HomeMy WebLinkAboutLegal documents05-09-'08 16;31 FROM-
T-133 P001/010 F-152
LOHF SHAIMAN JACOBS HYMAN & FEIGER PC
ATTORNEYS AT LAW
900 CHERRY TOWER
950 SOUTH CHERRY STREET
DENVER, COLORADO 80246-2666
FACSIMILE 303.753.9997
TELEPHONE 303.753.9000
ww.lohfsh 'm
J. MICHAEL MORGAN, EX'r, 227
tumor n lohh .com
ALSO ADMITTED IN WYOMING
FAX COVER SHEET
CONFIDENTIAL FOR ADDRESSEE ONLY
DATE: May 9, 2008
TO: Scot Hun
FROM: J. Michael Morgan
FILE:
RE: Margo Mullaly
PAGES: 10
MESSAGE:
MAY o 9 2008. D
TOWN OF VAIL
FAX NUMBER: (970) 479-2452
The information contained in this facsimile message is information protected by attorney-client and/or the attorney/work product privilege. It
is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by facsimile. If
the person actually receiving this facsimile or any other reader of this facsimile is not the named recipient or the employee or agent responsible
w deliver it to the named recipient, any use, dissemination, distribution, or copying of this communication is strictly prohibited,
05-09-'08 16;31 FROM-
T-133 P002/010 F-152
LOW SHAIMAN JACOBS HYMAN & FE{GER PC
ATTORNEYS AT LAw
May 9, 2008
VIA FACSIMILE (970) 479-2452
AND FIRST CLASS MAIL
Scot .Dunn, Senior Planner
Community Development Department
Town of Vail
75 South Frontage Road
Vail, CO 81659
Re: Your Permit File No. B-080072
Planning File No. DRB070709
288 Bridge Street; Part of Lot C and Lot D, Block 5A
Vail Village Filing No. 1 (the "Rucksack Condominiums")
Dear Mr. Hunn:
900 CHERRY TOWER
950 SOUTH CHERRY STREET
DENVER, COLORADO 80246-2666
FACSIMILE 303.753.9997
TELEPHONE 303.753.9000
Www.Iohfshaiman.com
MICHAEL MORGAN, EXT. 227
mmor n Iohfsh
ALSO ADMITTED IN WYOMING
We represent Margo and Yvonne Mullaly who own Unit 122 in the Rucksack Condominiums.
For the reasons set forth below, the Mullalys object to the issuance of the above-referenced
permits for the expansion and renovation of the Rucksack Condominiums, as those plans are
currently proposed.
The Condominium Declarations for the Rucksack Condominiums was recorded in the Real
Property Records of Eagle County on April 271 1978 in Book 269, at Page 448, Reception
No. 165834. The First Amendment to the Declarations was recorded on June 14, 1978 in Book
271 at Page 125, Reception No. 167521. Copies of the relevant pages of the Declarations and
the First Amendment are attached.
Paragraph 12(b) of the Declarations, read together with paragraph (c) of the First Amendment,
provides that if 80% or more of the ownership, and all first lienors, approve a plan for
"renovation or restoration" of the common elements, then the Association may cause such
restoration to be made in accordance with the plan. Last year, Mr, Selby shared renovation plans
with all Rucksack owners, who had no objections to those plans. Mr. Selby then unilaterally
changed those plans, to add a unit and interfere with the Mullalys' Vested expansion rights. The
M 05-09-'08 16.31 FROM-
Scot Nunn, Senior Planner
Community Development ]department
Town of Vail
Re: Your Permit File No. B-080072
May 9, 2008
Page 2
T-133 P003/010 F-152
amended and expanded plans were submitted in the name of the Rucksack Condominium
Association, but without the approval of those new plans by the Mullalys, who owns Unit R2, or
Mr. Bill Gardiner, who owns Unit R1.
As shown on the attached Exhibit B to the recorded Declaration, without these votes, Mr. Selby
is the owner of no more than 76.5% of the ownership in the Association, less than the 80%
required to approve any such plan of renovation or restoration, or to submit them in the name of
the Association. Accordingly, Mr. Selby had no authority to file applications based on his
amended plans. See Lion Square Phase 11 and III Condominium Association, Inc v. HASK, 700
P.2d 932, 934 (Colo. App. 1985), holding that "(a) condominium association may exercise its
powers only within the constraints of its condominium declaration" and any action taken
contrary to them is ultra vices. Because Mr. Selby and/or the Association had no authority to
file the applications, the Town of Vail has no authority to act upon them.
Paragraph 21 of the Declarations also grants the Mullalys, as the owner of Unit R2, the right to
construct and expand their unit in an area adjacent to Unit R2, as designated on the condominium
map. This reservation includes the right to obtain and record an amended map and Supplemental
Declarations when the construction is completed. It is our understanding that the plan which Mr.
Selby and/or the Association has submitted for approval by the Town will expand into the area
which has been expressly reserved in the recorded Declarations for the owners of condominium
Unit R2.
Mr. Selby evidently believes that, as owner of three of the five units in the Association, he has
acted to unilaterally amend the Declarations on April 5, 2008, and that the purported amendment
authorized the submission of his current plan, and extinguished the vested property right of the
Mullalys to expand Unit R2. Even if Mr. Selby was successful in amending the Declarations to
grant himself and/or the Association authority to submit renovation and expansion plans (which
the Mullalys do not concede), any application filed by Mr. Selby prior to April 5, 2008 was
without authority, and any processes and approval steps taken by the Town prior to that date are
void accordingly.
In addition, C.R.S. §38-33,3-212 specifically provides that the boundaries between adjoining
units may be relocated by an amendment to the Declarations upon the application of the owners
of those units. A necessary corollary to this rule is that boundaries between units cannot be
changed without the consent of the unit owners themselves. The Mullalys have valuable
property rights as the owner of Unit R2, which are expressly provided by Article 21 of the
recorded Declarations. Those rights may not be taken without their consent, even if the holder of
majority ownership in the Association desires to do so for his own benefit.
05-09-'08 16:32 FROM-
T-133 P004/010 F-152
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
Re: Your Permit File No. 13-080072
May 9, 2008
Page 3
As the sole director of the Association, Mr. Selby also has a fiduciary duty to the Mullalys, and
concerning them, he must deal with the "utmost good faith" and for their benefit. Submitting an
application without approval, which benefits him at their expense, appears to be a clear breach of
this duty. See Woodrnoor Improvement Ass's v. Brenner-, 919 P.2d 928 (Colo. App. 1996).
Finally, if the Town grants Mr. Selby's permits, and thereby authorizes him to expand into space
in which the Mullalys have a vested properly right, we believe that such approval constitute a
regulatory taking. Article 11, Section 15, of the Colorado Constitution provides that private
property, such as Ms. Mullaly's recorded expansion rights, "shall not be taken or damaged for
public or private use without just compensation." A taking may be found to have occurred when
"inroads are made upon an owner's use of (property) to an extent that, as between private parties,
a servitude has been acquired," See, United States v. Dickenson, 331 U.S. 745 (1947). That is
precisely what would happen if the pending permits are issued.
Though the above would entitle the Mullalys to object to Mr. Selby's plan in total, they do not do
so. They are generally in favor of redevelopment of the Rucksack and have no objection to the
majority of Mr. Selby's plan. They do however strongly object to that portion of his plan which
calls for construction above the level of the base of their Unit R-2, and thus would extinguish
their vested right to expand her unit into the same space. The Mullalys are ready and willing to
expand their Unit, and would support a joint proposal which would allow both Mr. Selby's plans,
and theirs, to go forward in a compatible manner and at the same time. To date, Mr. Selby has
refused to enter into discussions with the Mullalys in this regard. In the absence of any such
joint proposal, or an amendment to Mr. Selby's plan which removes its conflict with their vested
property rights, the Mullalys object to Mr. Selby's applications.
If the Town intends to issue permits necessary for Mr. Selby to go forward with his plans despite
this objection, please let us know as soon as possible, so we may file an action in the appropriate
court.
Very truly yours,
HYMAN & FEIGER PC
Mr. Bill Uardlner
Mr. Jeff Selby
05-09-`08 16;32 FROM-
CONDOMINIUM
tuh
THE RUCKSACK CONDOMINIUMS
T-133 P005/010 F-152
:s^: L
ltr
1
MC1TALS
Jeffrey B;r Selby. Charles H. Etoeenqulst and Richard N. Brown
("Declarants') e ch& owners of the real property situate in the
County of Eagle, State of Colorado, described in the attached
Exhibit A. which by reference is made a part hereof. . ,
Declarants desire co establish a condominium project under the
Condominium Ownership Acc of Colorado (the "Act") and to definRthe
character. duration, rights, obligations and limitations of con6o-
minium ownership. Declarants have purchased a building on rho
propercy descrtbad in Exhibit A, which building consists of five (S)
separately dssignacad units, A Condominium map will be
filed showing the location of said building on the property which is
hereby made subject to this Declaration.
Deelerents do hereby establish a plan for the ownership of
real property estates in fee simple consisting of the air s ace con.
tained in each of the. apartwent :and coomervial units in tKe building
and the co-ownership, b•P the individual and separate owners thereof,
as tenants in common. of all, of. the remaining real property.
II
DECLARATION
Declarants do hereby publish and declare chat the following
[arms, covenants. conditions. easements, restrictions, uses, reserva-
tions limitations and obligations shall be deemed to run with the land,
shall be a burden and a benefit to Declarants, their successors and
assigns and any person acquiring or owninR an interest in the real
prop ercy which is or becomes subject to this Declaration and improve-
ments thereon, their grantees, successors, hairs, executors, admini-
stracors.,deviseas or assigns."
1. DDeeft i~tionss. As used in this Declaration, unless other-
vise express y~I provided:
(a) "Unit" weans sit undivided air spce unit contained
within the periieter walls. floors. ceilings, window's and doors
of's unit in a buildingg constructed on real property which is subject
to the provisions of tpis Declaration, and as shown and descr.bc4 in
a condominium slap recorded in the seal property records of Eupte
County. Colorado, together with (i) all fixtures and improvements
tbareln; (11) the inner decorated or finished surfaces of such unit'r
perimeter walls, floors and callings; (iii) the doors and windows of
the unit. and (iv) the interior nonsupportirg walls within thsr unit.
The teena does not include. however.the undecorated or unfinished
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05-09-'08 16:32 FROM- T-133 P006/010 F-152
dofici:ncy of the person or persons responsible for payment of ■och
indebtednesa. It within 100 days after the date of such damage or
destruction a plan for repairing and restoring a damaged or 4estroyrl
building shall be approved by the owners of 7S1 or more of the general
•
J
building and by all first
common elements appurtenant to units in ■uch
lienors, the Association (as attorney-in-fact for such owners) shall
promptly cause such repairs and restoration to be-made according to
'
such plan. All owners of units in such building Land no oc~:i:a)
'
shall be bound by the terms of such plan, and the difference. it a^Y-
betveen the amount of the insurance proceeds and the costs of repair
and restoration shall be an expense of such owners only and shall
be assessed and paid by such owners in the proportions of their
respective interests in general common elements appurtenant to
units in the damaged building.
(d) .Nothing contained in this paragraph shall be
construed as imposing any liability whatever on any first lienor
to pay all or any part of the coats of repair or restoration.
12. obsolescence.
(a) If any any time the owners of 751 or more of the
general aosanon elements appurtenant to units in any building covered
by this Declaration and all first lianors with interests in such
building shall agree that *such building has become obsolete asd shall
approve a plan for its renovation or restoration. the hssdci&Pion
(as attorney-in-fact for the owners with interests in such building)
shall promptly cauar such renovation Or restoration to be wade
h building
according to such plan. All owners with interests in suc
f the
shall be bound by the terms of such plan, and the costs o
work shall be an expense of such owners naly and shall be as■■■sed
and paid by such owners in the. proportions of their respective
h
l
~
interests in general common elements-appurtenant to units in. suc
!
bui ldi ng.
(b) if at any time the owners of 751 or more of the
general common elements appurtenant _to all units and all first
lienors shall agree that any of the improreseents constituting
general common elements have become obsolete and shall approve a
'
Association (as
plan for their renovation or restoration. the
h renovation
attorney-in-tact for the owners) shall proptly cause suc
shall
w
ners
or restoration to be made according to such plan. All o
be bound by the terms of such plan. and the coats of the work shall
be a ccown expense, to be assessed and paid as•provided in
Paragraph 0.
`C) It at any time the o+mers of 70 or more of the
the
h
at
general com~son elesre nts and all first lienor■ shall agree t
buildings have become obsolete and should be gold. the Association
(as attorney-in-tact for the owners) shall promptly record in the
real estate records of Eagle County. Colorado a notice of such facts.
and shall sell the entire real property. free and clear of the
t
provisions-of this Declaration and the map. which shall wholly
roceeds
The
l
h
p
sa
e.
terminate and aspire upon the closing of suc
Of such sale shall be collected, applied and divided among the
owners by the Association in the manner provided in Paragraph li(t)
43. Condemnation,
(a) If the entire real property subject to the declaration
shall be taken for any public or quasi-public use, under any statute,
by right of eminent dgmain. Or by purchase in lieu thereof. or
if.any part of any building covered by this baclerotion shall be au
s of
taken and the part remaining shall be insufficient tar purpose
Rucksack Condominiums, the Association (as attorney-in-fact for
the owners) shall collect the award aside in such taking and shall
Y
~ 10-
■
05-09-'08 16;32 FROM-
T-133 P007/010 F-152
shall register hie mailing address with the Association, and except
for monthly statements and other routing notices, all other notices
or demands intended to be served upon an owner shall bn sent by
either registered or certified mail, postage prepaid, addressed in
the name of the owner at such registered mailing address. All
notice!: demands or other notices intended to be served upon the
Association shall be sent certified moil, postage prepaid, to the
address of the Association as designated in the by-laws of the
Association.
18. Duration of Condominium Ownership, The separate estates
ureetdd by t xs c srataon en t e =Ap ohAll continua until this
Declaration shall be revoked or until its provisions shall terminate
as provided heroin.
19. Architectural Control. After filing of the map, no
building, fence wall or o er structure shall be commenced, erected
or maintained upon the property subject to this declaration, nor
shall any exterior addition to or change or alteration therein be
made until the plans and specifications showing the nature, kinds
shapes height, color, materials, and location of the same shall have
been submitted to and approved in writing as to harmony of external
design and location'in relation to surrounding structures and
topogrophy by the Board of Directors of the Association, or an
architectural committee composed of three or more representatives
appointed by the Board. In the event said board, or its designated
committee, fails to approve or disapprove such design. and location
within thrity days after said plans and specifications have been
submitted to itr approval will not be required and this paragrapo
vill be•doemed to have been fully complied with.
20. Reservations of Declarants. Declarants reserve the
I`~ l right to des Cate any access roads an streets serving this
condominium project for and to public tamer to establish eassmants,
reservations, exceptions and exclusions consistent with the condominium
ownership of the condominium project and for the best interest of
the condominium unit owners and the Association.
21, Reservations for Addition to R-2. A•right is hereby
reserved to any owner of con h um unit - to construct and
expand his unit in an area adjacent to Unit R-2 and designated on
the map as "future construction'. Thin ruservation shall include
the right to obtain and record an emended map and Supplemental
Declaration when the construction is completed. Such Supplemental
Declaration shall reeonvey and reattribute to each unit an undivided
per centage interest in the common elements. The interest to be
reeonveyed and resttributed to each unit shall be expressed as a
per centage determined by dividing the number of square feet contained
in each unit by the total square feet of all unite, which is presently
1,252 square feat, plus the number of square feet added to condominium
Unit A-2, yor the purpose of rgcomputing the undivided interests in
common elemeots to be reconveyed and made attributable to the units,
the owner of R-2 shall engage on architect licensed in Colorado
to re4etermine the undivided per centage Interests in the Common
elements.
22. Reservation for Additions to C-2. A right is hereby
reserved to any owner o con n um nit - on the Southwest and
gortlwest sides and designated on the.Map as `future ConatTQCtion'.
