, the Indemnifying Party shall have the
right, but not the obligation, to participate, at its sole expense, in the defense, compromise, or
settlement of such claim with counsel of its choice. If the Indemnifying Party shall fail timely to
defend, contest or otherwise protect against any suit, action or other proceeding arising from
such claim, the Indemnified Parry shall have the right to defend, contest or otherwise protect
itself against same and, upon not less than ten (10) days' notice to the Indemnifying Party, to
make any reasonable compromise or settlement thereof. In connection with any claim as
aforesaid, the parties hereto shall cooperate fully with each other and make available all pertinent
information necessary or advisable for the defense, compromise or settlement of such claim.
4.13. CAGID's Representative. St. Julien agrees to seek damages solely from CAGID
if it should bring any arbitration or litigation arising from the actions or omissions of Owner's
Representative under CAGID's construction contract or CAGID under this Agreement and
covenants not to bring any legal actions of any kind against the Owner's Representative in
connection with any advice or services provided to CAGID hereunder."
4.14. Protection of Property Interests. If a party fails to perform the covenants and
agreements contained in this Agreement, or if any action or proceeding is commenced which
materially affects a party's interest in the Development Property, then such affected party, at its
option, with at IeasC ten (10) business days prior written notice to the other party and the other
party's Lender, if any, may make such appearances, disburse such sums and take such action as
is ne~:essary to protect the affected party's interest, including, but not limited to payment of the
following:
A. ar:y general or special taxes or assessments levied or accruing against the
Development Property;
B. the premiums on any insurlnce necessary to protect any improvements
comprising a part of the Development Property;
12
67 I I 99_3 ( W07343fi5 DM P ~
C. sums due on any prior lien or encumbrance on the Development Property;
D. the reasonable costs and expenses of defending, protecting, and maintaining the
Development Property ~tnd affected party's interest in the Development Property, including
repair and maintenance costs and expenses, costs and expenses of protecting and securing the
Development Property, receiver's fees and expenses, inspection fees, appraisal fees, court costs,
attorney fees and costs, and fees and costs of an attorney in the employment of the affected party;
E. all other costs and expenses allowable by this Agreement, and
F. such other costs and expenses that may be authorized by a court of compeCent
jurisdiction.
Any amounts disbursed by an affected party pursuant to this Section 4.14, with interest thereon
at the rate of 10% per annum, shall become indebtedness of the other parry. Such amounts shall
be payable upon notice, and the affecCed party may take legal action to collect any amounts so
disbursed plus interest at the rate of 10°Io per annum. Nothing contained in this Section shall
require an affected party to incur any expense or take any action hereunder.
4.15. Estoppel. CAGID shall, within ten (10) days after request therefor, provide to
Pullman an estoppel certificate, in form reasonably satisfactory to Pullman, in connection with
draws made by St. 7ulien under the Loan Agreement. CAGID hereby acknowledges that
Pullman will rely on said estoppel certificates, relative to this Agreement and to the Loan
Agreement.
ARTICL~ V.
Termination
5.1. Terminntion. Subject to the rights of any Lender under a collateral assignment of
this Agreement executed and acknowledged by each of CAGID and St. Julien, this Agreement
shall terminate upon the earliest to occur of the following events:
A. a material breach or default by the other of any of the terms, obligations,
covenants, representations or warranties under this Agreement, which breach or default is not
cured within 30 days after written notice, provided that this Agreement shall not terminate if the
breach or default by its nature cannot be cured within 30 days, and the defaulting party is acting
diligently and in good faith to cure the breach or default;
B. the dissolution, liquidation, or event of bankniptcy of one of the parties;
C. the Date of ProjecC Completion;
D. as otherwise provided in this Agreement; or
13
671 199_3~ W0734365 DMP~
E. the mutual agreement of the parties.
5.2. Defaa~lt. CAGID and St. Julien acknowledge and agree Chat if either party shall
default in its material obligations under this Agreement, it would be impracticable or extremely
difficult to affix damages thereunder, and that monetlry damages are an inadequate remedy for
loss of the bargain under this Agreement. Accordingly, the parties agree that, in the evenc of
default by either party under the terms of this Agreement, the party not in default shall be entitled
to seek the equitable remedy of specific performance requiring the defaulting party to perform
under this Agreement, in addiCion to other remedies available at law or in equiCy.
ARTICLE VI.
Miscellaneous Provisions
6.1. Notices. Any notice, demand, or communication required or permitted to be
given by any provision of this Agreement shall be deemed to have been sufficiently given or
served for all purposes if delivered personally to the party or to an executive officer of the party
to whom the same is directed or, if sent by registered or certified mail, postage nnd charge
prepaid, addressed as follows:
If to St. Julien:
Bruce Porcelli, Manager
St. Julien Partners LLC
1401 Walnut Street, Suite 303
Bouider, Colorado 80302
with copies to:
David M. Packard, Esq.
Hutchinson Black and Cook, LLC
921 Walnut Street, Suite 200
Boulder, Colorado 80302
and to St. Julien's Lender:
Pullman Bank and Trust
1000 E. 111`h Street
Chicago, Illinois 60628
Attn: Leonard Dzielski
and to: Kenneth Lodge, Esq.
Lord, Bissell & Brook
115 S. L1Salle Street, Suite 3400
Chicago, lllinois 60603
If to CAGID:
CAGID
c/o the Boulder CiCy Manager
I4
67 I I 99_3 ( W0734365 DM P ~
Boulder Municipal Building
P.O. Box 791
Boulder, CO 80306
with a copy to tl~e CAGID Executive Director and the Boulder City Attorney.
6.2. Inspection. ~ither p~u•ty may make reasonable entries upon and inspection of the
Development Property in the performance of the terms of this Agreement, pirovided that CAGID
shall give Sc. Julien notice prior to any such inspection of areas other than the Gurage.
63. No Assignment. Tbis Agreement shall not be assigned by any party without Che
written consent of the other party; and all the provisions of this Agreement shall be binding upon
the respective employees, delegates, successors, heirs, and permitted assigns of the parties. No
interest of the parties in the Development Property may be assigned, encumbered, pledged,
transferred or hypothecated except as otherwise allowed herein or by mutual agreement of the
parties. However, in fhe event that a party desires to obtain financing accommodations, such
party may assign, encumber, pledge, or hypothecate to the lending institution, as security for
such financing, its interest in the Development Property (or its condominium unit(s)) and its
interest under this Agreement without the consent of the other party, and such other party shall
fully cooperate with and agrees to execute and deliver whatever additional documents and to
perform such additional acts as may be necessary or appropriate to acknowledge such
assignment, encumbrance, pledge or hypothecation.
6.4. Relationship of Parties. NeiYher pacty to this Agreement shall be deemed to be an
agent of the other or be deemed as acting on fhe other's behalf for agency purposes with the
exception of St. Julien's capacity as Project Manager pursuant to the provisions of Article III
above. Each party agrees not to assume, create, or enter into any obligation, agreement, or
commitment of any nature on behalf of the other, except as specifically authorized in this
Agreement. Both parties further agree not to make any warranties to any third party concerning
any matters that are not in accordance with this Agreement.
6.5. Appliecetion of Colaraclo Law; Arbitrntion. This Agreement, and the application
or interpretation hereof, shall be governed exclusively by its terms and by the laws of the State of
Colorado.
A. The parties hereby agree that any controversy, claim or dispute which arises
between them that cannot be resolved informally or by mediation as provided below wiChin thirty
(30) following delivery of' written notice of a dispute shall be decided by submission of the
dispute to binding arbih•ation before the American Arbitration Association pursu~tnt to such
Association's Commercial Arbitration Rules, and not by a lawsuit or by resort to court process.
Such arbitration shall take place in the Demer, Colorado metropolitan area. Each parry shall
bear its own costs and attorneys fees incurred in connection with the arbitration. The arbitrator's
fees shall be born equally by the parties. Notwithstanding the foregoing, the arbitrator shall have
the discreCion to award attorney fees, arbitrator's fees, and costs to the prevailing party. The
judgment upon the award rendered by the arbitrltor may be entered in any court having
jurisdiction thereof.
I5
671199_3~wo~sases nMa~
B. If any controversy, claim or dispute remains unresolved after negotiations
between CAGID and St. Julien, the parties shall submit the disputes to nonbinding mediation,
prior to submission to binding lrbitration. The mediator shall be a trained mediator with
experience on construction projects. The parties shall attempt to jointly select the mediator firom
a list of proposed mediators generated by the parties. The parties may seek the assistance of the
Ameiican Arbitration AssociaCion in generating a list of potential mediators. In tbe event that the
plrties are unable to agree on a mediator, the Chief Judge of Boulder District Court may appoint
one. Each party shall bear its own costs associated with presenting any disputes to the mediator,
which costs shall not be recoverable as part of a change order or in any subsequent litigation or
arbitration. '
6.6. Construction. Whenever the singular number is used in this Agreement and when
required by the context, the same shall include the plurll; and the masculine gender shall include
the feminine and neuter genders and vice versa; and the word "persons" or "party" shall include
a coiporation, firm, partnership, proprietorship or ofher form of association.
6.7. Headings. The headings in this Agreement are inserted for convenience only and
are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this
Agreement or any provision hereof.
6.8. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall consYituCe one and the same
document.
6.9. Force Majeure. No party shall be responsible for any failures or delays which are
due to causes beyond its control, including, without limitation, acts of God, war, fires, floods,
strikes, or failures by third parties to comply with their obligations to such party. In such
circumstances, the affected party shall be entitled to extend the time for performance by a time
equal to the amount of such delay.
6.10. Additional Acts. The parties agree to cooperate as required to carry out the intent
of this Agreement. Each party agrees to execute and deliver whatever additional documents and
to perform such additional acts as may be necessary or appropriate to effectuate and perform all
of the terms, provisions, and conditions of this Agreement and the transactions contemplated by
this Agreement.
6.11. Entire Agreement. This Agreement supersedes all prior or contemporaneous
agreements, representations, warranties and understandings and contains the entire agreement
between the parties hereto with regard to its subject matter. Except as otherwise specifically
provided for in this Agreement, no amendment, modification, termination, or waiver of any
provision of this Agreement nor consent or any departure therefrom, shall in any event be
effective unless the same shall be in writing and signed by duly authorized representatives of the
parties, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No failure or delay on the part of any party in exercising
any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or
16
671 199_3~ W0734365 UMP~
partial exercise of any such right, power or remedy preclude any other or furcher exercise thereof
or the exercise of any other right, power, or remedy hereunder.
SIGNATURE PAGE TO FOLLOW.
17
67 I I 99_3 ~ W0734365 DM P ~
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
CITY OF BOULDER CENTRAL AREA
GENERAL IMPROVEMENT DISTRICT
By:
Frank Bruno, General Manager
Attest:
Molly Winter, Executive Director
ST. JULIEN PARTNERS LLC
By:
Bruce P. Porcelli, Manager
18
671 I 99_3 ( W0734365 DMP ~
~XHIBIT A
(Legal Description of "CAGID Property")
671199_3~wmsases onnr~
19
EXHIBIT B
(Legal Description of "5t. Julien Property")
67 I I)9_3 ( W0734365 DMP ~
20
EXHIBIT C
(Condominium Declaration)
671 199_3 ( W0734365 ~M P ~
zl
EXHIBIT D
(Escrow Agreement)
67 I 199_3 ( W0734365 DMP ~
22
~XHIBIT E
(Termination Agreement)
~wo7aasr,s oNt~1
C71199 3
~xxiBrT r
(Construction Escrow)
~ W0734365 DMPJ
671199 3
~XHIBIT G
(Cost Allocations)
~ W0734365 ~MP~
671199_3
CONDOMINIUM DECLARATION
FOR
NINTH AND CANYON HOTEL AND PARKING
CONDOMINIUM
( W0736030 BMPJ
TABLE OF CONT~NTS
ARTICLE 1 DEFINITIONS .................................................................................................................................. S
1.1 ACT ..................................................................................... ............................................................................8
1.2 AFFILIATE ........................................................................ ............................................................................ 8
1.3 ALLOCATED INTERESTS ............................................... ............................................................................ 8
1.4 ARTICLES .......................................................................... ............................................................................8
1.5 ASSOCIATION ................................................................... ............................................................................8
1.6 BOARD OP DIRECTORS ................................................. ............................................................................ 8
1.7 BUILDING .......................................................................... ............................................................................8
1.8 BYLAWS ............................................................................. ............................................................................9
1.9 CHARGES .......................................................................... ............................................................................ 9
1.10 CIVIC USE SITE ..................................................... ............................................................................ 9
1.11 CONDOMINIUM 1~'jANAGTR ................................ ............................................................................ 9
1.12 CONDOMINIUM MAP ............................................ ............................................................................ 9
1.13 CONTESTING NOTICE .......................................... ............................................................................ 9
1.14 DECLARATION ....................................................... ............................................................................ 9
1.1 S DEFAULT NOTICE ................................................. ............................................................................ 9
1.16 DEFAULTING OWNER .......................................... ............................................................................ 9
1.17 EM~RG~NCY ........................................................... ............................................................................9
1.18 FIRST MORTGAGE ................................................ ............................................................................ 9
1.19 FIRST MORTGAGEE ............................................. ............................................................................ 9
1.20 GARAGE CHARG~S ............................................... ............................................................................ 9
1.21 Ga~cELCE ........................................................ .......................................................................... ~o
1.22 GARAGE PRO RATA SHAR~ ............................... .......................................................................... 10
1.23 GENERAL CHARG~S ............................................. .......................................................................... 10
1.24 GENERAL COMMON ELEMENTS ...................... .......................................................................... 10
1.25 GENERAL PRO RATA SHARE ............................. .......................................................................... I l
1.27 H EXPANSION ENVELOPE .................................. .......................................................................... 11
1.28 HoTEL LCE ........................................................... .......................................................................... ~ i
1.29 INSURANCE TRUSTEE .......................................... .......................................................................... 1 l
1.30 .TOINT DEVELOPMENT AGREEMENT ............... .......................................................................... 11
1.31 LAND ......................................................................... ..............:........................................................... 1 t
1.32 Lnw ........................................................................... .......................................................................... 1 I
1.33 LIEN NOTIC~ .......................................................... .......................................................................... 12
1.34 LIMITED CHARGES ............................................... .......................................................................... 12
135 LIMITED COMMON ELEMENTS ........................ .......................................................................... ] 2
1.36 LIMITED PRO RATA SHARE ............................... .......................................................................... 12
1.37 MORTGAGE ............................................................. ..........................................................................12
1.38 MORTGAGEE .......................................................... ..........................................................................12
1.39 NONDEFAULTING OWNER .................................. .......................................................................... 12
1.40 OCCUPANT .............................................................. ..........................................................................12
1.41 OWNER ..................................................................... .......................................................................... 12
1.42 ~WNER'S MODIFICATIONS ................................ .......................................................................... 13
(W073G030 BMP~
1.43 PERMITT~D USE .............................................................................................................................. 13
1.43 PERMITTED USE .............................................................................................................................. 13
1.45 PERSON .............................................................................................................................................. 13
1.46 PRIME RATC ..................................................................................................................................... 13
1.47 PxoJCCT ............................................................................................................................................ t3
1.48 RECORD ............................................................................................................................................. 13
1.49 R~CORDS ........................................................................................................................................... 13
1.50 REPRESENTATIVE ........................................................................................................................... 13
1.51 R~QUESTING PARTY ...................................................................................................................... 13
1.52 RULES AND REGULATIONS .......................................................................................................... 14
1.53 STRUCTORAL G-1 ELEMGNT ....................................................................................................... ]4
1.54 STRUCTURAI. G-1 MAINTENANCE CHARGES ........................................................................ l4
1.55 STRUCTURAI. PRO RATA SHARE ............................................................................................... 14
1.56 SUPERMAJORITY VOTE ................................................................................................................. 14
1.57 UNIT .................................................................................................................................................... 14
ARTICLE 2 SUBMISSION OF THE PROPERTY .......................................................................................... 15
ARTICLE 3 CONDOMINIUM MAP ................................................................................................................. 15
3.1 RCCORDAT[ON AND CONT&NT ...................................................................................................................... 15
3.2 AMENDMENTS ................................................................................................................................................ l6
ARTICLE 4 NAME OI+ CONDOMINIUM .........................................................................................16
ARTICLE 5 COMMON INTEREST OWNERSHIP OF PROJECT ..............................................................16
5.1 G~NCRAL DESCRIPTION OF UNITS ................................................................ ................................................ 16
5.2 UN1'r G ........................................................................................................... ................................................ 16
5.3 UNIT H ........................................................................................................... ................................................ 17
5.4 UNrrHG ........................................................................................................ ................................................17
5.5 CONVEYANCCOFUNITS ................................................................................ ................................................17
5.6 INSEPARABILITY OF UNITS ............................................................................ :............................................... 17
5.7 NON-PARTITIONABILITY OF COMMON ELGMENTS ...................................... ................................................ l7
ARTICLE 6 CIVIC USC SITE ............................................................................................................................18
ARTICLE 7 USE Or UNITS ............................................................................................................................... 18
7.1 PCaMITTED US~ ........................................................................................................................ .................... 18
7.2 PROH[IIITION OF INCRCASES OP INSURABLC RISKS AND CERTAIN ACTIVITIGS .:................... .................... I 9
7.3 PG1tMTTS ..................................................................................................................................... ....................19
7.1 STORAGE .................................................................................................................................... ....................19
'".5 SECURITYDEVICES ................................................................................................................... .................... 19
ARTICLE 8 SUBDIVISION AND EXP. ~NSION OF UNITS
19
8. I GENCRAL SUBDIVISTON OR UNITS ..................................................... ............................................................ 19
8.2 SUDDIVISION OF UNIT H .................................................................... ............................................................ 20
83 EXPANSION OF UNIT H ...................................................................... ............................................................ 20
8.4 NO SOBDIVISION OR CYPANSION ...................................................... ............................................................ 20
ARTICLE 9 OWNERSHIP, CONVEYANCE AND TAX ASSESSMCNTS
21
9.1 FORM OF OWNPRSHIP ................................................................................................................................... 2l
9.2 CONTRACTS TO CONVEY AND CONVCYANCES SUDSCQUCNT TO RGWRDING ............................................ 21
93 SF.PARA'CETAXASSESSMCNTS ......................................................................................................................21
~ W073r~030 BMP) 2
ARTICLE 10 THE ASSOCIATION ..................................................................................................... 21
10.1 F'ORMATION ...................................................................................................................................................21
10.2 MCM6CRSHIP AND VOTING RIGHTS ............................................................................................................. 22
10.3 PowcRS ......................................................................................................................................................... 22
10.4 ASSOCIATION MANAG~M~NT DOTIES .......................................................................................................... 24
10.5 ASSOCIATION MECTINGS .............................................................................................................................. 24
10.6 ANNUAL BUDGCT APPROVAL ........................................................................................................................ 24
I0.7 O4VN~RS' AND ASSOCIATION'S ADDRCSSES FOR NOTICES .......................................................................... 24
ARTICLE 11 BOARD Or DIRECTORS AND OFFICERS ......................................................................... 25
11.1 DUTICS,ELECTION ........................................................................................................................................25
