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HomeMy WebLinkAboutADM100008 TOWN OF VAIL ADMINISTRATIVE ACTION FORM Department of Community Development 75 South Frontage Road Vail, CO 81657 tel: 970 - 479 -2138 fax: 970 - 479 -2452 web: www.vailgov.com Project Name: RI IL CARLTON CONDO PLAT Application Type: CondThPl ADM Number: ADM100008 Parcel: 2101 - 072 - 1700 -2 Project Description: CONDOMINIUM PLAT WDL VAIL Participants: OWNER RCR LLC 08/24/2010 PO BOX 959 AVON CO 81620 APPLICANT VAIL RESORTS DEVELOPMENT INC 08/24/2010 Phone: 970 - 845 -2547 P.O. BOX 959 AVON CO 81620 License: C000001633 Project Address: 728 W LIONSHEAD CR VAIL Location: 728 WEST LIONSHEAD CR Legal Description: Lot: 2 Block: Subdivision: WEST DAY SUBDIVISION Comments: See conditions BOARD /STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: 08/25/2010 Meeting Date: Conditions: Cond: 8 (PLAN): No changes to these plans may be made without the written consent of Town of Vail staff and /or the appropriate review committee(s). Planner: Warren Campbell DRB Fee Paid: $100.00 Department of Community Development 75 South Frontage Road Vail, Colorado 81657 6 d. N ` Tel: 970 - 479 -2128 ACV Fax: 970 - 479 -2452 ' lit Web: www.vailgov.com ..--_,, - , Review Coordinator � n. Y t c�r i. _ Development ► OF V I, : Condominium and Townhouse Plat Application for Review by the . -- Planning and Environme itaa1 Commission General Information: Condominium and townhouse plats which do not constitute "conversions" from rental as de- fined in Section 13 -7 -2, Definitions, Vail Town Code may be approved by the admi .,.; - • • • - Town of Vail departments. Please see Section 13 -6, Condominium and Townhouse • •.•., _'.11 :wk.; r::.r. •: tailed information. Vail Town Code can be found on the Town's website at www.vail�! om. AUG 11 2010 Fee: $100 ' Recording Fees: Please visit the Eagle County website htt.: www.ea.le.•un 11 - :40. ;r;, :, c - .r+ fm for the most up -to -date recording fees and check with your planner prior to su. r #'�.tl.!!1!1F at written out to the Eagle County Clerk and Recorder is required to be submitted once the plat has been approved by the Planning and Environmental Commission and prior to the recording of the plat. Description of the Request: Condominium Plat WDL Vail Physical Address: 728 West Lionshead Circle Parcel Number: 2101- 072 -17 -002 (Contact Eagle Co. Assessor at 970 - 328 -8640 for parcel no.) Property Owner: RCR Vail, LLC By: Vail Resorts Development Company, Managing Member Mailing Address: c/o VRDC, PO Box 959, Avon, CO 81620 Attn: Gerry Arnold Phone: 754 office; 331-1898 cell Owner's signature: g y f , nft eh/0.c S �u C K a � LP H U � ' C Q Ptes ' J, Deve %NI e n 7/ Primary Contact/ Owner Re re tativee —Ge rry Arnold Mailing Address: c/o VRDC, • ` cox 959, Avon, CO 81620 Phone: 754 -2658 office; 331 -1898 cell E - Mail: gerrya @vailresorts.com Fax: 754 - 2555 For Office Use Only: Cash_ CC: Visa / MC Last 4 CC # Auth # Check # 51 Sty cO Fee Paid: 1 0 C` . - Received From: V&A \ Le cca, �S Meeting Date: C OE 3 PEC No.: _+ z- ►a_. 6 Planner: I/3 C' Project No: "MD (DJ - 03 Zoning: Land Use: Location of the Proposal: Lot: c-3 Block: Subdivision: (4j5I — Day 01 -Jan-10 ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** TOWN OF VAIL, COLORADO Statement ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Statement Number: R100001050 Amount: $100.00 08/12/201007:41 AM Payment Method: Check Init: SAB Notation: 518450 VAIL RESORTS Permit No: PEC100038 Type: PEC - Condo /T.H. Plat Re Parcel No: 2101 - 072 - 1700 -2 Site Address: 728 W LIONSHEAD CR VAIL Location: 728 WEST LIONSHEAD CR Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** ACCOUNT ITEM LIST: Account Code Description Current Pmts PV 00100003112500 PEC APPLICATION FEES 100.00 1 r" Land Title Guarantee Company CUSTOMER DISTRIBUTION Land Title (il1ARANTEE COMPANY i Date: 06 -14 -2010 Our Order Number: VC50006700.1 -12 Property Address: LOT 2, WEST DAY SUBDIVISION If you have any inquiries or require further assistance, please contact one of the numbers below: For Title Assistance: Vail Title Dept. 108 S FRONTAGE RD W #203 VAIL, CO 81657 Phone: 970 - 476 -2251 Fax: 970 - 476 -4732 VAIL ASSOCIATES, INC., A COLO CORP OTTEN JOHNSON ROBINSON NEFF & RAGONETTI PC *TMX* PO BOX 7 950 17TH ST #1600 VAIL, CO 81658 DENVER, CO 80202 t Phone: 970 - 754 -2567 Attn: AMY HANSEN Fax: 970 - 845 -2555 Phone: 303 - 575 -7563 EMail: hcunningham @vailresorts.com Fax: 303 - 825 -6525 Linked Commitment Delivery Copies: 1 EMail: ahansen @ottenjohnson.com Linked Commitment Delivery I I 1 I g J AUG 11 2010 j t TOWN OF VAIL Land Title Guarantee Company Date: 06 -14 -2010 Land Title Our Order Number: VC50006700.1 -12 GUARANTEE CUMVANY Property Address: LOT 2, WEST DAY SUBDIVISION Buyer /Borrower: RCR VAIL, LLC, A COLORADO LIMITED LIABILITY COMPANY Seller /Owner: RCR VAIL, LLC, A COLORADO LIMITED LIABILITY COMPANY 1 Need a map or directions for your upcoming closing? Check out Land Title's web site at www.ltgc.com for directions to any of our 54 office locations. ESTIMATE OF TITLE FEES ALTA Owners Policy 06 -17 -06 $4, 892.00 i If Land Title Guarantee Company will be closing this transaction, above fees will be collected at that time. ; TOTAL $4,892.00 Form CONTACT 06 /04 THANK YOU FOR YOUR ORDER! First American Title Insurance Company 1 ALTA COMMITMENT Our Order No VC50006700.1 -12 Schedule A Cust. Ref.: Property Address: LOT 2, WEST DAY SUBDIVISION 1. Effective Date: May 06, 2010 at 5:00 P.M. 2. Policy to be Issued, and Proposed Insured: "ALTA" Owner's Policy 06 -17 -06 $6,100,000.00 Proposed Insured: RCR VAIL, LLC, A COLORADO LIMITED LIABILITY COMPANY 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: A Fee Simple 4. Title to the estate or interest covered herein is at the effective date hereof vested in RCR VAIL, LLC, A COLORADO LIMITED LIABILITY COMPANY 5. The Land referred to in this Commitment is described as follows: LOT 2, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005, RECEPTION NO 908760, COUNTY OF EAGLE, STATE OF COLORADO. THE LAND ON WHICH WDL VAIL WILL BE LOCATED, AS DEPICTED ON THE SITE PLAN { PREPARED BY 42/40 ARCHITECTURE, IS ENCOMPASSED WITHIN THE PROPERTY SHOWN ON THE 1 PLAT DESCRIBED ABOVE. TOGETHER WITH THE BENEFITS CONFERRED BY THE EASEMENT APPURTENANT TO THE PROPERTY TO BE CONVEYED TO THE PURCHASERS BY PRIVATE PEDESTRIAN ACCESS. EASEMENT RECORDED JULY 5, 2006 UNDER RECEPTION NO. 200617774. ALTA COMMITMENT ( Schedule B - Section 1 (Requirements) Our Order No. VC50006700.1-12 The following are the requirements mbcmple with: . { Item (a) Paymemm £ for the account of th grantors or moppa of the full consi &rm,mrthea or interest to be ins «k. Item (b) Proper instrum BGceimgth estate or to be insured mu be executed and duly filed for record, to-wit: Item (c) Payment of all tax es, charges or assessments levied and assess ed against the premises which cede \ and payable. \ ( Item (d) Additional Rpi m n ,E any disc tab m«: [ ( I I \ i ( I ( ( [ [ t i \ ( \ $ ( � ( [ ( ( { ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No VC50006700.1 -12 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: g; 1. Any facts, rights, interests or claims which are not shown by the Public Records, but which could be ascertained by an inspection of the Land or by making inquiry of persons in possession thereof. 2. Easements, or claims of easements, not shown by the Public Records. t' 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the Land would disclose, and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the Public Records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. tr 6. Any and all unpaid taxes, assessments and unredeemed tax sales. 7. Unpatented mining claims, reservations or exceptions in patents or in Acts authorizing the issuance thereof. 8. In addition, the owner's policy will be subject to the mortgage, if any noted in Section 1 of Schedule B hereof. 9. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND IN UNITED STATES PATENT RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98. 10. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503, SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND JULY 13, 1939 IN BOOK 123 AT PAGE 617. 11. RESTRICTIVE COVENANTS, WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED OCTOBER 15, 1971, IN BOOK 221 AT PAGE 991 AND AMENDED BY DOCUMENT RECORDED AUGUST 12, 1977 IN BOOK 258 AT PAGE 453. ( ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No VC50006700.1 -12 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 12. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF WEST DAY SUBDIVISION RECORDED MARCH 10, 2005 AT RECEPTION NO 908760. NOTE: VACATION OF UTILITY EASEMENT RECORDED AUGUST 1, 2008 AT RECEPTION NO 200816335. VACATION OF EAGLE RIVER WATER AND SANITATION DISTICT EASEMENT RECORDED MAY 23, 2007 UNDER RECEPTION NO. 200713389. 13. TERMS, CONDITIONS AND PROVISIONS OF COOPERATION AND EASEMENT AGREEMENT RECORDED JUNE 24, 2005 AT RECEPTION NO 920513. 14. TERMS, CONDITIONS AND PROVISIONS OF PARKING EASEMENTS AGREEMENT RECORDED JUNE 24, 2005 AT RECEPTION NO. 920514 AND FIRST AMENDMENT THERETO RECORDED JULY 27, 2007 AT RECEPTION NO 200719892. THE FOREGOING EXCEPTION WILL BE DELETED UPON PROOF THAT THE TERMINATION PROVISIONS CONTAINED IN THE DOCUMENT DESCRIBED HAVE BEEN MET. 15. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT REGARDING DENSITY ALLOCATION RECORDED JUNE 24, 2005 AT RECEPTION NO 920515. 16. TERMS, CONDITIONS AND PROVISIONS OF CONSTRUCTION STAGING AND SUPPORT EASEMENT AGREEMENT RECORDED JULY 05, 2006 AT RECEPTION NO 200617769. 17. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT REGARDING DENSITY ALLOCATION RECORDED JULY 05, 2006 AT RECEPTION NO. 200617770. 18. RIGHT OF WAY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC. IN INSTRUMENT RECORDED NOVEMBER 14, 2006, UNDER RECEPTION NO. 200631215. 19. TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT AND VAULT AGREEMENT RECORDED MAY 16, 2007 AT RECEPTION NO 200712757. 20. TERMS, CONDITIONS AND PROVISIONS OF SEWER EASEMENT RECORDED MAY 23, 2007 AT x` RECEPTION NO 200713390. ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. VC50006700.1 -12 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: P Y: 21. TERMS, CONDITIONS AND PROVISIONS OF TEMPORARY ACCESS EASEMENT RECORDED JUNE 11, 2007 AT RECEPTION NO. 200715212. 22. TERMS, CONDITIONS AND PROVISIONS OF HOLY CROSS ENERGY UNDERGROUND RIGHT OF WAY EASEMENT RECORDED JULY 06, 2007 AT RECEPTION NO 200718019. 23. TERMS, CONDITIONS AND PROVISIONS OF DRAINAGE EASEMENT AGREEMENT RECORDED JULY 03, 2008 AT RECEPTION NO 200813972. 24. TERMS, CONDITIONS AND PROVISIONS OF VARIANCE AGREEMENT RECORDED MAY 18, 2009 AT RECEPTION NO 200909295. 25. TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED MAY 22, 2009 AT RECEPTION NO 200909872. 26. TERMS, CONDITIONS AND PROVISIONS OF CLARIFICATION OF AND AMENDMENT OF DESINTY ALLOCATION RECORDED SEPTEMBER 16, 2009 AT RECEPTION NO 200920432. 27. TERMS, CONDITIONS AND PROVISIONS OF AMENDMENT TO ACCESS WAY RECORDED SEPTEMBER 16, 2009 AT RECEPTION NO 200920433. 28. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE CONDOMINIUM MAP OF WDL VAIL CONDOMINIUM RECORDED AT RECEPTION; NO 29. THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS, AND RESTRICTIONS, WHICH ARE A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED RECEPTION NO. I DRAFT August 5, 2010 CONDOMINIUM DECLARATION FOR WDL VAIL , 20 1 TOWN OF VAIL DESIGN REVIEW STAFF APPROVAL, (Pt e ._ 9S10 ECLE AUG 11 2010 TOWN OF VAIL 654397.29 - 1 1 TABLE OF CONTENTS f Page Article 1 DEFINITIONS AND EXHIBITS 1 1.1 Definitions 1 I 1.2 Exhibits 12 Article 2 CREATION OF THE CONDOMINIUM PROJECT; UNITS AND ALLOCATIONS 13 2.1 Creation 13 2.2 Name 13 2.3 Division of Property 13 2.4 Designation of Boundaries 13 2.5 Unit Subdivisions, Connections and Boundary Changes 15 2.6 Limited Common Elements 15 i 2.7 Allocations 15 l.' 2.8 Reservation of Special Declarant Rights 18 1 2.9 Density Limitations 21 2.10 Number of Units 21 Article 3 EASEMENTS 21 3.1 Easements Benefiting Owners 21 3.2 Easements Benefiting Condominium Association 22 3.3 Easements Benefiting Declarant 22 3.4 Common Element Wall Easement 22 I 3.5 Easements for Encroachments 23 3.6 Easements to Repair, Maintain, Restore and Reconstruct 23 3.7 Easements for Utilities and Mechanical Equipment 23 I t 3.8 Right of Entry 23 3.9 Additional Easements 24 3.10 Easements Run with. Property 24 p rtY 3.11 Other Recorded Easements and Licenses Affecting the Property 24 l t Article 4 COVENANTS, CONDITIONS AND RESTRICTIONS 24 a ` 4.1 Administration 24 4.2 Compliance 24 d 4.3 Residential Units and Fractional Units. 25 t i i t 654397.29 { . f t . 4 \ i TABLE OF CONTENTS ( (continued) [ Page ( [ / 4/ Commercial Units 26 \ 4.5 Pa kin Unit 26 ° 4.6 Parking Sp c s 26 i ( 4.7 Co d minium Association's Units 27 [ 48 PoiitdUssGe2gl 28 { 4.9 Manner of Use 28 [ *10 Rules 30 ( [ 4.11 Indemnity 30 ( *12 Provisions Ru with Property 30 L ( *13 Enforcement 31 { Article 5 OPERATION, MAINTENANCE AND REPAIR 32 1 ( 5.1 Co d minium Association's Duties 3 2 { [ 5.2 Owners' Duties 33 ( 5.3 Maintenance Standard 34 { Article 6 THE CONDOMINIUM ASSOCIATION AND BOARD 34 ( 61 Formation o teCondominium Association; Memb nb@ 34 g { 62 Powers 34 ( 63 Budget 36 [ 6.4 Annual Reserve Analy sis 37 ( Article 7 CONSTRUCTION DEFECTS, DISPUTES, DISPUTE RESOLUTION AND LITIGATION 37 { 71 Testing for Constru §o Defects 37 ( t 7.2 Co kn u for Co d minium Association Litigation 38 { 7.3 A t rna!!v Method for Resolving Disputes 39 ( ( 7.4 Claims 39 { 75 Mandatory Procedures 40 [ 26 Legal Proceedings 42 \ { 77 Enforcement of Declaration, Bylaws, an d Rules 43 { 7.8 PoeuefrAdAesingDisme AriingadwenteCodminium { Association and Owne rs 43 [ { , [ i 654397 29 ( ( { i / TABLE OF CONTENTS (continued) Page 1 Article 8 MOLD DISCLOSURE 43 Article 9 ASSESSMENTS 44 9.1 General Assessments 44 9.2 Special Assessments 45 9.3 New Parking Warranty 47 9.4 Working Capital Fund 48 9.5 Payment of Assessments; Notice and Acceleration 48 9.6 Enforcement of Assessments 48 9.7 Disputes and Records 49 9.8 Owners not Exempt from Liability 49 9.9 Declarant's Responsibility for Assessments 50 Article 10 ALTERATIONS 50 10.1 Permitted Unit Alterations 50 10.2 Boundary Relocation 51 10.3 Connection of Adjoining Units 52 10.4 Unit Disconnection 53 10.5 Alterations Related to the Parking Unit 53 10.6 Construction 54 10.7 Alteration of Common Elements 55 f t 10.8 Alterations by Declarant 55 10.9 No Alteration of Fractional Units 56 l Article 11 INSURANCE 56 11.1 Condominium Association's Insurance 56 11.2 Owners' Insurance 58 11.3 Certificates of Insurance; Notices of Unavailability 60 11.4 Waiver of Claims 60 1 11.5 Proceeds 60 Article 12 CASUALTY 61 f 12.1 Restoration Decision 61 12.2 Disposition of Insurance Proceeds 62 12.3 Manner of Restoration 62 iii 654397.29 g r I 3 i g a g 3g [ TABLE OF CONTENTS (continued) [ Page [ [ 124 No Abate met 63 i Article 13 CONDEMNATION 63 ( 13.1 Taking of Units 63 132 Taking of Common Elements 64 [ Article 14 TERMINATION 64 ( ! 14.1 Termination Age me! 6 / 1*2 Sale of Condominium Project 65 i 1*3 Proceeds 65 ( 14.4 Replacement a m7 Easement 66 { [ Article 15 AMENDMENT 67 ( !R! Required Votes 67 ( 152 Amending Documents 68 f E Article 16 OWNER'S ACKNOWLEDGMENTS AND WAIVERS 69 ( 16.1 Owner's Acknowledgme ts 6 \ 162 Use Rights 70 [ 16.3 Disclaimer 71 [ 164 No View Easement 71 16.5 Security 72 i 166 Other P o erties 7 \ !R7 Ise§obyOhrs;WQvroPosIse§oLiabili 7 \ 168 Post Tension Construction Disclosure 73 1 Article 17 CONVEYANCING AND ENCUMBRANCING 74 ( !2! Ownership Interests 74 { 17.2 Parking Unit 74 ` 173 Common Elements 74 17.4 Transferee Liab ili! 75 \ / 125 Estoppel Certifc es 75 ( Article 18 GENERAL PROVISIONS 76 [ !E! CCIOA ;S v abilit 76 [ ! %2 Interpretation of Declaration 76 [ 18.3 Notices 76 \ { iv ��9 ' ( ( [ ( [ [ TABLE OF CONTENTS (continued) Page . � 18.4 Partition 77 185 Assignment of Special Declarant Rights 77 18.6 Taxation of Units 7 187 Use of the Name `WDL Vail" 77 18.8 Ritz-Carlton Marks 77 [ Article 19 APPLICATION OF CLUB DECLARATION 78 EXHII A THE LAND . A-1 { EXHII B COMMON ALLOCATIONS B ; [ EXHIBIT C OTHER RECORDED EASEMENTS AND LICENSES AFFECTING THE PROPERTY C-1 EXHIBIT D ARBITRATION RULES D-1 EXHIBIT E REPRESENTATIVE EXAMPLES OF POSSIBLE COMMON EXPENSES E-1 EXHIBIT F HOTEL PROPERTY F-1 EXHII G RESIDENTIAL UNITS THAT ARE ELIGIBLE TO BECOME FRACTIONAL UNITS G-1 EXHII H PARKING RIGHTS HQ ( { � [ ( { { . � { ( [ . ( ( ( . ( { ( ( v 654397 29 ( [ ( CONDOMINIUM DECLARATION FOR WDL VAIL THIS CONDOMINIUM DECLARATION FOR WDL VAIL is made as of , 200_, by RCR VAIL, LLC, a Colorado limited liability company. RECITALS This Declaration is made with respect to the following facts: A. "Declarant" is the owner of the "Property" (as those terms are defined in Section 1.1). B. In accordance with the provisions of "CCIOA" (as defined in Section 1.1), Declarant desires to establish the Property as a condominium project consisting of condominium units designated for separate ownership including the submittal of certain of such condominium units to a fractional ownership plan, common elements designated for ownership in common by the owners of those condominium units, and areas for commercial use. DECLARATION NOW, THEREFORE, Declarant declares as follows: ARTICLE 1 DEFINITIONS AND EXHIBITS 1.1 Definitions. The following initially - capitalized, defined terms have the respective meanings set forth below: "Alteration" is defined in Section 10.6. "Annual Reserve Analysis" is defined in Section 6.4. "Assessments" is defined in Section 9.5. "Award" is defined in Section 7 .5 c ii . "Board" means the Board of Directors of the Condominium Association. "Boundary Relocation" means: (i) the combination of two or more adjoining Units into a single Unit; or (ii) the alteration of the boundary or boundaries separating two or more adjoining Units. "Bound Party" is defined in Section 7.3. 