This reservation shall include the right to obtain and record an
amended Nap and 4upplemantal Declaration when the construction is
completed. Such.Supplemcntal Declaration shall rsoonvey and rc-
attribute to each unit an undivided per centage interest in the
commo-► elements. The interest to be reconveyed and reattributed
to each unit shall be expressed as a per eentago determined by
dividing the number of square feet contained in each uaLt by the
total square feet of all units, which is presently 7,252 square
05-09-'08 16;32 FROM-
T-133 P008/010 F-152
e e y
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gaharis : brown
STATE OF COLORADO)
1 se:
COUNTY OF P,AGLI1
Th foregoing instrument vas acknowledged before so
this /L~l~ day of ~l .19780 by Jettr.y S•
8e16y, Charles {i.Rosengu&st. n Rachard W. brwn_
Ni mess .ray hand and official seal.
O t~ Z'O~
A• ,
AV Oswoabdn
• ►hl cosrtisaion explrast
a , ,
The undersigned holder ot.•a'deed Of trust upon the
property covered by this Declaration -hereby •subordinates its.
interest in such property to theprov4siona of this Declaration.
By execution of this Declaration -the %undersigned. -11 P MAN'; Prseidene aasN~aee no a bill ty i
persons oesv se or the per ottsanc o any of the legs,
provisions, covenants or conditions contained herein.
Y
tisitotsx
TUN VWIRM SAVINGS. SUMING AND •LOAN
AS$OCXATXON' a COIC&Mdo corporation
• By
J. Harrell Rocks. Vice fteeldeat
t
X)MM *
I STATE Ol COLORADO 1 se.
City and County of Denverl
Us ab ve vas acknowledged before me this 25th day of April, 1978. by
p$.' a Roc ad ca President of TUC PAPIRE SAVINGS, BUILDING AND
i LOAN ASSpCIATIONs on behalf of the
in sed Cate of Colorado corporation.
• •a
05-09-'08 16;33 FROM-
FIRST AMENWGRT
To
CONDOMINIUM DECIARAVON
FOR
RUCKSACK CONDOMINIUMS
HAIL, COLORADO
KHM ALL MEN OY THESE PRESENTS:
T-133 P009/010 F-152
WHEREAS, on April 27, 1978, Jaffrey S. Selby, Charles N.
Rosenquist and Richard N. Drawn ("Declarants") caused to be
recorded a Condominium Declaration.("Deei.sration") for Rucksack
Condominiums in Book 269 at Page 468, and a Condominium Nap
("Map") for Rucksack Condominiums, in book 269 at page 447,
In the records of the Clark and Recorder of Eagle Councy, Colorado;
and,
W$F,REAS, Declarants are the arnars of the real property
described as fallowai
Units C-1, C-2, C-7 and R-2 o! the Rucksack
Condominiums as defined by th* Map and
Deelaraclon.
WHBREI. Stephen Yates and Paul h. Dallis ("Owners") are
the o.msr• of Condominium Unit R-1 ae deEined by the Map and the
Declaration; and,
WHEREAS, Declarants and Owners represent 100% ownership
for the Rucksack Condominiums and have.detemined that certain
amendments are necessary to the Declaration for Rucksack Condo-
ON TMErORE. for and in consideration for the premises.
the Declaration if hereby amended as follows:
a) The number 75% referred to in the 56th line of Para-
graph il(e.) (and being in the 4th line on Page 10 of
the Declaration) is hereby changed co 80%.
b) The number 75x Contained in the first line of Paragraph
12 (on Page le of the Declaration) is hereby changed
to 80%.
e) Tha number 75% contained in•the first liha of Paragraph
2(b} (on Pass 10 of the Declaration) is hereby changed
to 80%. stsi d) 2(c) (on Pago 1containe 0 of the Declaration) isnhereby changed
to BOX.
{1t '!!E$3 W OIR90r, Declarants and owners have executed shit
ftme Aaead sot to Coadoodnium Declaration this 1 day of June,
>l~e .
BECLARAWS:
sy f
to an tea
.esa ■r Paul A-.Davle
51
snd Rl
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STATE
APPROt
Ruekse
map, )
min iuo
Colors
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iacio~
F 05-89-'88 16;33 FROM- T-133 P010/0101F-152
D 0 V LOHF SHAIMAN JACOBS HYMAN & FEIGER PC
ATTORNEYS AT LAW
MAY 12 2008 900 CHERRY TOWER
950 SOUTH CHERRY STREET
DENVER, COLORADO 80246-2666
VAIN FACSIMILE 303.753.9997
TELEPHONE 303.753.9000
www.lohfshaiman.com
J. MICHAEL MORGAN, EXT. 227
mmorgan lohfshaiman.com
ALSO ADMITTED IN WYOMING
May 9, 2008
VIA FACSIMILE: (970) 479-2452
AND FIRST CLASS MAIL
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
75 South Frontage Road
Vail, CO 81659
Re: Your Permit File No. B-080072
Planning File No. DRB070709
288 Bridge Street; Part of Lot C and Lot D, Block 5A
Vail Village Filing No. 1 (the "Rucksack Condominiums")
Dear Mr. Hunn:
We represent Margo and Yvonne Mullaly who own Unit R2 in the Rucksack Condominiums.
For the reasons set forth below, the Mullalys object to the issuance of the above-referenced
permits for the expansion and renovation of the Rucksack Condominiums, as those plans are
currently proposed.
The Condominium Declarations for the Rucksack Condominiums was recorded in the Real
Property Records of Eagle County on April 27, 1978 in Book 269, at Page 448, Reception
No. 165834. The First Amendment to the Declarations was recorded on June 14, 1978 in Book
271 at Page 125, Reception No. 167521. Copies of the relevant pages of the Declarations and
the First Amendment are attached.
Paragraph 12(b) of the Declarations, read together with paragraph (c) of the First Amendment,
provides that if 80% or more of the ownership, and all first lienors, approve a plan for
"renovation or restoration" of the common elements, then the Association may cause such
restoration to be made in accordance with the plan. Last year, Mr. Selby shared renovation plans
with all Rucksack owners, who had no objections to those plans. Mr. Selby then unilaterally
changed those plans, to add a unit and interfere with the Mullalys' vested expansion rights. The
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
Re: Your Permit File No. B-080072
May 9, 2008
Page 2
amended and expanded plans were submitted in the name of the Rucksack Condominium
Association, but without the approval of those new plans by the Mullalys, who owns Unit R2, or
Mr. Bill Gardiner, who owns Unit RI.
As shown on the attached Exhibit B to the recorded Declaration, without these votes, Mr. Selby
is the owner of no more than 76.5% of the ownership in the Association, less than the 80%
required to approve any such plan of renovation or restoration, or to submit them in the name of
the Association. Accordingly, Mr. Selby had no authority to file applications based on his
amended plans. See Lion Square Phase H and III Condominium Association, Inc v. H.ASK, 700
P.2d 932, 934 (Colo. App. 1985), holding that "(a) condominium association may exercise its
powers only within the constraints of its condominium declaration" and any action taken
contrary to them is ultra vires. Because Mr. Selby and/or the Association had no authority to
file the applications, the Town of Vail has no authority to act upon them.
Paragraph 21 of the Declarations also grants the Mullalys, as the owner of Unit R2, the right to
construct and expand their unit in an area adjacent to Unit R2, as designated on the condominium
map. This reservation includes the right to obtain and record an amended map and Supplemental
Declarations when the construction is completed. It is our understanding that the plan which Mr.
Selby and/or the Association has submitted for approval by the Town will expand into the area
which has been expressly reserved in the recorded Declarations for the owners of condominium
Unit R2.
Mr. Selby evidently believes that, as owner of three of the five units in the Association, he has
acted to unilaterally amend the Declarations on April 5, 2008, and that the purported amendment
authorized the submission of his current plan, and extinguished the vested property right of the
Mullalys to expand Unit R2. Even if Mr. Selby was successful in amending the Declarations to
grant himself and/or the Association authority to submit renovation and expansion plans (which
the Mullalys do not concede), any application filed by Mr. Selby prior to April 5, 2008 was
without authority, and any processes and approval steps taken by the Town prior to that date are
void accordingly.
In addition, C.R.S. §38-33.3-212 specifically provides that the boundaries between adjoining
units may be relocated by an amendment to the Declarations upon the application of the owners
of those units. A necessary corollary to this rule is that boundaries between units cannot be
changed without the consent of the unit owners themselves. The Mullalys have valuable
property rights as the owner of Unit R2, which are expressly provided by Article 21 of the
recorded Declarations. Those rights may not be taken without their consent, even if the holder of
majority ownership in the Association desires to do so for his own benefit.
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
Re: Your Permit File No. B-080072
May 9, 2008
Page 3
As the sole director of the Association, Mr. Selby also has a fiduciary duty to the Mullalys, and
concerning them, he must deal with the "utmost good faith" and for their benefit. Submitting an
application without approval, which benefits him at their expense, appears to be a clear breach of
this duty. See Woodmoor Improvement Ass's v. Brenner, 919 P.2d 928 (Colo. App. 1996).
Finally, if the Town grants Mr. Selby's permits, and thereby authorizes him to expand into space
in which the Mullalys have a vested property right, we believe that such approval constitute a
regulatory taking. Article 11, Section 15, of the Colorado Constitution provides that private
property, such as Ms. Mullaly's recorded expansion rights, "shall not be taken or damaged for
public or private use without just compensation." A taking may be found to have occurred when
"inroads are made upon an owner's use of (property) to an extent that, as between private parties,
a servitude has been acquired." See, United States v. Dickenson, 331 U.S. 745 (1947). That is
precisely what would happen if the pending permits are issued.
Though the above would entitle the Mullalys to object to Mr. Selby's plan in total, they do not do
so. They are generally in favor of redevelopment of the Rucksack and have no objection to the
majority of Mr. Selby's plan. They do however strongly object to that portion of his plan which
calls for construction above the level of the base of their Unit R-2, and thus would extinguish
their vested right to expand her unit into the same space. The Mullalys are ready and willing to
expand their Unit, and would support a joint proposal which would allow both Mr. Selby's plans,
and theirs, to go forward in a compatible manner and at the same time. To date, Mr. Selby has
refused to enter into discussions with the Mullalys in this regard. In the absence of any such
joint proposal, or an amendment to Mr. Selby's plan which removes its conflict with their vested
property rights, the Mullalys object to Mr. Selby's applications.
If the Town intends to issue permits necessary for Mr. Selby to go forward with his plans despite
this objection, please let us know as soon as possible, so we may file an action in the appropriate
court.
Very truly yours,
ACOBS HYMAN & FEIGER PC
Michael
;JMM:tlh,
cc: ° Clients
Mr. Bill Gardiner
Mr. Jeff Selby
1-C
CONDOMINIUM DC(.:.-ARA-,:vX
tuk
THE RUCKSACK CONDOMINIUMS
l i r..: .
RECITALS
Jeffrey B. Selby, Charles H. Rosenquist and Richard V.. Brown
("Declarants") are the owners of the real property situate in the
County of Eagle. State of Colorado, described in the attached
Exhibit A. which by reference is made a part hereof.
Deelarancs desire to establish a condominium project under the
Condominium Ownership Act of Colorado (the "Act") and to define the
character, duration, rights, obligations and limitations of condo-
minium ownership. Declarants have purchased a building on the
property described in Exhibit A, which building consists of five (S)
separately designated units, A Condominium Map will be
filed showing the location of said building on the property which is
hereby made subject to this Declaration.
Declarants do hereby establish a plan for the ownership of
real property estates in fee simple consisting of the air space con-
tained in each of the apartment and cocscercial units in the building
and the co-ownership, b-P the individual and separate owners thereof,
as tenants in common, of all.of the remaining real property.
II
DECLARATION
Declarants do hereby publish and declare that the follovinF
terms, covenants. conditions, easements, restrictions, uses, reserva-
tions limitations and obligations shall be deemed to run with the land.
shall be a burden and a benefit to Declarants, their successors and
assigns and any person acquiring or owning an interest in the real
property which is or becomes subject to this Declaration and improve-
ments thereon, their grantees, successors, heirs, executors, admini-
strators, devisees or assigns.-
1. Definitions. As used in this Declaration, unless other-
wise express y prow ed;
(a) "Unit" means an undivided air space unit contained
within the permitter walls. floors, ceilings, windows and doors
of a unit in a building constructed on real property which is subject
to the provisions of this Declaration, and as shown and described in
a condominium map recorded in the real property records of Ea}Ile
County. Colorado, together with (i) all fixtures and improvements
therein; (ii) the inner decorated or finished surfaces of such unit',
perimeter walls, floors and ceilings; (iii) the doors and windows of
the unit; and (iv) the interior nonsupporting walls within the unit.
The tens does not include, however.the undecorated or unfinished
APR 2 0197b
.nst team
0
sht;
leaa
s imp
Intl;
Condo
bea,:.•
tall
and
irob i
equ it
Iigh
dit is
ares
exis
norm,
COMM
enjo
cond
decl
of t
s 6 t'
the 1
car.
defici:ncy of the person or persons responsible for payment of wich
indebtedness. It within 100 days after the date of such damage or
destruction a plan for repairing and restoring a damaged or destroy'-!
building shall be approved by the owners of 754 or more of the general
common elements appurtenant to units in such building and by all first
lienors, the Association (as attorney-in-fact for such owners) shall
promptly cruse such repairs and restoration to be made according to
such plan. All owners of units in such building (and 60 ota:a=:)
shall be bound by the terms of such plan, and the difference, if any,
between the amount of the insurance proceeds and the costs of repair
and restoration shall be an expense of such owners only and shall
be assessed and paid by such owners in the proportions of their
respective interests in general common elements appurtenant to
units in the damaged building.
(d) Nothing contained in this paragraph shall be
construed as imposing any liability whatever on any first lienor
to pay all or any part of the costs of repair or restoration.
12. Obsolescence.
(a) If any any time the owners of 754 or more of the
general common elements appurtenant to units in any building covered
by this Declaration and all first lienors with interests in such
building shall agree that such building has become obsolete and shall
approve a plan for its renovation or restoration, the Association
(as attorney-in-fact for the owners with interests in such building)
shall promptly cause such renovation or restoration to be made
according to such plan. All owners with interests in such building
shall be bound by the terms of such plan, and the costs of the
work shall be an expense of such owners only and shall be assessed
and paid by such owners in the proportions of their respective
interests in general coasson e1ements.app4r tenant to units in. such
building.
(b) If at any time the owners of 754 or more of the
general common elements appurtenant .to all units and all first
lienors shall agree that any of the impro.ements constituting
general eomtiaon elements have become obsolete and shall approve a
plan for their renovation or restoration, the Association las
attorney-in-tact for the owners) shall proptly cause such renovation
or restoration to be made according to such plan. All owners shall
be bound by the terms of such plan. and the costs of the work shall
be a common expense, to be assessed and paid as provided in
Paragraph S.
kc) If at any time the owners of 754 or more of the
general common elements and all first lienors shall agree that the
buildings have become obsolete and should be sold, the Association
(as attorney-in-fact for the owners) shall promptly record in the
real estate records of Eagle County. Colorado a notice of such facts,
and shall sell the entire real property, free and clear of the
provisions of this Declaration and the map. which shall wholly
terminate and expire upon the closing of such sale. The proceeds
of such sale shall be collected, applied and divided among the
owners by the Association in the manner provided in Paragraph lllc)
13. Condemnation.
(a) If the entire real property' subyect to the declaration
shall be taken for any public or quasi-public use, under any statute.
by right of eminent domain, or by purchase in lieu thereof, or
if any part of any building covered by this Declaration shall be su
taken and the part remaining shall be insufficient for purposes of
Rucksack Condominiums, the Association (as attorney-in-tact for
the ownersl shall collect the award rude in such taking and shall
-10-
shall register his smiling address with the Association, and except
for monthly statements and other routing notices, all other notices
or demands intended to be served upon an owner shall be sent by
either registered or certified mail, postage prepaid, addressed in
the name of the owner at such registered mailing address. All
notices, demands or other notices intended to be served upon the
Association shall be sent certified mail, postage prepaid, to the
address of the Association as designated in the by-law of the
Association.
18. Duration o! Condominium Own~era~hi_p~ The separtte estates
vrsatwd by this Leclaration an the map Miff-continue until this
Declaration shall be revoked or until its provisions shall terminate
as provided herein.
19. Architectural Control. After filing of the map, no
building, fence, wall or of er structure shall be commenced, erected
or maintained upon the property subject to this declaration, nor -
shall any exterior addition to or change or alteration therein be
made until the plans and specifications showing the nature, kind,
shape, height, color, materials, and location of the same shall have
been submitted to and approved in writing as to harmony of external
design and location in relation to surrounding structures and
topography by the Board of Directors of the Association, or by an
architectural committee composed of three or more representatives
appointed by the Board. In the event said Board, or its designated
committee, fails to approve or disapprove such design and location
within thrity days after said plans and specifications have been
submitted to it, approval will not be required and this paragrapo
will be deemed to have been fully complied with.