11.2 REMOVar . ...................................................................................................................................................... 25
] 1.3 MEETtNGS ...................................................................................................................................................... 25
ARTICLG 12 CONDOMINIUM MANAG~R ................................................................................................. 2fi
12.1 RESPONSIBILITICS .........................................................................................................................................26
l 2.2 INSPCCTION .................................................................................................................................................... 26
12.3 BvDCCT .......................................................................................................................................................... 26
ARTICLE 13 INSURANCE AND RELEAS~ FROM LIABILITY .............................................................. 26
13.1 COVCRAGE ....................................................... ..............................................................................................26
13.1.1 Property Insurance ............................. .............................................................................................. 26
13.1.1 Linbility Gisurunce .............................. .............................................................................................. 27
13.1.3 Fidelity Insurnnce ............................... .............................................................................................. 27
13.1.4 Owners' Policies ................................. .............................................................................................. 27
13.2 Pxovis[oNS ..................................................... .............................................................................................. 27
13.3 ADJUS'LMENT OP CLAIMS ................................ .............................................................................................. 28
13.4 PRCMIUMS AS CHARGES .................................. .............................................................................................. 28
ARTICLE 14 RESPONSIBILITY FOR MAINTENANCE ........................................................ 2~
14.1 UNITS AND LIMITED COMMON ELEMCNTS .................................................................................................. 29
14.2 NoTrc~ ......................................:.................................................................................................................... 30
14.3 CONTEST ........................................................................................................................................................ 30
14.4 PARHING MANAG~MENT ............................................................................................................................... 30
ARTICLE 15 ACCESS FOR MAINTENANCE AND REPAIRS ............................................ 30
15. l RIGHT OF ACCESS ......................................................................................................................................... 30
15.2 COMMON ELCMCNTS WITHIN ANY UNIT ...................................................................................................... 31
15.3 EMERGENCY ...........................................................................................................:...................................... 31
15.4 EXCAVATION ................................................................................................................................................. 31
15.5 DAMAG~ ......................................................................................................................................................... 31
ARTICLE 16 ENCROACHMENTS AND EASEMENTS .......................................................... 32
16.1 EASEMCNT Or EN.IOYMENT ...................................................................... .................................................... 32
16.2 DELEGATIOIY OF USG ................................................................................. .................................................... 32
16.3 RCCORDED EASEMCNTS ............................................................................ .................................................... 32
16.4 EASCM~NTS POR ENCROACHMENTS ......................................................... .................................................... 32
16.5 UTILITY EASEMCNTS ................................................................................. .................................................... 33
16.6 Ent~ac~rrcv Acccss EnsEn~[v~r ............................................................. .................................................... 33
16.7 MAINTENANCE EASEMENT ....................................................................... .................................................... 33
16.8 ~`iARAGE UN11'S' ACCESS EASCM~NT ........................................................ .................................................... 33
16.9 UNIT G MECHANICAL AREAS ACCESS ..................................................... .................................................... 33
16.10 UNiT H Gnancr Access ................................................................. .................................................... 34
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16.11 Gnltnc;~ AcC~ss .................................................................................................................................. 34
I 6.12 EASEM[?NTS D~~MCll RLS~1tVCU ........................................................................................................ 34
ARTICL~ 17 OWNER'S MODIFICATIONS .................................................................................34
17.1 RicrcTS To Mo~irv ....................................................................................................................................... 34
17.2 WORKMANLIKEMANNCR .............................................................................................................................35
173 INSURANCL .................................................................................................................................................... 35
(7A NO MccHAN[CS' LI~NS ................................................................................................................................. 35
ARTICLE 18 RESERVED DEV~LOPMENT RIGHTS ........:......................................................................35
I 8. I RCS~2VATION OP SJP DCVCLOPMENT RIGIiTS ........................................................................................... 35
18.2 O'PHIsR RCSCRVGD RIGRTS ........................................................................................................................... 36
18.2 CHANG~ IN ALLOCATLD INTCRCSTS ............................................................................................................ 36
18.3 TERMINAT[ON OP RIGHTS ............................................................................................................................. 36
ARTICLE 19 COMPLIANCE ................................................................................................................36
ARTICLE 20 REVOCATION, AM~NDM~NT OR T~RMINATION ................................. 37
ARTICLE 21 ASSESSMENTS rOR AND PAYMENT OI' CHARGES ............................... 37
21. I CHARGCS ....................................................................................................................................... ................ 37
21.2 DISAGRCEMENT ............................................................................................................................. ................ 38
ARTICLE 22 DEFAULT AND R~NIEDIES ................................................................................................... 38
22.1 DrrnoLT ........................................................................................................................................ ................ 38
22.2 R~IMn~RSEMCNT .......................................................................................................................... ................ 38
22.3 CONTCSTINGNOTICE ....................................................................................:............................... ................ 39
22.4 DCPAOLT IN CHARGES~ EMERGENCY ........................................................................................... ................ 39
22.5 IN rca~ST ....................................................................................................................................... ................ 40
22.6 LICN OC ASSOCIATION ................................................................................................................... ................ 40
22.7 P1uo1uTY oF THE ASSOCIATION L1EN .......................................................................................... .:.............. 40
22.8 NONDEFAUL'fINGOWN~RLICN .................................................................................................... ................41
22.9 FORGCLOSORC ............................................................................................................................... ................ 41
22.10 MORTGAGEG NOTICE .......................................................................................................... ................ 42
22.11 MoNCYdUDGI~NT .............................................................................................................. ................42
22.12 PERSONAL LIABILITY .......................................................................................................... ................ 42
22.13 RCMEDIES NOT CUMO[.ATIVG ............................................................................................. ................ 42
22.14 PAYM~NT OC COSTS ............................................................................................................. ................ 42
22.15 STATCMENT OF STATUS ....................................................................................................... ................ 43
ARTICLE 23 ARBITRATION ............................................................................................... ................43
23.1 Aan[TanT~ox Ru~ as .................................................................................................................... ................ 43
23:2 ALTEIiNATIVT RUI.TiS .................................................................................................................... ................ 44
233 DISCOVCRV CusTS ........................................................................................................................ ................ 44
ARTICLE 24 RESTORATION UPON DAMAGE OR DESTRUCTION ............ ................ 45
24.1 DUTY To RGSTOR~ ........................................................................................................................ ................ 45
24.2 C05'r .............................................................................................................................................. ................ 45
24.3 PLANS ............................................................................................................................................ ................. 45
24.4 RCPLACEN[CN'C OF LGSS THAN ENTIRI PROPLRTY ..................................................................... ................. 45
24.5 INSURANCG TRUSTCC ................................................................................................................... ................. 46
24.6 INSOanNCC Paocr~~s ................................................................................................................. ................. 46
24.7 CPRTICICATCS BY THC BOAI2D Ob` D[RLC'CORS ..................................................... ..................... ................. 46
24.8 CER1'IPICATGS BY A'CTORNEYS OR TPfLE INSURANCC COMPANICS ................... .................... ................. 46
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249 SOBSTAN'PIAL LOSS~ OPTION TO PORCIiASC ................................................................................................ 46
ARTICL~ 25 CONDEMNATION ........................................................................................................ 47
ARTICL~ 26 NOTICE .............................................................................................................................. 47
26.1 MANN~R .........................................................................................................................................................47
26.2 MORTGAGEF. NOTICC .................................................................................................................................... 47
26.3 MORTGAGCE ACTION ................................................................................................................................... 47
ARTICLE 27 MISCGLLANEOUS ................................................................................................................... 48
27. I IN VA LIDITY ................................................................................................................................
27.2 WAIVCR ..............................................................................................................................:.
27.3 INTCRPRETATION .................................................................................................................
27.4 CAe1'IONS ..............................................................................................................................
27.5 ACCEPTANC~ OC PROVIS[ONS ..............................................................................................
27.6 ATTORNGY FEES ...................................................................................................................
27.7 NO THIRD-PARTY BrM3b'ICIARY .........................................................................................
27.8 EXHIIIITS INCORPORATGD ....................................................................................................
27.9 INCONSISTENCICS BETWCEN LAWS AND INSTROMENTS .....................................................
................. 48
................. 48
~ W073fi030 DMP)
SCHEDULE OI' ~XHIBITS
Exhibit 1 Description of SJP Property .....................................................................1-1
Exhibit 2 Description of CAGID Property ...............................................................2-1
Exhibit 3 Limited Common Elements ......................................................................3-1
Exhibit 4 Schedule of Pro Rata Shares .....................................................................4-1
Exhibit 5 General Common Elements ......................................................................5-1
Exhibit 6 Form of Civic Use Lease ..........................................................................6-1
Exhibit 7 Easements and Licenses of Record ..........................................................7-1
( W0736030 HMP ~ 6
CONDOMINIUM DECLARATION
FOR NINTH AND CANYON HOTEL AND PARKING
CONDOMINIUM
THIS CONDOMINNM DECLARATION ("Declaration") is made as of the _
day of , 200_, by S'r. JULiEN PAxTNExs LLC, a Colorado limited liability
company ("S,IP"), and CENTRAL AREA GENERAL IMPROVEMENT DISTRICT, a general
improvement district formed pursuant to Chapter 8-4, Boulder Revised Code 1981 and the laws
of the State of Colorado ("CAGID") (SJP and CAGID are collectively hereinafter referred to as
the "Declarants").
RECITALS
A. SJP is the owner in fee simple of the real property located in the City of
Boulder, County of Boulder, State of Colorado, and improvements located thereon, as described
more particularly on Exhibit 1 attached hereto and by this reference incorporated herein ("SJP
Property").
B. CAGID is the owner in fee simple of the real property located in the City
of Boulder, County of Boulder, State of Colorado, and improvements located thereon, as
described more particulazly on Exhibit 2 attached hereto and by this reference incorporated
herein (the "CAGID Property"). The S7P Property and the CAGID Property are hereinafter
collectively referred to as the "Property".
C. Declarants have caused to be constructed on the Property two below grade
levels of parking facilities (the "Parking Facilities"), and Declarants intend to cause to be
constructed on the Property and added to a mechanical area located within the Parking Facilities
a four-story guest hotel and related facilities for ancillary uses, including a restaurant, bar, retail
shops, spa, health club and conference center (collectively, "Hotel"). Declarants are desirous of
establishing a condominium project covering the Property, the Hotel and the Parking Facilities
pursuant to the Colorado Common Interest Ownership Act, C.R.S. §§ 38-33.3-101, et seq.
(the "AcC').
D. This Declaration is executed pursuant to and in furtherance of a common
and general plan to protect and enhance the quality, value, desirability and attractiveness of the
Property and to provide for certain duties, powers and rights of the "Association" and each
"Owner," as those terms are hereinafter defined.
NOW, THEREFORE, Declarants, pursuant to the Act, hereby state and declare on
behalf of themselves, and their successors and assigns, that the Property, the Building (as
hereinafter defined), and all other improvements now or hereafter built upon the Property and all
appurtenances thereto, shall, from and after the date of this Declaration, be owned, held,
transferred, conveyed, sold, leased, rented, hypothecated, encumbered, used, occupied,
maintained, altered and improved subject to Che covenants, conditions, restrictions, easements,
~ W0736030 HMP~ ~
]imit~cions, reservations, exceptions, equitable servitudes and other provisions set forth in this
Declaration for the duration thereof, all of which shall constitute covenants ivnning witl~ the
land, shall run with the title to such property and be binding upon all parties having any right,
title or interest in said property or any part thereof and upon their heirs, personal representatives,
successors and assigns, and shall inure to the benefit of each party having any such right, title or
interest in said property or any parf thereoP.
ARTICL~ 1
DEFINITIONS
The following terms when used in this Declaration, in the Condominium Map, the
Articles and the Bylaws of the Association, shall be deemed Co have Che meanings hereinafter seC
forfh, unless otherwise expressly provided to the contrary herein or therein.
1.1 "AC'r" shall mean the Colorado Common Interest Ownership Act, C.R.S. §§ 38-
33.3-101, et seq., as the same has been and may hereafter be amended or replaced from time to
time.
1.2 "AFFILIATE" shall have the meaning provided under the Act.
1.3 "ALLOCA'rED INT~R~STS" shall mean those rights and interests allocated to a
particular Unit as provided in this Declaration, as follows: (a) the undivided interest .in and to
and right to use General Common Elements allocated to a Unit under this Declaration; (b) the
undivided interest in and to and right to use Limited Common Elements allocated to a Unit under
this Declaration; (c) the number of votes in the Association aliocated to a Unit pursuant to
Section 10.1; (d) the General Pro Rata Share oP General Charges allocaCed to a Unit; (e) the
Garage Pro Rata Share of Garage Chacges allocated to a Unit, if any; (~ the Structural Pro Rata
Share of Structural G-1 Maintenance Charges allocated tu such UniC; (g) che Limited Pro Rata
Share of Limited Charges allocated to a Unit; and (h) the use of easements appurtenant to a Unit
as provided in this Deciaration.
1.4 "ARTICLES" shull mean the Articles of Incoiporation of the Association, as the
same may be amended or replaced from time to time.
1.5 "ASSOCIATION" shall mean the Ninth and Canyon Hotel and Parki:ig
Condominium Association, a Colorado nonprofit corporation.
1.6 "BOARD OF DIRGCTORS" shall mean the board of directors of the .association
duly elected pursuant to its Bylaws. The Board of Directors is an "executive board" as dc~fined
in the Act.
1.7 "BUILDING" shall mean the building (ineluding its footings a+x? foun~laCion) Chat is
Ueing constructed on the Property by Declarants in which the Hotel and Parking Facilities will be
located.
~wo7aeo3o onn~~ g
1.8 "BYLAWS" shall mean the bylaws of the Association, which have been or will be
adopted by the Board of Directors, for the regulation and management of the Associafion, as the
same may be amended or replaced from time to time.
1.9 "CFIARGES" shall include General Chaiges, Garage Charges, Structur~l G-1
Maintenance Charges and Limited Charges.
110 "CIViC Usr Si'rc" shall mean that portion of the Hotel LCE which is designated
as the "Civic Use Site" on the Condominium Map.
1.11 "CoNDOMINIUM MANAGER" shall mean any Person employed or engaged from
time to time by the Association, acting pursuant to a Supermajority Vote of the Board of
Directors, to perform management services for the Association.
1.12 "CONnOMINIUM MAP" or "MAP" shall mean the Condominium Map for Ninth
and Canyon Hotel and Parking Condominium of even date herewith, executed by Declarants,
and to be Recorded on the same date as the Recordation of this Declaration, and any
amendments or supplements thereto from time to time. The Condominium Map constitutes a
"map" as defined in the Act, and any amendments or supplements thereto from time to time.
1.13 "CoN'rES'rirrG No'rICE" shall mean any written notice given to the Association
by a Defaulting Owner pursuant to Section 22.3 contesting the allegation that the Defaulting
Owner is in default.
1.14 "DECLAUATION" shall mean this document and any amendments or supplements
hereto, and also, as and to the extent as provided in the Act, includes the Condominium Map.
1.15 "DEFAULT NoTICE" shall mean any written notice given by the Association or a
Nondefaulting Owner to a Defaulting Owner pursuant to Section 22.1.
1.16 "DEFAULTING OwNER" shall have the meaning given in Section 22.1.
1.17 "EMERGENCY" shall mean an event creating a material likelihood of damage to
person or property.
1.18 "FIRST MORTGACE" shall mean a Mortgage, as hereinafter defined, that has
priority of record over all other recorded liens except those liens made superior by statute (such
as general ad valorem tax liens and special assessments) and except as otherwise provided in this
Declaration.
1.19 "Fcxs'r MOx'rGAGEE" shall mean a Mortgagee holding or benefiting from a First
Mortgage.
1.20 "GARnG~ C~-tcES" shall mean and include the reasonable and necessary costs
and expenses (including capital expenses), whether ordinary or extraordinary, of repair,
~ W073603U BMP) 9
maintenance and replacement of Garage LCE, repair, maintenance and replacement of
equipment necessary for groundwater pumping, monitoring and treatment at the Property, any
expenses associated with the operation of the Parking Facilities under a Parking Management
Agreement (unless otherwise agreed to by the Owners of Units G and HG) and any other
expenses designated as Garage Charges by the provisions of this Declaration, except that the
repair and maintenance of Structural G-1 Elements (as defined in Section 1.53) will be a
Stnictural G-1 Maintenance Charge as set forth in Section 1.54.
1.21 "GARAGE LCE" shall mean those Limited Common Elements that are for the
exclusive use of Unit G and Unit HG and that are designated as Garage LCE either pursuant to
the provisions of this Declaration, including those so designated on Exhibit 3 attached hereto, or
on the Condominium Map.
1.22 "GARAGE PRO RATA SHARE" shall mean the undivided interest in and to Garage
LCE and the portion of Garage Charges allocated to and payable by Unit G and Unit HG. The
Garage Pro Rata Share for each of Unit G and Unit HG will be a percentage equal to the average
of three fractions (a) a frlction, the numerator of which is the Gross Floor Area of the Unit and
the denominator of which is the Gross Floor Area of Units G and HG; (b) a fraction, the
numerator of which is the number of parking spaces within the Unit and the denominator of
which is the total number of parking spaces within Units G and HG; and (c) a fraction, the
numerator of which is the number of annual vehicular trips generated to and from the Unit and
the denominator of which is the total number of annull vehicular trips generated to and from
Units G and HG. The Garage Pro Rata Shares az•e set forth on Exhibit 4.
1.23 "GENExAL CHARGES" shall mean and include the reasonable and necessary costs
and expenses, whether ordinary or extraordinary, of (a) operation, repair, maintenance and
replacement of General Common Elements, (b) acquisition or initial installation of any
improvements to the General Common ElemenYS (after iniCial installation of the General
Common Elements by the Declarants), (c) administraCion, management and operation of the
Association, (d) administration, management and operation of the Project generally (as opposed
to the administration, management and operation of an individual Unit) for the joint or common
benefit of the Units and the Owners and Occupants of the Units, (e) unless allocated to specific
Unit Owners, all amounts incurred by the Association for insurance required to be carried
pursuant to Articie 13, (f~ any other expenses made or incurred by or on behalf of the
Association and declared to be General Charges by the provisions of this Declaration, and
(g) any other expenses which are expressly designated as General Charges in this Declaration.
1.24 "G~NExAt CoMMOrr ELEMEN'rs" shall mean all portions of the Project except
(i) the Units (including the improvements within Units), (ii) Limited Common Elements and
(iii) that portion of the Project depicted on the Condominium Map (including supplemental
filings thereo~ as "Future Phase" or "~xpansion," including General Common Elements
described on Exhibit 5 or by any other provision of this Declaration or on the Condominium
Map. Declarants intend to construct the Project in phases and to file at the completion of each
phase an amendment to the Condominium Map describing the area and improvements included
with that phase, and identifying the portion of the Property remaining to be developed within the
Project. The Condominium Map and each supplement thereto will provide for allocation of
~ wo7seo3o dM N} ~ p
General Common Elemenfs by Declaranls to all Unit Owners in accordance with their General
Pro Rata Shares described by and included within the filed Map.
1.25 "GENERAL PRO RATA SHARC" shall mean the undivided interest in and to
General Common Elements and the portion of General Charges aliocated to and payable by each
Unit. The General Pro R1ta Share for each Unit will be a percentage equivalent to a fraction, the
numerator of which is the Gross Floor Area of the Unit and the denominator of which is the
Gross Floor Area of all Units. The initial General Pro Rata Shares are set forth on Exhibit 4.
Following creation of Unit H as provided in Section 8.3, the General Pro Rata Shares will be
reallocated as set forth on ExhibiC 4.