654397.29 S 1 "Building" means the six -story building located on the Land and situated on top of the Garage, as depicted on the Map. "Bylaws" means the Articles of Incorporation and the Bylaws of the Condominium Association. "Casualty" is defined in Section 12.1. "CCIOA" means the Colorado Common Interest Ownership Act, C.R.S. § 38- 33.3 -101, et seq. "Central Mechanical Equipment" means all plumbing, hot water, electrical and mechanical equipment in the Condominium Project that is designed to service all of the Units and certain interior Common Elements and the carbon monoxide detection system for the Project. The Central Mechanical Equipment constitutes a part of the General Common Elements. "Claim" is defined in Section 7.3. 1 "Claimant" is defined in Section 7.5(a). "Clarification" is defined in Section 2.9. "Club Association" means WDL Vail Club Association, Inc., a nonprofit Colorado corporation, formed or to be formed to manage the Fractional Ownership Plan. All Fractional Owners will be members of the Club Association, as well as the Condominium Association. "Club Declarant" means The Ritz- Carlton Development Company, Inc., a Delaware corporation, or any other Person approved by Declarant from time to time, or any Person, including but not limited to the Club Association, designated as a successor to Club Declarant's rights and obligations under this Declaration in a written instrument signed by Club Declarant and Recorded. Notwithstanding the foregoing, Special Declarant Rights may be transferred only in accordance with Section 304 of CCIOA. "Club Declaration" means that certain Declaration of Fractional Ownership Plan for WDL Vail Club, together with any exhibits, schedules, supplements or amendments thereto, which may be recorded in the Records of Eagle County, Colorado, after the date of this Declaration. "Commercial Activities" is defined in Section 16.1(c). "Commercial Activity Areas" is defined in Section 16.1(c). "Commercial Allocation" means with respect to each Commercial Unit the percentage allocated to the Commercial Unit as set forth on Exhibit B. The Commercial Allocation for each Commercial Unit is determined by dividing the Measured Area of that Commercial Unit by the total Measured Area of all Commercial Units. As additional Commercial Units are created pursuant to the exercise of Development Rights in accordance with Section 2.8(a), the 654397.29 2 1 I i I Commercial Allocation for each Commercial Unit will, upon creation of such additional Commercial Units, be recalculated using the methods set forth above, using the totals for all the Commercial Units, including the newly created Commercial Units, for purposes of the denominators in each equation. I "Commercial Expenses" means all portions of the Common Expenses relating solely to the maintenance and operations of the commercial portions of the Building, and not the Residential Units, Fractional Units, the Garage or any of the amenities located within the Common Elements. A list of some representative expenses that may constitute Commercial Expenses is included on the attached Exhibit E, however, actual Commercial Expenses may include more, fewer or different items than those listed on Exhibit E. a "Commercial Owner" means each Owner of a Commercial Unit. "Commercial Unit" means each Unit located in the Building designated for commercial I` use, as depicted on the Map, or any Units resulting from a subdivision of the same from time to I time. Commercial Units are designated on the Map with the letter "C" plus their identifying number. For example, Commercial Unit 2 is designated as "C -2" on the Map. I "Common Allocation" means, with respect to each Unit, the percentages allocated to the Unit as set forth on Exhibit B. The Common Allocations include four types of allocations: Project -Wide Allocations, Residential Allocations, Commercial Allocations and Garage Allocations. As additional Units are created pursuant to the exercise of Development Rights in accordance with Section 2.8(a), the Common Allocations for each Unit will, upon creation of such additional Units, be recalculated. "Common Alteration" is defined in Section 10.7(b). "Common Element Taking" is defined in Section 13.2. "Common Elements" means all ortions of and areas within the Condominium Project p Project are not part of the Units. Limited Common Elements and General Common Elements are both part of the Common Elements. A portion of the Common Elements may be referred to as a "Common Element." "Common Element Wall" is defined in Section 2.4(a). "Common Expenses" means, except for those costs and expenses expressly excluded below, all costs, expenses and financial liabilities incurred by the Condominium Association pursuant to this Declaration or the Bylaws including, without limitation: all costs of operating, I managing, administering, securing, protecting, insuring, ventilating, lighting, decorating, cleaning, maintaining, repairing, renewing, replacing or restoring (to the extent not covered by insurance or condemnation proceeds) the Common Elements, including the Central Mechanical Equipment; all costs of providing water, sewer, waste disposal, telecommunications, electricity, natural gas and other services, energy and utilities to the Common Elements and the Condominium Association's personal property and equipment located in, or used in connection f with the operation or maintenance of, the Common Elements; all costs of providing water, sewer, k', waste disposal, telecommunications, electricity, natural gas and other services, energy and 654397.29 3 I t i I utilities to the Units to the extent not charged directly to the Unit Owners and /or as a part of the Garage Expenses pursuant to Section 5.1(b)(ii); taxes on any property owned by the Condominium Association; and funding of working capital and reasonable reserves for Common Expenses. Except to the extent provided in Sections 9.2 and 17.4(c), Common Expenses will not include Limited Benefit Expenses, Reimbursable Expenses, the costs of any Restoration Deficit, Voluntary Capital Expenses or any other cost or expense which, pursuant to this Declaration, may be separately assessed (i.e., in addition to General Assessments for Common Expenses) against any Unit. The Common Expenses include four types of expenses: Project -Wide Expenses, Residential Expenses, Commercial Expenses and Garage Expenses. "Condominium Association" means WDL Vail Condominium Association, Inc., a nonprofit Colorado corporation, formed or to be formed pursuant to Section 6.1. "Condominium Project" means the condominium, as defined in Section 103(9) of CCIOA, created by this Declaration and consisting of the Property. "Construction Activities" is defined in Section 16.1(b). "Deck" is defined in Section 2.6(a). "Declarant" means RCR Vail, LLC, a Colorado limited liability company, or any Person designated as a successor to Declarant's rights and obligations under this Declaration in a written instrument signed by Declarant and Recorded. Notwithstanding the foregoing, Special Declarant Rights may be transferred only in accordance with Section 304 of CCIOA. "Declarant Control Period" means the period beginning on the date the Condominium Association is formed and ending on the first to occur of (i) 60 days after 75% of the total number of Units that may be created pursuant to Section 2.10 have been conveyed to Owners other than Declarant; (ii) two years after the last conveyance of a Unit by Declarant in the ordinary course of business; (iii) two years after any right to create new Units pursuant to this Declaration was last exercised; or (iv) the date on which Declarant, in its sole discretion, voluntarily terminates the Declarant Control Period pursuant to a Recorded statement of termination executed by Declarant. If Declarant terminates the Declarant Control Period pursuant to the preceding clause (iv), Declarant may require that, for the balance of what would have been the Declarant Control Period had Declarant not terminated it, certain actions of the Condominium Association or the Board, as described in the Recorded statement of termination, be approved by Declarant before they become effective. "Declarant Development Period" means the period beginning on the date this Declaration is Recorded and ending on the 15 anniversary of the date on which this Declaration was Recorded. "Declaration" means this instrument, as it may be amended from time to time "Delinquency Costs" is defined in Section 9.5. "Density Agreement" is defined in Section 2.9. 654397.29 4 "Development Rights" is defined in Section 2.8(a). "Director" means a member of the Board. "Easements" means all easements that burden or benefit the Condominium Project or a portion of it, including (i) easements established or granted under this Declaration; (ii) easements which first burdened or benefited the Property before the Recording of this Declaration; and (iii) easements which first burden or benefit the Property after this Declaration is Recorded. "First Mortgage" means a Mortgage that is Recorded and has priority of record over all other Recorded liens except those liens made superior by statute (e.g., general ad valorem tax liens and special assessments and mechanics' liens). "First Mortgagee" means the holder, from time to time, of a First Mortgage on any Ownership Interest as shown by the Records. If there is more than one holder of a First Mortgage, the holders will be treated as, and act as, one First Mortgagee for all purposes under this Declaration and the Bylaws. "Fiscal Year" means the fiscal accounting and reporting period of the Condominium Association as set in the Bylaws. "Fractional Owner" means each owner of a Fractional Ownership Interest in a Fractional Unit. 1 "Fractional Ownership Interest" means an undivided, fee ownership interest (expressed as a fraction) as tenant -in- common in a Fractional Unit, allowing the relevant Fractional Owner exclusive right to possession, use and occupancy of the Fractional Unit pursuant to the Club Declaration and the terms and conditions of the Fractional Ownership Plan. "Fractional Ownership Plan" means the system of mutual use rights and obligations created and established by the Club Declaration for Fractional Owners. "Fractional Unit" means each Residential Unit that has been converted into "time share estates" as defined in C.R.S. § 38 -33 -110 or another time share, interval ownership, destination club, vacation club, or similar estate or interest in property pursuant to the Club Declaration. The term "Fractional Unit" refers to the collective legal interests or estates created within the underlying Residential Unit and does not refer to each individual Fractional Ownership Interest. The Residential Units that are eligible to become Fractional Units are those described on Exhibit G and such other Residential Units which Club Declarant or its successors may acquire from time to time and in which Club Declarant or its successors conveys a Fractional Ownership Interest. No revisions to the Map will be required to change the label for such Units from "R" to a different designation for a Fractional Unit, but if an amendment to the Map is made which depicts any such Fractional Units, the label must be changed to substitute the letter "F" in place of the letter "R" to signify the conversion of such Unit from a Residential Unit to a Fractional Unit. A Residential Unit becomes a Fractional Unit and subject to the Fractional Ownership Plan immediately and without further action upon the recordation of a deed from Club Declarant or its successors which conveys a Fractional Ownership Interest in such Unit. The legal description for a Fractional Ownership Interest shall include a designation of the Unit which 654397.29 5 qq 4 includes the letter "F" followed by the unique number which identifies such Unit. The Unit number alone shall be sufficient for identification by reference to the Map of the physical Unit to which the Fractional Ownership Interest relates. "Garage" means the three -level parking garage situated beneath the Building. "Garage Allocation" means, with respect to each Unit, the percentage allocated to the Unit as set forth on Exhibit B. The Garage Allocation for each Commercial Unit, Fractional Unit and the Parking Unit is determined by dividing the number of motor vehicles that the Owner of such Unit has (or the Fractional Owners owning Fractional Ownership Interests in a Fractional Unit have at any one time) the right to park in the Garage pursuant to that Owner's Individual Parking Rights by the total number of motor vehicles that may be parked in the Garage at any one time pursuant to all Parking Rights (including Guest Parking Rights) under this Declaration. The Garage Allocation for each Residential Unit is determined by dividing the number of motor vehicles that the Owner of such Residential Unit has the right to park in the Garage pursuant to that Owner's Individual Parking Rights by the total number of motor vehicles that may be parked in the Garage at any one time pursuant to all Parking Rights (including Guest Parking Rights) under this Declaration, and adding to such number the number obtained by first dividing the total number of Guest Parking Rights by the total number of motor vehicles that may be parked in the Garage at any one time pursuant to all Parking Rights (including Guest Parking Rights) under this Declaration, and then by dividing the result of such calculation by the total number of Residential Units under this Declaration. For purposes of this calculation, the Parking Unit will be deemed to include Parking Rights equal to 237 motor vehicles, unless this Declaration is amended to include additional Parking Spaces within the Parking Unit, in which case the new number of Parking Spaces within the Parking Unit will also be included in the calculation. As additional Units are created pursuant to the exercise of Development Rights in accordance with Section 2.8(a) or as additional Parking Spaces are permitted in the Garage and additional Parking Rights are created, the Garage Allocation for each Unit will, upon creation of such additional Units, or Parking Spaces or Parking Rights, be recalculated in accordance with the formula set forth above. As of the date of this Declaration, the total number of motor vehicles that may be parked in the Garage at any one time pursuant to all Parking Rights (including Guest Parking Rights and the Parking Rights deemed allocated to the Parking Unit as provided for above) is 398. "Garage Expenses" means all portions of the Common Expenses relating solely to the g P P P g Y maintenance and operation of the Garage. A list of some representative expenses that may constitute Garage Expenses is included on the attached Exhibit E, however, actual Garage Expenses may include more, fewer or different items than those listed on Exhibit E. "General Assessments" is defined in Section 9.1. "General Benefit Expense" is defined in Section 9.2(a). "General Common Elements" means all Common Elements that are not Limited Common Elements. For example, the Land is a General Common Element. A portion of the General Common Elements may be referred to as a "General Common Element" (and labeled on the Map as "GCE "). 