20. Reservations of Declarants. Declarants reserve the
right to dedicate any access roe s an streets serving this
condominium project for and to public use; to establish easements,
reservations, exceptions and exclusions consistent with the condominium
ownership of the condominium project and for the best interest of
the condominium unit owners and the Association.
21. Reservations for Addition to R-2. A right is hereby
reserved to any owner o condominium Unit R- to construct and
expand his unit in an area adjacent to Unit R-2 and designated on
the map as "future construction'. This reservation shall include
the right to obtain and record an amended Map and Supplemental
Declaration when the construction is completed. Such Supplemental
Declaration shall reconvey and reattribute to each unit an undivided
per centage interest in the common elesents. The interest to be
reeonveyed and reattzibuted to each unit shall be expressed as a
per centage determined by dividing the number of square feet contained
in each unit by the total square feet of all units, which is presently
7,252 square fast, plus the number of square feet added to condominium
Unit R-2. For the purpose of recomputing the undivided interests in
common elements to be reconveyed and made attributable to the units,
the owner of R-2 shall engage an architect licensed in Colorado
to redetermine the undivided per centage interests in the common
elements.
22. Reservation for Additions to C-2. A right is hereby
reserved to any owner o condominium Unit C- on the Southwest and
Northwest sides and designated on the.Map as 'future construction'.
This reservation shall i,iclude the right to obtain and record an
amended Map and Supplemental Declaration when the construction is
completed. Such Supplemental Declaration shall reconvey and re-
attribute to each unit an undivided per centage interest in the
common elements. The interest to be reconveyed and reattributed
to each unit shall be expressed as a per centage determined by
dividing the number of square feet contained in each unit by the
total square feet of all units, which is presently 7,252 square
-12-
grow
e e
lb e
y
Charles • nqu s
Rlc tar N. Brown
STATE OF COLORADO)
) ss:
COUNTY OF EAGLE )
Th~g foregoing instrument was acknowledged before me
this 143 day of Q1QA;4 1979, by Jeffrey 8.
Selby', Charles H. Rosenquist. Und Richard N. Brown.
Witness.my hand and official seal. C:y!'v
My commission expires: A4►Or8MMOw~~t',~»
The undersigned holder of•a daed of trust upon the
property covered by this Declaration hereby-subordinates its
interest in such property to the::provisions of this Declaration.
By execution of this Declaration the undersigned,
J Darrell Rocks Y ce Preaideat assumes no a 1 sty,
persona or athervsse or c per ormanc0 o any of the terms.
provisions, covenants or conditions contained herein.
LENDER
THE EMPIRE SAVINGS, BUILDING AND.LOAN
ASSOCIATION, a Colci-adc corporation
• BY J. Darrell Locks, Vice President
t
X~C+
STATE OF COLORADO )
City and County of Denver) sa.
The ab ve was acknowledged before me this 25th Say of April, 1978, by
3,' s Roc a~! ce President of THE EMPIRE SAYINGS, BUILDING AND
LOAN ASSOCIA?ION, on behalf of the
In and tR' tate of Colorsde corporation.
15-31
RV
FIRST AMEND4EN".
To
CONDOMINIUM DECLARATION
. FOR
RUCKSACK CONDOMINIUMS
VAIL, COLORADO
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, on April 27. 1978, Jeffrey B. Selby, Charles H.
Roaenquist and Richard N. Brown ("Declarants") caused to be
recorded a Condominium Declaration. ("Declaration") for Rucksack
Condominiums in Book 269 at Page 448, and a Condominium Map
(•'MapP") for Rucksack Condominiums, in Book 269 at Psge 447,
In the records of the Clark and Recorder of Eagle County, Colorado;
and.
WHEREAS, Declarants are the ov-ners of the real property
described as follower
Units C-1, C-2, C-3 and R-2 of the Rucksack
Condominiums as defined by the Map and
Declaration.
WHEREAS. Stephen Yates and Paul A. Da-is !-Owners") are
the owners of Condominium Unit R-1 as defined by the Map and the
Declaration; and,
} WHEREAS, Declarants and Owners represent 100% ownership
for the Rucksack Condominiums and have determined that certain
amendments are necessary to the Declaration for Rucksack Condo-
miniums,
NOW THEREFORE, for and in consideration for the premises,
the Declaration is hereby amended as follows:
a) The number 75% referred to in the 54th line of Para-
graph 11(c.) (and being in the 4th line on Page 10 of
the Declaration) is hereby changed to 80%.
b) The number 75X contained in the first line of Paragraph
12(a) (on Page 10 of the Declaration) is hereby changed
to 80%.
c) The number 751 contained in the first line of Paragraph
2(b) (on Page 10 of the Declaration) is hereby changed
to 80%.
d) The number 75% contained in the first line of Paragraph
12(e) (on Page 10 of the Declaration) is hereby changed
to 80x.
I# HITRS9 MURROY. Declarants and owners have executed this
Tlest Aaeadsasnt to Condominium Declaration this day of June,
5 e"56 ~ sir 7'•
77 r 491 Y to n tes
Ar- ` BY _
• s• at au av s
±+i.. ors
a
and R1
STATE
APPRON
Ruckst
Map, }
miniuo
Colori
STA"t
DESK'
as _
istior
L(03/31/2008) Scot Hunn - Rucksack appeal Page 1
From: "Carlson Carlson and Dunkelman" <carlson2@colorado.net>
To: <wcampbell@vailgov.com>
Date: 03/27/2008 10:39 AM
Subject: Rucksack appeal
CC: <shunn@vailgov.com>, <jkp@vail.net>
Warren,
Please be advised that on behalf of 286 Bridge Street we are formally
withdrawing our appeal of the PEC decision and the DRB decision related
to the Rucksack alteration. We have reached on agreement with Mr. Selby
as outlined in the e-mail from Jay Peterson dated March 25, 2008.
Ultimately, I believe that we have reached a resolution that benefits
both the property owners and the Town of Vail. I appreciate the Town's
courtesy and assistance in providing us the necessary time to amicably
resolve this matter.
Should you need any additional information, please feel free to give me
a call or send me an email.
Sincerely,
Paul R. Dunkelman
Carlson, Carlson & Dunkelman, LLC
P.O. Box 1829
975 N. Ten Mile Dr., Ste. E-15
Frisco, CO 80443
(970) 668-1678
(970) 668-5121 - fax
carlson2@colorado.net
May.29. 2008 9:40AM CARL )N CARLSON & DUNKELMAN
. 4893 P. 1
4li
286 BRIDGE STREET, INC.
L
CAL OM[~
AY 29 2008
N OF VAI L
May 9, 2008
Mr. Mark Hallenbeck
Highland Builders
2598 Palmer Park Blvd.
Colorado Springs, CO 8( 09
Mark:
286 Bridge Street, Inc. a proves the following Staging Agreement:
1) Highland Build ors Corp. will provide a 4'-0 access to all commercial
and
residential tena - fs, invitees and licensees at the A & D Building, 286
"
Bridge
Street, Vail, C(
'A & D Building) at all times during the constructio
n.
2) If any damage - curs to A & D Building property or the property ofi,
in A & D
tenant during tl construction / staging process, Highland Builders w
11 be held
liable and Higb nd Builders will indemnify the damaged party. Hig
and
Builders will li; le and will indemnify and hold harmless 286 Bridge
Street,
Inc. for any per nal injuries that may occur in the staging area durin
g the
construction. 1...ghland Builders shall also list 286 Bridge Street Inc.
a co-
insured on its b elders risk insurance policy.
3) All conditions ( staging will be approved by the 'town of Vail and th
e Fire
Department for :_l emergency exits.
4) No overnight staging. Staging will be used for only temporary drop o
ff and
delivery to the Bridge St. Building. No construction shall occur in the
staging
area.
5) Staging will on] occur through September 1, 2008.
6) 4' tall traffic ba cade will be placed 4' from the A & D Building.
7) North East corn tree will be remove and replaced at no expense to th
e 286
Bridge Street, h . by the same type of tree and a tree of equal or great
er size.
8) Highland Builds s Corp. shall be allowed to construct or modify the
flowing
items which are ;t forth on the building permit set of plans.
a) Agate beta ,u the A&D Building and the Burton Snowboard Sh
p.
b) The gutters td downspouts on the A&D Building which currently
flow
unto the roo >f the Burton Snowboard Shop.
c) A bathroom vent on the A&D Building,
May. 29. 2008 9:40AM CARL )'ON CARLSON & DUNKELMAN No. 4893 P. 2
d) A reductio a in length of a stone wall up to 4 feet in length loca d on the
southeast : orner of the A&D Building.
9) Highland Builders agrees to discuss with 286 Bridge Street, Inc. th most
efficient mane (.r to accomplish the matters set forth in paragraph 8 erein.
10) The parties wil l first attempt to agree on a redesign in which the existing exit
will appear to c lisappear into the existing building. If an Agreement cannot be
reach on this r: design, owner agrees to relocate the exit to the back of the
building.
By.
286 Bridge Street, Inc.
i~li R p,+~~7C~ s C+lf ~ ° R
.Cj. Z j G" 6~ f24ti FIA Mtr'
Highland Builders C-1--
Mark Hallenbeck, Hi
TOWN OF VAILV
Department of Community Development
75 South Frontage Road
Vail, Colorado 81657
970-479-2138
FAX 970-479-2452
www. vailgov. com
Lohf Shaiman Jacobs Hyman & Feiger PC
Attn: Mr. J Michael Morgan, Esq.
900 Cherry Tower
950 South Cherry Street
Denver, Colorado 80246-2666
Via Fax: (303) 753-9997
Re: Rucksack Condominiums Building, 288 Bridge Street, Part of Lot C and Lot D,
Block 5A, Vail Village Filing 1.
Dear Mr. Morgan,
I am in receipt of your letter of May 9, 2008, regarding the Rucksack Condominiums
Building, located at 288 Bridge Street, Part of Lot C and Lot D, Block 5A, Vail Village
Filing 1.
Please be advised that the Town of Vail Community Development Department does not
have jurisdiction over interpreting or enforcing private covenants such as condominium
declarations. Accordingly, the Town is unable to resolve any legal dispute two property
owners may have concerning the same.
Therefore, in accordance with the Town's regulations, the Community Development
Department plans to issue a permit to commence construction activities at the above
referenced location, pending final review by Town departments. Staff estimates that
permit issuance is imminent.
Please direct all future correspondence to Matt Mire, Esq., Town of Vail Town Attorney.
Mr. Mire can be reached at (970) 479-2460.
Sincerely, Cc
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
Matt Mire, Esq.
George Ruther
CIS, RECYCLED PAPER
Confirmation Report- Memory Send
Page : 001
Date & Time: May-13-08 03:55pm
Line 1 9704792452
E-mail
Machine ID TOWN OF VAIL COMMUNITY DEVELOPMENT
Job number 650
Date May-13 03:55pm
To : $913037539997
Number of pages 002
Start time May-13 03:55pm
End time May-13 03:55pm
Pages sent 002
Status OK
Job number 650
TOWN OF WVAM
75 South Frontage Rogd
Vail, C--C> 81657
970-479-2138
FAX 970-479-2-452-
70-4-79-2452
***SENDSUCCESSFUL
COMMUNITY DE VELOPMElV'T FAX TRANSNH'I"T A T " SHEET
TO- _T1 ✓L -r-,l 1G~tar f__ i
COMPANY NA Jvrn:-- L_o'+T 11- av . v✓\ v+i-( I v✓tf ! ~n .4,1 -1- -T t
FAX TELE/P+HONE NUMBER: 303 3 - ~l~%i
FROM- ~ T" ~l`I~l
-4, in -vwf
Y# OF PAGES IN DOCiT1VIENT (NOT II~TCLUDING COVER SHEET)
RESPONSE 12EQiTg~D?
SENT BY
TOWN OF VAIL COIVIIVIiTNITY DEVELOPMENT FAX d~ s~o-s79-2a~
TOWN OF VAIL COMM'GNIT'Y DEVELOPMENT TELEPHONE # 970-d7~2135
SPECrs r _ COMMENTS AND NOTES=
F:SYPRYONE\FORMS\F®rSlaecc
LOHF SHAIMAN JACOBS HYMAN & FEIGER PC
ATTORNEYS AT LAW
900 CHERRY TOWER
950 SOUTH CHERRY STREET
DENVER, COLORADO 80246-2666
FACSIMILE 303.753.9997
TELEPHONE 303.753.9000
www.lohfshaiman.com
J. MICHAEL MORGAN, EXT. 227
mmorgan(cD1ohfshaiman.com
ALSO ADMITTED IN WYOMING
May 27, 2008
VIA E-AL4IL (MARKAHI GHLANDB UILDERS. COM) AND FIRST-CLASS MAIL
Ms. Dianne Carpenter
Assistant to Mark enbeck
Highlands Bu' rs Corporation
120 Will ridge Road, Suite 7
Vai olorado 81657
Re: Bridge Street Project
Vail, Colorado
Dear Ms. Carpenter:
We represent Margo Mullally, who as Trustee of the Martin J. Mullally Credit Trust and Yvonne
Mullally Survivor's Trust, is the owner of Unit R-2 of the Rucksack Condominiums in Vail,
Colorado. We also represent William and Debora Gardiner, the owners of Unit R-1 of the same
building. Mr. Selby now refers to this building as the "Bridge Street Building." This letter
responds to your email to Ms. Mullally of Sunday, May 25, 2008 (the middle of the Memorial
Day weekend), in which you informed Ms. Mullally that permits have issued from the Town of
Vail, a crane is in place, and demolition has begun with respect to the "Bridge Street Project."
As Ms. Mullally has previously informed Highland Builder Corporation, the plans submitted to
the Town of Vail by Mr. Selby were not approved by the Condominium Association. Both
Ms. Mullally as owner of Unit R-2, and Mr. and Mrs. Gardiner as owners of Units R-1, have
objected to certain aspects of Mr. Selby's construction plan, and have withheld their consent to
those plans until those aspects have been satisfactorily addressed.
They have filed a civil action in the Denver District Court against Mr. Selby and Bridge Street
Building, LLC seeking a declaration that Mr. Selby lacks authority to implement those plans,
injunctive relief and damages. A copy of that Complaint is attached for your information.
Ms. Dianne Carpenter
Assistant to Mark Hallenbeck
Re: Bridge Street Project
May 27, 2008
Page 2
With the above as prologue, and in response to your email correspondence to Ms. Mullally,
please note the following:
1. Your request for a set of keys for the Mullally unit in denied. Please note that the
Mullally and Gardiner units are private property. Unless and until they consent to the
redevelopment plans proposed by Mr. Selby, any entry into those Units is unauthorized, is a
trespass. It will be considered breaking and entering and will be dealt with accordingly. Unless
and until a meeting of the minds is reached concerning the redevelopment plan, Ms. Mullally and
the Gardiners do not intend to give consent to enter their Units.
2. Because the Condominium Association did not duly approve the current
redevelopment plan, Mr. Selby and Bridge Street Building, LLC do not have the authority to
renovate the common areas or move personal property of Ms. Mullally or the Gardiners which
are left on the balconies of the building. Accordingly, Highland Builder Corporation has no
authority to remove those items, and will be held strictly liable for their removal. If the stairs to
Units R-1 and R-2 are removed or blocked, it will damage our clients and may strand them in
their units.
3. You note that water and sewer lines have been turned off to the Mullally and
Gardiner units, and electricity service will be intermittent. These actions are and have been
taken without the consent of Ms. Mullally or the Gardiners. It interferes with their lawful use
and possession of their property. They demand that such service be immediately restored and
maintained.
4. You state that permits issued by the Town do not allow occupancy of the Mullally
or Gardiner residential units during construction. Please note that Ms. Mullally and the
Gardiners did not request such permits and have never seen such permits. Please provide copies
at your earliest opportunity. In any event, nothing in those permits can unilaterally interfere
with their rights to occupy units which they own. Any action to block the access of the
Mullally's, the Gardiners or their guests, to Units R-1 and R-2 will constitute an interference with
and taking of their private property. Ms. Mullally and the Gardiners, for themselves and their
guests, demand the right to enter and occupy their property at any and at all times, without
contacting or obtaining permission from Mr. Selby, your company or any other person.