1.26 "GROSS FLOOR AREA" shall mean the sum of the gross horizontal areas of the
several floors of a building, including interior balconies and mezzanines, but excluding exterior
balconies. All horizontal dimensions of each floor are to be measured from the outside of the
exterior walls of a building, to the center line of party walls and to the exYerior of any walls
abutting exit or service corridors.
1.27 "H Exrarrsiolv ENVELOer" shall mean shall mean the airspace development
envelope described on the Condominium Map as "H Expansion Envelope," which initially
comprises a part of Unit H and is defined as the vertical planes rising seventy-one feet from the
top of the uppermost concrete floor of the Parking Facilities in the locations indicated on the
Condominium Map. This Declaration contemplates that Unit H will be expanded pursuant to the
procedure provided in Section 8.3 and through construction of a structure that will include the
airspace described within the H Expansion Envelope, with the Condominium Map to be
amended upon substantial completion of such structure to reflect the as-built dimensions of the
expanded Unit H.
1.28 "HoTEL LCE" shail mean those Limited Common Elements that are for the
exclusive use of Unit H and that are designated as Hotel LCE either pursuant to the provisions of
this Declaration, including those so designated on Exhibit 3, or on the Condominium Map.
1.29 "INSURANCE TRUSTEE" shall mean a Person appointed by the Association as such
pursuant to Section 22.7.
1.30 "JOINT DGVELOPMENT AGREGN[ENT" shall mean that certain 7oint Development
Agreement, dated , 2003, between Declarants, describing the respective obligations of
Declarants in connection with development of the Project.
1.31 "LAND" shall mean the land described on Exhibits 1 and 2 with all appurtenances,
excluding any improvements now or hereafter situated thereon.
1.32 "LAW" shall mean all laws, statntes, ordinances, resolutions, orders, codes, rules,
regulations, judgments, decrees and other requirements (including requirements under permits,
licenses, consents and approvals) of any federal, state, county, city, town, or other governmental
authority havingjurisdiction.
~ W0736030 BMP} ~ ~
1.33 "L~FN No'CiCE" shall me~n either an `Assocdation Lien Notice" given by the
Association pursuanC to Section 22.6, or a"Nondefaulting Owner Lien Notice" given by a
Nondefaulting Owner who has cured a default of a Defaulting Owner pursuant to Section 22.8,
to be filed in the Records.
1.34 "LIMIT~A CIIARGES" shall mean the reasonable and necessary costs and expenses
(including capital expenses), whether ordinary or extraordinary, of repair, maintenance and
replacement of Limited Common Elements and any other expenses designated as Limited
Charges by the provisions of this Declaration.
1.35 "LIMITED COMMON EL~MENTS" shall mean the (a) Hotel LCE and Garage LCE,
as are specifically designated in tbis Declaration (including Exhibit 3), (b) those Limited
Common Elements so designated pursuant to the provisions of this Declaration (including
Exhibit 3) or on the Condomini~im Mup, (c) those Limited Common Elements as may be so
designated by operation of the Act, and (d) exeept as otherwise designated in Cbis Declaration or
on the Condominium Map, any chute, flue, duct, utility line, wire, conduit, mechanical system
improvement, bearing wall, bearing column, or other fixture thlt serves one or more but less than
all of the Units or any portion of General Common Elements.
136 "L1M['rEV Pxo RaTn Sxa~" shall mean, as to a Unit to which a Limited
Common Element has been allocated, such UniYs undivided interest in and to the Limited
Common Element and the portion of Limited Charges allocated to and payable by each Unit with
respect to the Limited Common Element. Each Unit shall have a Limited Pro Rata Share for
each Limited Common Element that is allocated to such Unit, which will be a percentage
equivalent to a fraction, the numerator of which is the Gross Floor Area of the Unit and the
denominator of which is the Gross Floor Area of all Units to which the Limited Common
Element has been allocated. The initial Limited Pro Rata Shares for Units and allocated Limited
Common Elements are set forth on Exhibit 4.
1.37 "MORTGAGE" shall mean a mortgage or deed of trust or any other consensual lien
or title retention contract intended as security for an obligation encumbering all or any portion of
a Unit, or an interest therein.
1.38 "MoRTGAGEE" shall mean the holder or beneficiary of a Mortgage.
1.39 "NoNnCCAUL'riNG OwtvER" shall have the meaning given in Section 22.1.
1.40 "OCCUPANT" shall mean any Person, including tenants, employees, agents,
guests, licensees, invitees, contractors and subcontractors, lawfully using all or any portion of a
Unit or Limited Common Elements appurtenant to such Unit pursuant to an express or implied
agreement by the Owner of such Unit, or lawfull}~ using General Common Elements, or a portion
thereof, pursuant to an express or implied agreement by the Association.
1.41 "OwN~R" shall mean che Person (including, if applicable, each Declarant), or all
Persons collecCively, who holds fee simple Record Citle to a Unit (including a contract seller, but
excluding a contract purchaser) but excluding any Person holding a Mortgage on a Unit unless
( W073fi030 RMP~ ~ 2
such Person has acqLiired record title to the Unit pursuanC to foreclosure or by frlnsfer in lieu of
foreclosure.
1.42 "OWN~R'S MoDIi'ICATIONS" shall mean any repairs, installations, additions,
improvements, substitutions, alterations, restoration, major redevelopmenf, remodeling,
replacement, and demolition and rebuilding mlde to a Unit by ao Owner of a Unit, subject to the
provisions of Article 17.
1.43 "PARKING MANAGEMENT AGRGEMENT" has the meaning provided at
Section 14.4.
1.44 "PCRMIT'rcn USE" shail mean, for Units H, G and HG, use for vehicular and
bicycle parking or storage purposes and for mechanical, utility and laundry rooms and other
ancillary uses reasonably related thereto, and for Unit H, use for hoCel and conference center,
restaurant, bar, lounge, spa, health club, retail, and community civic purposes, and other ancillary
uses reasonably related thereto, and the use of the Condominium Manager's office, if located in
Unit H, for administrative and managerial purposes related solely to the operation of the Project,
each of which is not in violation of any applicable Law affecting the Project or any other
document currently of Record.
1.45 "PERSON" shall me~n a natural person, corporation, partnership, limited liability
company, association, trust, governmental body, agency or instrumentality or other legal entity
or any combination thereof.
1.46 "PRiM~ RATE" shall mean the publicly announced prime interest rate published
from time to time as such in the "Money Rates" section of the Wall Street Journal (or in the
event the Wall Street Journat ceases to publish said rate, or if said publication shall cease to
exist, then such other publication as selected by the respective payee in its reasonable discretion).
1.47 "PROJECT" shall mean the Property, the Building and all other improvements,
appurtenances and facilities pertaining to or located on the Property, now or in the future.
1.48 "R~CORD," or a derivation thereof, including "Recording," "Recordation" or
"Recorded" shall mean the recording of any documents in the real estate records in the office of
the Clerk and Recorder of Boulder County, Colorado.
1.49 "R~couns" shall menn the real estate records in the office of the Clerk and
Recorder of Boulder County, Colorado.
1.50 "REPxcsElv'rATiv~" shall mean as to any Person, its respective partners,
managers, members, officers, directors, employees, agents, trustees and contractors.
1.51 "R~QoES'rnvG PaaTY" shall mean any Owner or Mortgagee or prospective
purchaser of a Unit who delivers a request Co the Condominium Manager or Association to
r~ceive a statement of status pursuant to Section 22.15.
~ W0736030 HM Pj ~ 3
1.52 `BULCS ANn RCGULATIONS" shall mean reasonable rules and regulations adopted
from Cime Co time by the Association pursuant to the Bylaws with respect to the regulation and
management of the Project, as the same may be amended or replaced from time to time.
1.53 "STRUCTURAL G-1 ELEMENT" shall mean those structural cohimns, transfer
beams and other sttvctural elements on the G-1 level of the Parking Facilities located directly
beneath the footprint of the Hotel as depicted on the Condominium Map.
1.54 "STRUCTURAL G-1 Mr1INTENANCE CHARGES" shall mean the reasonable and
necessary costs and expenses, whether ordinary or extraordinary, of repair and maintenance to
maintain the structural integrity of Structural G-1 Elements. Sfruch~ral G-1 MainYenlnce
Charges shall not include the replacement of more than 50%a of the physical volume of a
Structural G-1 Element, which shall instead be deemed a Garage Charge.
1.55 "STRUCTURAL PRO RATA SHARG" shall mean the portion of Structural G-1
Maintenance Charges allocated to and payable by each Unit. The Structural Pro Rata Share for
each Unit will be a percentage equivalent to a fraction, the numerator of which is
[ ] and Che denominator of which is [ ]. The initial Structural Pro
Rata Shares are set PorCh on ExbibiC 4.
1.56 "SUP~RMAJORITY VoT~" shall mean and refer to any decision reached by the
Board of Directors in accordance with the Bylaws, which is agreed to by a number of Directors
constituting seventy-five percent (75%) or more of the total number of Directors elected by the
Owners as hereinafter provided. As is provided in Section 11.1, initially there shall be a total of
four Directors elected by the Owners, with the vote of at least three of such Directors
constituting a Supermajority Vote.
1.57 "UNIT" shall mean:
1.57.1 as to Unit H(or any Units resulting from the subdivision of Unit H)
identified on the Condominium Map, the fee simple interest and title in and to an individual
airspace (together with stnictural elements and improvements contained therein) that is contained
within an area bounded by the outer surfaces of perimeter walls, floors, roofs, windows and
doors or, in the case of walls separating vertically adjacent Units, by the midpoint of such
cummon walls; and
1.57.2 as ~o Unit G identified on the Condominium Map, the fee simple interest
and title in and to an i idividual airspace (together with struetural elements and improvements
contained therein) Jefined as the entire airspace Parking Facilities (other than the areas depicted
on the Con iominium Map or described in this Declaration as a part of Unit H, Unit HG, a
General Common Elemrnt or a I.imited Common Element), from the bottom of the concrete
floor of the Parking Facilities to (i) the top uf the protective layer located above the water
proofing membrane above the concrete ceiling in all areas of the Parking Facilities located below
HoCel LCE other than the Civic Use SiCe, (ii) the bottom of the concrete ceiling in the area of the
Parking Facilities located directly below Unit H and the H Expansion Envelope; and (iii) the
( W073G030 BMP~ 14
midpoint of the protective layer located above the wateiproofing membrane above the concrete
ceiling in all areas of the Parking Facilities located below the Civic Use Site.
1.57.3 as to Unit HG identified on the Condominium Map, the fee simple interest
and title in and to an individual airspace (together with structural elements and improvements
contained therein) defined as follows: (i) the vertical planes rising from the concrete floor of the
Parking Facilities in the locations indicated on the Condominium Map for Unit HG, (ii) the top
surface of the concrete floor of the Parking Facilities located within such vertical planes, and
(iii) the horizontal planes perpendicular to such vertical planes.
Each Unit shall be designated by a separate number, letter, address or other symbol or
combination thereof that identifies only one Unit in the Project as shown on the Condominium
Map.
ARTICLE 2
SUBMISSION OF THE PROPERTY
Declarants hereby (a) submit the Project to condominium ownership under the Act,
(b) impose upon all of the Project the covenants, conditions, restrictions, easements, reseivations,
rights-of-way, and other provisions of this Declaration, and (c) declare that all of the Project
shall be held, sold, conveyed, encumbered, leased, rented, occupied, and improved subject to the
covenants, conditions, restrictions, easements, reservations, rights-of-way and other provisions of
this Declaration. The condominium ownership of the Project created under this Declaration shall
continue until this Declaration is terminated or revoked as hereinafter provided.
ARTICLE 3
CONDOMINIUM MAP
3.1 RECORDATION AND CONTENT. Prior to the conveyance of any Unit, the
Condominium Map shall be Recorded. The Condominium Map may be filed in whole or in part
from time to time and may be amended from time to time as provided in this Declaration. Any
Condominium Map Recorded subsequent to the first Condominium Map shall be termed a
supplement to such Condominium Map, and the numeric:~l sequence of such supplements shall
be shown thereon. The Condominium Map shall cor:riin the certificate of an independent
enginccr, surveyor or architect, licensed or registered ia: he State of Colorado, certifying that
(a) the Condominium Map substantially depicts the loc:itioi: and the horizontal and vertical
boundaries of the Units to which it pertains; (b) such Condominium Map was prepared
subsequent to substantial completion of the depicted improvements (as defined in the Joint
Development Agreement); and (c) the Condominium Map contains all the information that is
reqL~ired by Section 209 of the Act. Each supplement shall seC forth a like certificate. The
Condominium Map shall include a"plaY' as defined in the Act. The Condominium Map shall
include the appropriate identificaCion for each Unit.
[ W0736030 6MP) ~ g
3.2 AMrNDmtEN'rs. Except as otherwise provided herein, the Condominium Map
may be amended or supplemented with the prior writCen approval of (i) seventy-five percent
(75%) of Owners and sevenCy-five percent (75%) of First Mortgagees, ~nd (ii) (Co the extent not
otherwise included) any Mortgagee whose lien encumbers any portion of a Unit included in the
proposed amendment or supplement. In addition, the Association or a Declarant shall be entitled
to amend or supplement the Condominium Map without the approval of Unic Owners not owning
affected Units: (a) for the subdivision, combination or expansion of Units as permitted in this
Declaration; (b) to conform the Condominium Map to the actual location of cons[ructed
improvements; and (c) aC the expense of the Association or a Declarant, to establish, vacate, and
relocate easements of any kind, provided that in each case the prior written consent shall be
obtained Prom any Mortgagee whose lien encumbers any portion of a Unit that is included in the
proposed lmendment or supplement. Finally, the Condominium Map will be amended by SJP,
as a Declarant or the Owner of Unit HG and Unit H to reflect the Hofel as finally constructed,
and no approval or consent of the Association or any other Unit Owner will be required for such
Condominium Map amendment, except as required by the Joint Development Agreement.
ARTICLE 4
NAME Or CONDOMINIUM
The Project shall be known as the Ninth and Canyon Hotel and P~u•king Condominium. The
address of the Project is 900 Walnut Street, Boulder, Colarado 80302.
ARTICLE 5
COMMON INTER~ST OWNERSHIP OF PROJECT
5.1 GEN~RAL D~SCxir'riotv oF UNI'rs. The Project is currently designed to be
comprised of three Units - Unit G, Unit HG and Unit H- each of which is described in this
Declaration and is designated on the Condominium Map. Each Unit shall consist of a separate
fee simple estate in such designated airspace, and each Unit holds an undivided interest and the
right to use General Common Elements and Limited Common Elements that are designated in
this Declaration or on the Condominium Map as allocated to the particular Unit.
5.2 UNIT G. In general, Unit G consists of the two below-grade parking levels of the
Parking Facilities, except for (a) the space for the approximately 100 parking spaces which
constitute Unit HG, (b) space for the mechanical and storage facilities which constitute a part of
Unit H, (c) General Common Elements contained within the Parking Facilities, if any and
(d) Limited Common Elements not appurtenant to UniC G contained within the Parking Facilities,
if any. Unit G holds (w) an undivided interest in and right to use General Common Elements,
(x) the undivided interest in and right to use of Limiced Common Elements (other than Garage
LCE), if any, appurtenant to Unit G, (y) an undivided interest in and exclusive right to use (in
common with Unit HG) of Garage LCE, and (z) the non-exclusive right to use of the easements
appurtenant to Unit G as provided in Chis Declaration.
~ W0736030 BMP~ 16
5.3 UNiT H. Unit H initially consisfs of certain mechanical and storage facilities
located within the Parking Facilities and the airspace within the H Expansion Envelope.
Following completion of improvements wiChin the H Expansion Envelope, Unit H will generally
consist of the Hotel and ancillary uses specified in Section 1.44 located within the Building and
the mechanical and storage facilities located within the Parking Facilities, except for (a) General
Common Elements contained within Che Building, iP any and (b) Limited Common Elements not
appurtenant to Unit H contained within the Building, if any. Unit H holds (w) an undivided
interest in and right , to use General Common Elements, (x) the undivided interest in and
exclusive righC to use oP the Hotel LCE appurtenant to Unit H, (y) an undivided interest in and
right to use of other Limited Common Elements, if any, appurtenant to Unit H, and (z) the non-
exclusive right to use of the easements appurtenant to Unit H as provided in this Declaration.
5.4 UNIT HG. Unit HG consists of the space within the Parking Facilities for
approximately 100 parking spaces and mechanical and storage facilities as shown on the
Condonunium Map. Unit HG holds (a) an undivided interest in and right to use General
Common Elements, (b) the undivided interest in and exclusive right to use of Limited Common
Elements (other than Garage LCE), if any, appurtenant Co Unit HG, (c) an undivided interest in
and exclusive right to use (in common with Unit G) of Garage LCE, and (d) the non-exclusive
right to use of the easements appurtenant to Unit HG as provided in this Declaration.
5.5 CoNV~YANCE oF UNi'rs. Each conveyance, transfer, devise, lease, encumbrance
or other disposition of a Unit shall be deemed to be a conveyance, transfer, devise, lease,
encumbrance or other disposition, as the case may be, of the entire Unit, together with its
Allocated Interests and all other appurtenant rights, interests, duties and obligations created by
Law or by this Declaration.
5.6 INSErAUABiLiTY oF UNi'rs. Except as otherwise provided in this Declaration:
(a) no part of a Unit or of the legal rights comprising ownership of a Unit may be partitioned or
separated from any other part thereof during the period of condominium ownership pursuant to
this Declaration; (b) each Unit shall always be conveyed, transferred, devised, bequeathed,
encumbered, and otherwise affected only as a complete Unit; provided, however, that the
foregoing shall not be construed to prohibit the lease or license by an Owner of all or any portion
of its Unit, or of any Limited Common Elements which are appurtenant to and for the exciusive
use of such Unit, to any other Person, subject, however, to the other provisions of this
Declaration; and (c) every conveyance, transfer, gift, devise, bequest, encumbrance, or other
disposition (other than any lease or license made pursuant to Article 6) of a Unit or any part
thereof shall be presumed to be a disposition of the entire Unit, together with all nppurtenant
rights and the Allocated Interests with respect thereto created by Law or by this Declaration,
including the Owner's membership and voting rights in the Association, the Owner's undivided
interest in and rights of use of General Common Elements and Limited Common Elements
appurtenant to such Unit, and the rights of use of the easements appurtenant to such Unit or
provided in this Declaration.
5.7 NON-PARTITIONABILITY OF COMMON ELEMENTS. General Common Elements
and Limited Common Elements shall be proportionately owned in common by the Owners based
on their Allocated Interests, and no Owner shall bring any action for partition or division of
( W0736030 BMP~ ~'J
General Common ~lements or Limited Common Elements. Any puiported conveyance,
encumbrance, individual sale or other voluntary or involuntary tr~nsfer of an undivided interest
in General Common Elements or Limited Common Elements made without the Unit to which
that interest is appurtenant is void.
ARTICL~ 6
CNIC USE SITE
Declarants acknowledge and agree that improvements, whether a separate building or an
addition to the Building, may be constructed on the Civic Use Site. Such improvements shall be
used for civic purposes as further described in the form of Lease attached hereto as Exhibit 6
(the "Civic Use Lease"), which provides for lease of the Civic Use Site on terms and conditions
as more particularly set forth therein. The Association, at such time as it shall determine, shall
have the right as agent for the Owner of Unit H to administer the Civic Use Lease. No
amendment or modification to the Civic Use Lease shall from time to time be agreed to by the
Association without first obtaining the Supermajority Vote of the Board of Directois therefor.