1 654397.29 6 j { # "Guest Parking Rights" is defined in Section 4.6(b). "Hotel Property" means the real property located generally adjacent to the Condominium Project legally described on the attached Exhibit F. "Indemnity Claims" is defined in Section 4.11. "Individual Parking Rights" is defined in Section 4.6(b) "Land" means the real property legally described on the attached Exhibit A. "Limited Benefit Expenses" is defined in Section 9.2(b). "Limited Common Elements" means the portions of the Common Elements allocated to the exclusive use of one or more, but fewer than all, of the Units. For example, any Deck connecting to a Unit is a Limited Common Element allocated to such Unit. A portion of the Limited Common Elements may be referred to as a "Limited Common Element." Some of the Limited Common Elements are designated in this Declaration and on the Map and identified by the initials "LCE" followed by the number of the Unit to which the Limited Common Element is allocated or the first letter(s) of the name of the group(s) of Units to which the Limited Common Element is allocated (LCE -P, LCE -R, LCE -F, LCE -R,F or LCE -C). For example, a Limited Common Element allocated only to the use of Residential Unit 406 may be identified as "LCE - R- 406," a Limited Common Element allocated to the Commercial Units as a group would be designated as "LCE -C," any Limited Common Element allocated to the Residential Units and the Fractional Units as a group would be designated as "LCE -R,F ", and any Limited Common Element allocated to all of the Residential, Fractional and Commercial Units as a group would be designated as "LCE- R,F,C." For any Limited Common Element allocated to all of the Units on Exhibit G, such Limited Common Elements may be labeled "LCE -F," and such designation will be deemed to refer to such Units, despite the fact that such Units have not yet become Fractional Units. "Map" means the Condominium Plat for WDL Vail, which was Recorded on the same date as this Declaration and is made a part of this Declaration, as such Condominium Plat may be amended in accordance with this Declaration. "Measured Area" means for each Unit the area in square feet of all floor space included in the Unit measured from the vertical boundaries of the Unit (as described in Section 2.4). "Molds" is defined in Article 8. "Mortgage" means an unpaid or outstanding mortgage, deed of trust, deed to secure debt or any other form of security interest encumbering an Ownership Interest. "Mountain Activities" is defined in Section 16.1(a). "Mountain Recreational Areas" is defined in Section 16.1(a). "Net Densities" is defined in Section 2.9. t 4 a 654397.29 7 "New Owner" is defined in Section 17.4(a). "New Parking Warranty" is defined in Section 9.3. "Notice" is defined in Section 7.5(a). "Ordinances" is defined in Section 16.6. "Original Density Agreement" is defined in Section 2.9 "Other Properties" is defined in Section 16.6. "Owner" means a Person or Persons, including Declarant or Club Declarant, owning an Ownership Interest from time to time. The term Owner includes a contract vendee under an installment land contract, but does not include a Security Holder (unless and until a Security Holder becomes an owner of an Ownership Interest). There are four types of Owners: the Commercial Owners, the Parking Unit Owner, the Residential Owners, and the Fractional Owners, if any "Ownership Interest" means fee simple title to a Unit, or a Fractional Ownership Interest in the case of a Fractional Unit, in either case held by an Owner. "Parking Rights" means Individual Parking Rights and Guest Parking Rights. "Parking Space" means each parking space in the Garage that is designated as such on the Map. Parking Spaces may be "stacked" or "tandem" spaces, as indicated on the Map, in which case each "stacked" or "tandem" space is deemed to be one Parking Space for each motor vehicle that may be parked in such "stacked" or "tandem" space pursuant to law. "Parking Unit" is the Unit located in the Garage the boundaries of which are more particularly described in Section 2.4(b) and on the Map, which consists of 237 Parking Spaces, of which no more than 148 may be stacked or tandem. The Parking Unit is labeled as "Parking Unit" on the Map. "Parking Unit Owner" means the Owner of the Parking Unit. "Party(ies)" is defined in Section 7.5(a). "Patio" is defined in Section 2.6(b). "Permitted Unit Alteration" is defined in Section 10.1. "Permittee" means a Person, other than an Owner, rightfully present on or in rightful possession of a Unit or Common Element, or a portion of a Unit or Common Element; including, without limitation, (i) a tenant of an Owner or the Condominium Association; (ii) an exchange program user as permitted under the Fractional Ownership Plan; or (iii) an agent, employee, customer, contractor, licensee, guest or invitee of an Owner, the Condominium Association, or a tenant of either of them. 8 654397.29 8 qq k : o- "Person" means a natural person, corporation, partnership, limited liability company, trust or other entity, or any combination of them. "Post Mediation Costs" is defined in Section 7.5(d)(i). "Post Tension Construction" is defined in Section 16.8. "Project -Wide Allocation" means, with respect to each Unit, the percentage allocated to the Unit as set forth on Exhibit B. The Project -Wide Allocation for the Parking Unit is 5 %. The Project -Wide Allocation for all other Units is determined by subtracting the Parking Unit's Project Wide- Allocation from 100% and multiplying the remainder (i.e., 95 %) by a fraction, the numerator of which is the Measured Area of the particular Unit, and the denominator of which is the total Measured Area of all the Units other than the Parking Unit. As additional Units are created or combined pursuant to the exercise of Development Rights in accordance with Section 2.8(a), the Project -Wide Allocation for each Unit will, upon such action, be recalculated in accordance with the above formulas taking into account the newly created or combined Units. "Project -Wide Expenses" means all portions of the Common Expenses other than the Residential Expenses, Commercial Expenses and the Garage Expenses. A list of some representative expenses that may constitute Project -Wide Expenses is included on the attached Exhibit E, however, actual Project -Wide Expenses may include more, fewer or different items than those listed on Exhibit E. "Property" means the Land and all improvements located thereon including the Building and Garage. "Records" means the real property records maintained by the Clerk and Recorder of Eagle County, Colorado; to "Record" or "Recording" means to file or filing for recording in the Records; and "of Record" or "Recorded" means recorded in the Records. "Reimbursable Expenses" is defined in Section 9.2(c). "Replacement Parking Easement" is defined in Section 14.4. "Reserve Fund" is defined in Section 6.3(a)(ii). "Reserve Study" is defined in Section 6.4. "Residential Allocations" mean, with respect to each Residential Unit and Fractional Unit, the Residential Allocation (Measured Area), Residential Allocation (Equal), and Residential Allocation (Beds), collectively, as set forth on Exhibit B. "Residential Allocation (Measured Area)" means, with respect to each Residential Unit and Fractional Unit, the percentage allocated to such Unit as set forth in Exhibit B under Residential Allocation (Measured Area). The Residential Allocation (Measured Area) for each such Residential Unit and Fractional Unit is determined by dividing the Measured Area of the Residential Unit or Fractional Unit by the total Measured Area of all Residential Units and Fractional Units. As Residential Units or Fractional Units are created pursuant to the exercise of 65439729 9 4 a Develo Development Rights in accordance with Section 2.8(a), the Residential Allocation (Measured P g (), ( Area) for each Residential Unit and Fractional Unit will, upon such action, be recalculated using the formula set forth above, using the new total Measured Area for all the Residential Units and Fractional Units, for purposes of the denominators in each equation. "Residential Allocation (Equal)" means, with respect to each Residential Unit and Fractional Unit, the percentage allocated to such Unit as set forth in Exhibit B under Residential Allocation (Equal). The Residential Allocation (Equal) for each such Residential Unit and Fractional Unit is determined by dividing the number one by the total number of Residential Units and Fractional Units. As Residential Units or Fractional Units are created or combined pursuant to the exercise of Development Rights in accordance with Section 2.8(a), the Residential Allocation (Equal) for each Residential Unit and Fractional Unit will, upon such action, be recalculated using the formula set forth above, using the new total number of Residential Units and Fractional Units for purposes of the denominators in each equation. "Residential Allocation (Beds)" means, with respect to each Residential Unit and Fractional Unit, the percentage allocated to such Unit as set forth in Exhibit B under Residential Allocation (Beds). The Residential Allocation (Beds) for each such Residential Unit and Fractional Unit is determined by dividing the number of bedrooms in such Residential Unit or Fractional Unit by the total number of bedrooms in all Residential Units and Fractional Units. As Residential Units or Fractional Units are created or combined pursuant to the exercise of Development Rights in accordance with Section 2.8(a), the Residential Allocation (Beds) for each Residential Unit and Fractional Unit will, upon such action, be recalculated using the formula set forth above, using the new total number of bedrooms in all of the Residential Units and Fractional Units for purposes of the denominators in each equation. "Residential Expenses" means all portions of the Common Expenses relating solely to the maintenance and operations of the residential portions of the Building, including portions of the Building operated solely for the benefit of the Residential Units and the Fractional Units as shown on the Map as "LCE -R,F ", and not the Commercial Units or the Garage. A list of some representative expenses that may constitute Residential Expenses is included on the attached Exhibit E, however, actual Residential Expenses may include more, fewer or different items than those listed on Exhibit E. There are three types of Residential Expenses: Measured Area, Equal and Beds, and each such type is referred to as "Residential Expenses (Measured Area)," "Residential Expenses (Equal)," and "Residential Expenses (Beds)." The Board, in its sole discretion, may determine to what category a particular Residential Expense belongs (Measured Area, Equal or Beds), and may change such determination from time to time. "Residential Expenses (Measured Area)" means those Residential Expenses that are, in the Board's sole discretion, incurred in proportion to a Residential Unit's or Fractional Unit's Measured Area. Heating and cooling costs are examples of what might be considered a Residential Expense (Measured Area). "Residential Expenses (Equal)" means those Residential Expenses that are, in the Board's sole discretion, incurred equally for each Residential Unit or Fractional Unit, regardless of the relative Measured Area of each Residential Unit or Fractional Unit or the number of 654397.29 1 0 x gg 1 bedrooms in a Residential Unit or Fractional Unit. The cost of cable television is an example of what might be considered a Residential Expense (Equal). "Residential Expenses (Beds)" means those Residential Expenses that are, in the Board's sole discretion, incurred for each Residential Unit or Fractional Unit based on the number of bedrooms in a Residential Unit or Fractional Unit at a give time. The cost of swimming pool maintenance is an example of what might be considered a Residential Expense (Beds). "Residential Owner" means each Owner of a Residential Unit. "Residential Unit" means each Unit located in the Building designated for residential use, as depicted on the Map, or any Units resulting from a subdivision of the same from time to time, which Unit or Units have not been converted to Fractional Units and submitted to the Fractional Ownership Plan. Residential Units are designated on the Map with the letter "R" plus their identifying number. For example, Residential Unit 407 is designated as "R -407" on the Map. "Respondent" is defined in Section 7.5(a). "Restoration Deficit" is defined in Section 9.2(d). "Rules" means the policies, procedures, rules and regulations that the Condominium Association adopts from time to time "Security for an Obligation" means the vendor's interest in an installment land contract, the mortgagee's interest in a mortgage, the beneficiary's interest in a deed of trust, the purchaser's interest under a sheriff's certificate of sale during the period of redemption, or the holder's or beneficiary's interest in a lien. "Security Holder" means any Person owning or holding a Security for an Obligation encumbering an Ownership Interest, including any First Mortgagee. "Settlement Demand" is defined in Section 7.5(b)(v). "Settlement Offer" is defined in Section 7.5(b)(v). "Shared Area" is defined in Section 10.3(a). "Special Assessments" is defined in Section 9.2. "Special Declarant Rights" means the rights reserved by Declarant in Section 2.8. "Supplemental Declaration" means an amendment to this Declaration prepared and Recorded as necessary to exercise Development Rights pursuant to Section 2.8(a). ( "Taking" is defined in Section 13.1. "Termination Agreement" is defined in Section 14.1. 65439729 11 "Termination Allocation" is defined in Section 14.3. "Termination of Mediation" is defined in Section 7.5(b)(iv). "Termination of Negotiations" is defined in Section 7.5(b)(ii). "Town" means the Town of Vail, Colorado. "Unit" means a portion of the Condominium Project designated for separate ownership. There are four types of Units: Residential Units, Fractional Units, the Parking Unit and the Commercial Units. Each Unit is designated for separate ownership in this Declaration, and its boundaries are delineated on the Map and described in Section 2.4. The definition of "Unit" excludes all Common Elements, including, without limitation, (a) any Limited Common Elements allocated, exclusively or otherwise, to the Unit; and (b) any Common Elements passing through or existing partly or wholly inside the boundaries of the Unit (e.g., any Common Element Walls, ducts, pipes, flues, chases or equipment serving portions of the Condominium Project other than the Unit). "Unit Connection" is defined in Section 10.3(a). "Unit Disconnection" is defined in Section 10.4(a). "Unit Mechanical Equipment" means the mechanical equipment located within and serving exclusively a single Unit. Unit Mechanical Equipment is a part of the Unit in which it is located. In no event will Unit Mechanical Equipment be defined to include any Central Mechanical Equipment or any Utility /Service Elements. "Utility /Service Elements" is defined in Section 2.4(d). "Voluntary Capital Expenses" is defined in Section 9.2(e). "Working Capital Fund" is defined in Section 9.4. 1.2 Exhibits. The Exhibits listed below are attached to and incorporated in this Declaration: Exhibit A — The Land Exhibit B — Common Allocations Exhibit C — Other Recorded Easements and Licenses Affecting the Property Exhibit D — Arbitration Rules Exhibit E — Representative Examples of Possible Common Expenses Exhibit F — Hotel Property Exhibit G — Residential Units that are Eligible to Become Fractional Units Exhibit H — Parking Rights ( 654397.29 12 1 ARTICLE 2 CREATION OF THE CONDOMINIUM PROJECT; UNITS AND ALLOCATIONS 2.1 Creation. Declarant declares that, upon the Recording of this Declaration executed pursuant to CCIOA, the Property will be a "condominium" within the meaning of Section 103(9) of CCIOA and, thus, constitutes the Condominium Project. 2.2 Name. The name of the Condominium Project is "WDL Vail." 2.3 Division of Property. Declarant, pursuant to CCIOA, hereby divides the Property into the Units (identified by number on Exhibit B and depicted on the Map) and the Common Elements and designates the Units for separate ownership and the Common Elements for common ownership solely by the Owners. 2.4 Designation of Boundaries. (a) Residential Units, Fractional Units and Commercial Units. The vertical and horizontal boundaries of each of the Residential Units and Commercial Units are described below and are graphically depicted on the Map. Upon conversion of a Residential Unit to a Fractional Unit, the boundaries of the resulting Fractional Unit will be the same as the converted Residential Unit. (i) Horizontal Boundaries. The upper horizontal boundary of each Residential Unit and each Commercial Unit is the underside of the finished ceiling of the top level contained in such Residential Unit or Commercial Unit. The lower horizontal boundary of each Residential Unit and each Commercial Unit is the unfinished surface of the top of the floor slab or subfloor immediately beneath the lowest level contained in such Residential Unit or Commercial Unit. (ii) Vertical Boundaries. The vertical boundaries of each Residential Unit and each Commercial Unit are generally depicted on the Map and are more particularly described as follows: (1) with respect to common vertical boundaries between adjacent Residential Units and /or Commercial Units, the centerline, as shown on the Map, of the Common Element Wall separating such Residential Units and/or Commercial Units; (2) with respect to the vertical boundary that is generally parallel with the adjacent exterior wall of the Building, the outside face of sheathing; and (3) with respect to the common vertical boundary between the Residential Unit or Commercial Unit and an interior Common Element, the outside face of drywall, as shown on the Map, of the Common Element Wall separating such Residential Unit or Commercial Unit from the interior Common Element. 