In sum, Highland Builders Corporation, and any individual who interferes with Mullally's and
Gardiner's property rights will be held liable for trespass, interference and resulting damages.
Our clients demand that Highland Builders Corporation cease and desist from any such trespass
and interference.
Ms. Dianne Carpenter
Assistant to Mark Hallenbeck
Re: Bridge Street Project
May 27, 2008
Page 3
If you have any questions concerning the above, please call.
Very truly yours,
ACOBS HYMAN & FEIGER PC
cc: / Clients
Jay Peterson, Esq.
Town of Vail
05-27-'08 15;32 FROM-
Lc)v SHAIMAN JACOBS HYMAN & FEIGER PC
ATTORNEYS AT IAW
900 CHERRY TOWER
950 SOUTH CHERRY STREET
DENVER, COLORADO 80246-2666
FACSIMILE 303.753.9997
TELEPHONE 303.753.9000
www.lohfsha'
J. MICHAEL MORGAN, EXT. 227
Morga.nalohfshainnan.com
ALSO ADMITTED IN WYOMING
DATE:
TO:
FROM:
FILE:
RE:
PAGES:
MESSAGE:
FAX COVER SHEET
CONFIDENTIAL FOR ADDRESSEE ONLY
May 27, 2008
Scot Hun FAX NUMBER: (970) 479-2452
J. Michael Morgan
Margo Mullaly
'33
D
MAY 27 2008 j
i
TOWN OF VAIN
T-158 P001/033 F-183
The information contained in this facsimile message is information protected by attorney-client and/or the attorney/work product privilege. It
is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by facsimile. If
the person actually receiving this facsimile or any other reader of this facsimile is not the named recipient or the employee or agent responsible
to deliver it to the named recipient, any use, dissemination, distribution, or copying of this communication Is strictly prohibited.
1I~
F r1' MAY 2 2008
11 !1
lu
I
TONN OF VAIL
LOHF SHAIMAN JACOBS HYMAN & FEIGER PC
ATTORNEYS AT LAW
900 CHERRY TOWER
950 SOUTH CHERRY STREET
DENVER, COLORADO 80246-2666
FACSIMILE 303.753.9997
TELEPHONE 303.753.9000
www.lohfshaiman.com
1. MICHAEL MORGAN, EXT. 227
mmorgan(c)lohfshaiman.com
ALSO ADMITTED IN WYOMING
May 27, 2008
VIA FACSIMILE: (970) 479-2452
AND FIRST CLASS MAIL
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
75 South Frontage Road
Vail, CO 81659
Re: Your Permit File No. B-080072
Planning File No. DRB070709
288 Bridge Street; Part of Lot C and Lot D, Block 5A
Vail Village Filing No. 1 (the "Rucksack Condominiums")
Dear Mr. Hunn:
We represent Margo Mullally, who as Trustee of the Martin J. Mullally Credit Trust and Yvonne
Mullally Survivor's Trust, is the owner of Unit R-2 of the Rucksack Condominiums in Vail. We
also represent William and Debora Gardiner, the owners of Unit R-1 in the same building. Mr.
Selby now refers to this building as the "Bridge Street Building." On Sunday, May 25, 2008 (the
middle of the Memorial Day weekend), Ms. Mullaly received an email from Dianne Carpenter of
Highlands Builders Corporation in which she informed Ms. Mullally that permits have issued
from the Town of Vail, a crane is in place, and demolition has begun with respect to the "Bridge
Street Project."
The Town should be aware that Ms. Mullally and Mr. and Mrs. Gardiner have filed a civil action
in the Denver District Court against Mr. Selby and Bridge Street Building, LLC seeking a
declaration that Mr. Selby lacks authority to implement those plans, injunctive relief and
damages. A copy of that Complaint is attached for your information.
Scot Hunn, Senior Planner
Community Development Department
Town of Vail
Re: Your Permit File No. B-080072
May 27, 2008
Page 2
Ms. Carpenter' email requested keys to our clients' units, which request has been denied. It also
stated that water and sewer lines have been turned off to the Mullally and Gardiner units, and
electricity service will be intermittent. These actions are taken without the consent of Ms.
Mullally or the Gardiners and over their objection. Such actions interfere with, and in fact
prevent, their use and possession of their residential properties.
Ms. Carpenter also states that "the permit issued by the Town, as well as the fire department, do
not allow you to occupy your unit due to possible injury on the construction site." Ms. Mullally
and the Gardiners did not request such permits and have never seen such permits. Would it be
possible for you to fax copies of such permits so that they will be aware of their contents?
The Town should be aware that Ms. Mullally and the Gardiners, for themselves and their guests,
insist upon the right to enter and occupy their property at any and at all times, without contacting
or obtaining permission from Mr. Selby or his contractor, and whether or not utility service has
been interrupted.
Very truly yours,
ACOBS HYMAN & FEIGER PC
Jay Peterson, Esq.
DISTRICT COURT, CITY AND COUNTY OF
DENVER, STATE OF COLORADO
Court address: 1437 Bannock Street
Denver, CO 80246 80202
Plaintiffs:
MARTIN J. MULLALLY CREDIT TRUST;
♦ COURT USE ONLY
YVONNE MULLALLY SURVIVORS TRUST;
WILLIAM A. GARDINER; DEBORA A. GARDINER;
and THE RUCKSACK CONDOMINIUMS, INC.
Case Number: 08-CV-4249
Defendants:
JEFFREY B. SELBY and BRIDGE STREET
BUILDING LLC
Div.: 2 Ctrm.:
Attorney For Plaintiffs:
Name: J. Michael Morgan, #7279
Jeffrey A. Hyman, #1215
Address: Lohf Shaiman Jacobs Hyman & Feiger PC
950 South Cherry Street, Suite 900
Denver, Colorado 80246
Phone No.: (303) 753-9000
Fax No.: (303) 753-9997
E-mail: mmorgan(a lohfshaiman.com
jhyman(&lohfshaiman.com
COMPLAINT
Plaintiffs, Martin J. Mullally Credit Trust, Yvonne Mullally Survivors Trust, William A
Gardiner, Debora A. Gardiner and The Rucksack Condominiums, Inc., by and through their
undersigned attorneys, and for their Complaint against Defendants, Jeffrey B. Selby and Bridge
Street Building LLC:
Introduction
Jeffrey B. Selby is the President and sole Director of The Rucksack Condominiums, Inc.
(the "Association"). Selby's company, Bridge Street Building LLC, owns three of the five units
in the Rucksack Building, and Plaintiffs Mullally and Gardiner own the other two units. Selby
and/or Bridge Street caused redevelopment plans for the Building to be submitted to the Town,
and have more recently purported to unilaterally amend the Association's recorded Declaration.
Selby and Bridge Street took these actions without the required approval of the members of the
Association. In this civil action, Plaintiffs seek a declaration that such actions of Selby and
Bridge Street were ultra vices. Plaintiffs also seek an injunction preventing Selby and Bridge
Street from beginning or continuing construction of the unauthorized redevelopment plans.
Mullally and Gardiner also seek an award of damages against Selby and Bridge Street as a result
of their unlawful conduct.
Parties and Venue
1. Plaintiffs, Martin J. Mullally Credit Trust and Yvonne Mullally Survivors Trust
(collectively, "Mullally"), are two Colorado trusts with an address of 6030 Red Hill Road,
Boulder, CO 80302. Margo Mullally and Yvonne Mullally are the Trustees of both Trusts.
2. Plaintiffs, William A. Gardiner and Debora A. Gardiner (collectively,
"Gardiner"), are individuals with an address of 1300 Industrial Road, #21, San Carlos, CA
94070.
3. Plaintiff, The Rucksack Condominiums, Inc. (the "Association"), is a Colorado
non-profit corporation with an address of 1060 14th Street, Denver, CO 80202. The Association
appears herein by Mullally and Gardiner, who are aggrieved owners pursuant to Paragraph 6 of
the Declaration described in Paragraph 8 below.
4. Defendant, Jeffrey B. Selby ("Selby"), is an individual with an address of 1060
14th Street, Denver, CO 80202. Selby is the President and sole Director of the Association.
Upon information and belief, Selby is also the sole or majority owner in Bridge Street Building
LLC.
5. Defendant, Bridge Street Building LLC ("Bridge Street"), is a Colorado limited
liability company with an address of 1060 14th Street, Denver, CO 80202.
6. Venue is proper in this court pursuant to C.R.C.P. 98(c) in that this, among other
things, is an action in contract or tort and one or both of the Defendants reside in the City and
County of Denver.
Background
7. The Condominium Declaration for the Association was recorded in the real
property records of Eagle County, Colorado, on April 27, 1978 in Book 269 at Page 448,
Reception No. 165834 (the "Declaration"). A certified copy of the Declaration is annexed hereto
as Exhibit 1.
8. The First Amendment to the Declaration was recorded on June 14, 1978 in Book
271 at Page 125, Reception No. 167521 (the "First Amendment"). A certified copy of the First
Amendment is annexed hereto as Exhibit 2.
9. The Declaration establishes a condominium project having five units; Mullally is
the record owner of Unit R-2, Gardiner is the record owner of Unit R-1, and Bridge Street is the
record owner of Units C-1, C-2 and C-3 (the "Units"). All Units are located in what is
2
commonly referred to as the Rucksack Building, located at 288 Bridge Street in the Town of Vail
(the "Building"). The Association's members consist of all Unit owners.
10. The public records of the Eagle County Assessor reflect the current square
footages of the interior space of the each Unit, which are set forth in the chart below. These
square footages result in the corresponding ownership in the general common elements of the
Building.
Unit
Owner
Sq. Ft.
%
R1
Gardiner, William A. and Debora A.
696
.0904
R2
Martin J. Mullally Credit Trust
Yvonne Mullally Survivors Trust
1465
.1902
C 1
Bridge Street LLC
1116
.1449
C2
Bridge Street LLC
3019
.3921
C3
Bridge Street LLC
1413
.1835
TOTAL
7709
1.00%
11. Paragraph 15 of the Declaration provides that it may be amended only upon the
written approval of the owners of 75% or more of the general common elements, and all first
lienors.
12. The First Amendment, together with Declaration Paragraph 12(b), provides that
plans for renovation or restoration of the general common elements of the Building may be
approved only by owners of 80% or more of the general common elements, and all first lienors.
13. In the summer of 2007, Selby and Bridge Street presented to Mullally, Gardiner
and the Association plans for expansion of Units C-2 and C-3, and redevelopment of the exterior
common elements of the Building. This proposed redevelopment was evidenced by plans
prepared by Peak Land Consultants, Inc. dated June 29, 2007, and drawings prepared by Fritzlen
Pierce Architects (the "Original Plans").
14. In a conference call on or about September 29, 2007, all Unit owners, and thus the
Association, agreed to the Original Plans subject to certain conditions. These conditions included
that (a) the owner of Unit R-1 could also expand by up to 200 feet, (b) the owner of Unit R-2
could also expand by up to 700 feet, (c) any material change in the Original Plans would require
additional approval by the Association, and (d) votes by members of the Association would
thereafter be allocated on the basis of one vote per Unit, rather than on a square footage basis.
3
15. Upon information and belief, Selby submitted the Original Plans to the Town for
approval, listing the Association as the applicant, and asserting that it had been approved by the
Unit owners.
16. Upon information and belief, the Original Plans did not receive permits from the
Town in the Fall of 2007 because exterior construction could not be completed prior to the
beginning of the 2007-2008 ski season.
17. On October 31, 2007, Bridge Street purchased property, generally known as the
Burton Building, which is north of and adjacent to the Rucksack Building.
18. After or in anticipation of his purchase of the Burton Building, Selby submitted
amended plans and applications to the Town to increase the scope of expansion to Bridge Street's
Units, and significantly change the redevelopment plans for the general common elements (the
"Amended Plans").
19. Selby and/or Bridge Street failed to present the Amended Plans to Mullally,
Gardiner or the Association, or obtain their approval, prior to submission of the Amended Plans
to the Town.
20. The Units owned by Bridge Street represent not more than 72.5% of the square
footage of all Units in the Building. Bridge Street therefore is entitled to not more than 72.5% of
the votes of the Associations membership under a square-footage voting method. Bridge Street
owns only three Units in the Building, and thus under a per-unit voting method, is entitled to
only 60% of the vote based on the five current Units in the Building, or a 66.66% vote based on
the proposed six Units in the Building.
21. The Amended Plans are contrary to and prohibited by the recorded Declaration in
several respects, including (a) they represent an unauthorized increase in the number of Units, (b)
they represent an unauthorized increase in the square footage of all Units, (c) they constitute a
plan of redevelopment which was not approved an 80% vote of the Association, and (d) they
hinder and impede the rights of Mullally and Gardiner to their co-equal use of the general
common elements.
22. The Amended Plans are contrary to the agreement reached between all members
of the Association on or about September 29, 2007, in that they represent an unauthorized
increase in the square footage of all Units, constitute a plan of redevelopment which was not
approved by the required vote of the Association, and hinder and impede the rights of Mullally
and Gardiner to their co-equal use of the general common elements.
23. The Amended Plans constitute a plan of redevelopment and require an
amendment to the Declaration. Therefore, without the approval of Mullaly or Gardiner, Bridge
Street did not have the requisite votes to approve the Amended Plans.
24. On information and belief, in communications with the Town at or near the time
the Amended Plans were submitted, Selby and Bridge Street falsely represented that Mullally,
Gardiner and/or the Association had approved the Amended Plans, and Selby was authorized by
the Association to submit the Amended Plans.
4
25. Implementation of the Amended Plans by Seller and/or Bridge Street, will directly
and adversely cause damage to Plaintiffs, including, but not limited to, (a) permitting expansion
of Bridge Street's Units in a manner which blocks expansion of Mullally's unit, (b) blocking the
ability of Mullally and Gardiner to construct elevator access to their units, (c) relocating garbage
facilities directly adjacent to the only access to Mullally's and Gardiner's Units, and (d)
interfering with views from the Mullally and Gardiner units.
26. Neither Selby, Bridge Street nor the Town provided notices to Mullally and
Gardiner of Town hearings and meetings at which the Town considered the Amended Plans.
Mullally and Gardiner were unaware that the Amended Plans were advancing until early 2008.
27. On or about March 21, 2008, Selby, as President of the Association, purported to
schedule and notice a meeting of members of the Association for April 5, 2008.
28. Proper notice of the proposed meeting on April 5, 2008 was not given. Mullally
and Gardiner did not attend the meeting.
29. Upon information and belief, Bridge Street, represented by Selby, was the only
member present at the purported meeting of April 5, 2008. At that time, Selby and Bridge Street
purported to (a) cause the Association to elect to accept the provisions of the Colorado Common
Interest Ownership Act, (b) adopt an Amended and Restated Declaration, (c) adopt Amended
and Restated Articles of Incorporation, and (d) adopt Amended Bylaws.
30. The Amended and Restated Declaration purports to increase the number of Units
in the Association, and authorize Selby to prepare and file an Amended Condominium Map, to
implement the improvements contemplated by Selby's Amended Plans.
31. On information and belief, Bridge Street asserts that it had the requisite number of
votes to adopt the Amended and Restated Declaration, by virtue of the C.R.S. §38-33.3-
217(1)(a), which reduces the number of votes necessary to adopt a declaration amendment to
67% in certain cases.
32. C.R.S. §38-33.3-217(4)(b) provides that the 67% limitation of subparagraph
(1)(a) shall not apply where, as here, one unit owner is allocated sixty-seven or more percent of
the votes in the association.
33. Bridge Street therefore did not have the requisite number of votes in the
Association to adopt any Amended and Restated Declaration, or authorize a plan of
redevelopment of the general common elements of the Building.
First Claim For Relief
(Declaratory Judgment)
34. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1
through 33 above as though fully set forth herein.
35. Plaintiffs are persons interested under the Declaration, Articles, and Bylaws of the
Association, and are affected by applications filed with, and the ordinances of and permits issued
by the Town with respect to the Building. Plaintiffs are therefore interested persons pursuant to
the Declaratory Judgment act, C.R.S. §13-51-106 and C.R.C.P. §57(b).