The Association shall have the right to lease the Civic Use Site to one or more civic or community,
non-governmental groups for use by such groups solely for civic, non-governmental purposes in
accordance with the terms of the Civic Use Lease. Following any terminaYion of the Civic Use
L.ease or in the evenC the AssociaYion fails to enCer into a Civic Use Lease on or beFore 7anuary 1,
2014, the Owner of Unit H will be free to construct improvements, lease, operate, use and
otherwise m~mage the Civic Use Site in any manner without requiring the consent of the
Association or 1ny other Unit Owners and free of any restrictions set forth in the Civic Use Lease,
but subject to all other provisions of this Declaration and applicable Laws, inciuding any zoning
requirements. Declarants acknowledge and agree that the Civic Use Site shall initially be
characterized as a Hotel LCE, as depicted on the Condominium Map. Notwithstanding the
foregoing, Declarants acknowledge and agree that SJP, as a Declarant and the initial Owner of
Unit H and Unit HG, shall have the right to convert the Civic Use Site from a Hotel LCE to a
Unit or to reallocate the Civic Use Site as a Limited Common Element for the exclusive use of
another Unit, as provided in Section 18.1, subject to the Civic Use Lease. The Owners agree to
execute any and all amendments to the Declaration necessary to effectuate the intent of this
Article 6.
ARTICLE 7
USE OF UNITS
7.1 PcRMITTED USE. Unless otherwise expressly agreed by each of the Owners and
the Association, each Unit shall, for a period of 20 years from and after the date of Recording of
this Declaration, be used exclusively for the respective Permitted Use for such Unit as provided
in Section 1.44. If an Owner desires to use its Unit far any other purpose after the expiration of
such 20-year period, it shall have the right to do so only if and to the extent that such purpose is
legally permissible pursuant to applicable Laws affecting the Project, this Declaration, the
Articles, Bylaws and Rules and Regulations of the Association, and all recorded covenants,
restrictions, easements and other documents affecting the Project.
( W073G030 BMP~ 18
7.2 PROIIII3ITION OF INCREASES OG INSURABL~ RISKS AND CERTAIN ACTIVITIES.
No Owner or Occupant shall do, suffer, or permit to be done, anything in any Unit which would
impair the structural soundness or safety of the Project, or which would result in the cancellation
oP or material increase in premiums for insurance applicable to the Project, or which would be
noxious or unreasonably offensive or interfere with the peaceful possession and proper use of
any other Occupant or Owner of a Unit, or which would be in violation of applicable Law, or the
requirements of insurance bodies insuring the Project, or the requirements of this Declaration,
the Articles, Bylaws or Rules and Regulations. No Owner shall discharge or intentionally or
negligently permit to be discharged any materials into waste lines, vents or flues of t6e Project
which might reasonably be anticipated to cause damage thereto.
7.3 PERMITS. Tf any governmenCal license or permit, oCher Chan a certificate of
occupancy or a license or permit applicable to fhe Project as a whole, shall be required for use of
a Unit by the Owner of such Unit or any of its Occupants, and the failure to secure such license
or permit would in any way affect any other Owner or the Association, the Owner of such Unit
shall duly procure and thereafter maintain such license and permit and submit the same to
inspection by the Association and all other Owners. Such Owner shall at all times comply with
the terms and conditions of each such license or permit, and any certificate of occupancy
applicable to the Unit of such Owner and all licenses or permits applicable to the Project as a
whole. If any Owner requires the consent or cooperation of the other Owners in order to obtain
any such license or permit, the other Owners shall give such consent and render such
cooperation.
7.4 S'ro1tAGE. Any use of a Unit for storage purposes shall be conducted in such a
manner so as not to exceed the permissible floor loads for the floor of said Unit.
7.5 SECURITY D~VICES. Each Owner sball have the right at its sole cost to construct,
install and maintain within the Unit of such Owner at the boundaries between such Unit and any
General Common Elements or Limited Common Elements, gates, barricades, or other
improvements or devices to provide security for or control access to such Unit, as well as signs
to identify ownership of such Unit, to provide information as to the parties entitled to use such
Unit and to give directions to such parties, subject to the prior written approval of the
Association as to the aesthetics of such signs, gates, barricades or other devices to the extent they
~re visible from outside the Unit, and subject to the access easements set forth in Articles 15 and
16.
ARTICLE 8
SUBDIVISION AND EXPANSION OF UNITS
8.1 GEN~RAL SoBD[vISION oF UNITS. In addition to the subdivision rights provided
below, each Owner of a Unit shall have the right from time to time to subdivide its Unit into two
or more Units subject to, and in accordance with, the requirements of the Act. The Allocnted
Interests appurtenant or allocated to the Unit which is being so subdivided shall be reallocated
among the Units resulting from such subdivision in accordance with the formulas described in
lwo~3r,o3o ~MP~ 19
this Declaration and as sl~all be set forth in the amendment to this Declaiation required by [he
Act to be executed and Recorded in connection with such subdivision, provided that in no event
shall the mimber of votes allocated to such subdivided Units exceed the total number of votes
allocated Co such Unit under Section 10.1 prior to subdivision.
8.2 SvnnivisioN oF UNIT H. Notwithstanding the provisions of Section 8.1, the
Owner of Unit H shall have the rigbt, at its option, to subdivide Unit H inCo up ro three separate
Units (one of which might consisC generally oF the conference center and related restaurant and
kiCChen facilities within the Hotel, another which might consist generally of the spa and health
club within the Hotel, and the ofher which might consist generally of the remainder of the Hotel)
and the Association and all other Owners hereby approve such subdivision of Unit H. If the
Owner of Unit H so desires to so subdivide Unit H, such Owner shall at such time submit to the
Association the following: (a) a statement describing the manner in which the Allocated
Interests allocated to Unit H shall be reallocated to such Units resulting from such subdivision;
and (b) the forms of amendments to this Declaration and the Condominium Map, as may be
necessary to show the Units resulting from such subdivision, and their dimensions and
identification; provided, however, that the proposed amendmenfs to this Declaration and the
Condominium Map shall not adversely affect any other Unif within the Project (other than
Unit H) or the right, title and interest of the Owner of such other Unit. Upon submission of the
foregoing materials to the Association, the Association shall execute and cause to be Recorded
each of the proposed amendments to this Declaration and the Condominium Map. The Owner of
Unit H shall bear all costs and expenses in connection with such subdivision of Unit H, including
by reimbursing the Association for any costs and attorneys' fees incurred by the Association in
connection therewith.
8.3 ~XPANSION OF UNIT H. 57P, as a Declarant, shall have the right to combine a
part of or combination of parts of the space within Unit H with the additional space within the H
Expansion Envelope. Upon the initial expansion of Unit H and completion of the construction of
the Hotel through the additional airspace development rights, the Allocated Interests will be
restated as set forth on Exhibit 4. The costs incurred for legal, architectural and engineering fees
and all other costs incurred by the Association in connection with such expansion of Unit H shall
be borne by the Owner of Unit H requesting such change. Upon exercising any right to expand
Unit H to include thc airspace within the H Expansion Envelope, the Owner of Unit H, SJP, as a
Declarant, or the Association shall record amendments to this Declaration and the Condominium
Map reflecting any changes resulting from the exercise of such right, sufficient to satisfy the
requirements of the Act ~nd deliver a copy thereof to each Unit Owner in the Project.
8.4 No Suu~[vISION ou ExPANSCON. Except as expressly provided in this Article 8
and Article 18, no portion of the Project (including General Common Elements and all Limited
Common Elements) shall be subject to an action for division or expansion, and no Units shall be
subdivided.
( W0736030 BMP~ QQ
ARTICL~ 9
OWNERSHIP, CONVEYANCE AND TAX ASSESSMENTS
9.1 F'ORM or OWNTRSHIP. A Unit may be held and owned in any real property
relationship recognized under the laws of the State of Colorado, and sold, conveyed and
encumbered without prior approval of the Association or the Owners of any other Units (or their
Mortgagees), subject to the terms and conditions of this Declaration.
9.2 CONTRACTS TO CONVEY AND CONVTYANC~S SUBSEQUENT TO R~CORDING.
Subsequent to the Recording of this Declaration and the Condominium Map, the legal
description for a Unit in contracts to convey or instruments of conveyance, and every other
instrument affecting title to a Unit, shall be in substanfially the following form with such
omissions, insertions, recitals of fact, or other provisions as may be required by the
circumstances or which are appropriate to conform to the requirements of any govemmental
authority, practice or usage or requirement of Law with respect thereto:
Unit , according to the Condominium Declaration for the Ninth
and Canyon Hotel and Parking Condominium recorded [date], in [recording
information] and the Condominium Map Number (being the last recorded
map), recorded [date], in [recording information] in the office of the Clerk and
Recorder of Boulder County, Colorado.
9.3 S~rnRn'rE TAx AsscssmEN'rs. Upon the filing of this Declaration and the
Condominium Map in the Records, Declarants shali deliver a copy of this Declaration to the
assessor of Boulder County, Colorado as provided by Law. The lien for taxes, assessments or
other governmental charges assessed shall be confined to the Units. No forfeiture or sale of any
Unit for delinquent taxes, assessments, or other governmental charges shall divest or in any way
affect the title to any other Unit or its appurtenances. The valuation of General Common
Elements shall be assessed proportionately to each Unit in accordance with each UniYs General
Pro Rata 5hare and the valuation of Limited Common Elements shall be assessed to those Units
to which such Limited Common Elements are appurtenant proportionately in accordance with
each Unit's Limited Pro Rata Share in such Limited Common Elements, if any. The Association
shall not take any steps to jeopardize the tax-exempt status of CAGID in connection with any
such filings.
ARTICL~ 10
THE ASSOCIATION
]0.1 FoluvtATCO[v. Contemporaneously with the execution of this Declaration,
Declarants have caused the Association to be formed for the purposes herein outlined. Each
Owner upon becoming an Owner shall automatically be a member of the Association and shall
remain a member for the period of its ownership of its Unit. Accordingly, an Owner shall be
responsible for compliance not only with the provisions of this Declaration, but also with the
provisions of the Articles, Bylaws and the Rules and Regulations.
( W0736030 BMP~ 2 ~
10.2 MGMBI?RSIIIP AND VOTING RIGI3TS. Membership in Che Association is
appurtenant to a Unit and such membership shall automatically pass with the conveyance of title
to such Unit, whether or not any reference thereto is made in the instrument of conveyance.
Each Owner shall be entitled to the benefits, and subject to the burdens, relating to membership
in the Association during the period in which it is an Owner. Each Owner of a Unit (other than
the Owner of Unit G) shall be entitled to one vote far each 1Q000 square feet of Gross Floor
Area included within a Unit, except that increments of less than 5000 square Peet of a Unit shall
be ro~mded down to the closest full vote, and increments equal to or greater than 5000 square feet
of a Unit shall be rounded up to the closest full vote. Unit G shall be entitled to a number of
votes equal to the sum of votes held by all other Unit Owners. The number of votes held by each
Owner will be set forth on ~xhibit ~}. If title to a Unit is held by more Chan one individual, or by
a firm, corporation, partnership, association, governmental agency, or other legal entity or any
combination thereof, such individuals, entiCy, or entities shall appoint and autharize one
individual or alternate individual(s) to represent the Owner of the Unif. Such representative shall
be a natural person who is an Owner, or a board member or officer of a corporate Owner, or a
general partner of a partnership Owner, or a comparable representative of any other entity, or in
the clse of an Owner which is a governmental agency, an individual represenCative appointed by
such agency, ancl such representative shall have the power to cast votes on behalf of the Owner
as a member of the Association, and serve on the Board of Directors if elected, subject to the
provisions of and in accordance with the procedures more fully described in the Bylaws. The
Association shall have the right Co obtain evidence of a representative's designation as the
authorized representative of an Owner. Notwithstanding the foregoing, if only one of the
multiple Owners of a Unit is present at a meeting of the Association, such Owner is entitled to
cast the vate(s) allocated to that Unit. If more than one of the multiple Owners are present and
there is no written designation of an authorized representative, the vote(s) allocated to the Unit
may be cast only in accordance with the agreement of a majority in interest of the Owners, which
majority agreement may be assumed for all purposes if any one of the multiple Owners casts the
vote(s) allocated to that Unit without protest being made promptly to the person presiding over
the meeting by any of the other Owners of the Unit.
10.3 PoWGxS. The Association shall have, subject to the limitations contained in this
Declaration and the Act, the powers necessary for the administration of the affairs of the
Association the upkeep of the Project and the performance of all of its other duties and
obligations, and the exercise of its rights, under this Dec1 .ration; which sl;all include the power
[o:
10.3.1 hire and discharge m~ nagin,_ ~igents, including the Condominium
Manager;
10.3.2 hire and discharge other e nployees, agents <<nd independent conCractors;
10.3.3 institute, defend or intervene in lit:~ation or administrative proceedings or
seek injunetive relief for violation of this Declaration, the Bylaws or th~ Rules and Regulations
in Che Association's name an behalf of the Association on matters affecting the Project;
( W0736030 B M P ~ 22
10.3.4 make contracts and incur liabilities;
10.3.5 regulate fhe use, maintenance, repair, replacement and modification of
General Common Elements;
10.3.6 cause additional improvements to be made as part of General Common
Elements;
103.7 acquire, hold, encumber and convey in the Association's name any right,
title or interest to real property or personal property, but General Common Elements and Limited
Common Elements may be conveyed or subjected to a Mortgage only pursuant fo the
requirements of the Act;
10.3.8 grant easements, leases, licenses and concessions, through or over General
Common Elements;
10.39 impose and receive a payment, fee or charge for the use, rental or
operation of General Common Elements, and for services provided to Owners;
10.3.10 impose a reasonable charge for late payments of Chazges, recover
costs of enforcement for collection of Charges and other actions to enforce the powers of the
Association, regardless of whether or not suit was initiated;
10.3.11 impose a reasonable charge for the preparation and recordation of
amendments to this Declaration or for preparation of statements of unpaid Charges;
10.3.12 provide for the indemnification of the Association's officers and
Board of Directots and maintain Board of Directors' and officers' liability insurance;
10.3.13 assign the Association's right to future income, including the right
to receive Charges;
103.14 by resolution, establish committees of the Board of Directors
and/or Owners, permanent and standing, to perform any of the above functions under specifically
delegated administrative standards, as designated in the resolution establishing the cammittee;
10.3.15 exercise any other powers conferred by this Declaration, the
Articles, the Bylaws or the Act;
10.3.16 exercise any other power that may be exercised by Colorado
nonprofit corporations; and
103.17 exercise any other power necessary and proper for the governance
and operation of the Association.
[ W07360:10 6MP~ 23
10.4 ASSOCIATION MANAGEMCN'r DUTIES. Subject to the rights and obligations of
Owners as set forth in this Declaration, the Associltion shall be responsible Por the
administration and operation of the Project 1nd for the exclusive management, control,
maintenance, repair, replacement, and improvement of General Common Elements, and shall
keep the same in good, clean, attracCive, and sanitary condition, order, and repair.
10.5 ASSOCIATION MEETINGS. A meeting of the Association shall be held at least
once each year. Special meetings of the Association may be called by the President, by a
Supermajority Vote of the Board of Directors, or by Owners having at least twenty percent
(20%) of ehe votes in the Association. Not less than ten (10) and not more than fifty (50) days in
advance of any meeting, the Secretary or other officer specified or authorized in the Bylaws to
give such notice shall cause notice of the meeting to be hand delivered or sent prepaid by United
SCates Mail to the mailing address of each Owner. The notice of any meeting shall state the [ime
and place of the meeCing and the items on the agenda including Che specific text of any proposed
amendment to this Declaration, the Articles, the Bylaws, or the Rules and Regulations, any
budget changes, and any proposal to remove an officer or a member of the Board of Directors. A
quorum is deemed present throughout any meeting of the Association if persons entitled to cast
seventy-five percent (75°l0) of the votes which may be cast for election for the Board of Directors
are present, in person or by proxy at the beginning of the meeting.
10.6 ANNUAL BUDGE'r APPROVAL. At the annual meeting of the Association or at a
special meeting of the Association called for such purpose, the Owners shall be afforded the
opportunity to adopt or reject a budget of the projected revenues, expenditures and reserves for
the Association's next fiscal year as proposed by fhe Board of Directors. A summary of the
proposed budget approved by the Board of Directors shall be mailed to the Owners within thirty
(30) days after its adoption by the Board of Directors along with a notice of a meeting of the
Association to be held not less than fourteen (14) nor more than sixty (60) days after mailing of
the summary to the Owners. Unless at the meeting a majority vote of the Owners, rather than a
majority of those present and voting in person or by proxy, reject the proposed budget, the
budget is adopted whether or not a quorum is present at the meeting. In the event the proposed
budget is rejected, the budget last adopted by the Owners continues until such time as [he
Owners adopt a subsequent budget proposed by the Board of Directors as provided above.
10.7 OWNERS' AND ASSOCIATION'S ADDRESS~S FOR NOTICES. The Owner of each
Unit shall have one and the sanze registered mailing address to be used by the Association or
other Owners for notice:+, demands, and all other communications or notices required or
permitted to be gi~~en und :: this Declaration or reguding Association matters. The Owner or
Owners of a Unit ssiall furnish such registered address to the SecreCary of the Association within
ten days after transfer of title to the Unit to such Owner. Such registration shall be in written
form and signed by all of the Persons collectively constituting the Owner of the Unit or by such
persons as are authorized to represent the interests of the Owner of the Unit. If no address is
registered for an Owner or if all of the Persons collecCively constituting an Owner cannot agree
on an lddress for such Owner, then the address of the Unit shall be deemed the registered
address Por such Owner until another registered address is furnished as required under this
Section. IP the address of the Unit is the registered address of an Owner, then any notice shall be
deemed duly given if delivered to any person occupying the Unit or, if the Unit is unoccupied, if
~ W0736030 BMP~ 24
the notice is beld and available far such Owner at the principal office of tbe Association. All
notices and demands intended to be served upon the Board of Directors shall be sent to the
following address or such other address as the Board of Directors may designate from time to
time by notice to the Owners:
Board of Directors
Ninth and Canyon Hotel and Parking Condominium Association
900 Walnut Street
Boulder, Colorado 80302.
ARTICLE 11
BOARD OF DIRECTORS AND OFFICERS
11.1 Da'riES, EL~CTION. The affairs of the Association shall be managed by a Board
of Directors, which may act in all instances on behalf of the Association except as otherwise
provided in this Declaration or the Act. The Board of Directors may not act on behalf of the
Association to amend this Declaration, to terminate the Project, or to elect members of the Board
of Directors or determine the qualifications, powers and duties or terms of office of inembers of
the Board of Directors. Cumulative voting shall be allowed for the purpose of electing members
of the Board of Directors. The term for each member of the Board shall be the later of one year
or the date upon which the successor to such member is elected. All references herein to
determinations or decisions to be made or standards or guidelines to be adopted by the Board of
Directors shall be made or adopted, as the case may be, by a Supermajority Vote, unless
expressly stated to the contrary herein, in the Act, or in the Articles or in tl~e Bylaws. All
amendments to the Articles or Bylaws shall require consent of Owners holding at least seventy-
five percent (75%o) of the votes in the Association. The Board of Directors shall elect the officers
of the Association. The members of the Board of Directors and officers shall take office upon
election. In the event the Board of Directors cannot reach a decision by the requisite votes
required hereunder, then the Board shall retain a mediator who shall not be an Affiliate of any
Owner or member of the Board of Directors. Such mediator shall assist the Board of Directors to
endeavor to reach a decision or determination; however, no action or decision by the mediator
shall be binding on the Board. The cost of such mediator shall be paid by the Owners in
accordance with their General Pro Rata Shares.