654397.29 13 In the event of a conflict between the location of vertical boundary as shown on Map and as described above, then the vertical boundary as shown on the Map will control. Notwithstanding that any wallboard, plasterboard or other materials comprising a perimeter wall of a Residential Unit or Commercial Unit are located entirely or partially within the boundaries of a Residential Unit or Commercial Unit, all and each such perimeter wall is a General Common Element (a "Common Element Wall "). Common Element Walls may form a physical boundary between the Residential Unit or Commercial Unit and another Residential Unit or Commercial Unit, a physical boundary between the Residential Unit or Commercial Unit and an interior Common Element, or may be the exterior wall of the Building. Without limiting the generality of Section 10.7(a), no Owner may remove, penetrate or do anything to otherwise impair the fire- separation capability or acoustical separation capability of any Common Element Wall unless the Owner removes such Common Element Wall as a part of an approved Boundary Relocation, Unit Connection or Unit Disconnection, and the Owner replaces such Common Element Wall with a Common Element Wall of comparable fire - separation capacity and acoustical separation capacity in any newly formed Unit boundary. (b) Parking Unit. The Parking Unit is an airspace unit of real property located on portions of the top two levels of the Garage that starts atop the finished floor slab of the portion of the Garage immediately beneath it. The upper horizontal boundary of the Parking Unit is eight feet (8') above the lower horizontal boundary of the Parking Unit. The vertical boundaries of the Parking Unit are depicted on the Map. (c) Structural Elements. The Building and the Garage are structurally integrated and all structural elements of the Building and the Garage, including, without limitation, bearing walls, bearing columns, structural slabs and decks for floors, ceilings or roofs, structural girders, g g � g beams and joists, and foundations and footings, are Common Elements, regardless of whether they are located wholly or partially within the boundaries of any Unit. (d) Utility /Service Elements. Any shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits or utility lines (collectively, "Utility /Service Elements ") that exclusively serve a single Unit but that are not located entirely within the Unit are Limited Common Elements allocated to the Unit. Any Utility /Service Elements that exclusively serve a Common Element are a part of the Common Elements. Any Utility /Service Elements that serve two or more but fewer than all Units are Limited Common Elements allocated to the Units they serve. Any Utility /Service Elements that serve all of the Units are General Common Elements. (e) Unit Mechanical Equipment. Each Unit includes its Unit Mechanical Equipment, wherever located. (f) Improvements in Unit. Subject to Sections 2.4(c), 2.4(d) and 2.4(e), above, and except for any Common Element Wall(s) located within the Unit, all spaces, interior partitions and other fixtures and improvements within the boundaries of any Unit are a part of the Unit. (g) Penetrations. Where a Unit boundary is penetrated by an opening (e.g., a flue, chase, window, door or garage door), the boundary at such penetration is the surface which 654397.29 14 would result from the extension of the nearest adjacent surface comprising the boundary that is penetrated by the opening. 2.5 Unit Subdivisions, Connections and Boundary Changes. No Unit may be subdivided into two or more Units except by Declarant pursuant to Section 2.8(c); provided, however, that no Unit may be subdivided into more than one Unit if, as a result of the subdivision, (a) there would be more than 125 Residential Units and Fractional Units, one Parking Unit or 10 Commercial Units in the Condominium Project; or (b) the subdivision would result in a violation of the Density Agreement. Subject to this Section 2.5, a Boundary Relocation may be made by Declarant pursuant to Section 2.8(c) or by Owners pursuant to Section 10.2; a Unit Connection may be made pursuant to Section 10.3; and a Unit Disconnection may be made pursuant to Section 10.4. 2.6 Limited Common Elements. The Limited Common Elements consist of those designated in CCIOA, those designated in Section 2.4(d), those designated by the Board pursuant to Section 10.3, those designated "LCE" or otherwise allocated on the Map, and the following: (a) Deck. Each area entitled "Deck" on the Map is an exterior deck area (a "Deck "). The air space above each Deck, from its finished floor surface to the lower of 10 feet above its finished floor surface or the underside of any soffit or other portion of the exterior of the Building that projects over the Deck, constitutes a Limited Common Element allocated for the exclusive use of the Unit to which the Deck is allocated, as shown on the Map (e.g., the Deck designated on the Map as "LCE -R -402" is allocated to the exclusive use of Residential Unit 402). (b) Patio. Each area entitled "Patio" on the Map is an exterior patio area (a "Patio "). The air space above each Patio, from its finished floor surface to the lower of 10 feet above its finished floor surface or the underside of any soffit or other portion of the exterior of the Building that projects over the Patio, constitutes a Limited Common Element allocated for the exclusive use of the Unit to which the Patio is allocated, as shown on the Map (e.g., the Patio designated on the Map as "LCE -R -7" is allocated to the exclusive use of Residential Unit 7). (c) Doors and Windows. All doors and windows in the boundary walls of a Unit are Limited Common Elements allocated to the Unit. The glazing, sashes, frames, sills, thresholds, hardware, flashing and other components of those doors, garage doors and windows are parts of the doors and windows and are allocated pursuant to this Section 2.6(c). (d) Parking Spaces. All Parking Spaces that are not a part of the Parking Unit are Limited Common Elements allocated to the collective use of the Residential Units, the Fractional Units and the Commercial Units, subject to the terms and conditions of Section 4.6. 2.7 Allocations. (a) Ownership of Common Elements. Each Unit is allocated a percentage of undivided interest in the Common Elements equal to its Project -Wide Allocation. ( (b) Liability for Common Expenses. Each Unit is allocated, and the Owners of the Ownership Interests in such Unit are liable for, a percentage of the Common Expenses as set 654397.29 15 4 forth below; provided, however, that the Parking Unit is not allocated any portion of the Residential Expenses or the Commercial Expenses, the Commercial Units are not allocated any portion of the Residential Expenses and the Residential Units (including Fractional Units, if any) are not allocated any portion of the Commercial Expenses. All other costs and expenses of the Condominium Association are allocated among the Units as otherwise provided in this Declaration (such as the allocation of Limited Benefit Expenses set forth in Section 9.2(b), the allocation of Reimbursable Expenses set forth in Section 9.2(c), and the allocation of Voluntary Capital Expenses set forth in Section 9.2(e)). The Common Expenses are divided as follows: (i) Project -Wide Expenses. Each Unit is allocated, and the Owner of an Ownership Interest in the Unit is liable for, a percentage of all Project -Wide Expenses equal to the Unit's Project -Wide Allocation, with each Fractional Owner being liable for a proportionate amount of the expense allocated to the applicable Fractional Unit as established in the Club Declaration. (ii) Garage Expenses. In addition to the Project -Wide Expenses, each Unit is allocated, and each Owner of an Ownership Interest in the Unit is liable for, a percentage of all Garage Expenses equal to the Unit's Garage Allocation, with each Fractional Owner being liable for a proportionate amount of the expense allocated to the applicable Fractional Unit as established in the Club Declaration. (iii) Residential Expenses. In addition to the Project -Wide Expenses and the Garage Expenses, each Residential Unit and Fractional Unit is allocated, and the Owner of an Ownership Interest in the Residential Unit or Fractional Unit is liable for, a portion of Residential Expenses calculated as provided below. Except as provided for herein, Residential Allocations may not be changed for each category of Residential Expense, but the Board, in its sole discretion, may change the category to which a particular Residential Expense is assigned from time to time. The Parking Unit and the Commercial Units will not be allocated, and the Parking Unit Owner and the Commercial Owners will not be liable for, any Residential Expenses. (1) Each Residential Unit and Fractional Unit is allocated, and the Owner of an Ownership Interest in the Residential Unit or Fractional Unit is liable for, a portion of Residential Expenses (Measured Area) equal to the Residential Unit's or Fractional Unit's Residential Allocation (Measured Area), with each Fractional Owner being liable for a proportionate amount of the expense allocated to the applicable Fractional Unit as established in the Club Declaration. (2) Each Residential Unit and Fractional Unit is allocated, and the Owner of an Ownership Interest in the Residential Unit or Fractional Unit is liable for, a portion of Residential Expenses (Equal) equal to the Residential Unit's or Fractional Unit's Residential Allocation (Equal), with each Fractional Owner being liable for a proportionate amount of the expense allocated to the applicable Fractional Unit as established in the Club Declaration. (3) Each Residential Unit and Fractional Unit is allocated, and the Owner of an Ownership Interest in the Residential Unit or Fractional Unit is liable 654397.29 16 1 for, a portion of Residential Expenses (Beds) equal to the Residential Unit's or Fractional Unit's Residential Allocation (Beds), with each Fractional Owner being liable for a proportionate amount of the expense allocated to the applicable Fractional Unit as established in the Club Declaration. (iv) Commercial Expenses. In addition to the Project -Wide Expenses and the Garage Expenses, each Commercial Unit is allocated, and the Owner of each Commercial Unit is liable for, a portion of the Commercial Expenses equal to the Unit's Commercial Allocation. The Parking Unit, the Residential Units and the Fractional Units will not be allocated, and the Parking Unit Owner, the Residential Owners and the Fractional Owners will not be liable for, any Commercial Expenses. (c) Votes in the Condominium Association. In all matters coming before the Condominium Association for which a vote of the Owners is required, each group of Units (Parking, Commercial, Residential, Fractional) is collectively allocated a number of votes equal to the number of Directors on the Board that such group of Owners is entitled to elect pursuant to the Bylaws, which vote is split between the Units in such group as provided for below. (i) Because there is only one Parking Unit, it is allocated a number of votes equal to the number of Directors it is entitled to elect to the Board, which, as of the date of this Declaration, is one (ii) The vote(s) allocated to the Commercial Units (which, as of the date of this Declaration is one, based on the fact that the Commercial Owners are entitled to elect one Director to the Board) is divided among the Commercial Units as follows: Each Commercial Unit is allocated a portion of such vote(s) equal to that Commercial Unit's Commercial Allocation. For illustrative purposes only, the vote allocated to Unit C -2 is calculated as follows: 1 (number of Directors the Commercial Owners are entitled to elect to the Board) multiplied 64.69% (the Commercial Allocation for Unit C -2, as reflected on Exhibit B, for a vote of 0.6469. (iii) The votes allocated to the Residential Units other than the Fractional Units (which, as of the date of this Declaration is five, based on the fact that the Residential Owners are entitled to elect five Directors to the Board) are divided among the Residential Units as follows: Each Residential Unit is allocated a portion of such votes equal to the Residential Unit's Residential Allocation (Measured Area). Upon Recordation of the Club Declaration, and conversion of certain Residential Units to Fractional Units, the number of votes allocated to the Residential Units will be reduced to three as the number of Directors the Residential Units will be entitled to elect will likewise be reduced to three pursuant to the Bylaws. Upon such occurrence, the votes allocated to the Residential Units will be split among each remaining Residential Unit based on a fraction, the numerator of which is the Residential Allocation (Measured Area) for each individual Residential Unit and the denominator of which is the sum of Residential Allocations (Measured Area) for all Residential Units not converted to Fractional Units. For illustrative purposes only, the vote allocated to Unit R -100 is calculated as follows: 5 (number of Directors the Residential Owners are entitled to elect to the Board) multiplied 0.80% (the Residential Allocation (Measured Area) for Unit 654397.29 1 7 1 R -100, as reflected on Exhibit B) for a vote of 0.04. Again, for illustrative purposes only, after the recordation of the Club Declaration (assuming it is recorded against all of the Units listed on Exhibit G), the vote allocated to Unit R -100 (which is not a Residential Unit that may be subjected to the Club Declaration) will be calculated as follows: 3 (the number of Directors the Residential Owners are entitled to elect to the Board at that time) multiplied by a fraction, the numerator of which is 0.80% (the Residential Allocation (Measured Area) for Unit R -100) and the denominator of which is 63.51% (the sum of Residential Allocations (Measured Area) for all Residential Units not converted to Fractional Units), for a vote of 0.038. (iv) As of the date of this Declaration, the Fractional Units are not allocated any votes because no Residential Units have been converted to Fractional Units. Immediately upon recordation of the Club Declaration and the conversion of some Residential Units to Fractional Units, as may occur from time to time, the Fractional Units will be allocated two votes, which is based on the number of Directors the Fractional Owners will be entitled to elect pursuant to the Bylaws. These votes will be divided among the Fractional Units as follows: each Fractional Unit will be allocated a portion of such votes equal to a fraction, the numerator of which is the Fractional Unit's Residential Allocation and the denominator of which is the sum of Residential Allocations for all Fractional Units. The votes allocated to each such Fractional Unit will be cast by and among the Fractional Owners that own an Ownership Interest in that Fractional Unit as provided for in the Club Declaration. For illustrative purposes only, the vote allocated to Unit R -119 is calculated as follows: 2 (the number of Directors the Fractional Owners are entitled to elect to the Board after the recordation of the Club Declaration) multiplied by a fraction, the numerator of which is 0.76% (the Residential Allocation (Measured Area) for Unit R -119) and the denominator of which is 36.49% (the sum of Residential Allocations (Measured Area) for all Fractional Units (assuming all Residential Units listed on Exhibit G are subjected to the Club Declaration)), for a vote of 0.042. (v) If the number of Directors that a particular group of Owners is entitled to elect changes pursuant to the Bylaws, the number of votes allocated to such group of Units will be automatically changed to the same number; provided, however, that the manner in which the votes allocated among a group of Units will be determined in the same manner as set forth above. (vi) Upon the determination by the Board that a matter to be submitted to a vote of the Owners affects only one group of Units or less than all groups of Units (Residential, Fractional, Parking or Commercial), including the alteration or improvement of any Limited Common Element allocated solely to such group(s) of Units, such matter will only be submitted for a vote to the applicable group(s) of Owners, which in the case of such a matter affecting only Fractional Units, and where permitted by law, submitted to a vote of such Fractional Owners by whatever voting process may be provided for in the Club Declaration or other governing documents for the Club Association. A determination by the Board that a matter does not affect a particular group of Owners will be conclusive, unless provided otherwise in this Declaration, the Articles or Bylaws. 