36. Pursuant to C.R.S.§13-51-106 and C.R.C.P. 57, Plaintiffs are entitled to a
judgment declaring that (a) Selby and Bridge Street, in their own name or in the name of the
Association, was without authority to submit the Amended Plan to the Town, and that such
submission was therefore ultra vices, (b) all approvals received for the Amended Plan were void,
(c) Bridge Street, as the owner of Units C-1, C-2 and C-3, does not have the requisite interest in
the general common elements of the Building, and thus the votes in the Association, in which to
unilaterally adopt any amendment to the Declaration or any plan of redevelopment of the
common elements, (d) the meeting purportedly called by Selby for April 5, 2008 was void, and
(e) all actions purported to have been taken by the members at the meeting of April 5, 2008 were
void.
Second Claim For Relief
(Breach of Fiduciary Duty)
37. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1
through 36 above as though fully set forth herein.
38. Selby, as the President and sole director of the Association, occupies a fiduciary
relationship and owes fiduciary duties to the Association and to each Unit owner.
39. As a fiduciary, Selby has a duty, to deal with the Association, Mullally and
Gardiner with the utmost good faith and solely for the benefit of the Association and its Unit
owners.
40. In taking the actions and making the omissions described above herein, Selby has
acted in his self-interest and to the detriment of the rights and property of the Association,
Mullally and Gardiner.
41. Selby has breach his of fiduciary duties to Mullally, Gardiner and the Association.
42. Breaches by Selby of his fiduciary duties have caused damage to the Association,
Mullally and Gardiner in an amount to be proven at trial.
Third Claim For Relief
(Promissory Estoppel)
43. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1
through 42 above as though fully set forth herein.
44. Selby, and Bridge Street acting through Selby, promised Plaintiffs that his plans
would (a) allow for expansion of Mullally's unit, (b) the trash facilities for the Building would
remain in their current general location, and (c) would permit construction of an elevator to serve
the Mullally and Gardiner units.
6
45. Selby and Bridge Street should have reasonably expected that these promises
would induce action or forbearance by Plaintiffs.
46. Plaintiffs have reasonably relied on the promises of Selby and Bridge Street.
47. The promises of Selby and Bridge Street must be enforced to prevent injustice.
48. Bridge Street's breach of promise has resulted in damages to Plaintiffs in an
amount to be proven at trial.
Fourth Claim For Relief
(Breach of Contract)
49. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs 1
through 48 above as though fully set forth herein.
50. The Declaration is a contract by which the Unit owners agree to conform their
conduct with respect to operation of the Association and the Building.
51. Selby and Bridge Street have breached their contractual obligations to Plaintiffs
by, among other things, submitting plans to the Town which (a) were contrary to the Declaration
and condominium map, (b) not approved by the requisite vote of the members of the
Association, (c) interfered with the rights of Mullally and Gardiner to use of the general common
elements, and (d) barred the expansion and improvement of Units owned by Mullally and
Gardiner, for the sole benefit of Units owned by Selby.
52. Bridge Street has breached its contract with Plaintiffs, including the covenant of
good faith and fair dealing which is inherent therein.
53. Bridge Street's breach of contract has resulted in damages to Plaintiffs in an
amount to be proven at trial.
54. The actions and omissions of Selby and Bridge Street have caused Mullally and
Gardiner to incur damages, including severe emotional distress.
Fifth Claim For Relief
(Injunction)
55. Plaintiffs repeat and re-allege each and every averment contained in Paragraphs I
through 54 above as though fully set forth herein.
56. The Units owned by Mullally and Gardiner and the Rucksack Building constitute
unique pieces of real property located in the heart of Vail Village. These Units, their
development potential, views and amenities cannot be duplicated.
57. Irreparable harm will result unless an injunction is issued preventing Selby and
Bridge Street from constructing their Amended Plan, and/or preventing the Town from issuing
permits necessary for the Amended Plan to go forward.
7
58. The injury which would be caused to Mullally and Gardiner outweigh the harm
that the injunction may cause to Selby and/or Bridge Street.
59. If issued, an injunction prohibiting Selby and Bridge Street from proceeding to
construct their Amended Plan would not adversely affect the public interest.
Prayer For Relief
WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor and
against Defendants as follows:
A. On Plaintiffs' First Claim For Relief, for the declaratory judgment against Selby
and Bridge Street which is described above;
B. On Plaintiffs' Second Claim For Relief, for damages against Selby in an amount
to be proven at trial;
C. On Plaintiffs' Third and Fourth Claims For Relief for damages against Selby
and/or Bridge Street, jointly and severally, in an amount to be proven at trial;
D. On Plaintiffs' Fifth Claim For Relief for temporary and permanent injunctive
relief against Selby and Bridge Street, prohibiting them from commencing or continuing
construction pursuant to the Amended Plans;
E. For attorneys' fees and costs incurred in the bringing and maintaining of this
action; and
F. For such other and further relief as this Court deems just and appropriate.
RESPECTFULLY SUBMITTED this 20th day of May, 2008.
LOHF SHAIMAN JACOBS HYMAN
& FEIGER PC
- J. Michael Morgan -
By:
J. Michael Morgan
ATTORNEYS FOR PLAINTIFFS
Plaintiffs' Addresses:
Martin J. Mullally Credit Trust Bill Gardiner
Yvonne Mullally Survivors Trust 13 Industrial Road, #21
6030 Red Hill Road San Carlos, CA 94070
Boulder, CO 80302.
The Rucksack Condominiums, Inc.
c/o aggrieved parties, Martin J.
Mullally Credit Trust
and Yvonne Mullally Survivors Trust
6030 Red Hill Road
Boulder, CO 80302
In accordance with C.R.C.P. 121 §I-26(9) a printed copy of this document with original signatures is being
maintained by the filing parry and will be made available for inspection by other parties or the court upon
request.
8
EXHIBIT 1
To:
Complaint
Martin J Mullally Credit Trust, et al. v. Jeffrey B. Selby, et al.
Denver County District Court
-sty e:.
1t
x
1.
4.
5 5 y: t J
S
DOMINIUM DECLARATION
O
`
.
;
N
C
FOR
THE.:RUCKSACK CONDOMINIUMS
RECITALS
> Jeff g $eXbY, Charles H. Rosenqquppist and Richard +i BtowIft
('FDec2sraYitdTi) are the owners of thedescreal
ibedpinttheiattachi d `the
,P64M OT Eagle. State of Colorado,
a4ibit A, which,byrsfsrence is made apart hereof.
"ems' Declarants desire,. to establish a condominium project under the
•1Cd Y?. dfh F,S.
CondongtHinan Ownership Act:; of Colorado (the "Act") and to define she'
chaar+icts=, diirstion,, rights , obligations and:: limitations of condo-
~k` rain ~mm ownarsh p Declarants have purchased a building on the
prop r,7. don bed'. in Exhibit A, which building consists of five (5)
;sepatrately designated Units. A Condominium Map will be
filled° st►awin8 ,the location of said building on the property which is
Fiszeby caede' subject to this Declaration.
Declarants: do hereby establish a plan for the..ownevship of
real pfo 'arty estates in fee simple consistin g` ...of ,tlie air space con-
te3ti+id .it►' 'each bfhihe bpath Individual and separaati building
-owners et owners . thereof.
d the . co . p ,
,~,ias`,~tesnants iia`>comaon, of all of the remaining, real property
}
DECLARATION
z ;';Declarants do hereby publish and declare that the following
teYme,'covenants. conditions. easements, restrictions. uses, reserva-be deemed to with
sha?ll. bem a tburden mind a tanefitntosDeclarants. their succ ssorshand land,
ass"giis and any person acquiring or owning an interest in the real
?propert which is or becomes subject to this Declaration and
improve- thereon. their grantees, successors, heirs, executors, 'admini-
strsttovs. devisees or assigns.
1. Definitions. As used in this Declaration, unless other-
•wise expressly pro'vided: t contain (a) "Unit" means floorsundividedceilinair doorsed
within the permieter walls, _
to
a niiofi a thisoDeclarationt, andlas shownyandidescribedjint
to the provisions
a condominium map recorded in the real property records of Eagle
" County, Colorado, together with (i) all fixtures sad improvements of such therein; (ii) the inner decorated or fiiii)etheudoorssand windowsiofs
perimeter walls, floors and ceilings;
however.the undecoratedSoriunfinishedunit.
the unit; and (i)inthe cludeinterior
The term does not
LSMIOeEA
~EI'VED ` {NM~OfFICEQA'~
COLORADO.BY~e
THE DOCUMENT RECORDED
.DEPUTY
of Abe neriu[ater.:r~talls floors o= Jce~lings of _a`urt,
821y;`utilities running '.tnrougn rno
Thral conoomoiYf element of part. thereof
otie tlrtit, or'~tny..othet gene
located wirtbn the unit e :term "unit". shall ~.nclu~le the
~ terim "spartmerit unit" and "commercial 'unit
(b) "Condoaainium unit" means a unit tagetheY with the
undivided interest in ;thgSgenaral common ).esients appurtenant
thereto :and the right ao exclusive ;or ncn~-exclusive use of
1mited<tommon element's associated therewith
} partner Cc) ••BY" means airy individual , coicparation Fa
ship'. asoCiatio:i, trust ° or bthsr legal entity,. or combination of
legal entititefa , 'rwYti ch tiffs` the reooxd owner of an undivided fee
simple ianterds fin' ous or maYqw .condominium units .
4
General common eletsents" means (i) the land
include&`h thW resil:propeYt which at any time is subjecirdershis
Condominium Declaration, (ii~ the foundatiofis columns.
beams , 'sup'ports pirimeter: and ?sup~iortisig :~aalis , roofs, balconies ,
Ha11a, ;corridors; ;hobbies;:t stai=si"99t'airways, fire escapese entrances
sied : exists of.. tie duildng. the baseanents, yards , -ggardens . suto-
atob~'e parking ,,areas '.,arid stdr.age.: spades ; .Civ) the installations ,
central services such as powers
U1 and ms erials.makiri$..up the
ing, refrigeration andfans,ccom-
fight:; ygas, =.h. , 'and cald watex heat motor
d::tioriii~g alnd intlineratiriA;;, ,Cv) :;the : tanks's.pumps, s,
essors uc "ts : snd in µeneral ,all apparatus and installations
. d
-e fisting: for; commoct: use;;;y and (vi) all other parts of the property
normal 11, in.,1Cokaanon
(s) "L3amited coms►on "eleiaienEs" .means the part of the general
c6mWo.n ele3ne~nts 'for the
ens ofconeior lnore~nbutclessvthanealla
enjoytnent;''ofthe` owner.
condominium units
(f) "Common,expenses" means; (i)`all expenses expressly
laws
declared to be..;common.exp:enses by this Declaration or by the by-
of the;:Assrciation; other .;expensesg of administering, lacing
?i. servicing,::'?~on'serving, managing, maintainin repairing or rep w the. general::.common a ements.; . (iii) insurance premiums for the insurance
carried :under ,Paragraph=_.9:;of ;Article II hereof; and (iv) all expenses
lawfullyAie armined to bit"common expenses by the board of directors
. of the Association.
(1) "Apartment common expenses" shall mean and
,::iintlude that portion of the common expenses which are
designated by this Declaration or determined by the
` -Association to be primarily for the use and/or benefit
' of the apartment units and their respective owners,
tenants, guests and invitees, and which are to be
assessed against the apartment units only and paid only
by the owners of said apartment units.
@~ . (2) ".Commercial common expenses" shall mean and
.include that .portion of the common expenses which are
designated.by this Declaration or determined by the
Association to be primarily for the use and/or benefit
.of.the commercial units and their respective owners;,,,.
tenants, guests and invitees and which are to be assessed
against the commercial units only and paid only by the
. owners of said commercial units.
•
r : r r ,s!
t . Y
x
((gg) "First lienor".means the holder of
of which :;is secured by a first mortgage or-.
umbis :L an interest in..a condominium uni;1
a;,,..deed of^trust, and "mortgagee" shall inc.
deed•.bf trust.
(h) "Assodiation" means The Rucksack .06
:Clorado nonprofit corporation;-
0 "Building" means one of the build'
ng.condominium units located on real,prope
ts' `cosisti
.meets ; o:~:;Suj
Eagle ,•Coustt;
Tory-note,.-
td of
a
l
gage
l
sh
6ene-
x
tion, -andall other improvemen
ject to this Declaration. and '-buildings r:means a11' of
ments
j) Thw' condominiums subject to this Declaration
owi.'as The Rucksack Condominiums.
( . , -'Declaration" means.:. this instrument 'and',sll, Andnd-
-plaments thereto hereafter recorded in the records of
,r. Colorado. , '
_ i:~..,,: L"e'r~rae. li-ee 'and
:''.000LiQ'anCy OZ • 6.OI2aVmisli4iY . vaa+..v
-;(a) The "real property is hereby.intially divided into
(i) two living units numbered -R-1 and R-2'. acid (ii) three commer-
-
cial`lmits numbered C-1 through C-3 inclusive:, 'Each apartment
unit.•=`coaasists:.:,of an apartment unit, an undivided interest in the
general common elements appurtenant to-such apartment' unit which
anterest is~::set forth in Exhibit B attached hereto, and the
'exclusive or.non- exclusive.right to use and.enjoy limited common
elements....;;.;-Each commercial unit consists of a commercial unit
a4°;4howh.;:;6n.'•..the condominium Map, and an undivided interest in
elements appurtenant to such commercial unit.
tlie':=gesieral°°common
aset.;;foth in Exhibit B, and the exclusive or non-exclusive
right= ':to use and enjoy limited common elements.
(b) Each condominium unit shall be inseparable and may be
conveyed. leased, devised or encumbered only s.s a condominium unit.
Title. to a condominium unit may be held individually or in any form
of concurrent. :owner ship recognized in Colorado. In case of any
such concurrent ownership. each co-owner shall be jointly and
severally liable for performance and observance of all the duties and
responsibilities of an "owner" with respect to the condominium unit
in which he owns an interest.
(c) ."Any contract of sale, deed. lease, deed of trust,
ffecting a condominium unit
mortgage. will ar other instrument a
scribe it by its apartment or commercial unit number as
d
d
e
may
shown on the map, followed by the name of the condominium an
i
reference to this Declaration and to the map.
(d) Declarant shall give written notice to the assessor
anner provided in the Act, so
h
e m
of Eagle County, Colorado, in t
nit will be separately assessed and taxed.
that each condominium u
(e) The apartment units shall be used and apartment
Owners of the
occupied solely for dwelling or lodging! purposes.
the units to others for these purposes
units may rent or lease
home
uni
ermittedcbyse
h arec
hi
da
c
f
t
p
c
w
an
to others
distu bance
unreasonable
applicable codes.
(f) The commercial units shall be used for any purpose
il Zoning Ordinances then in effect.
allowed by the Town of Va
-3-
3 Condominium map. Prior to any conveyance by Declarants
condo n um un t therein. Declarants shall cause to be filed
ecO.id":°In .Eagle County, Colorado, a condominium map (the
shall contain: (a) the legal description of the
ce;`of-:the' lad; (b) the linear measurements and location,
reere~ce to' the exterior boundaries of the land. of the
i1hWi4zd_all other improvements built or to be built on the
`:;;(c');::ahe' floor plans and linear dimensions of the interior
W:A)uilding including the units, the general
n~slbments which are not a part of any unit, and
imited common elements; (d) the designation by number or
symbol of each unit; (e) the elevation plans of
wilding; and (f) the elevation of the unfinished interior .
ces of the floors and ceilings of the building. including the
went and :.commercial units, as established from a,-datum
,'the distances between floors and ceilings, and the linear
rements.,showing the thickness of the perimeter walls of the
ing.:-.Declarants reserve the right to amend a map from time
me to Conform it to the actual location of any building
uding.all parts thereof) and to establish, vacate and relo-
easements.
r." 4. General Common Elements; Encroachments.
in common
(a) The -general common
elements=. shaNo ownershall _asserc
by ali.. the;_.owners and shall remain undivided
°sny right of partition with.. respect to the general common elements.
;Each'"owner waives any and all rights of partition he may hold by
rtue of his ownership of an undivided interest in the general
paThis
?;`cosamon elements as a tenant In common with the other rowners.
rti-
p'sragraph shall not, however, gg c
-of a partitionlshalldnotnaffect unit other condominium eunit. but
such
(b) Each.. owner shall be entitled to use the general
cIclMon,,.;.eliniments in accordance with the purpose for which they are
-::::;intended, without hindering. impeding or imposing upon the rights
of ;the other owners and in accordance with rules and regulations
dwly established from time to time by the Association.