11.2 RENtovAL. Notwithstanding any provision of this Declaration or the Bylaws to
the contrary, following notice and an opportunity to be heard as required by this Declaration and
the Act, Owners holding at least seventy-five percent (75%) of the votes in the Association that
are present and entitled to vote at a meeting at which a quorum is present may remove a member
of the Board of Directors with or without cause.
11.3 MEE'rirrGS. All meetings of the Board of Directors at which action is to be taken
by vote shall be open to the Owners, and agendas for meetings o~ the Board of Directors shall be
made reasonably available for examination by all Owners and Owner Representatives.
~ W0736030 BMP~ 25
aRTicLL ia
CONDOMINIUM MANAG~R
12.1 RcsrorrsInlL[Tics. Any Condominium Manager shall be selected by a
Supermajority Vote of the Board of Directors. The Association may delegate any or all of its
powers to the Condominium Manager, buf no such delegation shall relieve the Association of
any of its liabilities or obligations, inchiding any liabilities or obligaCions under this Declaration
or under the Articles, tl~e Bylaws, the Rules and Regulations or the Act.
12.2 INSPECTiorr. Upon reasonable prior notice, the Condominium Manager shall
have the right periodically to inspect all uCility, mechanical and electrical systems located wholly
or partially within a Unit. Further, tbe maintenance records with respect to all such equipment
located wholly or partially within any Unit shall be made available to the Condominium
Manager upon request. The Condominium Manager shall also have the rights set out in
Section 15.1.
12.3 BuDGFT. The Board of Directors shall, with the assistance and advice of the
Condominium Manager, adopt an operating and capital expenditure budget for each fiscal year
of the Association, which budget shall be based on estimated General Charges and Strlictural G-
1 Maintenance Charges. No costs or expenses in excess of the applicable amount set forth in the
approved budget for fhat fiscal year shall be incurred by the Condominium Manager except to
the extent reasonably necessary in the case of an Emergency, or as specially approved by the
Board of Directors.
ARTTCLE 13
INSURANCE AND R~LEASE FROM LIABILITY
13.1 CovEUAGC. Commencing no later than the Recording of this Declaration, and to
the extent reasonably available, the Association shall obtain and maintain insurance coverage as
set forth in this Article 13 and otherwise as may be required pursuant to the Act. The Board of
Directors shall use commercially reasonable efforts to obtain insurance coverages required by a
First Mortgagee and requested by an Owner. If such insurance is not reasonably available, and
the Association determines that any insurance described herein will not be maintained, the
Association shall promptly cause notice of that fact to be given to all Owners and Fiist
Mortgagees.
13.1.1 Property Insurance. The Association shall maintain property insurance on
the Project (including the Units, but not including the personal property contained within a Unit)
in broad form or special form as determined by the Association, with such endorsements as
determi~ed by the Association, in an amount of insurance not less than the full insurable
replacement cost of the insured property, exclusive of land, excavations, foundations, and other
items normally excluded fi•om properry insurance policies, with such deductible amounts and
self-insured retention amounts as shall be decermined by the Association; provided, however,
that if a First MorCgagee requires specific deductibles, the Board will follow such First
( W0736030 6MP~ 26
Mortglgee's requirements (with the incremental insurance cost incurred fo be specifically
allocated by the Association as a charge of the Unit securing the requiring Fiist Mortg~gee's
Mortgage).
13.1.2 Liability Irasurance. The Association shall maintain commercial general
liability insurance against claims and liabilities arising in connection wiCh the ownership,
existence, use, or management of the Project, insuring the Board of Directors, the Association,
the Condominium Manager, and their respective employees and agents, in an amount and with
such endorsements as shall be commercially reasonable as determined by the Board of Directors
from time to time. Owners shall be included as additional insureds under such liability insurance
but only for claims and liabilities arising in connection with the ownership, existence, use, or
management of General Common ElemenYs or Limited Common Elements. The insurance shall
cover cllims of one or more insured parties against the other insured parties. Owners shall be
responsible for maintaining their own liability coverage for their Units, as set forth in
Section 131.~F.
13.1.3 Fidelity Insurance. The Association shall maintain fidelity insucance on
all persons who control or disburse funds of the Association. Coverage of such fidelity insurance
shall be in an amount as determined by the Association, but in no case be in an amount less than
the aggregate than two months' current General Charges and Stnictural G-1 Maintenance
Charges plus reserves, as calculated from the current budget of the Association. Any person
employed as an independent contractor by the Association, including the Condominium
Manager, shall be required to obtain and maintain fidelity insurance in like amount for the
benefit of the Association, unless the Association names such person as an insured employee in
the policy of fidelity insurance specified above.
13.1.4 Owners' Policies. Each Owner may obtain additional insurance
(including casualty insurance on the personal property and contents of such Owner contained
within its Unit and liability insurance for incidents occurring within such Unit) at its own cost for
its own benefit so long as (i) all such policies shall contain waivers of subrogation; (ii) the
liability of the carriers issuing insurance to the Association hereunder shall not be affected or
diminished by reason of any such insurance carried by any Owner; and (iii) such additional
insurance is not prohibited by any policy maintained by the Association.
13.2 PROVISIONS. All insurance policies carried by the Association pursuant to the
requirements of this Article 13 shall provide that:
13.2.1 each Owner is an insured person under the ~~olicy with respect to liability
arising out of such Owner's interest in General C>mmon Elements and Limited Common
Elements or membership in the Association, in an amount as shall be commercially reasonable as
determined by the Board of Directors from time to time;
13.2.2 the insurer waives its rights to subrogation under the policy against any
Owner or Occupant;
~ W0736030 BMP~ 2~
13.2.3 no act or omission by any Owner, unless acfing within the scope of such
Owner's auYhority on behalf of tlie Association, will void the policy or be a condition to recovery
under the policy;
13.2.4 if, at the cime of a loss under the policy, there is other insurance in the
name of an Owner covering che risks covered by the policy, the Association's policy provides
primary insurance;
13.2.5 any loss covered by the policies shall be adjusted with the Association;
13.2.6 the insurance proceeds for any loss shall be payable to an insurance trustee
designated for that purpose, or otherwise to the Association, and not to any holder of a Mortgage;
13.2.7 the insurer shall issue certificates or memoranda of insurance to the
Association and, upon request, to any Owner or holder of a Mortgage; and
13.2.8 the insurer issuing the policy may not cancel or refuse to renew it until
thirty (30) days after notice of the proposed cancellation or non-renewal has been mailed to the
Association and any Owner(s) and holder(s) of a Mortgage to whom a certificate or
memorandunt of insurance h1s been issued at their respective last known address.
133 ADJUSTMrNT oF CLAIMS. As part of the Rules and Regulations, the Association
may adop[ and establish written nondiscriminatory policies and procedures relating to the
submittal of insurance claims and any other matters of insurance claims adjustment.
13.4 PRCMIUMS AS CHaRGES. The premiums paid by the Association for the
insurance required to be carried hereunder, and any deductible or self-insured amounts paid or
incurred by the Association in connection with a particular insurance claim, shall be considered a
General Charge, a Garage Charge or a Limited Charge, as determined by the Association.
Notwithstanding the foregoing, if some of the insurance is attributable to some but not all of the
Units or to a Limited Common Element, the Association shall only charge those specific Units
(or those Units to which the Limited Common Element is allocated) to which the insurance
coverage is attributable an amount equal to the premium attributable to such insurance coverage.
(WW36030 BMP~ 2$
ARTICLE 14
RESPONSIBILITY TOR MAINTENANCE
14.1 UNITS AND LIMITED COMMON ELEMENTS. Each Owner shall, at its expense,
maintain its Unit and all Limited Common Elements appurtenant thereto and shall make all
repairs, modifications and replacements which may be required to keep such Unit and Limited
Common Elements in good order and condition at all times and in compliance with all applicable
Laws, regardless of how or why such maintenance, repairs, modifications or replacements may
be necessitated, with the following exceptions:
14.1.1 Maintenance, repairs or modifications to General Common Elements shall
be undertaken by the Association with the expenses incurred by the Association in so doing
constituting General Charges under this Declaration.
14.1.2 Maintenance, repair or damage due to fire or other casualty shall be the
obligation of the Association pursuant to Article 24.
14.1.3 Maintenance, repairs or modifications to Limited Common Elements may
be delegated to the Association by agreement of the Owners to which such Limited Common
Elements are allocated and the Association, provided that any Limited Charges incurred by the
Association are paid by such Unit Owners proportionafely according to their Limited Pro Rata
Shares.
14.1.4 Maintenance, repair or modification to Garage LCEs shall be undertaken
by the Owner of Unit G at the joint expense of the Owner of Unit G and the Owner of Unit HG
in accordance with their respective Garage Pro Rata Shares. The Owner of Unit HG shall
reimburse the Owner of Unit G for the Unit HG Owner's Garage Pro Rata Share of Garage
Charges within thirty (30) days after the Owner of Unit HG receives a bill therefor. If the Owner
of Unit G fails to maintain, repair or modify any Garage LCE, and such failure continues for
thirty (30) days after the Owner of Unit HG gives written notice to the Owner of Unit G of such
failure, then the Owner of Unit HG shall have the right to cure such failure, and the Unit G
Owner's Garage Pro Rata Share of Garage Charges incurred by the Owner of Unit HG in so
doing shall be payable by the Owner of Unit G to the Owner oF Unit HG within thirty (30) days
after the Owner of Unit G receives a bill therefor.
14.1.5 Notwithstanding the foregoing, if the need to make any maintenance,
repairs or modifications o a Unit, General Common Element or Limited Common Element is
attributable to the direci action, fault or neglect of an Owner or Occupant of the Unit of such
Owner, or failure of any of them to comply with the provisions of this Declarahion, the expense
thereof shall be borne by such Owner, except to the extent covered by insurance proceeds. The
Owners hereby agree that Limited Common Elements shall not be deemed to have caused the
need for repairs in adjoining Units solely as a result of their location, natural qualities,
component materials and/or routine maintenance, except through the negligent action of the
Owner(s) of the Unit(s) for which such Limited Common Elements are appurtenant.
~ W0736030 BMPJ Z~
14.2 NOTICF,. Each Owner shall give prompt notice to the Association of any writfen
notice received by such Owuer of any accus~ttion of violation of any Law affecting its Unit, or
other portions of the Project, and shall comply with all such Laws which pertain to its Unit, or
any Limited Common Elements appurtenant or allocated to its Unit, the maintenance, repair or
replacement of which is delegated to it. The Association shall be responsible for compliance
with all Laws which affecC all General Common Elements, but may contest, and defer
compliance with the same, subject to conditions similar to those set forth in Section 14.3. If,
however, any compliance with a Law affecting General Common Elements is required as a result
of (a) such Owner's use of its Unit for purposes other than the Permitted Uses; (b) any cause or
condition created by or at the instance of an Owner or Occupant or its representatives, or (c) the
brelch of any obligation imposed on such Owner pursuant to this Declaration, then the
responsible Owner shall pay all costs and expenses incurred in connecfion witl~ such compliance.
14.3 CoNT~S'r. Any Owner, in its own name (and if necessary, in the namc of, but
without expense to, the Association), may contest, by appropriafe proceedings prosecuted
diligently and in good faith, the validity or applicability to its Unit or any Limited Common
Elements which are appurtenant or allocated to its Unit of any Law, and the Association shall
cooperate with such Owner in such proceedings provided that (a) such Owner sh~ll defend,
indemnify and hold harmless the Condominium Manager, the Association, and each other
Owner, and their respective representatives, against all liability, loss or damage which any such
parry shall suffer by reason of such contest, including reasonable attorneys' fees and other
expenses reasonably incurred by such parties, and (b) such Owner shall keep the Association
advised as to fhe st~tus of such proceedings. Such Owner need not comply with any Law so long
as such Owner shail be contesting Che validity Chereof or the applicability thereof to its Unit in
accordance with this Section 14.3, if and only if such non-compliance shall not constitute a crime
or offense punishable by fine or imprisonment, and no part of the Project shall be subject to
being condemned or vacated, and the use of any Unit, General Common Elements or Limited
Common Elements by the Owner or Occupant of such Unit shall not be restricted, prohibited or
otherwise impaired by reason of non-compliance or otherwise by reason of such contest.
14.4 PARKING MANAGEM~NT. The Association or the Owners of Unit G and Unit HG
may contract by a"Parking Management Agreement" with each other or with one or more
professional parking lot operators to manage and operate the Parking Facilities. Each Parking
Management Agreement shall contain such terms as the Board of Directors may consider
necessary or desirable to the efficient and proper operation of the Parking Structure and Parking
Garages. Each Parking Management Agreement shall require approval of the Owners of both
Unit G and Unit HG.
ARTICLE 15
ACCESS FOR MAINTENANCE AND R~PAIRS
15.1 RIGHT oF AcC~ss. The Condominium Manager, the Association, and their
Representatives shall have the right, upon request made to any Owner and Occupant of a Unit, to
enter such Unit ar any part or parts thereof to examine such Unit and to perform such
( W0736030 BMP~ 30
maintenance and make such repairs, installations or additions in or to such Unit, General
Common Elements or Limited Common Elements as may be provided for or permitted by this
Declaration or as may be required to comply with Laws 1nd requirements of the providers of any
insurance policy carried by the Association. Such right of access shall be exercised in such
manner as not to unreasonably interfere with such Owner's and OccupanYs use and enjoyment of
such Unit, and only after reasonable nofice thereof, except in case of an Emergency.
15.2 COMMON EL~M~NTS WITHIN ANY UNIT. The Association, or the Condominium
Manager on behalf of the Association, shall have the right of access to each Unit to perform the
Association's obligation to maintain and repair and replace General Common Elements,
including access to those which are entirely surrounded by a Unit or any Limited Common
Element appurtenant to a Unit or which are located elsewhere in the Project, or which are
otherwise accessible only through a Unit, including all machinery and equipment located therein,
and to make additions and modificaYions thereto, provided that such additions or modifications
do not reduce the floor area of any Unit or affect its layout, without the consent of the Owner
affected thereby, and the appearance of any Unit affected by such additions or modification is
restored as near as reasonably possible to the condition it was in prior to such addition or
modification; and provided, further, that all such work is performed at such times and in such
manner as to create the least practical interference with the Owner's use of such Unit, other than
in the case of an Emergency.
153 Eiv1CxG~NCY. In the event of any Emergency, each Owner of a Unit shall have
the right to gain immediate access, without notice, to and from the other Units for the purpose of
taking such action as may be reasonably necessary to eliminate the Emergency.
15.4 EXCAVATION. If excavation or other substructural work shall be undertaken or
authorized by the Association upon the Property, each Owner shall, to the extent reasonably
necessary, afford to the Person causing or authorized to cause such excavation or other
substructurai work a license to enter upon the Unit of such Owner and any Limited Common
Element appurtenant to such Unit for the purpose of doing such work as shall be reasonably
necessary to preserve any of the walls or structures of the Project from injury or damage and to
support the same; provided, however, that if use of any material portion of a Unit or any Limited
Common Element appurtenant to a Unit is temporarily impaired during the performance of such
work, the party performing the same shall, as an express condition of the right granted herein and
at the request of the Owner whose use is so impaired, fairly compensate such Owner for such
interference or provide use of alternate space to it during the period of such impairment.
I5.5 DAMAGE. Any damage to a Unit or any Limited Common Element appurtenant
to a Unit caused by the act of the Association or the Condominium Manager on behalf of the
Association or its designee pursuant to this Article 15 shall be repaired by the Association, and
the cost and expenses incurred therewith shall be considered a General Charge. Any damage to a
Unit or any Limited Common Element appurtenant to such Unit caused by an Owner or
Occupant of another UniC exercising its rights of access pursuanC to this Article 15 shall be
repaired to no less than the condition existing prior to the damage or impairment by such Owner
at its expense.
~ W0736030 BMP~ 3 ~
ARTICLE 16
ENCROACHM~NTS AND EASEMENTS
The Declarants hereby create and grant the easements and righCs as set forCh in tl~is Article 16.
161 EAS~M~NT or ENJOYiutENT. Every Owner shall have a non-exclusive easement
for the use and enjoyment of General Common Elements, which shall be appurtenant to and shall
pass with the tide to every UniC, subject to the easements and oCher provisions set forth in this
Declaration.
16.2 DELEGn'r[oN oF US~. Any Owner may delegate, in whole or in part and in
accordance with this Declaration, the Owner's right of enjoyment in and to General Common
Elements to an Occupanf of the Owner's Unit.
16.3 RrCOUn~D EnsEivtENTS. The Project shall be subject to any easements as shown
on any recorded plat, if any, affecting the Project, as shown on the Recorded Condominium Map
and as reserved or granted under this Declaiation. The Recording data for Recorded easements
and licenses appurtenant to or included in the Project or to which any part of the Project may
become subject is set forth on Exhibit 7 attached hereto.
16.4 EASCMENTS I'OR ENCROACHM~NTS. The Project, and all portions of it, are
subject to an easement hereby crelted for encroachments between Units and General Common
Elements and between Units and Limited Common Elements, and the maintenance thereof, as
follows:
16.4.1 in favor of all Owners so that they shail have no legal liability when any
part of General Common Elements or Limited Common Elements encroaches upon a Unit;
16.4.2 in favor of each Owner so that the Owner shall have no legal liability
when any part of its Unit encroaches upon General Common Elements, Limited Common
Elements or upon another Unit; and
16.4.3 in favor of all Ov. ~ers, the Association, and the Owner of any encroaching
Unit for the maintenance and repair of h encroachments.
Encroachments referred to in this Section include encroachments caused by error
or variance from the original plans in the constivction of the Project or any Unit constructed on
the Property, by error in the Condomin ium Map, by settling, rising, or shifting of the earth, or by
changes in position caused by repair or reconstruction of any part of the Project. Such
encroachments shall not be considered to b~; encumbrances upon any part of the Project;
provided, however, that an encroachment created by the intentional act of an Owner ("Owner
Created Encroachment") shall not be deemed to create an easement on the Project and shall be
considered an impermissible encroachment upon the Project. An Owner Created Encroachment
shall be removed at the expense of the Owner who created the same immediately upon notice
from the Association. In the event an Owner Created Encroachment is not timely removed, the
( W0736030 BMPJ 32
Association may effect removal of the Owner Created Encroachmenf and the expense thereof,
including attorneys' fees, shall be paid by the Owner to the Association upon demand.