654397.29 18 1 2.8 Reservation of Special Declarant Rights. Subject to Section 2.8(i), Declarant reserves the following Special Declarant Rights: (a) Development Rights. During the Declarant Development Period, Declarant may but is not obligated to (i) construct and create additional Units (other than an additional Parking Unit) and Common Elements; (ii) convert Units owned by Developer into Common Elements; (iii) withdraw real estate from the Property; or (iv) add any real estate to the Property, to the extent allowed under CCIOA, including, without limitation, Section 222 of CCIOA (the "Development Rights "). The Development Rights apply to portions of the Property, but are subject to the limitations of Sections 2.9 and 2.10. Declarant will exercise any Development Right by preparing, executing and Recording a Supplemental Declaration as necessary to effectuate the exercise of such Development Right, which Supplemental Declaration will be accompanied by a Supplemental Map, as required by CCIOA. If Declarant, by exercising any Development Right, creates any new Common Elements, then the Supplemental Declaration will describe such newly created Common Elements. If Declarant, by exercising any Development Right, creates any new Units, such Supplemental Declaration will include a revised Exhibit B, which will show the new Common Allocations for all of the Units, calculated in accordance with the formula included in the definition of each type of Common Allocation in Section 1.1. Except as expressly provided to the contrary in this Declaration, Declarant's exercise of any Development Right will not require the consent of any other Owner. (b) Improvements. During the Declarant Development Period, Declarant may, but is not required to, complete any one or more of the following improvements or alterations at the sole cost and expense of Declarant: (i) constructing any improvements indicated on the Map; (ii) remodeling, refurbishing or improving any one or more of the Common Elements; (iii) remodeling or refurbishing any Unit owned by Declarant; (iv) removing and reinstalling or relocating the Condominium Project's mailboxes; (v) installing security equipment, such as cameras, monitors and video recorders, on or about the Property; (vi) installing utility lines, running through existing or newly created chases in the Common Elements or in any or all of the Units, as may be necessary or desirable to provide additional utility services in some or all of the Units; (vii) constructing or installing lighting in or on any of the Common Elements; and (viii) constructing or installing signage relating to the Condominium Project. (c) Boundary Relocation; Subdivision. During the Declarant Development Period, Declarant may, from time to time make Boundary Relocations affecting any Unit(s) then owned by Declarant or may subdivide any Unit then owned by Declarant into two or more Units, subject to Section 2.5. To effect a Boundary Relocation or subdivision during the Declarant Development Period, Declarant will execute, acknowledge and Record an amendment to this Declaration (including the Map) showing the affected Units, their new boundaries and dimensions and any changes to their identifying numbers, and revising Exhibit B to show any changes in Common Allocations resulting from the Boundary Relocation or subdivision. The revised Common Allocations resulting from any Boundary Relocation or subdivision made by Declarant must be based on the formula set forth in the definition of each type of Common Allocation as set forth in Section 1.1. Nothing in this Section 2.8(c) prohibits Declarant, as an Owner, from making a Boundary Relocation pursuant to Section 10.2. During the Declarant Development Period, Club Declarant may combine two or more adjoining Units then owned by 654397.29 19 r,: Club Declarant into a single Unit, following the same process as outlined above for Declarant to effectuate a Boundary Relocation or a Subdivision. (d) Marketing of Residential and Commercial Units. During the Declarant 1 Development Period, Declarant may maintain sales offices, management offices and model Unit(s) in any Residential Unit(s) or Commercial Unit(s) owned or leased by Declarant or in the Limited Common Elements which are allocated exclusively to such Residential Units or Commercial Units, but Declarant's use of such Limited Common Elements may not preclude access to any Unit not owned by Declarant. Further, Declarant may utilize the Limited Common Elements allocated exclusively to the Commercial Units for such purposes only so long as Declarant or its affiliates continue to own all of the Commercial Units. Declarant may change the locations of the offices and model Residential Unit(s) and Commercial Unit(s) from time to time during the Declarant Development Period. During the Declarant Development Period, Declarant may maintain signs on any Limited Common Elements which are allocated exclusively to the Residential Units or the Commercial Units advertising the Residential Units or the Commercial Units for sale or lease and directing prospective purchasers to the offices or model Residential Unit(s) or Commercial Unit(s). Upon the termination of the Declarant Development Period, Declarant has a period of 30 days to remove any property of Declarant located on any portion of the Common Elements used for office or model purposes. (e) Marketing of Fractional Units. During the Declarant Development Period, Club Declarant may maintain sales offices, management offices and model Unit(s) in any Unit(s) described in Exhibit G which are owned or leased by Club Declarant or, after the recording of the Club Declaration, in either the Limited Common Elements which are allocated exclusively to the Fractional Units, or in those contiguous areas in the northeast corner of the first floor of the Building depicted on Sheet 13 of the Map and labeled "LCE -R,F Lobby ", "LCE -R,F Concierge ", and "LCE -R,F Business Center ", but Club Declarant's use of such areas may not preclude access to any Unit not owned by Club Declarant. Club Declarant may change the locations of the offices and model Fractional Unit(s) from time to time during the Declarant Development Period. During the Declarant Development Period, Club Declarant may maintain signs on any Limited Common Elements which are allocated exclusively to the Fractional Units or in those contiguous areas in the northeast corner of the first floor of the Building depicted on Sheet 13 of the Map and labeled "LCE -R,F Lobby ", "LCE -R,F Concierge ", and "LCE -R,F Business Center ", for advertising the Fractional Units for sale and directing prospective purchasers to the offices or model Fractional Unit(s). Upon the termination of the Declarant Development Period, Club Declarant has a period of 30 days to remove any property of Club Declarant located on any portion of the Common Elements used for office or model purposes. (f) Easements. Declarant may use the Easements described in Section 3.3 for so long as those Easements remain in effect. (g) Appoint Board and Officers. Subject to the provisions of the Bylaws, during the Declarant Control Period Declarant may appoint and remove the Residential Directors to and from the Board. (h) Amend Declaration. In addition to the amendments to this Declaration which Declarant may expressly make pursuant to the provisions of this Declaration, Declarant may 654397.29 20 1 ' 1 during the Declarant Development Period amend this Declaration (including the Map) in any manner authorized by CCIOA to the extent not otherwise limited in this Declaration or the Bylaws. (i) Limitations on Special Declarant Rights. In no event may Declarant exercise any of the Special Declarant Rights (including, without limitation, the exercise of any of its easement rights pursuant to Sections 2.8(0 and 3.3) in a manner that has a materially adverse impact on the use and occupancy of the Parking Unit or the flow of traffic in the Garage. In no event may Declarant exercise any of the Special Declarant Rights (including, without limitation, the exercise of any of its easement rights pursuant to Sections 2.8(0 and 3.3) in a manner that has a materially adverse impact on the use and occupancy of the Fractional Units, the Limited Common Elements which are allocated exclusively to the Fractional Units, those contiguous areas in the northeast corner of the first floor of the Building depicted on Sheet 13 of the Map and labeled "LCE -R,F Lobby ", "LCE -R,F Concierge ", and "LCE -R,F Business Center ", or the operation of the Fractional Ownership Plan, or, during any period when owned by Club Declarant, the Residential Units listed on Exhibit G. In no event may Declarant exercise any of the Special Declarant Rights in a manner that has a materially adverse impact on any portion of the Common Elements that are amenities such as the pool, lobby, exercise room, or similar areas, or in a manner that materially adversely impacts an Owner's ability to use the Common Elements for the purpose for which they are designed or intended and which is necessary for the Owner's use and enjoyment of its respective Ownership Interest. Notwithstanding any of the foregoing, in no event may Declarant's exercise of its Special Declarant Rights be deemed to have such a materially adverse impact solely on the basis that such rights were exercised and each Owner, by acquiring an Ownership Interest, acknowledges and agrees that there are circumstances under which Special Declarant Rights may be exercised that would not have such a materially adverse impact. 2.9 Density Limitations. Pursuant to that certain Agreement Regarding Density Allocation Recorded July 5, 2006 at Reception No. 200617770, by and between Gore Creek Place, LLC and The Vail Corporation, d/b /a Vail Associates, Inc. (the "Original Density Agreement" and together with the "Clarification" (as defined below), the "Density Agreement "), the Land is allocated development density equal to the "Net Densities" as such term is defined in the Original Density Agreement, but subject to that certain Clarification of and Amendment to Agreement Regarding Density Allocation Recorded September 16, 2009 at Reception g g g Y P No 200920432 (the "Clarification ") (as so clarified, the "Net Densities "). Pursuant to the Original Density Agreement, the Net Densities are a Common Element which may be enforced, managed and administered by the Condominium Association. Notwithstanding the foregoing, Declarant, as successor in ownership of the Land to The Vail Corporation, d/b /a Vail Associates, Inc., has the exclusive right to enforce the Net Densities until the earlier of: (a) the date on which Declarant no longer holds any ownership interest in the Condominium Project; or (b) the date on which Declarant, in its sole discretion, voluntarily terminates its right to enforce the Net Densities pursuant to a Recorded statement of termination executed by Declarant. 2.10 Number of Units. Initially, the Condominium Project consists of one Parking Unit, three Commercial Units and 116 Residential Units. The maximum number of Units that may be created, by subdivision or otherwise, is 125 Residential Units, one Parking Unit and 10 Commercial Units. 654397.29 21 . ARTICLE 3 EASEMENTS 3.1 Easements Benefiting Owners. Each Owner, and its Permittees, has a non - exclusive Easement over and through the Common Elements as reasonably necessary for ingress and egress to such Owner's Unit. Each Owner has a non - exclusive Easement to use the Common Elements, subject to the terms and conditions of this Declaration and the Rules. To the extent that any Unit is allocated the exclusive use of a particular Limited Common Element pursuant to this Declaration and /or the Map (such as, for example, a Deck) the Owner of that Unit has an Easement for the exclusive use and enjoyment of that Limited Common Element. In those cases where a Limited Common Element is allocated to more than one Unit pursuant to this Declaration, the Owners of the Units to which that Limited Common Element is allocated have a nonexclusive Easement for the use and enjoyment of that Limited Common Element. Notwithstanding any provision of this Declaration to the contrary, whenever an Owner has an Easement to use any Limited Common Element pursuant to this Declaration, and regardless of whether the Easement is deemed exclusive or nonexclusive or whether it concerns a Deck or another Limited Common Element, the right of the Owner and its Permittees to use that Limited Common Element is subject to the Easements described in Sections 3.2 through 3.8, inclusive. 3.2 Easements Benefiting Condominium Association. The Condominium Association has nonexclusive Easements over and across the Common Elements, and over and across other portions of the Condominium Project to gain access to the Common Elements, as reasonably necessary or convenient for the Condominium Association, acting through its Permittees, to exercise its rights and perform its obligations under this Declaration, including, without limitation, its rights and obligations to enforce this Declaration and the Rules and to operate, manage and control the Common Elements. Without limiting the generality of the previous sentence, the Condominium Association has an Easement to enter each Unit to the extent reasonably required to operate, manage and control Central Mechanical Equipment, Common Element Wall(s), any other Common Elements within the boundaries of the Unit or any Deck or Patio attached to the Unit, or as reasonably necessary to perform other maintenance and repair duties imposed on the Condominium Association by this Declaration. Except in the case of emergency situations concerning threatened injury or damage to persons or property, the Condominium Association will not enter into any Unit pursuant to the Easement established under this Section 3.2 without giving reasonable advance notice to the occupant thereof. 3.3 Easements Benefiting Declarant. Subject to Section 2.8(i), Declarant reserves Easements over and across the Common Elements as reasonably necessary for the purposes of completing the construction of the Condominium Project, including any improvements or alterations described in Section 2.8(b), and for the purpose of exercising any Development Rights pursuant to Section 2.8(a); constructing and installing any shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits or utility lines necessary to serve those improvements or alterations; storing construction materials relating to those improvements and alterations and their service elements; showing Units and Common Elements to prospective purchasers; displaying signs; and performing any of Declarant's obligations under this Declaration. Declarant's Easements will exist as long as reasonably necessary for those purposes, and in any event will not expire prior to the end of the Declarant Development Period. Without limiting the generality of the previous two sentences and subject to Section 2.8(i), if Declarant elects to install utility lines to provide 654397.29 22 y' tk 1 additional utility services in some or all of the Units, Declarant will have Easements to install the utility lines and chases housing them on, over, under, across and through the interior or exterior Common Elements. 3.4 Common Element Wall Easement. An exclusive Easement exists within each Unit for the continued existence of any Common Element Wall(s) located in that Unit. 3.5 Easements for Encroachments. If, as a result of the construction, reconstruction, shifting, settlement, restoration, rehabilitation, alteration or improvement of the Condominium Project or any portion of it, any Common Element encroaches upon any part of any Unit, or any part of any Unit encroaches upon any Common Element or upon any part of another Unit, an Easement exists for the continued existence and maintenance of the encroachment. The Easement will continue for so long as the encroachment exists and will burden the Unit or Common Element encroached upon and benefit the encroaching Unit or Common Element. No Easement exists for any encroachment that is materially detrimental to or interferes with the reasonable use and . enjoyment of the Common Element or Unit burdened by the encroachment. 3.6 Easements to Repair, Maintain, Restore and Reconstruct. With respect to any provision of this Declaration or CCIOA that authorizes or requires any Person (including, without limitation, the Condominium Association) to repair, maintain, restore or reconstruct all or any part of any Unit or Common Element, Easements exist as necessary or convenient to gain access and perform the authorized or required work to the portions of the Condominium Project requiring repair, maintenance, restoration or reconstruction, with persons, materials and equipment to the extent and for the periods reasonably necessary to enable the Person to perform the authorized or required work. Without limiting the generality of the previous sentence, the Condominium Association has an Easement to enter each Unit to the extent reasonably required to repair and maintain any Central Mechanical Equipment, Common Element Wall(s) or other Common Elements located in the Unit. The Easements created under this Section 3.6 burden those portions of the Condominium Project through which they run and benefit the Persons authorized or required to perform, and those portions of the Condominium Project requiring, the repair, maintenance, restoration or reconstruction. Except in the case of emergency situations concerning threatened damage to persons or property, no Person will enter into any Unit pursuant to the Easement established under this Section 3.6 without giving reasonable advance notice to the occupant thereof Prior to exercising its rights under this Section 3.6, each Owner must notify the Condominium Association so that the Condominium Association may coordinate the required access through and /or work to the Common Elements or other Units with the impacted Owners. Such Owner's access and work may proceed only at the times and in accordance with the arrangements approved by the Condominium Association. 3.7 Easements for Utilities and Mechanical Equipment. An Easement exists for the benefit of each Unit and Common Element for the use of all Utility /Service Elements and the Central Mechanical Equipment that serve the Unit or Common Element and run through any other Unit(s) or Common Element(s). The other Unit(s) or Common Element(s) are burdened by the Easement. In addition, an Easement exists for the benefit of each Unit for the existence of any of its Unit Mechanical Equipment that is located within the Common Elements. 