(c) If any portion of the general common elements now
encroaches upon any unit, or if any unit now encroaches upon any
>other unit or upon.any portion of the general common elements,
as a result of the construction of any building, or if any such
encroachment shall occur hereafter as a result of settling or
shifting of any building, a valid easement for the encroachment
and for the maintenance of the same so long as the building
stands, shall exist. In the event any building, el any unit, any
adjoining unit, or any adjoining general
be partially or totally destroyed as a result of fire or other
casualty or as a result of cdndemnation or eminent domain pro-
ceedings, and then rebuilt, encroachments of parts of the general
common elements upon any unit or of any unit upon any other unit
or upon any portion of the general common elements, due to such
rebuilding, shall be permitted, and valid easements for such
encroachments and the maintenance thereof shall exist so long as
the building shall stand.
5. Mechanic's Liens Indemnification.
(a) If any owner shall cause any mateiral to be
furnished to his unit or any labor to be performed therein or
thereon. no owner of any other condominium unit shall u der red
circumstances be liable for the paymet of
-4-
or or t e value of any work done or material furnished. All
suc swot :shall be. at the expense'of the owner causing it 'to
or shall be solely responsible to contrac-
be dosie, '8:.such:..awn
tors laborers, materialmen and other persons furnishing labor
or:,;ma erials to his unit or any improvements therein. Nothing
hetei' i';:.coritained ;shall authorize any owner or any person dealing
hrough,with"or :under any owner to charge the general common
element's or :any .;unit .other than that of such, owner,. with'. any
mechanic•'s li®n. or other lien or encumbrance-whatever. On the
contrary (and notice is hereby given) the right and power to
charge :.any lien,r :encumbrance of any ::kind ;agai7nsts. thegeneral
;common lemon ts~oor''i0 nst_,.any owner. of..,an¢=fowne. 'stunit for work
done or :materials.furniehec~'to any other owner s unit is.hereby
expresaly`;;denied ;,n .
(b) If,: because of any act or omiissioit` of Any odd er,
anyntechanie s or other lien.Or.:ordor for the payment of.;money
-.be;;:filed`<.against:.:ahe ._general common elements>.oz :against
:shall
any ;'other;-owner' s unit or _sny improvements therein; or ;:a aLust
.any -other .,`owner (whether or not such Lien or ,order is .valid or
.enforceable as' such)...the, owner whose : act or :'.omission .'forms the
basis ..;Ibr..'such .lien.. ,or . order ;:.shall at '.his own 'cost.;and expense
;cause;,;:the..same .to; be.:.rancelled and discharged .-of racord or :bonded
by a=:rsuret ,.comp'niiy reasonably acceptable to the Association, or
to-:.such:,;other;,::owner , o* t own*rs, :within...20 days after the.:: date of
ng thereof> and `further shall inddmsaify.and save ali the other
funit-:.owner s..nd. ..the-..;Association harmless from and against?..any
and;=:all': ,costs.:expeiises, claims. "losses _or .damages, including
reasonable..attorney s.fa" .resulting;theref=otid.
6 ..Administration and Manggemerat. Tha`Rucksack Condominiums
shall d`and maniLged.:pursuaint,•to:.:this Declaration, the
article s;of ancorporat`ton and the:.;by-laws of the Association. Each
petsOnt: c 'tractin•g to purchase a .condominium unit from Declarant,
and=,eacha.owner..,shall also:.be.a:member.of .the Association and•shall
terrain a member until. 2iis e'ontract <is ;te=mir►ated or :.until he ceases
to 'e-an owriet. Each'.Mamber shall `comply stridtly.with the provisions
,of '.this;:.Declaration and of <,the :articles of incorporation and by-laws
he Association Each:•u«ember`ahall be bound by and shall comply
witli''.;rules.:>resoluti'osas :.;and decisions of the Association duly made
adopted'in the:%Uanner set forth in the articles of incorporation
"or;bylaws. Failure of the member to comply with rules , : ;resolutions or decisions : shall be grounds for - an, action. to
recover damages-or 'to:cbtain injunctive relief, or both, Maintain-
able-by the Association on behalf of the other owners or, in a proper
ived,owner. Zn addition. eriodsofcanyidelinquency,
case,:by In
M auth ize or thr the':Associatiosa, during the
:.(a )to:. -revoke a delinquent owner's right to use general common
eleirtents,•.,.(b) to cause utility service to a delinquent owner's
suspension)shalluaffect$themrightsvofing
condominium however, be suspended
privileges;
a first lienor.
7. Maintenance` and Reoairs.
(a) Each condominium unit owner shall be responsible
for maintenance and repair oflinhis es nit,eincludinglfixt retherein
y. In performing such maintenance or
and improvements and unit only.
serving such unit o
repair, or in improvinggi or altering his unit, no owner shall do
which Interferes s withe structural th any easement. of any
ildact or ing or work which
bu
-5-
• t
t (b) The general common. elements (including the liiuited
cOMMOn,elements) shall be administered, conserved,<man$ged;.maintained
irepaired.•and;replaced by the Association;,whiah may have:access.tto.
ainy unitfrotime to time during reasonable hours for ,;such purposes
br :at ,°aity time ;.'for the purpose of making emstgency.,repairs ,,therein
k.
necessary to'-`prevent damage to the general common elements ::er to
afisrither-;-unit or units. The costs of repairing any';46%age `to a'
:unit resulting frc►m entry therein for any such purpoae,..shall 'be a
d6mfton.:expense of all the owners. However, if the need ,to make s uch
entry,;;rssults..from the negligence or intentional act ot:,:anY owner
atich: owner ;shall .,reimburse the Association for all >the costs :"of
i, rep'e►i'ring...such :damage and shall be.liable to the other i~wners for
r
qo~
all ?;additional ;losses or damages suffered, including reasonable
'attorney's fees .
osainium
Notwithstanding the foregiong, (i) each;bond
txsiit owrier,.liaviiiq an interest Inlimited common elements shall paty
his•,-proportionate share of the costs and expenses:of-maint'aining,
rdpa.riri4and replacing any limited common elements of which such
owner has .any-Luse and enjoyment, and (ii) each condominium owner shall
p y.
a all ::costs, of repairing any damage to the '"general common;~vlements
(includiHg.,t19e limited common elements) , or "-to ,any condominium. unit
other than..hi9 own, resulting from the intentional act or negligence
c'
8 Assessments for'Common Expenses.
-.(a) Except as net forth in paragraph 7(c) and 8(b),
,
eac penses.
h.ownar:~sha11 pay his pro rata share=:ot the common ex
`rk Such proration shall be made on. the basis of the owner's respective
tie .
undivided:intereats in the general °common,-element s on the date such
laws.::.of the Association shall
common expense" is incurred. The by-
empower its:,: board of directors to fix,. determine, levy and collect i
monthly and special assessments to be paid by the owners to meet the
:common expenses and to create a contingency reserve therefor. The
V•
by-laws :.shall also establish the procrwhicAhn athe ctionsmaymbets
zhall.'rbe :'made known to and paid by the owners.
brought":;;by,.,tha Association to recover unpaid common expenses from
`tt►e owner.;liable for payment thereof, with or without foreclosing or
~x.
waiving'..the lien described in the following paragraph.
: (b) Any common expense which thg Board'of Directors
r
be .ofagrenterabenefittto oaesalass hofrovmersaandatooaulessercbenefit to
to the, other class of owners (i
w suchaclassestinnsuchwproportionamasrcial
.3w ait owners) shall
"i the Board:of'Directbe ors borne by may determine from time to time. The portion
of any such common expense athecownersowithinssuch classsinsaccordance
provided shall be shared by
-'s with their relative appurtenant undivided percentage interest in the
general common elements.
(c) All stuns assessed but unpaid for the share of
common expenses assessed to any condominium unit shall constitute
a lien on such unit in favor of the Association prior to all other
liens and encumbrances, except: (1) liens for taxes and special
ion of fi mortage or assessments and (LI) cttunbering suchnunitrstThe Associationrst liend
of trust of record
shall attach from the date the the unpaid ascame
due and may be foreclosed by y
mortgage on real prohhetAssociationrsettinggfoof a rth theiamount cofithe
thereof executed by
unpaid indebtedness, the name of the owner of the condominium enure
and a description of the condominium unit. X andny ruches foreclos
such
the owner shall be required to pay
proceedings, including reasonable attorney's fees. During the
reason ble rentalto subject
required otot pay condominium
period ion c shall e be the owner
to such act the
-6-
a'
Wli: The.Association shall be entitled to purchase..,
616inium unit at the foreclosure sale, and to acquire, hold,
iaels0' mortgage or convey the same.
(d) No owner shall exempt himself from liability
6r" peymeit:of his share of the common expenses either by waiver
E°;the;.use or enjoyment of any of the general conuaon elements or
`:abandonment of his condominium unit.
(s) In case of sale or other transfer of a condominium
htt.;with respect to which sums assessed for common.expenses shall
e;:tistipaid. the purchaser or other transferee of an interest in such
nit`:shall:(ba Jointly and severally liable with the.seller or
i Ah fer cor, .thereof for such unpaid assessments.
(f) Upon written request of any owner, mortgagee, pro-
Qectiinjum.tgagee, purchaser or
tunit , the
W tIn n for ,a
a't:ttYg.,.forth the amount of the unpaid common expenses,-.1f any,
th,resp'ct;;to such condominium unit, the amount of the curxent
onthly>as`sessment. the date on which such assessment became or shall
e'coine;_due` and the amount of any credit for prepaid expenses. SUC12
tat.emeint,.'.for which a reasonableefee way be charged.inbindingoo3on
h may rely thereon In be comp lied with
p
hes<As9ociation in favor of any rson who
a th'Unless a request for sus statement shall P
[1 in fifteen days after receipt thereof, all unpaid common expenses
brdinated toetheilien oorhother einterest nofathe persontrequesting
ith : statement .
(9) Any party in favor of whom a lien on a condoniu=
in it ":ltas been created may but shall not be required to pay any ;;ah
:ommon exppense with respect to such unit, and upon such payment
►arty:.shal1 have a lien on such condominium unit for the amount so
►'sid of the same rank as the line theretofore existing.
- g •~Irt'surance.
.The Association shall, on behalf of the owners:
(i) keep all buildings (including all of the apartment
oa~nc =iAV units and all fixtures therein, but not or
" .:furniture, furnishings or other personal property supplied
installed by
condominium unit owners) insured against loss over or damage by fire. with vandalism oramaliciousdmischief),
against loss damage by y
in approximately teductiontfoof the maximum r depreciation; vale
deduction
thereof, without
(ii) provide and keep in force, for the protectio-
d directors, and all the
ty
of the Association, its officers an
eneral -public
s
h
It
,g
or
enor
deat
owners and first
~ jur injury or
bodily
foi
ance against claims
de
n
o
$e
co
damage insur
g p respect or
property derma a occurring
in
000
than
ot less tha $250,
f
n
in limits o
less than
not
nd
bodily injury or death to any one person
number of parsons
an
y
$1,000,000 for bodily injury or death to
and in limits of
disaster
,
=
arising out of one accident or
000 for damage to property, and if
han $10
t
i
,
ns
not less t
limits shall at any time be customary to protect aga
ch-high limits shall be carries: and
possible tort liability, su
(iii) carry insurance in such amounts as the Asso-
ciation mfy consider necessary or be against such c.-er
insurable hazards as may from time to time be commonly ins_-ed
against in the case of similar property in similar locatic:s
elsewhere.
(b) All insurance required to be carried under this the owne75
(naming aph them shall be carried in fin°fr of the ull theirsrespective condomin:~
par
, and indentifying
units), and all first lienors, as their respective interests may
-7-
appqiari"'.Each policy of insurance.. shall contain a standard mortgagee
dominium unit which shall
•claiise in favor of each first lienor of a con
thereunder shall be payable to such
if an
y,
provide that the loss,
;:'.first lienor, as its interest may appear, subject, however. to the
.
.
ociation hereinafter ..sa
A
h
5
nd
.
ss
e
.:doss payment., provisions in favor of t
All policies. Of insurance against damage to any building'
and adjusted
:forth
l
.
e to
.fixtures shall provide that losses shall be payab
as attorney-in-fact for the owners.. The
iation
as
A
,
ssoc
with the
Association shall.hclld and apply the proceeds of such insurance
olicy shall provide
ance
i
p
nsur
sec forth. .in'thisDeelsiration. Each
de
caiicellatiori:thereof may be as
by the insurance
rierto
ca
h
{
=
or
r
at no ;
t
t
prior
without.;.having'fist given 30 days'
insurance
lienovs. Each.'
fi
.
rst
the Association'.the.owners and all
also provide that in case of vi olatiotr: of any ,provision
shall,
.
the
olic
rs
-
;
•
.
.
y..
p
,
One
thereof .'..by:.one ,dr 'more (but less.. than all) of the•.-b
to
suspended or invalidated:only .,as
ll be
h
a
,J
a
coverage ;;of such .policy s
the interest ':.of the 'owner. or.. owners committing the itiolation ..and not
physical
ies of
li
a
V-
c
as to .th'e.: interest ,of::.any ;othe -owner. All po
siid..of any : ,
ation.
f subro
yt
:
g
damage' insurance shaZh:;coritain ;waivers o
Duplicate originals of ?.all;. policies
nce
si r
4K
"
s
ense based on co-in
def of physical damage ansura =ce.:and of all renewals thereof, together
livered to all first
d
l b
:
Y'.
e
e
with proof of payment,:;of :premiums, shal
to expiration of the then current
rior
ys
d
ri':
}
.
,p
s
;
lienors at least te
policies.
(c) The iiusicmum replacement value of the .buildings
of each condominium
lue
-
va
(which shall indicate `'the maximum replacement
without deduction for depreciation, shall
therein)
of
ined
li
,
cy
unit conta
be datermined,.by the Association prior to obtaining any po
zen
f one of
re r
fire insuranc9'::o1r any renewal.; thereof by :means o
ot
Co
dis3.nterested appraisers.
eteint
V '
,
. coanp
appraisals mad O -
raisal s' shall be furnished to each owner and each first
app
lienor of a ,condomi.nium unit.
(d) Each owner shall be responsible for all insurance
in his condominium unit
covering loss or damage to personal property
nd liability for injury, death or damage occurring inside his
ers of subro-
i
w
a
v
a
apartment unit. Any such policy shall contain
d shall be we written that the liability of the carriers
affected
b
e
ggatton.an
issuing insurance•...obtained by the Association shall not
reby
d th
h
.
e
e
or diminis
]p. 7~' aintssaent of Attor.Tac -in-Tact.' Each owner
by his acceptance o the deed or other conveyance vesting in
him an interest in.a condominium unit does irrevocably con-
stitut- a and atppolnt (a) the Association with full ponie3r of
substitution axe his true and lawful attorney in his name,
place and stead (i) to deal with such interest upon damage
to or destruction, obsolescence, or oondomnation of any
building or real property as hereinafter provided, and (ii)
:.o enter into agreements regarding general common elements
including but not limited to leases, rights of way, agree-
ments and ingress and egress agreements= and•(b) Declarant
with full'power of substitution as his true and lawful,
attorney in ),its name, place, and stand to deal with such
Interest in order to effectuate; that reservation contained in
paragraph 20, each with full power, right and authorization
to execute, acknowledge and deliver any contract, deed,
proof of loss, release or Instrument. thhich
interest of saach ou-nor, and the Association or Declarant may consider necessary or
advisable to'give effect to the provisions of this Dec-
laration- if requested to do so by the Association or
Declarant, each owner shall execute and deliver a written
instrument confirming such appointment. The
nactionc of the
Association in sottling any dpo`3
shall be final and binding on all owners. No owner shall
have any rights :against tile' AnSOthaCI-
cars Lho'easeiot
d'pnegligence.
fraud or or gross
fraud
11. A:»na o rn' nasuolthorcofobyaanYgcau ,c
destruction of any bull ing or any part
Whatcvcr
-A-
x 4 F,
1
r s Y x s ,a,
t
(a) `If in the reasonable j'ud4r4Oht of the As'soci'ation,
-:the proceeds:.of Insurance shall be sufficient.;to pay all the costs
of rspairing:;and,'restoring the building, the Association;.(as attorney
in fact 'for she `owners) shall cause the building to be :repared and
xes' tired apply.ng,the proceeds.of...insurance for that purpose-
.