16.5 UTILi'rY EAS~M~NTS. There is hereby created an easement upon, across, over,
in, and under all of the Project for Yhe installation, replacement, repair, and maintenance of all
utilities, including water, sewer, gas, telephone, electricity, and a cable communication system,
and for ingress and egress in connection therewith. By virtue of this easement, it shall be
expressly permissible and proper for the companies providing such utilities to erect and maintain
the necessary equipment on the Project and to affix and maintain water, sewer, gas, electrical and
communications pipes, lines, wires, circuits, and conduits and other related facilities under and in
the Project. Any utility company using this easement shall use its best efforts to install and
maintain the utilities provided without disturbing the uses of other utilities, the Owners, the
Association, and Declarants; shall complete its installaCion and maintenance activities as
promptly as reasonably possible; and shall restore any portion of the Project affected thereby
substantially to its original condition as soon as possible after completion of its work. Should
any utility company furnishing a service covered by this easement request a specific easement by
separate document in Recordable form, the Association shall have the right and authority to grant
such easement upon, across, over, or under any part or all of the Project without conflicting with
the terms hereof. The easements provided for in this Section 16.5 shall in no way affect, void,
extinguish, or modify any other Recorded easement on or affecting the Project.
16.6 EMCRG~NCY ACCESS EnSEMENT. An easement is hereby granted to all police,
sheriff, fire protection, ambulance, and all other similar emergency agencies or persons to enter
upon the Project, or any portion thereof, including Units, in the proper performance of their
duties in connection with an Emergency.
16.7 MAINTENANCE EASEMEN'r. An easement is hereby created for the benefit of the
Association upon, across, over, in, and under General Common Elements and Limited Common
Elements to make such use of General Common Elements and Limited Common Elements as
may be necessary or appropriate to perform the duties and functions which the Association is
obligated or permitted to perform pursuant to this Declaration. Such easement may be used by
the Association, the Owners and the Occupants of the Project.
16.8 GARAGE UNi'rs' ACC~SS EASEMENT. The Owner of Unit H hereby grants to the
Owners of Units G and HG, for the use of such Owners and their respective Occupants, a
permanent, non-exclusive easement to use the entrance and exit areas of the Building to and from
the public streets and sidewalks located on 9`" Street, in the specific locations as is designated on
the Condominium Map as "Unit H Access Easement".
16.9 UN~T G MECxnN~cnL AREAS ACCESS. The Owner of Unit H hereby grants to
the Owner of Unit G a permanent, non-exclusive easement to access mechanical and utility
rooms through the portion of Unit H located on Level G-1 of the Parking Facilities, as depicted
on the Condominium Map, for installation and maintenance of generators, pumps and other
equipment servicing Unit G or Garage LCE.
[ W0736030 BMPJ 33
16.10 UNIT H GARAG~ ACCESS. The Owners of Units G and HG hereby grant fo the
Owner of Unit H for the use of such Owner and its Occupants, a permanent, non-exclusive
easement to, over and across any portion of Unit G, Unit HG, or Garage LCE, as may be
necesslry for the purpose of equipment seivicing and repair and vehicular or pedestrian ingress
and egress Yo and from Unit G or Unit HG, to and from Unit H, and/or to and from Che HoCel
LCE.
16.11 GARAGE ACCF.SS. The Owner of Unit G hereby grants to fhe Owner of Unit HG
a permanent non-exclusive easement to use any portion of Unit G necessmy for purposes of
vehicular and pedestrian ingress to and egress from Unit HG and 9~h Street, 10~h Street, Canyon
Boulevard and Walnut Street.
16.12 EASEMTNTS DECMED RESERVED. All conveyances of Units hereafter made,
whether by Declarants or otherwise, shall be construed to grant and reserve the easements in this
Article 16, even though no specific reference to such easements or to this Article 16 appears in
the instrument for such conveyance.
ARTICLE 17
OWN~R'S MODII+ICATIONS
17.1 RiGxTS To MonIFY. Subject to such reasonable regulations as shall be
established by the Aesociation (as determined by the Boud of Directors), all terms and
provisions contained in any Recorded document affecting the Project and the requirements of
Law, each Owner may, at any time, and from time to time at its sole expense, make or have
made Owner's Modifications in and to its Unit and appurtenant Limited Common Elements as
such Owner may desire provided that (i) the outside appearance of any other Unit, or the strength
or structural inYegrity of the Building, and the utility and mechanical systems of the Building, are
not at any time adversely affected by such Owner's Modifications as determined by the
Association (ii) no parC of the Project outside of the Unit and LimiCed Common ElemenCs
appurtenant to such Unit is adversely affected subsequent to completion of such Owner's
Modifications; (iii) the making of such (~wner'~ Modifications would not result in violation of
any Law or requirements of any entity providing insurance to the Association or any Owner
pursuant to this Declaration; and (iv) if any Owner's Modifications would, under the provisions
of the Building Code of the Ciry of Boulder, Colorado, in effect at the time of such Owner's
Modifications, require an alteration permit or building permit, such Owner shall, prior to the
commencement of such Owncr's Modifications, obtain such permit. All other improvements to
or modifications of a Unit or Limited Common Elements appurtenant to such Unit shall, except
as otherwise expressly permitted by the provisions of this Declaration, be made only with the
prior approval of the Owner of such Unit and the Association. Notwithstanding the foregoing,
Declarants acknowledge that the portions of the Hotel LCE that are currently landscaped and
upon which there currently exist no building improvements are intended to remain landscaped
unless all of the Owners otherwise agree; except that this sentence shall not apply Co the Civic
Use Site. Security gaCes may Ue installed by Che Owners within their respective Units and
appurtenant Limited Common Elements provided thaC all such installations shall be subject to the
terms and provisions of this Article 17.
( W073fi030 RMP~ 34
17.2 WORKNIANLIK~ MANNER. All work performed in connection with any Owner's
Modifications shall be performed in 1 good and workmanlike manner, with materials of at least
as good or better quality than those origin111y installed in a Unit. Furthermore, such work shall
be performed in a manner so as not to unrelsonably interfere with the Owners or Occupants of
any other Unit.
17.3 I1vSUitANCE. Prior to the commencement of any Owner's Modifications work,
such Owner sh~tll obtain from the contractor performing such work workmen's compensation
insurance as required by Law and comprehensive public liability insurance, naming the Owners
of the other Units and the Mortgagees holding First Mortgages of the respective Units as
additional insureds, in reasonable amounts as directed by the Association.
17.4 No M~cxANICS' LIENS. Subsequent to recording of this Declaration and the
filing of the Condominium Map in the Records, no labor performed or materials furnished for
use and incorporation in any Unit with the consent of or at the request of the Owner of such Unit
or such Owner's agent, contractor ar subcontractor, shall be the basis for the flling of a lien
against a Unit of any other Owner not expressly consenting to or requesting such labor to be
performed or materials to be fiirnished, or against any interest in General Common Elements and
Limited Common Elements except as to the undivided interest therein appurtenant to the Unit of
the Owner for whom such labor shall have been performed or such materials shall have been
furnished. Each Owner shall indemnify and hold harmless each of the other Owners and the
Association from and against any liability or loss arising from the claim of any mechanics' lien
or for labor performed or for materials furnished in work on such Owner's Unit, against the Unit
of another Owner or against General Common Elements and Limited Common Elements, or any
part thereof. At its own initiative or upon the written request of any Owner (if the Association
determines that further action by the Association is proper), the Association shall enforce the
foregoing indemnity by collecting from the Owner of the Unit on which the labor was performed
or materials furnished the amount necessary to dischazge by bond or otherwise any such
mechanics' lien, to pay all costs and reasonable attorneys' fees incidental to the lien, and to
obtain a release of such lien. If the Owner of the Unit on which the labor was performed or
makerials furnished refuses or fails to indemnify within five (5) days after the Association shall
have given notice to such Owner of the total amount of the claim, then the failure to so
indemnify shall be a default by such Owner under this Declaration, and such amount to be
indemnified shall be determined and levied against such Unit, and the levy shall be enforcelble
pursuant to this Declaration.
ARTICLE 18
RESERVED DEVELOPM~NT RIGHTS
18.1 RESERVATION OG S,TP DEVELOPM~NT RIGHTS. SJP, as a Declarant, reserves the
right for itself and its successors and assigns any time and from time to time to exercise the
following development rights within the Project: (a) to create Units and Limited Common
Elements as required for the construction of the Hotel and expansion of Unit H within the H
Expansion Envelope, (b) to subdivide, resubdivide or combine Units, (c) to convert Units into
( W0736030 BMP} 35
LimiYed Common Elements, (d) Co converC LimiCed Common Elements into Units, including the
conversion of tlie Civic Use Site into a Unit, (e) to reallocate Limited Common Elements
appurten~nt Yo Units H and HG among Units; (f~ to complete improvements indicated on the
plats and Condominium Map; and (g) exercise any other rights of SJP of Declarant provided for
in this DeclaraCion. NoCwithstanding the foregoing, the maximum number of Units that may be
created by Declarants within the Project shall be eight.
18.2 O'rxFR R~S~RV~n RicHTS. SJP, as a Declarant, also reserves the right for itself
and its successors and assigns, without consent of any Owner or Mortgagee being required, at
any time and from time to time to: (a) complete improvements indicated on the plats and
Condominium Map, (b) amend the Condominium Map to show the actual location of constructed
improvements and reflect the subdivision of any Unit as provided under Section 3.2; and
(c) exercise any other rights of SJP as Declarant provided for herein.
18.3 CFIANGE IN ALLOCATGD INTERESTS. In the event SJP, as a Declarant, or its
successors and assigns, exercises the right to add, convert, subdivide, resubdivide, expand or
combine UniCs as set forth above, the Allocated Interests of the resulting Units after such
addition, conversion, subdivision, or combination will be adjusted in accordance with the
formulas described in Sections 1.22, 1.25, 1.55, and 10.2, provided that in no event will the
number of votes allocated Co the Owner of Unit G be effectively diluted to less than fifCy percent
(50%) without the prior wriCten consent of the Owner of Unit G.
18.4 TExMINATioN oF R[GHTS. Except for such longer period as is specifically set
forth and provided in this Declaration, the rights reserved to SJP, as a Declarant for itself, its
successors and assigns in this Declaration (including under this Article 18 and Section 8.3) shall
expire on the earlier to occur of: (a) the conveyance of the last Unit to an Owner who is not
Declarant or a successor Declarant; or (b) fifty years from the date of recording this Decluation
with the Clerk and Recorder of Boulder, County, Colorado, unless such rights are reinstated or
extended by the Association, subject to whatever terms, conditions and limitations the Board
may impose on the subsequent exercise of the rights by a Declarant. Notwithstanding anything
to the contrary in this Article 18, a public trustee sale or sale in lieu of foreclosure of any Unit
shall not be deemed to be a conveyance resulting in the termination of Declarant's rights
reserved herein, provided that the Mortgagee instituting or benefiting from such public trustee
sale or sale in lieu of foreclosure has been named a successor Declarant in a collateral
assignment of DeclaranYs rights and such assignment has been recorded prior to the effective
date of the conveyance of the Unit.
ARTICLE 19
COMPLIANC~
Each Owner shall eomply with the provisions of this Declaration, the Articles and
Bylaws, and the Rules ~nd Regulations of the Association. Each Owner shall be responsible for
compliance by any Occupants of its Unit with all the terms and provisions of this Declaration,
the Articles, Bylaws and the Rules and Regulations, and may not delegate such responsibility.
~ W0736030 6MPj 36
ARTICLE 20
R~VOCATION, AMENDMLNT OR T~RMINATION
This Declaiation shall not be revoked or amended, nor sh111 the condominium created by
this Declaration be terminated, unless Owners holding at least seventy-five percent (75%) of the
votes in the Association and all of the Mortgagees of any Recorded Mortgage covering or
affecting each Unit within the Project, any portion thereof or any interest therein, consent and
agree to such revocation, termination or amendment by an instrument or inshuments duly
executed, acknowledged and Recorded; provided, however, fhat the consent or approval of the
tenant under the Civic Use Lease, or any other Person witb an interest in the Civic Use Site
pursuant to the Civic Use Lease, shall not be required to be obtained for any such revocation,
amendment or termination. The agreement of the Owners and Mortgagees to so terminate the
condominium crented by this Declaration shall be evidenced by a termination agreement, or
ratification thereof, executed by the Owners and Mortgagees in accordance with, and otherwise
satisfying the requirements of, the applicable provisions of the Act. In the case of the
termination of the condominium created by this Declaration, unless the parties otherwise agree in
the termination agreement, the Building and all other improvements on the Property shall be
demolished, the Land shall be restored to iCs condition prior to the construction of the Building
(but without reconstructing the building on the SJP Land to be demolished prior to construction
of the Building), and title to the S7P Property shall revert to the Owner of Unit H and title to the
CAGID Property shall revert to the Owner of Unit G. Each party shall cooperate with the other
and shall execute any and all documents necessary to cause the Property to revert to the
ownership as aforesaid free and clear of all liens, easements and encumbrances except those of
record prior to the recording of this Declaration. Each Owner shall be responsible for demolition
and paying the costs of demolishing its Unit, and the Owner of Unit G shall be responsible for
causing the CAGID Property to be restored and for paying the costs thereof, and the Owner of
Unit H shall be responsible for causing the SJP Property to be restored and for paying the costs
thereof. The costs of demolishing General Common Elemenis shall be shared by the Owners in
accordance with their respective General Pro Rata Shares, and the costs of demolishing all
Limited Common Elements shall be shared by Owner or Owners of such appurtenant Unit or
Units in accordance with their respective Limited Pro Rata Shares for such Limited Common
Elements.
ARTICLE 21
ASSESSMENTS FOR AND PAYMENT OF CHARGES
21.1 CHARGES. Each Owner shall be responsible for its respective General Pro Rata
Share of General Charges, its Structural Pro Rata Share of Structural G-1 Maintenance Charges,
its Garage Pro Rata Share of Garage Charges, if applicable, and its Limited Pro Rata Share of
Limited Charges associated with any allocated Limited Common Element, subject, however, to
the following:
21.1.1 Any LimiYed Charge associated with the maintenance, repair or
replacement of a Limited Common Element shall be assessed only against the Unit or Units to
~wo7sGO3o BMNI 37
which such Limited Common Element is appurtenant in accordlnce wi[h its or their Limited Pro
Rat1 Shares;
21.1.2 Unless collection of Garage Charges is otherwise delegated by the Owner
of Unit G to the Association, G~u~age Charges will be incurred, paid and collected as set forth in
Section 14.1.4;
21.1.3 Any Charges paid to Affiliates of the Condominium Manager shall in no
event exceed the commercially reasonable and customary chnraes paid for performance of such
services in the Boulder, Colorado, area; and
21.1.4 If any Charge is caused by the negligence or willful misconduct of any
Owner, or Occupant, other fhan ordinary wear and tear, the Association may assess that expense
exclusively against the xesponsible Owner and such Owner's Unit. Each Owner is liable for
Charges assessed against such Owner and such Owner's Unit during the period of ownership of
such Unit by such Ownei: No Owner may be exempt from liability for payment of the Charges
by waiver of the use or enjoyment, or by the non-use or non-enjoyment, of any of General
Common Elements or Limited Common Elements or by abandonment of such Owner's Unit.
21.2 DISnGxF,F,MF.N'r. If any Owner disagrees with the allocation or assessment oP any
Chtuges in any respect, upon the request of such Owner to the Association, the mltter shall be
submitted to arbitration as hereinafter provided.
ARTICLE 22
DEFAULT AND REM~DI~S
22.1 DcI~'AULT. If any Owner (herein the "DefauCting Owner") or any Occupants for
whom such Owner is responsible shall be alleged to have failed to perform in accordance with
any of the provisions of this Declaration, then and in such event, any other Owner (herein
"Nondefaulting Owner"), shall have the right to request that the Association deliver, and the
Association shall at its option also have the right to deliver, a Default Notice to the Defaulting
Owner. The Defaulting Owner shall have 30 days after the delivery of a Default Notice within
which to cure such default, or in the case of a default which by its nature cannot reasonably be
cured within such 30-day period, the Defaulting Owner shall take such action as is reasonably
calculated to commence the curing fhereof, and thereafter diligently prosecute the same to
compleYion. I£ the Defaulting Owner fails to so cure such default wiChin the time period as
aforesaid, the Association shall have the right (but not the obligation) to proceed to take such
actions or make such payments as may be necessary to cure such default, all in the name of and
at the cost and for the account of the Defaulting Owner. If the Association fails to take such
actions or make such payments, a NondefaulCing Owner shall have the righC (but not tha
obligation) to deliver such Default Notice and/or to cure such default as set forfh above with
respect to cure by the Association.
22.2 RTIMI3URSEMCNT. The Defaulting Owner shall within 10 days after written
demand reimburse the Association or the Nondefaulting Owner, whichever is taking the action
( W0736030 BMP~ 38
described above or making the plyment, for all amounts reasonably expended by the Associafion
or the Nondefaulting Owner, as the case may be, in connection therewith, including court costs
and attorneys' fees.
22.3 CONTESTING NoTICF,. If the Defaulting Owner, within the 30-day time period
set forth above in Section 22.1 following receipt of a Default Notice, delivers a Contesting
Notice to the Association, then the Owners and the Association shall use commercially
reasonable efforts to resolve the matter, but if they are unable to do so within 60 days after
receipt by the Association of the Contesting Notice, such matter may be submitted to arbitrltion,
as hereinafter provided. In addition, pending such determination, the Association and the
Nondefaulting Owner shall not take any action or otherwise remedy the alleged default unless
the Association or the Nondefaulting Owner believes in good faith that the alleged default is of
such a nature Yhat if it is not immediaCely cured, the rights of the Nondefaulting Owner will be
materially adversely affected, in which event the Association or Nondefaulting Owner may
proceed to cure such default, but the question of whether or not it is entitled to reimbursement by
the Defaulting Owner will still be subject to a determination in such arbitration; provided,
however, that unless the matter is submitted by either party to arbitration within seventy (70)
days after the Association's receipt of the Contesting Notice, it shall be conclusively presumed
that the allegations set forth in the Default Notice are correct. When the dispute is resolved or
deemed resolved as aforesaid, regardless of the method, if the contention of the Defaulting
Owner shall be sustlined, or partially sustained, it need not make payment to the Association or
the Nondefaulting Owner, or take any corrective action, as the case may be, with respect to the
portions of the allegations which have been determined to be unfounded.
22.4 D~FAULT IN CHARGES; EMERG~NCY. Notwithstanding anything contained
herein, the Association shall not be required to follow the above-described procedure regarding
Default Notices and submission of a matter to arbitration prior to cure of the default by the
Defaulting Owner with respect to any amounts to be paid to the Association for Charges, and any
Owner not making such payment within the time periods herein provided shall be considered to
be in default without further notice. Accordingly, any amount asserted by the Association to be
required to be paid to the Association for Charges shall be paid by the Defaulting Owner and,
following such payment, the dispute may be submitted by the Defaulting Owner to arbitration, as
hereinafter provided, within thirty (30) days following the date of any such payment.
Additionally, in the event of a default by an Owner other than a failure to pay Charges to the
Association, if the Association shall in good faith deem that an Emergency is occurring or has
occurred, such that the default requires immediate curing, then no prior Default Notice shall be
requircd to be given by the Association to the Defaulting Owner, and the Association may act
promptly take such actions or make such payments as may be necessary to cure the alleged
default. Under such circumstances, the Association shall be entitled to reimbursement by the
Defaulting Owner as provided ahove, subject, however, to the right of the Defaulting Owner to
submit to arbitration, within 30 days after receipt of a notice from the Association demanding
reimbursement, the question of whether the Defaulting Owner is in fact in default, and if so, the
amount of reimbursement owing to the Association. In determining the amount of
reimbursement, the arbitrator may consider whether the Association reasonably determined that
an Emergency occurred or was about to occur and if not, whether the amount incurred by the
Association for which reimbursement is requested would have been less had the Association
( W0736030 BMP~ 39
followed the standard procedure set forth above. Any disputed amount not submitted to
arbitraCion within tbe time periods seC forth in this SecCion 22.A shall be deemed properly due and
payable and, if paid, subject to reimbursement.