654397.29 23 3.8 Right of Entry. Declarant reserves for the Condominium Association an Easement for the right, but not the obligation, to enter upon any Unit: (a) for emergency, security and safety reasons; and (b) to inspect any Unit (or the attached Patio or Deck) for the purpose of ensuring compliance with this Declaration, the Bylaws and the Rules. Such right may be exercised by any member of the Board and the Condominium Association's officers, agents, employees and managers and, for emergency, security and safety purposes, all police, fire and ambulance personnel and other similar emergency personnel in the performance of their duties. This right of entry will include the right of the Condominium Association to enter upon any Unit to cure any condition that may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure such condition within a reasonable time after requested by the Condominium Association, but will not authorize entry into the residence located on or constituting any Unit without permission of the occupant, except by emergency personnel acting in their official capacities. 3.9 Additional Easements. (a) Declarant's Right to Grant Easements. Declarant reserves the non - exclusive right and power to grant, and /or establish and enjoy, during the Declarant Development Period, such additional specific Easements over any portion of the Property owned by Declarant and the Common Elements as may be necessary, in the sole discretion of Declarant, to the orderly development of any portion of the Property. (b) Condominium Association's Right to Grant Easements. Notwithstanding anything to the contrary in this Declaration, the Condominium Association, acting through the Board and without the approval of the Owners, may grant Easements over the Common Elements for installation and maintenance of utilities, drainage facilities and roads and for other purposes that benefit the Owners. 3.10 Easements Run with Property. Except for the Easements described in Section 3.3, all Easements existing pursuant to this Article 3 are appurtenant to and run with the Property and will be perpetually in full force and effect so long as the Condominium Project exists and inure to the benefit of and are binding upon Declarant, Club Declarant, the Condominium Association, the Club Association, Owners, Permittees, Security Holders and any other Persons having any interest in the Condominium Project or any part of it. The Units will be conveyed and encumbered subject to all Easements set forth in this Article 3, whether or not specifically mentioned in the conveyance or encumbrance. 3.11 Other Recorded Easements and Licenses Affecting the Property. The Recorded g Easements and licenses identified on Exhibit C, which were created prior to the date of this Declaration, and the Easements created by the Map affect the Property. ARTICLE 4 COVENANTS, CONDITIONS AND RESTRICTIONS 4.1 Administration. The Condominium Project will be administered in accordance with the provisions of CCIOA, this Declaration and the Bylaws. All Common Elements are subject to the reasonable supervision, operation, management and control of the Condominium Association. 654397.29 24 4.2 Compliance. Each Owner, Permittee and Security Holder and all Persons claiming under them will take and hold their right, title and interest in any Unit subject to all of the covenants and conditions of CCIOA, this Declaration, and the Bylaws. Each Owner, Permittee and Security Holder will comply with all applicable provisions of this Declaration, the Bylaws, and any Rules, as those documents may be amended from time to time. Each Owner, Permittee and Security Holder will comply with all applicable provisions of CCIOA. 4.3 Residential Units and Fractional Units. (a) Permitted Uses. Except as otherwise provided in this Section 4.3(a) and Section 4.7, each Residential Unit and Fractional Unit may be occupied and used only for (i) residential uses and uses incidental to them; a short and long term rentals of the entire Residential Unit or Fractional Unit for lodging or residential purposes; and (iii) home occupations permitted by applicable zoning laws, so long as such use is incidental to residential use of the Residential Unit or Fractional Unit, does not involve use of the Residential Unit or Fractional Unit by any employee or independent contractor (other than the Owner of the Residential Unit or Fractional Unit), does not involve regular commercial deliveries to or from the Residential Unit or Fractional Unit other than small packages shipped by an express courier service, does not involve regular visits to the Residential Unit or Fractional Unit by any customers or prospective customers, does not materially increase the use of any Common Elements, and is not advertised or identified by signage on any directory in the Condominium Project. During the Declarant Development Period, Declarant may also use one or more Residential Units owned or leased by Declarant for sales or management offices or for model Residential Units and Club Declarant may also use one or more Units described on Exhibit G and owned or leased by Club Declarant for sales or management offices or for model Fractional Units. (b) Prohibited Uses. Except as expressly provided in Section 4.3(a) and 4.3(c), no Residential Unit or Fractional Unit may be used for any commercial, professional, industrial or manufacturing purposes. (c) Timeshare and Vacation Club Restriction. In addition to the above restrictions, and unless specifically approved in the sole discretion of and in writing by the then - acting management company for the Condominium Project, no Residential Unit, except when converted by Club Declarant or its successors to a Fractional Unit pursuant to the Club 1' Declaration, may be used for the creation, operation of or participation in any "time share estate" as defined in C.R.S. § 38 -33 -110 or any other time share, interval ownership, vacation club, destination club, non - equity membership program or similar program, estate or interest in the Residential Unit, no matter how described or classified, including, but not limited to, one by which a purchaser, investor, tenant, licensee or holder of any interest in an ownership entity owning such a Residential Unit obtains the right to exclusive use of the Residential Unit on a recurring basis for a certain period of time or has the right, as a member of a destination club, non - equity membership program, vacation club or similar club or organization, to make reservations to use the Residential Unit, as a result of membership in such a destination club, non - equity membership program, vacation club or similar club or organization. Nothing in this Section 4.3(c) may be construed as prohibiting a Residential Unit from being owned by a corporation, partnership, limited liability company or other entity or as a tenancy -in- common or 654397.29 25 other co- ownership arrangement where multiple parties hold an ownership interest in such entity or in the Residential Unit so long as the purpose of the creation or holding of such interests and the transfer of such interests to third parties is not to market, sell or utilize those interests as a part of a commercial enterprise. This restriction is in no way intended to limit a Residential Owner's ability to place their unit in a rental management program, or to require a Residential Owner to obtain written consent from The Vail Corporation and the then - acting management company for the Condominium Project prior to placing their Unit in a rental management program. 4.4 Commercial Units. Except as otherwise provided in this Article 4, each Commercial Unit may be used for any purposes and uses permitted under applicable zoning laws; provided, however, that no Commercial Unit will be used in a manner that has a materially adverse impact on the use and occupancy of the Parking Unit, the flow of traffic within the Garage or the use and occupancy of the Fractional Units. Without limiting the generality of the previous sentence, 1 a Commercial Unit may be used for sales, management or maintenance facilities relating to any or all of the Residential Units, Fractional Units or Commercial Units. During the Declarant Development Period, Declarant may also use one or more Commercial Units owned by Declarant for sales or management offices or for model Commercial Units and Club Declarant may also use one or more Commercial Units owned or leased by Club Declarant for model, sales or management offices. 4.5 Parking Unit. The Parking Unit may be occupied and used only for motor vehicle parking purposes related to the Hotel Property, including valet parking and self - parking by patrons of the Hotel Property and self - parking for management -level employees of the Hotel Property. All such valet service must have a point of services commencement or vehicle return at the Hotel Property and not the Condominium Project. All operations and activities of the Parking Unit Owner, its patrons of the Hotel Property, its employees or the employees of any valet parking company retained by the Parking Unit Owner must not interfere in any material respect with the activities of the employees of the Condominium Association or the employees of the valet parking company hired or retained by the Condominium Association to provide valet parking service to the Residential Owners, Fractional Owners and the Commercial Owners pursuant to Section 4.6. The Parking Unit Owner may install and maintain reasonable signage within and outside of the garage to direct the Parking Unit Owner's patrons to and from the Hotel Property, and reasonable signage marking those Parking Spaces within the Parking Unit designated for valet parking. The location and design of all such signage must be approved by the Board and the Town, if required by applicable codes, prior to installation and is subject to reasonable restrictions by the Board. By taking title to the Parking Unit, the Parking Unit Owner acknowledges and agrees that its indemnification obligation under Section 4.11 includes indemnification for claims made and liabilities under the Americans with Disabilities Act which arise, directly or indirectly, from the access to and use of any portion of the Condominium Project, including but not limited to the Parking Unit, by patrons of the Hotel Property. 4.6 Parking Spaces. (a) General. Each Parking Space (including the Parking Spaces located in the Parking Unit) may be used for motor vehicle parking and other uses incidental to or consistent with motor vehicle parking; provided, however, that without the prior written approval of the 654397.29 26 Board: (a) no Parking Space may be used in such a manner that precludes its use for motor vehicle parking; (b) no commercial vans, boats, off -road motorcycles, snowmobiles, campers, trailers or other commercial or recreational vehicles of any type may be kept or parked in any Parking Space; (c) no abandoned, inoperable or unlicensed motor vehicle may be parked in a Parking Space; and (d) except in the event of an emergency, no motor vehicle maintenance or repairs may be performed in a Parking Space. Each Owner, for itself and its Permittees, assumes all risk of damage to or theft of any vehicle parked by such Owner or Permittee in the Garage or any personal property located within a vehicle, and waives all claims against the Condominium Association and any property manager for the Condominium Project, other than with respect to any act or omission attributable to the gross negligence or willful misconduct of the Condominium Association or any property manager for the Condominium Project. (b) Residential and Commercial Parking. With regard to the Parking Spaces not included in the Parking Unit, all of which are allocated as Limited Common Elements to the Residential Units, the Fractional Units and the Commercial Units collectively, each such Residential Unit, Fractional Unit and Commercial Unit has the right to park the designated number of motor vehicles in such Parking Spaces as indicated on the attached Exhibit H (the "Individual Parking Rights "). Notwithstanding the foregoing, in addition to the Individual Parking Rights, the Residential Owners and their Permittees have the exclusive right, collectively, to park an additional 11 motor vehicles in such Parking Spaces on a first -come, first- served basis (the "Guest Parking Rights "). The Board may adopt Rules from time to time regulating the manner of use of the Guest Parking Rights. All such parking, regardless of whether it involves exercising the Individual Parking Rights or the Guest Parking Rights, will be provided through a valet service except for those times when the then - acting management company for the Condominium Project, in its sole discretion and in accordance with applicable laws (including, without limitation, the Americans with Disabilities Act), permits Residential Owners to self -park from time to time in designated areas of the Garage (other than the Parking Unit). Such valet service will be provided by the Condominium Association, either through its own employees or through a third -party provider. Notwithstanding the foregoing, the Condominium Association (acting through the valet service provider or its employees) must and will make reasonable accommodations for persons with disabilities. Each Residential Owner and Fractional Owner or their respective Permittees may exercise its Individual Parking Rights only when such Residential Owner, Fractional Owner or its Permittees are in residence at the Condominium Project. To the extent a Residential Owner, a Fractional Owners or their respective Permittees are not in residence at the Condominium Project, the Condominium Association may exercise the Individual Parking Rights associated with that Residential Owner's or Fractional Owner's Ownership Interest. In connection therewith, the Condominium Association (acting through its managing agent) and the Parking Unit Owner shall cooperate with each other to explore the possibility of allowing the Parking Unit Owner to use and exercise, at a reasonable cost to the Parking Unit Owner, any of such Individual Parking Rights during periods in which the Condominium Association has the right to exercise such Individual Parking Rights pursuant to the immediately preceding sentence. The Parking Unit Owner acknowledges and agrees that, due to a variety of factors, such accommodation may not be practical or feasible as determined by the managing agent in its sole discretion. Any such accommodation is subject to revocation at any time by the managing agent in its sole discretion. The Parking Rights may not be amended without the prior written consent of all Owners whose rights will be materially affected by such amendment. 654397.29 27 [ggq 4.7 Condominium Association's Units. The Condominium Association may use any Unit it owns for any lawful purpose relating to the performance of its obligations under this Declaration or otherwise benefiting the Owners; provided, however, that the Condominium Association may not use any Unit it owns in a manner that has a materially adverse impact on the use and occupancy of the Parking Unit, the flow of traffic within the Garage or the use and occupancy of the Fractional Units. 4.8 Prohibited Uses Generally. Uses other than permitted uses listed in this Article 4 are prohibited unless the Board is expressly empowered to, and does, approve a particular prohibited use Where the Board is empowered to approve a particular use or action, the Board may impose reasonable conditions upon the use or action as it deems necessary to protect the integrity of the Condominium Project and the rights of other Owners. In addition to other uses prohibited by this Article 4, the following uses are prohibited: (a) Insurance Risks. No Unit may be used for any use which would constitute an unusual fire hazard, would result in jeopardizing any insurance maintained on any part of the Condominium Project or would result in any increase in the premium for that insurance; provided, however, that the Board may approve the use if adequate safeguards are undertaken at the Owner's expense and any increase in insurance premiums is allocated to, and paid by, the Owner pursuant to Section 9.2(c)(ii). (b) Overloading. No Unit or Common Element may be used for any use beyond the maximum loads the floors of the Unit or Common Element are designed to carry. Further, no Unit or Common Element may be used for any use which would place any extraordinary burden on any Common Element, unless the Board and any governmental entity having jurisdiction over the Condominium Project gives its prior written consent. (c) Nuisance. No Unit or Common Element may be used for any use (i) constituting a public or private nuisance; (ii) consisting of the manufacture of any product; or (iii) which causes undue odor, noise, vibration or glare, including, without limitation, the use of any equipment or machine. No audio system in a Unit may be operated in a manner that is audible from within any other Unit. (d) Violation of Law. No portion of the Condominium Project may be used for any use which violates any law, statute, ordinance, rule, regulation or order of any governmental authority having jurisdiction over the Condominium Project, including, without limitation, any of them that regulate or concern hazardous or toxic waste, substances or materials. 