(b) ' If in the reasonable judgement of`them- Association
the .anticipated,-proceeds of insurance are.,not. ~suffieient; to pay the
.,ccjsts..of repairing: :and restoring the' building., raid .if the excess
of such costs over `the anticipated ' inaurance ''procee$~s , are cress
:tlain':109 of the'",maximum replacement value last ;determined under
paragraph 9(c) then the Association (as attorzie iii fadt for the
owners:):..: shall promptly cause the building to be•;:rep~►ire and':restored,
cried ..the ::difference ..betwean the insurance proceeds '.and is costs
of repair ..and restoration shall be a conanon expense, to :be assessed
and paid as provided in Paragraph S.
v
(C) .If in the reasonable judgment of tha Association
"
the:anticipateid proceeds of insuance are not sugof trieoexcesahof
costs of repairing and restoring the building,
such costs.: are 10$ or more of the maximum replacement value last
determined under Paragraph 9(c), then (unless within 100 days after
' the date of such damage or destruction a plan for repairinconnominium
:restoring the building shall be 80$por moved by the ore, of the total interests
units such building owning tenant to units in such building and
in general common elements app
by all first lienors of such condominium units) the Association (as
g; attorney-in-fact for the owners of condominium units in such building)
-shall execute and record a notice of such facts, and thereafter
shall sell the satire real property on which such building is located
'(including the building) together with reasonable easements fox
ingress and .egress, if required, as designated by the Association,
free.and..clear of the provisions of this Declaration and the map,
5
which::shall wholly terminate and expire with respect to such pho eveerty
upon h6'.-closing of such sale. This Declaration an any map,
F'
shall. rQn►$nd' buildings, andatheepercentage Interestsoinlgeneral
property. subject to this
n~common elements appurtenant to all units remaining
Declaration shall automatically be increased by the amount of the
percentage interests in general common elements appurtenant
units :in the building sold free and clear of this Declaration, such
°s increase to be allocated eamon neralucommonnelthe ementsl.oTheoproceedseof
reppeczive such sale interests in g
such sale of the real property shall be collected by the Association,
applied first to the payment of expenses of the sale, and then
divided among the owners of condominium units in such building
and paid into separate accounts, each representing one condominium
unit. The insurance proceeds shall be divided according to such
the
owners' respective percentage interest therein as shown by
insurance policies, if so shown, otherwise according to such owners'
respective interest in general common elements appurtenant to units
in the building so sold, and the proceeds of sale shall be divided
according to such owners' respective undivided interests in toe
general common elements appurtenant to account
sold. The funds in each by the contribution for the from one
applied Y the the payment of the balance of
to another) shall
purposes in the order r inndicatedt (i)
the lien of any first mortgage or deed of trust special on the condominium
units (ii) for the payment of 'taxes and Assessment lie
of unpaid common
exfavor of any entityl in the
order (iv) for or p Y priority and (v) the balance
order r of and to the extent of their pthe condominium unit owner.
remainin ing, if any, shall be paid to
The provisions the orIgghts ofaaafirst lienorn(inbcase the proceeds1allocated
in any any way way the indebtedness secured
under (i) above shall be insufficient to pay
by his lien) to assert and enforce the personal liability for such
-9-
indebtedness tIf within 100 daysnafterptheidatefof suchedamagesorh
destruction a plan for repairing and restoring a damaged or destroyed
building shall be approved by the owners of 75% or more of the general
common elements appurtenant to units in such building and by all first
lienors, the Association (as attorney-in-fact for such owners) shall
promptly cause such repairs and restoration to be made according to
such plan.` All owners of units in such building (and no others)
shall be bound by the terms of such plan, and,the difference, if any,
between the amount of the insurance proceeds and the costs of repair
prowners portions only of ntheirll
oowners in the such
dssessedtand paid shall by e such expense
be a
respective interests in general common elements appurtenant to
units in the damaged building.
(d) Nothing contained in this paragraph shall be
construed as imposing any liability whatever on any first lienor
to p'ay all or any part of the costs of repair or restoration.
12. Obsolescence.
(a) If any any time the owners of 758 or more of the
general common elements appurtenant to units in any building covered
by this Declaration and all first.lienors with interests in such
building shall agree that such building has become obsolete and shall
approve a plan for its renovation or restoration, the Association
(as attorney-in=fact for the owners with interests in such building)
shall promptly cause such renovation or restoration to be made
according to such plan. All owners with interests in such building
shall be bound by the terms of such plan, and the costs of the
work shall be an expense of such owners only and shall be assessed
and paid by such owners in the proportions of their respective
interests in general common elements appurtenant to units in such
building.
(b) I.f.-:at-any._ time .the owners of 758 _or, more of the
general-common elements appurtenant-._to.al.l. units and all first
lienors shall agree that any of the improvements constituting
general common elements have become obsolete and shall approve a
plan for their renovation or restoration, the Association (as
attorney-in-fact for the owners) shall.proptly cause: such renovation
or restoration to be made according to such plan. All owners shall
as t provided in k shall
bound by the
expense, terms to of be such plan, and the
assessed and paid costs
be
Paragraph S.
(c) if at any time the owners of.758 or more of the
general common elements and all first lienors shall agree that the
buildings have become obsolete and should be sold, the Association
(as attorney-in-fact for the owners) shall promptly record in the
real estate records of Eagle County, Colorado a notice of such facts,
and shall sell the entire real property, free and clear of the
provisions of this Declaration and the map, which shall wholly
terminate and expire upon the closing of such sale. The proceeds
of such sale shall be collected, applied and divided among the
owners by the Association in the manner provided in Paragraph 11(c).
13. Condemnation.
(a) If the entire real property subject to the declaration
shall be taken for any public or quasi-public use, under any statute,
by right of eminent domain, or by purchase in lieu thereof, or
if any part of any building covered by this Declaration shall be so
taken and the part remaining shall be insufficient for purposes of
Rucksack. Condominiums, the Association (as attorney-in-fact for
the owners) shall collect the award made in such taking and shall
-10-
5'ell the part of the land remaining after the taking, if any, free
and. clear of t:he provisions of this Declaration and the map.
Such provisions shall wholly terminate and expire upon the recording
oi.".:.a. notice by the Association setting forth all of such facts.
The award and the proceeds of such sale, if any, shall be collected,
aplxcd and divided among the owners by the Association in accordance`'-:with their Sharing Ratios, unless a standard different from the value
ofi the building as a whole is employed to measure the condemnation
::a.~,rarr in the rrBgotia•tion, judicial decree, or otherwise, then in
deLerminincf such shares the same standard shall be employed to the
extent it is =elevent and. applicable.
(b) if such taking shall be partial only, if no part
CZ'.;. any building shall be taken, and If the rema--ninc_r part of the..
`
J.and shall be sufficient for the purposes of the condominium, the
,.ASSCclatxon (as attorney-in-fact for the owners) shall cs land so
tyre award and shall promptly and without delay cause -raker, to be restored as nearly" as possible to its condition prior
to 17-lie taking, applying the award to that purpose. Any D
aw. z rd not required. sor such restoration shall be divi.ded by the k~..;aciatzo;z among the owners in accordance with their Sharing Ratios,
unless a. standard different from the value oY the Building as a whole
is. emplovedl to measure. the condemnation award in the negotiation,
judicial decree, or otherwise, then in determining such shares the
Sam,. standard shall be emploved to the extent it is relevant and.
applicable.
14• Quality of Work. Any repairs, renovation or restoration:,-
o,...tne eFi1. property' or any building covered by this Declaration by
the' ??ssociation as attorney-in-fact for the oor_zers shall be done
Sri such manner real. buildbeing the
3..c3z= as -valuable occurrence requiring the work to be done.
Avtanament or. Rteavocatic.: . This Declaration may be amended
time prior to the f ling of the
oz Eavoiced . (a by 1~eclaran4- at any (b) upon t:,he written approves 4n recordable form of the
of 75% or more of the general common elements and ,311 first
Exhibit B
,_'nors except that the provisions of Paragraph 2(a) and
and the limited
y
r the general cam.-non elements
incere..ts i.. cf the owners
in g
cc Frr::~~ eler.;zn ~s r::a be amended o :ly n such apt :
c- - of -',ie general common eleme is s and all first 1iencrf:. j'~
be revoked only upon sale Of all or part of the real property
12(c) or 13(a) , or upon the. una^.lftrous
:,u_ :rant "o Paracraphs ? 3~L: of all owners and all iienors.
wry ~i e:l approval in recordable form a
Nor..c,ithstar.d_4ng the foregoing, amendment of -,nis cLeclara'tlon is
•.sur:Dect to th requirements of Section 38-33-3.06, CRS, 1973.
It . Ryerson al Property for common usea1lThe Association may
Tse and
ac:;uire an3 nol or the u and may y dispose
f: tangibles and intangible personal property
owners, real,
c t he same by sale or otherwise, and the beneficir,.1 interest in
`
property shz ll. be owned by the condominium owners in the
a:r_y- Such in the general common
same •pro
f po and ti ions as Lheb tranfe~rabae 1crcepttwith a transfer Of a
on ominium u~, nit.. t.. not
condominium A. transfer of a conc.orinium unit si'.311
to the trr-r,Teree ownership of without any
wr.a_zster
-the transfe=ror's bc.nerrcia~. interest in such proper-my rr•rerence triers-.o. Each ow:;zcr mad use :such witirauryhindesincroznce
` 4: i.th the purpose for vai~ic'r:^it is intan?e•vttner owners. Tne transfer
encroachinc upon ne la.,wf, rights of the
of title to a conci'omsrii.a' unit under. foreclosure shell erntietle tle
purchaser. 'cc> the beneficial interest in such personal p
fi associated with the foreclosed condominium un it.
17• J2e.CistrBtiOn IS- Owner of Mailinq Address. Each owner. ,
s F
-11--
shall register his mailing address with the Association, and except
`for monthly statements and other routing notices, all- other notices T:.
or demands intended to be served upon an owner shall be sent by
either registered or certified mail, postage prepaid, addressed in.
,the name of the owner at such registered mailing address All
notices, demands or other notices intended to be served' upon. the r:::,.,.:•..:
Association shall be sent certified mail, postage prepaid, to the i
address of the Association as designated in the by-laws Of-the
Association. `
18. Duration of Condominium Ownershu- The separate estates
~Fcreated by t is c arat on and a map shall continue until this
Declaration shall be revoked or until its provisions shall terminate;;,:
as provided herein.
19. Architectural Control. After filing of the map,
building, fence, wall or other structure shall be commenced, erected'
.::::or maintained upon the property subject to this declaration, nor
.shall any exterior addition to or change or alteration therein be
{ made until the plans and specifications showing the nature, kind,
shape, height, color, materials, and location of the same shall have
been submitted to and approved in writing as to harmony of external
design and location in relation to surrounding structures and
i. topography by the Board of Directors of the Association, or by an
architectural committee composed of three or more representatives
appointed by the Board. In the event said Board, or its designated
committee, fails to approve or disapprove such design and location
within thrity days after said plans and specifications have been
t=' submitted to it, approval will not be required and this paragraph
will be deemed to have been fully complied with.
20. Reservations of Declarants. Declarants reserve the
a,
r.•right to dedicate any access roc s an streets serving this
condominium project for and to public uses to establish easements,
:jj<. reservations, exceptions and exclusions consistent with the condominium
ownership-of the condominium project and for the best interest of
the condominium unit owners and the Association.
41
21. Reservations for Addition to R-2. A right is hereby
reserved to any owner o con omen um Unit-R-2 to construct and
expand his unit in an area adjacent to Unit R-2 and designated on
r`;-the Map as "future construction". This reservation shall include
the right to obtain and record an amended Map and Supplemental
Declaration when the construction is completed. ..Such,Supplezuental
-;Declaration shall reconvey and reattribute to each :unit an undivided
ifK per._centage interest in the-common elements. The interest to be
9 reconveyed and reattributed to each unit shall be expressed as a
jW. per centage determined by dividing the number of square feet contained
in each unit by the total square feet of all units, which is presently
.7,252 square feet, plus the number of square feet added to condominium
Unit R-2. For the purpose of recomputing the undivided interests in
common elements to be reconveyed and made attributable to the units,
the owner of R-2 shall engage an architect licensed in Colorado
to redetermine the undivided per centage interests in the common
elements.
22. Reservation for Additions to C-2. A right is hereby
reserved to any owner o condo nium Unat C-2 on the southwest and
Northwest sides and designated on the Map as "future construction°.
This reservation shall include the right to obtain and record an
amended map and Supplemental Declaration when the construction is
completed. Such Supplemental Declaration shall reconvey and re-
attribute to each unit an undivided per centage interest in the
i:_ convee common elements. The interest to be rtadadeterminedbbyed
to each unit shall be expressed as a per cen ge
totalisquare feteteofoallqunits, whicochntaisiprened
-12-
Ei~et plu*,t2~o'number of square feet added to Condominium Unit C-2.
►o ..J th"e purpose of recomputing the undivided interests in comcaoa
1ent~ to bs.'reconveyed and made attributable to the unite, the
er of Z shall engage an architect licensed in Coloradoao
t+~rmine thi,.undivided per tentage interests in the roa~oon
~~iants'
23: Cerierai
(a),.If -any of the provisions of this Declaration.or
ay paragraph,' sentence;k;.olawe, phrase or word, or the 'appl'ication .
,,newt in any circtsstaiice be invalidated, such invalidity shall
oaffect the validity "of~the remainder. of this Declaration, sad
- appliaati0k ,of. any such -provision, paragraph, sentenoe,- clause,
?tor;worn any other circumstances shall not be affected
,(b) Thib-provisions of this. Declaration shall be in
dd;ion"and supplemental to the Condominium Onwershipp Act of
hStiake of Colorado and to all other provisibns;.of saw.
(o) Rhenver used herein, unless the context shall
th rwise provido, tih& singular number shall include the pplural,
hez?1Slu el the singular., and the we of any gender shill iricluda
iYf ~gendera.
' y Itf`;NITNx89 ~jMxEOF, Declarants have ;duly>4exeouted thin
~F'laratibn tf}is `14th day' yof` April 1970.
K w .
-13-
STATE OF
COUNTY O:
this
Selby
property
interest
By exeeut
personal
provision
Xxxxaffiffo
STATE OF CO
City and Co
The•;: above w
ur C~~°
it "R
GNU e . 611)y
(Attached tc
:
fox
Y to t j
V
ar ea s ngn s
PARCEL ONE:
R
rown... That art of Lots c and c
5 .3
<i Yrecorded plat thereof, de
k i{ine of said Lot c whence
ETJITE OB COLORADO) 4 tilest, 7.50 feet; thence 5
) see F1 ;4 b~f Lot d; thence South 72
;feet to the Southwest cor
CO1JN'P7C Olt`: EAGLE ) , „
Street; thence on an an 1
way 1 ne. alon a S
?s t Eoi?.¢oinc insi;rume~nt a`s aekf►owledgei~ efdre me : a 9 curve t•
thi(r ` day of y, { , ,1978; liy`Jeffrey BSS S,~M of 09 39'49", an arc d~st.
Selby, a:r es ROa enq $ , ear gown " t Lot c; thence North 7J-14
feet; thence North 73 14'
a;Y r. }ti5~ ~f feet; thence North 73014"
ess feet; thence North 89035',
Witl 4 r1ti~~L~
' s►y hand and official s~tal (r' 4 g° ,
1► oamiasion ~sxpi~raa s . " <t us N.~ ° PARCEL TWO:
a 3 s - r {t{~ "ly~'tr ~dzr~F~ A perpetual easement over
point on the gasterly line
bears North 0 09'00" West,
~a .s ~r. gN K I` fT+r .4
d C ~k
f ~!!A r` b r r• TRUE POINT OF BEGINNING: t
tit' tr of 'ti' Y1 Y ijh T NO;th 16045'44" West, 4.10
16 45144" West, 4.25 feet-,
The, und~arsi ned,, uoldler tt a deed o 7truiitiH upon the ' ; 44" West, 1.75 feet; thence
property covered bX t6s De`clarati`on hareby :subodihates ids East, 10.53 feet to the TRi
s'uchopertyo the ,prowis~ons "'of 9 tthtr' Daelaration.. ante of and the restora tiot
By exeeut aao#r s,:Deciaratlofn'the dos aign$d, over Parcel Two and which
:,-`°bass jtg~ se Vi~eipeasid nt assumes .]so y, appurtenant to the improves
persona .or of es'r se or a per ormance o ahy'of the `,t`eYma, ; Parcel One;
provisions,•doveNants or btihditions contained.hereihz r. ,
PARCEL THREE:
YrSNDER A perpetual easement over,
THE,: IRE 6AVINfisy B ING_ )1ND LOAN That part of Tract G, Block
Ass6cr-AT ON, a Col ado eorporA on . : plat thereof, described as
T
ract G. whence the Northwe
aY= feet; thence South 16045'44
J.wADS*tell Rocks, Vice President to the.West line of said Tr•
line of said Tract G to the
of and the restoration of it
which (improvements) are a I
TATE of COLORADO ) ss. improvements located on the
ity and County of Denver)
he.>ab ve was acknowledged befose`me this-25th day of April, 19780 by
Roc a ce President of.THE'EMPIRE SAVINGS, BUILDING AND,
LOAN ASS IATION, on behalf of the
tnd tats of coloreds corporation. w.