22.5 INTGREST. Any amounts not reimbursed to the Association or to any
Nondefaulting Owner within the time periods set forth above in this Article 22 shall thereafter
bear interest at the lesser of (a) the highest annual rate then permitted under Colorado usury L~w,
or (b) the Prime Rate, from time to time, plus 5% per annum, until paid to the Association or to
the Nondefaulting Owner, as the case may be.
22.6 LIE1v oF ASSOCiATION. The Association has a statutory lien (`Association
Lien") on a Unit for all amounts payable by the Owner of such Unit to the Association under this
Declaration, including those amounts payable to the Association for Charges and those amounts
payable to the Association as fhe result of a cure of a default by such Owner pursuant to this
Article 22 (an `Association Assessment"). Recording of this Declaration constitutes Record
notice and perfection of such Association Lien. However, the Board of Directors of the
AssociaYion may also elect to file a claim of lien against the Unit of Che delinquenC Owner by
Recording a notice ("Association Lien Notice") setting forth (a) the amount of the claim of
delinquency, (b) Che interest and costs of collection which have accrued thereon, (c) the legal
description and street address of the Unit against which the lien is claimed, and (d) the name of
the Record Owner thereof. Such Association Lien Notice shall be signed and acknowledged by
an officer of the Association or other duly authorized agent of the Association. The Association
Lien shall continue until the amounts secured thereby and all subsequently accruing amounts are
fully paid or otherwise satisfied. When all amounts claimed under the Association Lien Notice
have been fully paid or satisfied, the Association shall execute and Record a notice releasing the
Association Lien upon payment by the Owner of a reasonable fee as fixed by the Board of
Directors of the Association to cover the cost of preparing and recording the release of the
Association Lien.
22.7 PRIORITY OF THE ASSOCIATION L[EN.
22.7.1 An Association Lien is prior to all other liens and encumbrances on a Unit
except:
(a) Liens and encumbrances Recorded before the Recording of this
Declaration;
(b) A First Mortgage on the Unit, which was Recorded or perfected
before the date on which the Association Assessment sought to be enforced became
delinquent; and
(c) Liens for real estate taxes and other governmental assessments
or charges against the Unit.
22.7.2 An Association Lien is also prior to the First Mortgage described in the
preceding subsection 22.7.1(b) to the extent of an amount equal to the Charges payable for such
~ W0736030 RMP ~ 40
Unit based on the most recent budget adopted by the Association in accordance with this
Declaration that would have become due, in the absence of any acceleration, during the six (6)
mo~ths immediately preceding insCitution by either the Association or any party holding a lien
senior to any part of the Association Lien, of an action or nonjudicial foreclosure either to
enforce or extinguish the lien.
22.8 NoNnEFAUL'rING OWNER LIEN. In addition to the above, all amounts owing by
an Owner to a Nondefaulting Owner which has cured a default of a Defaulting Owner, as herein
provided ("Nondefaulting Owner Assessment"), shall constitute a perpetual lien on the
Defaulting Owner's Unit ("Nondefaulting Owner Lien"). To further evidence the
Nondefaulting Owner Lien, the Nondefaulting Owner curing the default of the Defaulting Owner
shall prepare a lien notice ("Nondefaulting Owner Lien Notice") setting forth (a) the amount
owing, including any interest and collection costs, and a brief statement of Che nature thereof;
(b) the name of the Record Owner of the Unit, if known; (c) the legal description of the Unit; and
(d) reference to this Declaration as the source and authority for such Nondefauiting Owner Lien.
The Nondefaulting Owner Lien Notice shall be signed and acknowledged by the party desiring to
file the same and shall be Recorded or otherwise filed or recorded as required by appliclble Law
to perfect such Nondefaulting Owner Lien. A copy of such Nondefaulting Owner Lien Notice
shall be mailed or otherwise given pursuant to Articie 26 hereof to the puiported Defaulting
Owner ancl to the Mortgagee or other holder of a lien of Record encumbering the Defaulting
Owner's Unit if such holder has notified the Association of its name and address. Any such
Nondefaulting Owner Lien Notice shall not constitute a condition precedent to the effectiveness
or validity, or delay attachment of the Nondefaulting Owner Lien. The Nondefaulting Owner
Lien shall be a perpetual lien upon the Unit and shall attach without notice when any
Nondefaulting Owner Assessments are due. Such Nondefaulting Owner Lien in favor of a
Nondefauiting Owner shall be superior and prior to all other liens and encumbrances then or
thereafter encumbering the Defaulting Owner's Unit, except only for (i) tax and special
assessment liens on the Unit in favor of any governmental body; (ii) all rights of the Mortgagee
under any First Mortgage then covering any portion of the Unit, (iii) any Association Lien
encumbering such Unit, and (iv) liens and encumbrances Recorded before the Recording of this
Declaration. With respect to (ii) above, any purchaser of a Unit at any foreclosure sale under any
such First Mortgage (as well as any grantee in a deed delivered in lieu of foreclosure under any
such First Mortgage) shall take title subject to Che provisions of this Declaration, including any
amounts payable for such Unit under this Section 22.8 which shall arise or accrue on or after the
date upon which such purchaser or grantor acquires title to such Unit. The Nondefaulting Owner
Lien Notice may be released by Recording or otherwise filing as required by applicable Law, a
release of the Nondefaulting Owner Lien Notice.
22.9 FoxeCLOSURE. Any Association Lien encumbering a Unit may be enforced by
the Association, and any Nondefaulting Owner Lien may be enforced by the Nondefaulting
Owner, by a judicial foreclosure upon the Unit owned by the Defaulting Owner in like manner as
a mortgage on real property is foreclosed under the laws of the State of Colorado. In any
proceeding to enforce any such lien, the Defaulting Owner shall be required to pay the costs,
expenses and reasonable attorneys' fees incurred for filing such lien and in pursuing any
foreclosure proceeding thereon. Additionally, in the case of an Association Lien, the Defaulting
Owner shall also be required to pay to the Association any additional Charges aCtributable to its
~ W0736030 BM P) 4~
Unit that become due during the period of such foreclosure, and such amounts may be added to
and become a pa~•t of such foreclosure. The Association or the NondefaulCing Owner, as the case
may be, shall be entided in any such proceeding to apply for (on ex p~ute application if it so
desires) the appointment of a receiver, and such receiver may be appointed notwithstanding the
solvency or insolvency of the Defaulting Owner. The Association or Nondefaulting Owner, as
the case may be, shall have the power to bid at the foreclosure or other legal sale and thereby to
purchase the Unit.
22.10 MoRTGAGF.E NoTICC. Any Mortgagee that shall have so requested by notice
given Co the Association pursuanY to Section 26.2 shall be entitled to receive notice of the default
of the Owner whose Unit is encumbered by such Mortgage at the same time any Default Notice
is given to such Owner. Such MorCgagee may pay, buC shall not be required to pay, any unpaid
Charges or other amounts owing for which a lien shall arise with respect to such Unit, or may,
but shall not be required to, cure any other default by an Owner hereunder.
22.11 MoNCY JUOGMCNT. Suit to recover a money judgment for any unpaid
Association Assessments or Nondefaulting Owner Assessments by a Defaulting Owner may be
maintained with or without foreclosing the respective lien securing payment of the same.
22.12 PERSONAL LIAnILITY. Notwifhstanding anything contained herein to the
contrary, the amount of Charges and any amounts owed by an Owner to another Owner, or to the
Association, pursuant to the provisions hereof shall be the personal debt and liability of the
Owner at Yhe time such debt and liability arises. No Owner may exempt itself from liability
therefor by waiver of the use or enjoyment, or by the non-use or non-enjoyment, of any General
Common Elements or Limited Common Elements or by abandonment of its Unit. No Owner
shall xelieve itself of such liability by conveyance of all of its interest in the Unit, and the
successor of such Owner shall, upon acquisition of the Unit, automatically take the Unit subject
to such liability, but the same shall not be a personal debt and liability of such successor. Any
successor Owner shali, as the new Owner of such Unit, have liability, as its personal debt and
liability, for ull obligations applicable to such Gwner and such Owner's Unit which shall arise or
accrue on or subsequent to the date of its acquisition of such Unit, and during the period of its
ownership. If more than one Person constitutes the Owner of a particular Unit, all such Persons
shall be jointly and severally liable for all such obligations.
22.13 REN[EDIES NoT CvMVLATIVE. Any remedies set forth herein shall be in addition
to and not in lieu of all other remedies provided by law or equiCy, including an action for
damages, the right to resCrain by injunction any violation or threatened violation of any of the
terms or provisions hereof, and the right by specific performance or other equitable relief to
compel performance of any such terms and provisions hereof. It is agreed that the remedy at law
for a breach of any of the terms and provisions hereof may not be adequate depending upon the
nature of the same. All remedies herein shall be considered to be cumulative and nonexclusive,
and may be exercised in any manner or order that the Nondefaulting Owner or the Association,
as the case may be, determines.
22.14 PnYM~NT or CoSTS. If the Association or any Owner or both institutes any legal
or equitable action against another Owner, relating to tbe alleged default of any of the provisions
( W073C030 HMPI 42
hereof, including any action to collect any amounts owing hereunder, tl~e unsuccessful litigant in
such action shall be obligated to reimburse the sLiccessfLil liYigant Cl~erein for all reasonable costs
and expenses incurred in connection therewith, including attorneys' fees. ' Such reimbursement
shall include all such costs and fees incun~ed by the successful litigant in connection with any
appeals. The provisions of this Section 22.14 shall not apply to any arbih~ation proceedings.
22.15 STnT~MEN'r oF STATUS. On or before fourteen (14) calendar days after receipt of
written notice to the Condominium Manager or, in the absence of a Condominium Manager, to
the Association, and payment of a reasonable fee set from time to time by the Board of Directors,
any Requesting Party shall be furnished a statement of a specified Owner's status setting forth:
22.15.1 the amount of any unpaid Charges or other Association Assessments
then existing against such Ownet's Unit;
22.15.2 the amount of the currenC insCallmenCS of the Charges and the date that
the next installment is due and payable;
22.15.3 whether or not a particular Owner is in default under this Declaration
and if so, the nature of such default; and
22.15.4 any ofher information, deemed proper by the Association, including the
amount, to the best of Association's knowledge, of any delinquent Nondefaulting Owner
Assessments created or imposed under the terms of this Declaration.
Upon issuance of such a certificate signed by a member of the Board of Directors,
by an officer of the Association, or by the Condominium Manager, the information contained
therein shall be conclusive upon the Association as to the Person to whom such certificate is
addressed and that relies on the certificate in good faith. If such statement is not furnished by the
Association to the Requesting Party, delivered personally or by certified mail, first-class postage
prepaid, return receipt requested, within such time period, then the Association shall have no
right to assert an Association Lien upon such Unit for unpaid Association Assessments which
were due as of the date of the Associatiods receipt of the written request from the Requesting
Party.
ARTICLE 23
ARBITRATION
23.1 ARI3[TRATION RULES. Whenever it is specified in this Declaration that a dispute
is to be resolved by arbitration, or if any Owner disputes the reasonableness of any Rules or
Regulations or decisions made or adopted as described in this Declaration, or the validity of any
liens securing any amount payable either to the Association or to a Nondefaulting Owner, such
matter shall be submiCted to arbitration. In addition, arbitration shall be pursued by the parties as
provided in this Article 23 whenever a disagreement otherwise arises between the parties hereto
except that, if such disagreement involves a default under this Declaration, then the provisions of
Article 22 shall control, and arbitration shall not take place except under the circumstances
~ W073603~ BMP) 43
provided in said ArCicle 22. All such lrbitration shall be in accordance with the Commercial
ArbiCraYion Rules of the American Arbitration Association ae then in effect ("Rules") as
modified by the provisions of this Article 23. Arbih~ation shall be initiated by giving notice to
the parties to be parties fo the arbitration of the matter to be arbitrated and commenced within
five days thereafter of an arbitration proceeding in accordance with Rules. The parties to the
arbiCration shall endeavor to agree upon one arbiCrator, bttt if they are unable to agree, then the
Owner of Unit H and the Owner of Unit G shall each appoinC one arbitrator, and the two
arbitrators shall appoint a third arbitrator. If a party fails to appoint its arbitrator within 30 days
following the appointment of an arbitr~tor by the other party, the other arbitrator alone shall
serve. If three arbitrators are seiving, a decision of a majority of the arbitrators shall control.
Any decision m~de in arbih•ation shall be conclusive and binding on the parties involved therein
and may be entered as a final judgment in any court having jurisdiction thereof, subject to the
then applicable Colorado Rules oF Civil Procedure.
23.2 ALTERNATIVL' RUL~s. If the American Arbitration Association is not
functioning, or the Rules are not then in effect, arbitration shall be conducted in accordance with
the requirement of such other organization as the parties may agree, or in lieu of such agreement,
the matCer may be submitted to the District Court in and for the County of Boulder, State of
Colorado, to determine the procedure to be followed with respect to such arbitration, and such
decision shall be final and binding on the parties.
233 DISCOVERY CoSTS. In any arbitration proceeding, each party shall have full
access to the books and records of the other party with respect to its Unit, or if the Association is
the other party, the books and records of the Association, and the power to call for testimony any
Representative of any other party, and all other rights to discovery afforded under the then
applicable Colorado Rules of Civil Procedure, all of which shall be fully enforceable by the
arbitrator(s), or if the arbitrator(s) fail to effect such enforcement, then any District Court in and
for the County of Boulder, State of Colorado shall have such right of enforcement. The costs of
arbiltaLion shall be borne equally by the parties thereto, except that if the Owner of Unit H and
the Owner of Unit HG are the same or one is an Affiliate of the other, then such Owners together
shall be considered one party, and except that each party shall pay its own attorneys' fees unless
the arbitrator(s) shall conclude that the party initiating such arbitration did so wiChout reasonable
justification, in which event the arbitrator(s) may, if the arbitrator(s) so determine, award
aitorneys' fees to the prevailing party. The costs, however, associated with calling expert
witnesses, or in assembling materials for the hearing shall be separately borne by the party who
desired the same. All arbitration proceedings shall be conducted in the Cou~.ty of $oulder, State
of Colorado.
( W0736030 BMP~ 44
ARTICLE 24
RESTORATION UPON DAMAGE OR DESTRUCTION
24.1 DU'rv 'ro RESTOxE. Any portion of the Project for which insurance is required
under the Act or for which insurance carried by the Association is in effect that is damaged or
destroyed shall be repaired or replaced promptly by the Association unless:
24.1.1 the condominium created by this Declaration is terminated pursuant to
Article 20;
24.1.2 repair or replacement would be illegal under any Law governing health or
safety; or
24.1.3 Seventy-five percent (75%) or more of the usable area of the Building is
destroyed or substantially damaged, and Owners holding at least sevenry-five percent (75%) of
the votes in the Association agree, within 90 days following the casualty, not to rebuild.
In the event the Project is not repaired or replaced as allowed by Sections 24.1.1, 24.1.2 or 24.13
above, and no Owner exercises its option to purchase pursuant to Section 24.9, then insurance
proceeds shall be applied and distributed pursuant to Section 24.4, and the provisions of
Articie 20 shall apply as if the condominium created by this Declaration had been terminated as
of the date of the casualty.
24.2 COST. The cost of repair or replacement of the Units in excess of insurance
proceeds and reserves shall be paid by the Owners of the Units, and the costs of repair or
replacement of Limited Common Elements appurtenant to Units shall be paid by the Owners of
such appurtenant Units proportionately based on their Limited Pro Rata Shares in such Limited
Common Elements. The costs of repair or replacement of General Common Elements in excess
of insurance proceeds and reserves shall be paid as General Charges by the Owners.
24.3 PLANS. The Project shall be repaired and restored in accordance with either the
original plans and specifications for the Project or other plans and specifications which have
been agreed upon by Owners holding at least seventy-five percent (75%) of the votes in the
Association.
24.4 REPLACEMENT OF LESS THAN ENTIRE PROPERTY. IP thC 2nC1I0 Pro~CCt iS CIOt
repaired or replaced, the insurance proceeds attributable to damaged General Common Elements
shall be used to restore the damaged area to a condition compatible with the remainder of the
Project and:
24.4.1 the insurance proceeds attributable to a Unit or Limited Common
Elements that are not rebuilt shall be distributed to the Owner of the Unit or the Unit or Units to
which Limited Common Elements were appurtenant (in accordance with such Units' respective
Limited Pro Rata Shares in such Limited Common Elements), or to Mortgagees as their interest
may appear; and
~ W0736030 BMP~ 45
24.4.2 the remainder of the proceeds shall be distributed to each Owner or
Mortgagee, as its inYeresC may appear, in proportion to their respective General Pro Rata Shares
in General Common Elements.
24.5 INSUaANCE TxUS'rEF.. Tl~e Association may authorize a Person (the "Ltsurance
Trustee") to act for it in connection with losses under any policy providing property or liability
insurance, including: the collection and appropriate disposition of the proceeds thereof; the
negotiation and adjustment of losses and execution of releases of liability relating thereto; the
execution of all documents relating fhereto; and the performance of all other acts necessary to
accomplish such purposes. The Insurance Trustee may be appointed the Association's attorney-
in-fact for such puipose and also be empowered to receive, hold or otherwise properly dispose of
any proceeds of insurance in trust for Owners and their Mortgagees as their interest may appear.
24.6 INSURANCE PROCI:F,DS. The Insurance Trustee, or if there is no Insurance
Tnastee, then the Board of Directors, acting by the President of the Association, shall hold any
insurance proceeds in trust for the Association, Owners and Mortgagees as their interests may
appear. Subject to the provisions of the sections above, the proceeds shall be disbursed first for
the repair or restoration of the Project, or damaged or destroyed portions thereof, and the
Association, Owners and Mortgagees shall not be entitled to receive payment of any portion of
the proceeds unless there is a surplus of proceeds after the Project, or damaged or destroyed
portions thereof, has been completely repaired or restored or unless the condominium created by
this Declaration is terminated, in which event the surplus proceeds shall be distributed as
provided in Article 20.
24.7 CERTIFICATES 13Y THE BOARD OF DIRECTORS. The Insurance Trustee, if any,
may rely on the following certifications made by the Board of Directors in writing:
24.7.1 whether or not the Project, or damaged or destroyed portions thereof, is to
be repaired or restored; and
24.7.2 the amount or amounts to be paid for repairs or restoration and the names
and addresses of the parties to whom such amounts are to be paid.
24.8 CERTIrICATCS BY ATTORNEYS OR TITLE INSURANCE COMPANIES. If payments
are to be made to Owners or Mortgagees, the Board of Directors and the Insurance Trustee, if
any, shall obtain and may rely on a title insurance company or attorney's certificate of title or a
title insurance policy b.ised on a search of the Records from the date of recording of this
Declaration stating the names of the then-current Owners and Mortgagees.