4.9 Manner of Use. The occupation and use of the Condominium Project by each Owner, the Condominium Association and their respective Permittees are subject to the following restrictions: (a) Pets. No animals, livestock, insects, rodents, poultry, reptiles, birds or other pets may be kept in any Unit except usual and ordinary domestic household pets (e.g., dogs, cats, small birds kept in cages, and similar small pets). No pet may be kept, bred or maintained for any commercial purpose. No pet shall be permitted outside a Unit except on a leash and at all times under the control of its Owner. No pets shall be allowed to constitute a nuisance. Each 65439729 28 i I i i Owner shall promptly remove and dispose of waste matter deposited by its pet through a proper sewage receptacle. Those pets which, in the sole discretion of the Condominium Association, endanger the health, make objectionable noise, odor or constitute a nuisance, threat or s inconvenience, shall be removed within three days of written request from the Board. Each Owner shall indemnify Declarant, Club Declarant, the Condominium Association, the Club Association and the other Owners and hold them harmless against all loss or liability of any kind whatsoever arising from any pet or animal of the Owner or of its Permittees. All "Pit Bulldog" breeds, including, but not limited to, Staffordshire Bull Terriers, Bull Terriers, Pit Terriers and American Pit Bull Terriers (as such list may be modified by the Board from time to time) are prohibited. The Board may adopt Rules from time to time regulating pets within the Condominium Project. t Leases. Subject to Section 4.3, any lease for period of longer than 30 days j Y p g s must Y be in writing and must expressly be made subject to this Declaration. Every lease must provide that any breach of this Declaration by the tenant will also be a breach of the lease. As to each lease, the Owner will, within 10 days after execution of such lease, provide the Board with (i) a copy of the fully executed lease, if requested by the Board; (ii) the current address and telephone number of the Owner; and (iii) a statement by the Owner that the tenant has received a copy of this Declaration, any material amendments to this Declaration, the Bylaws and the current Rules, and that the tenant has been advised that he or she may have obligations under those documents as a Permittee. The Board may make reasonable Rules regarding the leasing of Units, which, with regard to the Commercial Units, will require that the nature of the business of the Commercial Owners or their tenants and their use and occupancy of their respective Commercial Units be in substantial conformance with commonly recognized standards of appearance and operation that are associated with other first class, luxury condominium projects in the Town of Vail, Colorado. The then - acting management company for the Condominium Project will have the right to enforce such standards. (c) Building Exterior; Decks. Unless approved by the Board, and except as provided in Section 4.9(d), nothing may be installed, attached or otherwise affixed to or on the exterior of any Building or the railing on any Deck or Patio. t' (d) Signs and Flags. No signs or flags may be displayed to the public view from any Unit or the Common Elements, except (i) signs maintained and used by Declarant or Club Declarant in connection with its initial and ongoing rental or sales activities; (ii) signs permitted pursuant to Section 4.5; and (iii) signs or flags permitted pursuant to Section 106.5 of CCIOA. 1 1 (e) Refuse Removal. All rubbish, garbage and debris will be regularly removed from and will not be allowed to accumulate on the Condominium Project. All trash, garbage and other debris generated on and awaiting removal from the Condominium Project will be kept in sanitary containers in accordance with the Rules. 1 (f) Obstruction of Common Elements. Nothing may be stored in or on the Common Elements, except in designated storage areas, as depicted on the Map, without the Board's prior written consent; provided, however, that Declarant may store construction materials used in connection with the construction activities described in Section 2.8(b) in or on the Common Elements. Nothing may obstruct or otherwise impair access to the Common Elements except as 1 654397.29 29 4 ` i f E i ( 1 3 t provided in Section 2.8(d), and subject to any exercise of Development Rights and other 1 activities necessary or appropriate for the discharge of any duties owing under this Declaration. t 4.10 Rules. In addition to the restrictions, conditions and covenants in this Article 4 concerning the use of the Condominium Project, the Board from time to time may promulgate and amend reasonable Rules not in conflict with CCIOA including but not limited to Section 106.5, 106.7 and 209.5 of CCIOA), this Declaration or the Bylaws. To the extent not covered elsewhere in this Declaration or the Bylaws, such Rules will include policies as specified in Section 209.5 of CCIOA. Prior to the adoption or amendment of any Rule, the Board will give written notice to each Owner of the proposed new or amended Rule and will t allow the Owners a reasonable opportunity to be heard at the Board meeting at which the proposed new or amended Rule is considered. In no event may the Rules have a materially adverse impact on the operation of the Parking Unit or the Fractional Ownership Plan. E. 4.11 Indemnity. Subject to Section 11.4, each Owner will be liable to and will protect, defend, t indemnify and hold harmless the Condominium Association, the Club Association and the other 1 ' Owners from and against any and all damages, claims, demands, liens (including, without limitation, mechanics' and materialmen's liens and claims), losses, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other expenses of litigation) and liabilities of any kind or nature whatsoever (collectively referred to as "Indemnity Claims ") suffered or incurred by, or threatened or asserted against, the Condominium Association, the Club Association or any other Owner as a result of or in connection with (a) the i willful misconduct, negligence or breach of CCIOA, this Declaration, the Bylaws or the Rules by the indemnifying Owner or its Permittees; (b) any repair, restoration, replacement, alteration or other construction, demolition, installation or removal work on or about the Condominium Project contracted for, or performed by, the indemnifying Owner or its Permittees; or (c) the operation, use, ownership or maintenance of the indemnifying Owner's Unit by the indemnifying Owner or its Permittees. Notwithstanding the foregoing, no Person will be entitled to indemnification from an Owner pursuant to this Section 4.11 as the result of any act or omission attributable to the gross negligence or willful misconduct of such Person. The indemnifying Owner will pay for all Indemnity Claims suffered or incurred by the Condominium Association or the Club Association for which the indemnifying Owner is responsible promptly upon receipt of a demand for payment from the Condominium Association, including any demand from the Condominium Association which is made on behalf of the Club Association or any Owners. The 1 amount of the Indemnity Claims will constitute Special Assessments against the indemnifying Owner's Ownership Interest. If the indemnifying Owner fails to make such payment within 30 days after receipt of the Condominium Association's demand for it, the Condominium Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. ii Nothing in this Declaration relieves any Permittee from liability for its own acts or omissions. Nothing contained in this Section 4.11 will be construed to provide for any indemnification which violates applicable laws, voids any or all of the provisions of this Section 4.11 or negates, abridges, eliminates or otherwise reduces any other indemnification or right which the Condominium Association or the Owners have by law. x 1 4.12 Provisions Run with Property. Each Unit, Owner, Permittee and Security Holder is r subject to all provisions of this Declaration and those provisions are covenants running with the 654397.29 30 E i 9 i 1 I r s ' f i ' land or equitable servitudes, as the case may be, and bind every Person having any interest in the Condominium Project and inure to the benefit of every Owner. 4.13 Enforcement. i (a) This Declaration and the Bylaws constitute a general scheme benefiting each Unit and the Property as a whole and may be enforced by Declarant, the Club Declarant, the Condominium Association, the Club Association or an aggrieved Owner. A violation of any of the provisions of this Declaration causes irreparable damage to the Property. Therefore, subject i to the terms and conditions of this Section 4.13 and except as otherwise expressly provided i elsewhere in this Declaration, Declarant, the Club Declarant, the Condominium Association, the Club Association and any aggrieved Owner may prosecute a proceeding at law or in equity against any Person violating or attempting to violate the provisions of this Declaration or the f` Bylaws, including, without limitation, an action for a temporary restraining order, preliminary injunction and permanent injunction. f (b) Any Person attempting to enforce a provision of this Declaration or the Bylaws, including, without limitation, attempting to collect delinquent Assessments, regardless of whether a suit is initiated, may recover reasonable attorneys' fees and other legal costs incurred in successfully enforcing the provision to the extent provided in Section 123 of CCIOA. Any i Owner who is successful in defending such a claim raised against it is also entitled to reasonable E. attorneys' fees and other legal costs it incurs in successfully defending such a claim to the extent provided in Section 123 of CCIOA. If the Person against whom the claim is made is an Owner, the amount of the fees and costs constitute a lien against the Owner's Ownership Interest which may be foreclosed in accordance with Section 9.6. In addition, if any Owner fails to comply I with this Declaration, the Bylaws or the Rules, the Condominium Association may (i) temporarily suspend the Owner's right to use or enjoy any of the Common Elements; (ii) impose monetary penalties; and (iii) impose other appropriate measures; provided, however, that before imposing any of those measures (other than late charges, interest and reasonable i collection costs relating to delinquent payments), the defaulting Owner is provided prior notice of the claimed default and an opportunity to be heard by the Board prior to the imposition of the i i disciplinary measure in accordance with the provisions of the Bylaws. i (c) In accordance with and furtherance of Section 124 of CCIOA, before an aggrieved Owner may prosecute any proceeding at law or in equity enforcing the provisions of this Declaration or seeking other relief relating to a violation or attempted violation of the provisions of this Declaration, the Owner will first give written notice to the Board specifying t. the violation or attempted violation of the provisions of this Declaration, the facts and circumstances surrounding the violation, and the name of the Person alleged to have violated or attempted to violate the provisions of this Declaration. Subject to Section 7.2, the Condominium i Association may initiate a proceeding at law or in equity to enforce the provisions of this Declaration, to prevent a violation or to obtain damages for damage to the Common Elements resulting from the violation, or may otherwise enforce the provisions of this Declaration. Subject 3 to Sections 7.3 through 7.6, the aggrieved Owner may exercise any of its rights under Section 4.13(a) if (i) the violation or attempted violation results or would result in direct and t immediate physical damage to the Unit to which Owner's Ownership Interest relates; or (ii) the i r 65439729 31 s ' gg 1 i i i Condominium Association fails to enforce or cause enforcement of the violated provisions of i this Declaration within 60 days after the Board receives the Owner's notice. ARTICLE 5 OPERATION, MAINTENANCE AND REPAIR I 5.1 Condominium Association's Duties. Subject to the provisions of Article 12 and Article 13, the Condominium Association has the following rights and responsibilities with respect to the operation, maintenance and repair of the Condominium Project:; i (a) Maintenance of Garage and Common Elements. Except to the extent otherwise provided in Section 5.2, the Condominium Association will maintain, repair, replace and restore the Garage and all other Common Elements, including, without limitation, the Central Mechanical Equipment (including, without limitation, the Condominium Project's carbon monoxide detectors), all Decks and Patios (including snow and ice removal), the exterior and roof of the Building and all windows, garage doors, and exterior doors within the Condominium Project, and the costs to do so will be included in the Common Expenses, except to the extent paid by insurance or condemnation proceeds or by Owners pursuant to Sections 4.11, 9.2(a), 9.2(b), or 9.2(c). In no event may the Condominium Association remove or otherwise fail to repair, maintain or replace the elevator servicing the Garage and located in the northeast corner i. i of the Garage without the approval of the Parking Unit Owner. If (x) such elevator is non- operational, (y) the Parking Unit Owner notifies the Condominium Association in writing of such fact, and (z) the Condominium Association fails to initiate repair of the elevator within 10 business days of such notice and /or fails thereafter to diligently pursue completion of such i repairs, then the Parking Unit Owner may repair (or cause to be repaired) such elevator, but only i in accordance with all standards for improvements and all covenants relating to the protection of the Property from damages and liens set forth in this Declaration and, further, that such work be i performed by fully licensed and insured contractors and in compliance with all applicable laws, regulations and permits, and only as reasonably necessary to bring such elevator into operation and into compliance with applicable laws. The Condominium Association will reimburse the x Parking Unit Owner for all reasonable and customary costs incurred by the Parking Unit Owner for such work; provided, however, that such cost will be included in the appropriate category of Common Expenses (Project -Wide, Garage, Residential or Commercial). i (b) Central Mechanical Equipment. i 1 1 (i) The Condominium Association will operate the Central Mechanical Equipment to provide the services and utilities supplied or delivered thereby to the Units i and the Common Elements. The Condominium Association's costs to operate the Central Mechanical Equipment, including the costs of utilities and services not otherwise paid directly by the Owners, will be included in the Common Expenses, subject to the provisions of Section 5.1(b)(ii). The Condominium Association is not responsible if any utilities or services are unavailable through no fault of the Condominium Association. i' I (ii) The Condominium Association (A) will utilize all reasonable means to install submeters for all utility services provided to the Garage through the Central Mechanical Equipment, to the extent reasonably feasible; and (B) may utilize any i 654397.29 32 e t ' t i t reasonable means (including, without limitation, the installation of submeters or similar measuring devices on some or all of the Central Mechanical Equipment or utility lines) to 1 i; equitably determine the Central Mechanical Equipment services or utilities (not otherwise paid directly by the Owners) supplied to each Unit and Common Element, excluding, in all cases, the Garage. From and after the date of the implementation of any such programs, the costs of operating or providing such Central Mechanical Equipment services or utilities will be divided among the Units and Common Elements based upon s usage as so determined. The portion of the costs attributable to each Unit will be assessed against the Unit as a Reimbursable Expense pursuant to Section 9.2(c); provided, however, that the costs for utility services provided to the Garage pursuant to clause (A) of this Section 5.1(b)(ii) will be a Garage Expense, whether based on the readings of submeters or, if installation of submeters is not reasonably feasible, based on relative use as determined by the Board from time to time. The portion of such costs to operate the Central Mechanical Equipment attributable to the Common Elements will be included in Project -Wide Expenses, Residential Expenses, or the Commercial Expenses as applicable, except for the portion of such costs attributable to Common Elements within the Garage, which will be allocated as set forth in the previous sentence. is (c) Election to Perform Owners' Duties. The Condominium Association may elect to maintain, repair, replace or restore any Unit or Limited Common Element, or portion of either of them, that an Owner is required to maintain, repair, replace or restore pursuant to Section 5.2 if (i) the Owner has failed, for more than 30 days after notice from the Condominium Association, to maintain, repair, replace or restore its Unit or Limited Common Element as required under this Declaration; and (ii) the failure adversely affects the appearance of the Unit or Limited Common Element when viewed from any area outside the Unit or Limited Common Element, or impairs the structural integrity or building systems of any portion of the Property, or has an adverse 1 effect on the use of another Unit or Common Element for its permitted and intended use If, however, the required maintenance, repair, replacement or restoration cannot be cured because of 1 its nature or scope within the 30 -day period, the Condominium Association may not perform the repair, maintenance, replacement or restoration so long as such Owner commences performance of its obligations within the 30 -day period and diligently completes it The Owner must pay all costs incurred by the Condominium Association in accordance with this Section 5.1(c) upon receiving the Condominium Association's demand for payment. If the Owner fails to make the g p Ym I payment within 30 days of receiving a demand for it, the Condominium Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. 