:fii~~AS 15-81
~r ~ rr 3, n
Or,
-qtr n
rr Krey~,
,J k E7G1I8IT °A
tAttac"i3" to and made a part of Condbniinium 04"rati0ns 1
>fo* the Ruck sack:Condominiums)
t LEGAL 'DESCRZI-T " s
74
y { 4 1
rrt PARCEL ONE
.5t,,. r, 5 1 `1 Y S
That part of Lots c grid d, Block 5-A,VAIL VILLAGE. Ff~is7 fJLING according to the
a~fecorded ,,,plat:-"thereof described as follows: Beginning at a point the Easterly
line of said !ot d w?ience,the Northeast corner of said Lot c, ears;, on NOr 0 090.00
West, 7' "'60'Te' et; :thence the Sguth-::0009'00" 'East, 30.41 • feet to ttie Boy'theast`:corner
nf:Lot d ,-nce Sovth--'72 48'30" West, along the South l ne of',said 'Lot. d, IT2.O8
feet to of 5o.uthwest,corner of said Lot d, os the.East.-ight=of-way-line of Bridge
Street. ,thence on an angle to th6;H ght-of 92 59.120 and along-said fast ri ht-of
s way, lane,"along'a curve':.to the right having a radius of 191. 708 feet a central angle
~of;09 39 49 an arc dastance of 32.23 feet.to.a::point on the
the WSster7 line of said
nte,NOr th .79 14.'16" East, 27.21 feet;;thence South 10 45'44' East. 7.00
:,kr feet. thence Norttr .73 14'16" East. 46.73 feet; thence. South 16"45'44" East. 4.10
feet, thence :Nor`th•:73014'16" East. 25.34 feet; sththce. North 0024#38" West, 13.68
feet; thence North 8903522" Eist; 13.76 feet to the,po'int of beginning;
r
PARCEL .;TWO
' t # L X15: s s,~'~,.
~d s..:uA perpetual easement over the real
N property described as follows: Commencing at a
r.p
oint on.the, asterly line of said Lot d,,whence the Nrtheast corner of said Lot d
}C4, ,~(z4 bears North 009'00" West. 5.25 feet; thence South 23'14 '16" Nest, 14.30 feet to the
TRUE POINT;,F BEGINNING: thence continuing South 73"14'1 6" West. 25.34 feet; thence
Jr
l: No th 160b5'44";West. 4.10 feet; thence:South 73014West, 29.65 feet; thence NoortW
1645'44 Wei"t4.25 feet; thence North 73014116" East, 31.80 feet; thence N rth 16 45
c•f,` 44" West.,l 75 feet; thence North 7V14 16" East. 27.15 feet; thence South 0$24'38"
East; 10- A53" to the TRUE POINT OF BEGINNING, for the continuance of, the rnainten•
ance of-land:the restoration of-improvements which extend. overhang and are located
over .Parcel Two and which (improvements ) are u part of, are associated with and are
appurtenant to the improvements located on the adjoining real property referred to as
Parcel One;
"PARCEL THREE:
A perpetual easement over, across and on the real
property described s follows:
'OAN That part of Tract G. Block 5-A, VAIL VILLAGE, FIFTH FILING, according to the recorded
~n••-.. plat thereof. described as follows: Beginning at a point on the West line of said '
Tract G. whence the Northwest corner of said Tract G bears North 0009100" West, 64.02
ti feet; thence South 16045'44" East, 25.00 Feet; thence South 7301.4116" West, 7.46 feet
to the West line of said Tract G; thence North 0009'00" West. 26.09 feet along the West
line of said Tract G to the point of beginning, for the continuance of. the maintenance
of and the restoration of improvements located on, over and across Parcel Three and
which (improvements) are a part of, are associated with and are appurtenant to the
improvements located on the adjoining real property referred to as Parcel One;
by i
AND
f the'
~f
r EXHIBIT A
a
Continued-page 2
Ri .
1 of land shown on.the recorded plat of Vail Village. First Filing as being
twe?en:'1ots"d and c, Block 5-A.Vail Village, First Filing according to the
.1 flhereof, which parcel is described as follows:
it.the'Southwest corner of said Lot d; thence North 72048'30" East,
Sout$:Ittno of said Lot d, 112.08 feet to the Southeast .corner.of said Lot d;
th Q 09';00" East, 5.20 feet, thence South 23042'00" East; 5.04 feet to the
Corner of.saidwLot e; thence South 72 43'02" West along`-the;North line of
■ l.lls39 fest!.to'~the Northwest corner of said Lot a on thelast.elobt-of-way
i'dge;Strgety thence Northerly along said East right-of-way line on an angle
0.1of 89.59.':53" and along a curve to the right having a..radius of TM 07 feet,
khgTe of 2059'55", an arc distance of 10.00 feet to the"point of beginning.
E
I ' non-exclusive easement for the continuance of, maintenance of and the
nof:;thW.balcony overhang improvement projecting from Parcel One herein
Part,of-Lot e. Block 54. VAIL VILLAGE, FIRST FILING, according to the
I,s';'tfisreof,, described as follows: Commencing at the northeast corner of
thence; South 72048'02" West along. the Northerly line of said Lot e.
toithe TRUE:-:POINT OF BEGINNING: thence continuing along said Northerly lot
1.said•coursi'19.00 feet; thence South 17 11130" East;: 1.00 foot; thence
3'b2"::East; 19.00 feet; thence North 17011'30" West a 4istance of 1.00 foot
i Point.,of Beginning.
c
c
EXHIBIT 2
To:
Complaint
Martin J. Mullally Credit Trust, et al. v. Jeffrey B. Selby, et al.
Denver County District Court
.
-
g
x ice
r Ss
w
FIRST AMENDMENT
z
TO
CONDOMINIUM DECLARATION
FOR
RUCKSACK CONDOMINIUMS
VAIL, COLORADO
~S'MEN BY THESE PRESENTS:
I+REA3, "on Aptil 27. 1978, Jeffrey B
t
l
"
Charles H.
' ~Se11iy.
-
to -be
cgused
)
s
.
.
.
aran
Dec
and.,Richard N. fb= Brown (
miii'ium Declaration ("Declaration".) .Rucksack
d
o
d a Cog
is fri .Rook 269 at page 448. and a
Condominium Map
t Page 447
269
;f r Ytucksack'Condominiums. in Book
der of
R
.a
Colorado;
Eagle County.
ecor
re~c'orda of the Clerk and
of
the real property
REASclarants:are the owners
<ag follows
C-1. C-2, C-3 and .R-2 of
Units`
the Rucksack
nd
.
'-,,Ae*nintums as defined. by the
map a
a
t k~
y,1g1;REAS; Stephen Yates and Paul A Davis ( Owners") sraidethe
WIN-;
'F~ the owner8.6f Condominium Unit R-l as defissed by the Map
~3Deblerstion:; and,
}
WHEREAS Declarants and owners represent 1009'. ownership
E ~ r for 1iej sick Condominiums andhave;,determined that certain
`h"amendbnenCS =are necessary to the Declaration 'for Rucksack Condo-
€`~tk f
f4 5TpWF THEgg FORE , for and in consideration .for the premises .
ate 4IYeclaraCi can is hereby ;amended as -follows
IN }4 , y} aa) The numb 75% referred to 'in the .54th line of Para-
r, ;fir z f gr8Qh 11(c) (and being'-in tte ;4th line on Page 10 of
the Declaration) is hereby changed to 80%.
The. number 75% contained in the first line of Paragraph
Ak'~" b) 12(a) Con Page 10 of the Declaration) is hereby changed
a to 809.
ear yl c i...
fP Y c)„ The,'. number 75% contained in the first line of Paragraph
12 ':10 of the Declaration) is hereby changed
s, (b) (on Page
um' (onrPage ~ 10 of the Declaration) is hereby anged
a) :12(c)
to 80%.
IN WITNESS WHEREOF. Declarants and Owners have executed this
First Amendment to Condominium Declaration this day of June,
1978...:.
OWN St,
DECLARANTS: 7?
A BY
y e y
BY
or es ose 4cBYr own
ar
BY
Cx8MEDiDBEATRUE CDiN CO FTNETNEDOCUM)EWRECORDED
lNMY0Ff1CEDA °2 TE K31MON iAOLECOUM
DEPUTY
COLORADO. BY:.
t 1"tri f , a t .
-STATE OF COLORADO V z'
J S' ~
COUNTY OF EAGLE )
The foregoing instrument was acknowledgsd,befbre me t
,~ti;
a t day of J1uae;, 1978. by; •ireffray: B Selby, Charles H. Rosenquiat
w~r44 and official seal .
expires : My Commission expires November 8, 1978
i >
r rr ?~J`.. U' JVV~~
w,/' Sye t. 'a otary u c'
r ,~1~1~"lJY~ Fr 1 r k
STATE OFjt t ~ a
f t COUNTY OF S
re foregoing instrument wee Ack%iowledgest eforO me this
V' . V f rh ~
h l
~~a~,t)r of Jutis, 1978 by''Sshsn {Yates and Paul A Davis.
Pku a .f+ s t z
sg'SS F t
ten- ~t,, ( Ottt~~'r'-+~7s, rS ISM and OffiCi81 Com :ni
dyf.c~P► dpi res M~ ss~o~i `expires =Pfn~rember 8, 1978
7 $ r•v+i~~Yr` 'z~ $ ta_ ttY a~ J r n
f`: 3~ir.. L ~5~~~ t~~,7 / yS,,,;7'+',rh''~ ! €rt. ~ , ~ ;d , .(XJV~~ 7+/y~~0.Y'
ss ~ K 7
n, }t l x s r o ary .'gubTic
1Y,Y~ . 9 NnY^ L t~th Y 5 5'Jiir7~ y ! 4C
~ L qtr}~y T r
' 7~ y.'~ ~31,/~~y~,~Otlf/~'t-~•;F ^ T 'Yw 'j7
t+, ~ - t y S a. t L f : sat , L.
tt 5 w r. T .
tSi ~fse' waderar.gned bei=ig'thel~first.: sole mortgagee of the
t'hd Condominium Declaration and
Ruc tsad 'Cdridoiainit ms, C~taat'stifkby 'I li,
' first Amendment to the Condo-
xMap hereby approves the foregoing
M 7
fnium De'el ration 'and y conseistso rebording in Eagle County,
Y<~, Ci01 0r8dO
Y ? EMPIRE 3AYt¢UTGS, t$UZI:DING.~& LOAN
t` ` ;4 f k A3SOClAT*ON
r
STA z OF coitoi~nDb
DRNVSRt;: YCO[J13TY 8s
k t:. r Y
7`he fo egoiri$ szrfimsnt i :acknoW1 ' j;ed before me this
t ;
7tb , day of ° Jurie', 197 8 , by 8sisvard L. Quay
s,. . 97 y t
as ant:yica.prin ideat of: Empire Savings, :Building.. & Loan Assoc-
t iatiort ~ ,
, Nj~tneas 74ay~hand~andWofficial ..seal ,
expi~cespoveiaber 15, .1981
-wo
_MX
ota .y u a
~L -a-c Rr t `
:l~G L~~yG t, s
}
-2-
s
7
t Y}
167521
STATE OF cow mw
Cwnf of :EAQtE;•:•
I Cw*y 'that tbt3 inehirri~ut wu
Filed fcr record
J#.478
~ - - ~p 4 1
e~a~M tiN a~
370 Seventeenth Street
NTF Republic Plaza, Suite 4800
/ Denver, Colorado 80202-5698
L.J Telephone: 303/825-0800
Berenbaum, Weinshienk & Eason P. C. Attorneys at Law Facsimile: 303/629-7610
K Kalan* *Also licensed to
Direct Dial: 303/592-8301 practice in California
E-Mail: kkalan@bw-legal.com and before the United
www.bwelaw.com States Patent &
Trademark Office
June 18, 2008
VIA CERTIFIED MAIL
Jeffrey B. Selby
288 Bridge Street
Vail, CO 81657
Re: Bridge Street Building - Trademark and Servicemark Infringement
Dear Mr. Selby:
This office represents the Bridge Street Condominium Association ("Bridge Street"), a
Colorado nonprofit corporation located in Vail, Colorado. For over twenty-five years, our client
has owned and operated a commercial and residential property in Vail known as the Bridge Street
Building. Under the "Bridge Street Building" mark, our client provides a variety of commercial
and residential real estate services. Bridge Street has established substantial trademark, trade
name, and intellectual property rights in its mark, investing significant time, effort and expense
in building customer recognition and confidence in "Bridge Street Building". The public
associates the name "Bridge Street Building" with our client and its high quality services. In
addition to Bridge Street's substantial common-law rights in and to the words "Bridge Street
Building", Bridge Street also owns Colorado State Trademark Registration No 20081328859,
and Colorado State Trade Name Registration No. 20081328804.
It has come to our attention that you registered with the Colorado Secretary of State as
the limited liability company "Bridge Street Building LLC" and as the corporation "The Bridge
Street Building Condominium Association, Inc." The ability to register a name with the
Colorado Secretary of State, C.R.S. 7-90-601 et seq., does not mean federal and state trademark
law allows you to use that name. You are still liable for violations of the Lanham Act, 15 U.S.C.
§ 1501 et se g., and Colorado trademark and consumer protection law, C.R.S. §7-70-101 et seq.
and C.R.S. § 6-1-101 et seq. It has also come to our client's attention that you are planning to
offer services under the name "Bridge Street Building", virtually identical to the services
provided by our client under its "Bridge Street Building" mark.
Y
June 18, 2008
Page 2
Your use of the words "Bridge Street Building" is a violation of our client's intellectual
property rights, including its trademark and servicemark rights and goodwill associated with
those marks. Your use of the words "Bridge Street Building" will cause confusion among
consumers and vendors, and will lead others to believe that they are utilizing services that come
from or are in some way associated with our client, or meet its high quality standards.
By this letter, our client demands that you and any of your affiliates immediately cease
and desist all present and any future uses of the words "Bridge Street Building" or variations
thereof. We trust that you will take all appropriate steps to ensure that you cancel or change your
"Bridge Street Building"-formative entity registrations with the Colorado Secretary of State
accordingly, and not engage in any further violation of our client's intellectual property rights.
If we do not receive assurance from you or your attorney on or before July 3, 2008, that
appropriate steps have been taken in accordance with the foregoing, or other satisfactory
assurances, we have been authorized by our client to take whatever actions may be necessary to
protect its intellectual property rights, including seeking injunctive relief, treble damages,
attorney fees and costs under the Lanham Act and Colorado law.
Very truly yours,
BERENBAUM, WEINSHIENK & EASON, P.C.
K Kalan, Esq.
DOCUMENTI (kmk 6/18/08)
BRIDGE STREET CONDOMINIUM ASSOCIATION
281 Bridge Street, Vail, Colorado 81657
Ph: (970 476-1450 ■ Fax: (970 476-3188
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' JUN 2 0 2008
6-20-08
Scott:
Thanks for your time on the telephone the other day.
TOWN OF VAIL
We understand that the Town has been approached by the Rucksack Building Owner to
use the name "Bridge Street Building".
Two designated names "Bridge Street Building" is not in anyone's best interest and
would create confusion. Even now we get a lot of lost people looking for the Bridge
Street Lodge.
The enclosed correspondence from the Bridge Street Condominium Association's legal
counsel is merely for your information.
Mark Cadmus
President
Bridge Street Condominium Association