24.9 Svns'rAN't'[nr~ Loss, OPTION TO PURCHASE. If 75%a or more of the usable area
of the Building is destroyed or substantially damaged, and if either of the Owner of Unit H or
Unit G is desirous of repairing or restoring the portions of the Project which are damaged or
destroyed, but the other Owner is not willing to do so, the Owner desiring to repair or restore
shall have an option for a period of 180 days after the date of the casualty to purchase the interest
oP the oCher Owner in the Project and in and to the neC insurance proceeds payable to such other
Owner at a purchase price equal to the fair market value thereof (including, if the Owner of
~ W0736030 BM P ~ 46
Unit G exercises the option, Unit HG under the terms provided herein). If the Owner to whom
the option is herein granted desires to exercise the same, written notice shall be given Yo the other
Owner within said 180-day period, failing which either Owner or a Martgagee may commence
an action for terminafion of the condominium created by this Declaration and reversion of title to
the Property as provided in Article 20. If Che option is Cimely exercised, the purchase transaction
shall take place within a reasonable period of time not to exceed 250 days thereof at which time
the entire purchase price will be paid in full in cash and the selling Owner shall convey, transfer
and assign to the purchasing Owner all of the Selling Owner's right, title and interest in and to
Project and such net insurance proceeds, free and clear of all liens and encumbrances. If the
seiling Owner and purchasing Owner are unable to agree upon the fair market value within 60
days following the purchasing Owner's timely exercise of its option, the fair market value shall
be determined by arbitration as herein provided. Any action or decision of an Owner required
under this Section 24.9 shall also require the consent of all Mortgagees of that Owner's Unit or
any interest therein at the time such action decision is made or required, as the case may be.
ARTICLE 25
CONDEMNATION
If all or part of the Project is taken or condemned by any power having the authority of
eminent domain, all compensation and damages for and on account of the taking or
condemnation shall be payable in accordance with the provisions on eminent domain in the Act.
ARTICLE 26
NOTICE
26.1 MANNER. Any notice, demand or other communication desired or required to be
given by or to an Owner, the Association or the Condominium Manager shall be in writing and
shall be deemed given three (3) business days following its deposit in the U.S. Mail, postage
prepaid, certified or registered mail, addressed to such party at such address as that provided in
Section 10.7.
26.2 MoR'rcnGE~ No'rlCC. Upon request of a Mortgagee of a Unit, the Association
shall in the manner provided herein give notice to the Mortgagee of such Unit a copy of any
notice given by the Association to the Owner of such Unit; provided, however, that such
Mortgagee shall have furnished to the Association (in the manner provide~i herein) a notice of
such encumbrance and of the address to which all such notices from the As~ociation are required
to be sent.
26.3 MoRTGAGE~ ACTION. If this Declaration requires the approval of any
Mortgagee then, if any Mortgagee fails to respond to any written propm~_il for such approval
within thirty days after such Mortgagee receives proper notice of thc pi -,~sal (or such longer
time as may be set forth in the notice), such Mortga~ee shall be deemed ~ have approved such
~ W073fi030 BMP} 4~
proposal, provided that Che notice was mailed Co the MorCgagee by cerCified or registered mail,
return receipt requested.
ARTICLE 27
MISC~LLANEOUS
27.1 INVALIDITY. The invalidity of any of the provisions of this Declaration shall not
be deemed to impair or affect in any manner the validity or enforceability of the remainder of
this Declaration, and in such event, all of the other provisions of this Declaration shali continue
in full force and eFfect as if such provision had never been included herein. However, to the
extent legally permissible, a court of law with proper jurisdiction shall substitute for such invalid
provisions such other provisions as are legally valid and will carry out the intent of the parties
expressed in any such invalid provision.
27.2 WAIVER. No provision contained in this Declaration sh111 be deemed to have
been abrogated or waived by reason of any failure to enforce the same, irrespective of the
number of violations or breaches of such provision which may occur.
27.3 INTC1tr1~'rA'r[oN. Whenever the singular number is usad in this Declaration, and
when required by the context, the same shall include the plural and vice versa. The term
"including" as used in this Declaration shall, unless otherwise specified, be interpreted in its
broadest sense to mean "including without limitation."
27.4 CAPTIONS. The captions herein are inserted only as a matter of convenience and
for reference, and in no way define, limit or describe the scope of this Declaration or the intent of
any provision hereof.
27.5 ACCEPTANCE OF PROVISIONS. The conveyance or encumbrance of a Unit shall
be deemed to include the acceptance of all of the provisions of this Declaration, the
Condominium Map, the Articles, Bylaws and Rules and Regulations, and shall be binding upon
each Owner, Occupant and Mortgagee without the necessity of including an express provision to
this effect in the instrument of conveyance or encumbrance.
27.6 ATTORNEYS' FEES. All references herein to attorneys' fees shall be deemed to
mean and refer to reasonable attorneys' fees whether expressly so stated or not.
27.7 NO THIRD-PARTY BENEFICIARY. Declarants do not intend for any third party not
specifically granCed rights in this Declaration to rely on or have rights under this Declaration as a
third-party beneficiary hereof, and no such third party shall have any such rights. Any third
party granted rights in this Declaration shall have only such rights as are expressly granted to
such third party herein.
27.8 EXI3IBITS INCORPORATED. All exhibits to this Declaration are incorporated
herein and made a part hereof as if fully set forth herein. .
~ W073fi030 BMP~ Qg
279 INCONSIST~NCIES 13ETWGEN LAWS AND INSTRUMENTS. In the event of any
inconsistency between this Declaration, the Articles or Bylaws of the Association or any Rules
and Regulations, this Declaration shall control. In the event of any inconsistency between the
Act and Chis Declaration, the Articles, the Bylaws or any Rules and Regulations, the Act shall
control.
~ W0736030 BMPJ ~ 4y
IN WITNESS WHEREOF, this Declaration has been executed as of the date fiist set
Porth above.
STATE OF COLORADO )
)ss
COUNTY OF BOULDER )
ST. JULICN PARTNERS LLC,
a Colorado limited liabiliCy company
By:_
Nami
Title:
The foregoing instrument w~s acknowledged before me this day of
, 20_, by as of
ST. JuL1Err PnR'i'tvEas LLC, a Colorado limited liability company.
Wifness my hand and official seal.
Notary Public
My commission expires:
CENTRAL AREA GENERAL IMPROVEM~NT
DISTRICT, a General Improvement District Formed
Pursuant To Chapter 8-4, Boulder Revised
Code 1981
By:
Title:
~ W0736030 dMN~ 50
STATE OF COLORADO )
)ss
COUNTY OFBOULDER )
The foregoing instrument was acknowledged before me this day of
, 20_, by as of Central Area
General Improvement District, a general improvement dish•ict formed pursuanf to Chapter 8-4,
Boulder Revised Code 1981.
Witness my hand and official seal.
Notary Public
My commission expires:
CONSENT BY ASSOCIATION
The Ninth and Canyon Hotel and Parking Condominium Association, a Colorado
nonprofit corporation, hereby executes this Consent to acknowledge its approval of the
subdivision of Unit H in accordance with the terms and conditions contained in Section 8.2 of
the foregoing Declaration.
Dated: , 200_
NINTH AND CANYON HOTEL AND PARKING
CONDOMIN[UM ASSOCIATION, a Colorado
nonprofit corporation
Name:
~ W0736030 BMP~ S ~
STATE OF COLORADO )
)ss
COUNTY OFBOULDER )
The foregoing instrument was acknowledoed before me this day oP
, 20_, by as of Ninth and
Clnyon Hotel and Parking Condominium Association, a Colorado nonprofit corporation.
Witness my hand and official seal.
Notary Public
My commission expires:
~ W0776030 BMPI 52
EXHIBIT 1
D~SCRIPTION OF SJP PROPERTY
( W0736030 BM P ~ 53
~XHIBIT 2
D~SCRIPTION Or CAGID PROPERTY
~ W0736030 BMP) 54
EXFIIBIT 3
LIMITED COMMON ELEM~NTS
Hotel LCE:
^ All physical improvements on the Land (other than the Building).
• The plazas and terraces located on level Hl
^ H Expansion Envelope.
^ Civic Use Site.
Unit G LCE:
.
Unit HG LCE:
.
H/G LCE
.
H/HG LCE
^ Garage elevator from ilnit HG to the Hotel.
Garaee LCE
^ Car ramps entering the Parking Facilities, including above-grade ramp canopy building.
^ Toll booth.
^ Ticket spitter.
^ Garage elevator[s] to the street level.
^ Stairways as identified on Condominium Map.
^ Ramp enclosure to Parking Facilities.
^ Above-grade ventilation and related mechanical system for Parking Facilities, including any
above-grade housing for such system.
^ All drainage elements located under Level G2 of the Parking Facilities, including all
groundwater pumps and related equipment.
• Roof of Puking Facilities not under Hotel footprint from bottom of concrete ceiling to the
top of protective layer above waterproof inembrane.
I W073fi030 BMP~ $5
~XHIBIT 4
SCHEDUL~ OP' PRO RATA SHAR~S AND VOT~S
Garase Pro Rata Share:
Unit G
Unit HG
General Pro Rata Share:
Unit G
Unit HG
Unit H
84% (eighty-four percent)
16% (sixteen percent)
50% (fifty percent)
9% (nine percent)
41% (forty-one percent)
Structural Pro Rata Share:
Unit G
Unit HG
82% (eighty-two percent)
] 8% (eighteen percent)
Limited Pro Rata Shares:
Hotel LCE 100%a Unit H
Unit G LCE 100% Unit G
Unit HG LCE 100% Unit HG
H:HG LCE % Unit H
% Unit HG
H:G LCE °~o Unit H
% Unit G
Votins Rishts:
Unit G 5 votes
Unit HG 1 votes
Unit H 4 votes
~ W0736030 BMP~ 5(~
EXHIBIT 5
GEN~RAL COMMON ELEMENTS
Land beneath the floor (which floor includes all drainage elements) of level G2 of the
Parking Facilities.
Air not otherwise idenCified as a Limited Common Element
~ W0736030 6MP) 5~
LxxisrT ~
FORM OF CIVIC USE LEASE
(See Separate Document Attached)
~ W0736030 BMP} Sg
EXHIBIT 7
EASEMENTS AND LICENSES OF RECORD
( W0736030 RMP~ 59
CONSENT AND SUBORDINATION
The undersigned as the holder of that certain Deed of Trust recorded on
, in Book at P1ge of the records of the Clerk and Recorder of
the County of Boulder encumbering the real property described therein hereby joins in the
execution of this Declaration for Ninth and Canyon Hotel and the Condominium Map referred to
herein for the purpose of subordinating its interest in the Deed of Trust to the terms and
provisions of this Declaration and the Condominium Map.
ATTEST:
Secretary
By:
President
STATE OF )
)ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 200_, by as President and as Secretary of
Witness my hand and official seal.
Notary Public
My commission expires:
~ W07344?4 RMP~
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PROFORMA ~AP
FOR
~T.JULIEN HOTEL CONDO~iINIU~IS
LOCATED IN THE SOUTHEAST 1/4, OF SECTION 25, AND THE SaUTHWEST 1/4, OF SECTION 30,
TOWNSHIP i NOR~H, RANGE 71 WEST, aF TF{E 6fh PR(NCfPAL MERfDiAN,
CITY OF BOULDER, COUNTY OF BOU~ER, STATE OF COLOR.4D0
GENFRA NO'f~ ~
j_ NOTiCE ACCCRpI~VG TO C~LCFUpo lqV/ TCU MUS( COMMEYCE ANY IE;Jl p~IpN B/SE~ UPON
ANY OE_C IN THIS SIInIEY WRHIN T:F~ TEPRS qFq TCU FrL~i pI5C0VCt SUC4 OEEC-. IN
NO JEM1T YqY ?Ny ~pN EqS~ UPON NIY C_.F'--_._: IN iH15 SVeryEy 2E CCNNENCc9 MCFE
TfUN 1II1 YEPfiS iQOM i4E pATc GF iAE CE4IIFlUPON SHpWN HEP.EQN,
Z. iHIS SL'R c.' OOES NOT CLN511Nfc' A TLE FMCH Ey ACCLFWTc TO D~AWYE iR'~ CF
E4'iMENiS GF FECCRO. T~(jRUi .=CR THIS NRYEY NAS ip~qM~ IN iCCGROPNC' WRf!
Cft5 38-_t-106 PNO THE RUL~S aF P40C2URE PNO SOPfip FGIIC. SA cApVR OF YE SfAi'c
90:.Rp CF REG.RRAiIdN FdR PRQRcSICNPL Et1GIN~S Nio PRdFE~3~prv01 VNO SUqvE1'CftS.
_r_CIFlGLL; ~1ypg gppqp RULES.WO PCIIC STA~ENE,NTS'rzELiTNG ~ iHE ]EPICTdN OF
AN AR7~3• Qdl.i 4° GPGp W CO NG.~'NE+LiH ~~,1rv0 ~ SUFnNCE COMFnm,ZNaS FELO
'JPCN Poq ALL INFQRMnPON ftEG:A~INC E4.cMINiS OF PEC~FO. FIGNiS GF'NFT, IItti Oi
RECCRD arv0 CML C~URT AC!~GNS CF RECOFO.
3 AIS CF a^~{EINCS 4EPkINGS LLSp Hc^-.~N pAE ASEf) CN l1E CQIiEiL~NE OF GWYCN
BCUL/PRO, 9pNG N>~iTaO'E FE4 {~1ry0 54R/E: P~AT LS-d]-OC~S h5 OE~OSII'JC WIiH iHE
20UL~E2 COl1M'( C n( PNO RECCRpE4 ~N ~EC.RIEEi 11, 196~.
4-. dENCH M4fiK: U.S.G.S. MC.'V4NE'1( RM21 F4GJEC. 5=l:,pg ~l' N.G.V.G. pATOM.
S. 5~ e~r*ICH MqFN: CHISEL~ 7,' QN NOFfHWES 5CNN~ eOLT OF FlftE NTppPN~ ~pGiEJ
330 F'~~'NET OF ELE~E.*ltri SrEE( p,y NdYM StCE pF GWTCN E[l1LE/Ffi~ ~ryqiipN
9352.15 N.G.V.p.
6. R IS HPE9Y CE4I1rTCJ, f5 OF iHE 9AiE 0( iF:l° PfqT, iAE SUBJEC~ PFCPEi ( IS WRHIN
ZCNE 'AE' IN ?CC~FCPNCE 'MfIFi CIqRE~ F.LM.1, fl~pp INNflANCE RATc NAPS, pA~ .IL'NE
Z. 195°. .WP N0. Cfl013Cu355 F. ZOYE ?£" JSc P_CCO E£JA~pN OEi~~MIN~.
7. iY.E 9EARING OF ~E SOUIk~rzLY mGE OF ME PN2KINC WRAGE (UNR G), iXE MpiEL (H) PNp
iHE HOTF~ G.~RqG~ (NG) 'i5 pFliNE9 AS ^vp~G S/4+5'32'k.
^ic pPFEp LIY[R QF liE NRSPhCE pF UNR G PNO IINR 4G IS P,1E 90TipM CF ~~ig IN Tt.E
8. ARFAS Wr.E~E UNR 4 IS LCGip ~IRECRY J c?.NE}~, IN iFiE ARElS WHEE IINR H IS NOT
FBOVE UNR G CA UNR HG, 1H: liPp^q ~Mf~S OF i~ilE :JpSFACE IS iHE TOP pF SL:g qEpVE ?.
TABLE OF COMENTS-
SHEEf ; OF ID - C'S/Qi SH~
SH cF'i 3 OF ip -«_ry!~
SX~i a OF 10 - PASE~ENt LE/E 1
SHE~~ 5 OF tp - 14 FLaa0. L~
SHEf 6 OF 10 - 3N0 RO~R LEVEL
SHEET ~ OF 10 -]R~ FCOR I~/E!
SHE~T'f 8 CF ip - ~Tf F~OQR LEVEL
SNE-c. 9 OF 10 - POOF LEYEL
SH~ ~0 OF ID - SECII~N 'A'
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---- ------- -- - -
! Lorraine Zamora - proposal doc Page 1
Bicycles on Sidewalks Ordinance Review
Proposed Staff Recommendation
Proposed Overall Objectives
• Facilitate walking and biking as safe and viable transportation options.
^ Protect the safety and rights of the pedestrian.
• Preserve high-density pedestrian areas.
• Promote a balanced transportation system that reflects the needs of all users.
• Improve education and enforcement manageability of regulation.
• Support a regulation that is clear, simple to understand, and reflects the above
objectives.
Proposed Actions
• Define and establish existing Pedestrian Districts within the city of Boulder.
• Identify general criteria and process to establish future pedestrian districts.
• No longer use zoning districts to define area boundaries where bicyclists are prohibited
from riding on the sidewalk.
• Utilize the designation of a pedestrian district to define the area boundaries where
bicyctes are prohibited from riding on the sidewalk.
~ Amend Boulder Revised Code ordinance regulating the operation of bikes on sidewalks
to be in accordance with the above objectives / actions.
• Craft ordinance language to authorfze the creation and administrative updates, as
appropriate, of map based document to depict designated pedestrian areas as a
governing document to supplement ordinance language.
^ Designate and detail existing pedestrian districts in the amended ordinance.
• Design, manufacture and install signs to support education and enforcement of
ordinance.
^ Heighten public awareness to educate on the designation and definition of pedestrian
districts and rights and responsibilities of bicyclists to yield right of way to pedestrians.
Proposed elements to incfude Definition of Pedestrian District
^ A pedestrian district is a geographically defined area designated to preserve, facilitate
and encourage walking as a viable and safe transportation option. In general, these
districts feature high pedestrian generators including retail/commercial and civic
buildings with public entry that is attached to the sidewalk. Designated districts define
the area boundaries where bicycles are prohibited from riding on the sidewalk.
--- -- - - --
-- --
' Lorraine Zamora - proposel.doc Pa~A ~
Bicycles on Sidewalks Ordinance Review
Proposed Pedestrian District General Criteria
The foliowing criteria will generally be evaluated on a block by block basis
• Urban main-street setting;
• Front facing buildings (generally high density) attached to public right-of way sidewalks
and/or walkways;
• Designated land use generates high pedestrian activity;
• Majority of block meets criteria.
Proposed Process for Establishing Pedestrian Districts
• Recommend potential candidate for consideration
• Discretionary staff review to evaluate area based on criteria (block by block).
• Consuit with district stakeholders.
~ Establish district boundaries.
• Send recommendations to City Manager/Director of Transportation.
• Designate pedestrian district, amend governing documents and sign, as appropriate.
Proposed Public Outreach Elements
• Support a behavioral shift that promotes a multi-modal transportation system where
bicyclist, pedestrians, and motorists can co-exist.
^ Inform bicyclists riding on sidewalks that they are to yield right of way at all times to
pedestrians.
• Recommend bicycling speed on sidewalks is to be limited to a maximum of a fast
running speed (8 mph) to drop to an ordinary walking speed (3-4 mph) when within a
length of 20 feet from pedestrians.
• Recommend bicyclist to maintain at least 3 feet of distance from a pedestrian when
passing or overtaking. Dismount when there is not enough space to do so.
• Recommend bicyclist to maintain at least 6 feet of distance from any doorway.
Dismount when there is not enough space to do so.
• Encourage bicyclists to make his or her presence known to the pedestrian before
passing or pass with sufficient room to avoid startling or disturbing the pedestrian.
• Inform bicyclists that when cycling on a sidewalk they must slow to a speed no greater
than an ordinary walking pace when crossing a roadway, driveway or other motor
vehicle access point.
• Inform bicyclists that law requires them to use a headlight after dark.
• Encourage bicyclists to obey specific traffic control devices and their instructions where
present.