1 5.2 Owners' Duties. Subject to the provisions of Article 12 and Article 13, each Owner will at its expense with regard to the Unit to which such Owner's Ownership Interest relates: (a) maintain at all times in good and clean condition, and perform all required repairs, replacements or restorations of the Unit, the Unit Mechanical Equipment, and any Utility /Service Elements allocated exclusively to the Unit as a Limited Common Element; (b) clean and keep in a sanitary condition any Deck and /or Patio allocated to the Unit (provided, however, that the Condominium Association will perform all snow and ice removal on the Decks and Patios and otherwise be responsible for maintenance, repair and replacement of all Decks and Patios pursuant to Section 5.1(a)); (c) clean and maintain the finishes of, and make cosmetic repairs to, any Common Element Walls located within the Unit; (d) perform its responsibilities in a manner t 1 t 1 65439729 33 2 i s i I I x 1 I that does not unreasonably disturb other Owners or their Permittees; and (d) promptly report to the Condominium Association any defect or need for repairs for which the Condominium Association is responsible. Notwithstanding that certain airspace in the Garage may constitute a part of a Unit or Limited Common Elements, the Condominium Association will be solely responsible for maintenance of the Garage, as provided in Section 5.1(a). Except as expressly provided above, no Owner may alter, repair, replace, or maintain any part of the exterior of any Building. I 5.3 Maintenance Standard. For the benefit of all Owners, each Owner and the Condominium Association will perform their respective maintenance and repair obligations under Sections 5.1 and 5.2 in a manner consistent with a first -class project of similar configuration located in Eagle County, Colorado. ARTICLE 6 THE CONDOMINIUM ASSOCIATION AND BOARD 6.1 Formation of the Condominium Association; Membership. The Condominium Association will be formed no later than the date the first Unit is conveyed to an Owner other than Declarant. Each Owner is a member of the Condominium Association as soon and for so long as it is an Owner. Following a termination of the Condominium Project, the members of the Condominium Association will consist of all Owners entitled to share in the distribution of proceeds of a sale of the Property. Membership in the Condominium Association automatically terminates when a Person ceases to be an Owner, whether through sale, intestate succession, testamentary disposition, foreclosure or otherwise, and the new Owner automatically succeeds to that membership in the Condominium Association. The Condominium Association will recognize a new member upon presentation by a new Owner of satisfactory evidence of the sale, transfer, succession, disposition, foreclosure or other transfer of the Ownership Interest to which the membership is appurtenant. Membership in the Condominium Association may not be transferred, pledged or alienated in any way, except to the new Owner upon conveyance of an Ownership Interest. Any prohibited transfer is void and will not be recognized by the Condominium Association. I 6.2 Powers. The Condominium Association will serve as the governing body for the i t Condominium Project and has the responsibilities set forth in this Declaration and the Bylaws. The Condominium Association may take any of the following actions, but will not be obligated to take such actions except as otherwise provided for in the Declaration or the Bylaws: (a) Adopt and amend the Bylaws and Rules; provided, however, that the Bylaws and Rules will not be inconsistent with this Declaration or CCIOA; (b) Adopt and amend budgets for revenues, expenditures and reserves and assess and collect any Assessments and any other amounts due from Owners or others to the Condominium Association; l I (c) Hire and terminate managing agents and other employees, agents and independent contractors; i Y i t 654397.29 34 , S 1 (d) Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more Owners on matters affecting the Condominium Project; (e) Make contracts and incur liabilities; (f) Borrow funds to cover Condominium Association expenditures and pledge Condominium Association assets as security therefor; provided, however, that Common Elements may be subjected to a security interest only pursuant to Section 17.3; Regulate the operation, use, maintenance, repair, replacement and modification of the Common Elements, including amenities such as the pool, lobby, lounge, exercise room, or similar areas within the Common Elements; (h) Cause additional improvements to be made as a part of the Common Elements including, without limitation, snowmelt systems; (i) Acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property (including, without limitation, one or more Units); provided, however, that Common Elements may be conveyed or subjected to a security interest only pursuant to Section 17.3; k (j) Grant Easements, leases, licenses, and concessions through or over the Common Elements; (k) Impose and receive any payments, fees or charges for any additional services provided to Owners at their request by the Association, whether such services are provided to an Owner in connection with any of the amenities within the Common Elements (as provided for above in Section 6.2(k)) or in the Owner's Unit; (1) Impose charges for late payment of Assessments, recover reasonable attorneys' fees and other legal costs for collection of Assessments and other actions to enforce the power of the Condominium Association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of this Declaration or the Bylaws or Rules; (m) Impose reasonable charges for the preparation and Recording of amendments to this Declaration or statements of unpaid Assessments pursuant to Section 17.5; (n) Provide for the indemnification of its officers and members of the Board and maintain directors' and officers' liability insurance; (o) Assign its right to future income, including the right to receive Assessments so long as the Condominium Association will continue to have sufficient revenue to meet its maintenance obligations under this Declaration; (p) Provide a mandatory valet parking system for the Residential Owners, Fractional Owners, and Commercial Owners, the cost of which will be a part of the Residential Expenses and Commercial Expenses or charged as a Limited Benefit Expense; 654397.29 35 x. 1 1 (q) Exercise any other powers conferred by this Declaration or the Bylaws; (r) Exercise all other powers that may be exercised in the State of Colorado by legal entities of the same type as the Condominium Association; and I i (s) Exercise any other powers necessary and proper for the governance and operation of the Condominium Association. 6.3 Budget (a) Preparation of Budget. The Board will cause a proposed budget for the Condominium Association to be prepared and adopted annually, not less than 60 days prior to the beginning of each Fiscal Year of the Condominium Association (except that, for the first Fiscal Year of the Condominium Association, the Board may adopt the estimated budget prepared by or on behalf of Declarant). The proposed budget will include all of the following: (i) The estimated revenue and expenses (including, without limitation, Common Expenses) of the Condominium Association for the subject Fiscal Year, in reasonable detail as to the various categories of revenue and expense; i k (ii) The current cash balance in the Condominium Association's reserve fund (the "Reserve Fund ") for the major repair or replacement of Common Elements, the Condominium Association's equipment, furniture and other personal property and for contingencies (including, without limitation, the amount of the deductible under the Condominium Association's property insurance policy), which fund will be established, maintained and invested by the Board in its reasonable judgment in accordance with Section 6.4; t t (iii) An estimate of the amount required to be spent during the subject Fiscal Year from the Reserve Fund for the major repair or replacement of Common Elements or the Condominium Association's equipment, furniture or other personal property, as determined by the Board in Accordance with Section 6.4; and (iv) A statement of the amount required to be added to the Reserve Fund during the subject Fiscal Year to cover anticipated withdrawals and adequately address contingencies and anticipated needs in future Fiscal Years, as determined by the Board in accordance with Section 6.4. (b) Ratification of Budget. Within 90 days after the Board adopts any proposed l budget for the Condominium Association, but in any event prior to the start of the Fiscal Year for 1 which the budget has been prepared, the Board will mail, by ordinary first -class mail, or otherwise deliver a summary of the proposed budget to all Owners and will set a date for a meeting of the Owners to consider ratification of the proposed budget. Such meeting will occur within a reasonable time after mailing or other delivery of the summary. The Board will give notice to the Owners of such meeting as provided for in the Bylaws. The budget proposed by the Board does not require approval of the Owners and will be deemed approved by the Owners in the absence of a veto at such noticed meeting of Owners representing 100% of all the Units, whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic 654397.29 36 c 1 z 1 i i i . i I budget last proposed by the Board and not vetoed by the Owners will continue in effect until such time as a subsequent budget proposed by the Board is not vetoed by the Owners. For the first Fiscal Year of the Condominium Association, the Board may adopt the estimated budget prepared by or on behalf of Declarant for the Condominium Association and assess General Assessments pursuant to Section 9.2(a) of this Declaration based on it if the Board submits such budget to the Owners for ratification in accordance with this Section 6.3(b) within 60 days after adopting it (c) Discretionary Garage Expenses. If any proposed budget includes any Garage Expense that is discretionary in nature and not necessary for the normal and customary upkeep and/or operation of the Garage, or the Board otherwise proposes incurring such an expense, the i approval of the Board for such Garage Expense must include the approval of the Director selected by the Parking Unit Owner pursuant to the Bylaws. 6.4 Annual Reserve Analysis. Each year, prior to the preparation of the annual budget for the next fiscal year in accordance with Section 6.3, the Board shall prepare or cause to be prepared by the managing agent or some other Person involved with ongoing upkeep and maintenance of the Project, to prepare an estimate of the funds that will be needed over the ensuing five year period (at a minimum) for major repair and replacement of Common Elements and any other items for which the Association is responsible for maintaining, repairing and replacing pursuant i to the Declaration (an "Annual Reserve Analysis "). The Annual Reserve Analysis will be prepared based on a physical inspection of the Project and reasonable projections of the costs anticipated to be incurred for major repair and replacement of such items. The Annual Reserve Analysis need not include routine maintenance and upkeep, items which will be included in the Condominium Association's annual budget. The Annual Reserve Analysis must also include a recommendation for the level of funding of reserves for the next fiscal year, taking into account the level of reserves accumulated to date and the anticipated funding needs. In lieu of having an r Annual Reserve Analysis prepared in a given year, the Board may, in its discretion, engage an Y outside consultant to prepare a formal reserve study which projects reserve needs for a longer 1 period of time (a "Reserve Study "). After receipt of the Annual Reserve Analysis or a Reserve Study, the Board will establish the amount of Assessments to be collected for reserves in the next fiscal year, in its reasonable discretion, but without being bound to follow any recommendations i in the Annual Reserve Analysis or Reserve Study; provided, however, that the Board must include some level of reserves in each annual budget. As the Board collects Assessments, it will i invest the portion thereof designated for reserve in the Reserve Fund. Unless otherwise t. approved by the Board, such accounts shall be fully FDIC insured or otherwise guaranteed by the i' United States Government. r ARTICLE 7 CONSTRUCTION DEFECTS, DISPUTES, DISPUTE RESOLUTION AND LITIGATION i t 7.1 Testing for Construction Defects. (a) The Condominium Association will not undertake or authorize any testing, including, without limitation, investigative testing, destructive testing or invasive testing of any i kind for defects in construction of any Unit or Common Element without first determining, based i I L . 65479229 37 t i i i I 1 1 upon the presence of some readily observable evidence or condition, that a defect may exist. In making such a determination the Board will rely on the opinions and/or the conclusions of a t. qualified expert (e.g., a structural engineer); even in the event such evidence or conditions exist, the Condominium Association will not be obligated to authorize or undertake such testing. (b) In determining whether to authorize such testing, the Board will be governed by the following considerations: (i) Whether the Condominium Association's position is strong enough to justify taking any other or further action; I (ii) Whether, although a technical violation may exist or may have occurred, it is of such a material nature as to be objectionable to a reasonable Person or to justify s expending the Condominium Association's resources; and i (iii) Whether it is in the Condominium Association's best interests, based upon hardship, expense, inconvenience or other reasonable criteria, to pursue the matter further. i (c) Notwithstanding the foregoing, under no circumstances will the Condominium it Association authorize such testing as is contemplated under this Section 7.1 unless the nature of I. the suspected defect is such that: i (i) It poses a significant risk to life, health, safety or personal property; and (ii) It threatens or affects the structural integrity, functionality, or performance of the Property (or a portion thereof) for its intended use. I (d) In the event the Board undertakes or authorizes testing for construction defects, then prior to any testing taking place, Declarant and others responsible for the construction will be entitled to notice of the alleged defect, access to the area of the alleged defect, and an opportunity to inspect the area and repair any defect that is found to exist. Declarant and others responsible for construction will also be entitled to be present during any testing and may record (via videotape, audio tape, still photographs, or any other recording method) all testing conducted and all alleged defects found. (e) In the event that testing discloses any defects, Declarant and others responsible for construction will be given a reasonable amount of time, based on the nature and extent of the defect, to repair or correct the condition. If Declarant or others responsible for construction fail 1 to repair or correct the condition, the Board will have the right, but not the obligation, to proceed i with a Claim pursuant to this Article 7 of this Declaration. In determining whether to proceed with such a Claim, the Board will be governed by the same standards as set forth in Section 7.6 1' below. 7.2 Consensus for Condominium Association Litigation. Except as provided in this Section 7.2, the Condominium Association will not commence a judicial or administrative'' proceeding, including, without limitation, any proceeding required under Section 7.5 below, without: (a) the approval of Owners of Ownership Interests to which at least 67% of the votes in t` t z i 654397.29 38 i the Condominium Association are allocated; and (b) the affirmative vote of Declarant so long as Declarant owns any Unit. This Section 7.2 will not apply, however, to: (i) actions brought by the Condominium Association to enforce the terms of this Declaration, the Bylaws or the Rules (including, without limitation, the foreclosure of liens); (ii) the imposition and collection of Assessments; (iii) proceedings involving challenges to ad valorem taxation; or (iv) counterclaims brought by the Condominium Association in proceedings instituted against it This Section 7.2 will not be amended unless such amendment is approved by at least 67% of the votes in the Condominium Association and pursuant to the same procedures, necessary to institute proceedings, as provided for herein. Prior to the Condominium Association or any Owner's commencing any judicial or administrative proceeding which arises out of an alleged defect of any Common Element or Unit, Declarant and others responsible for the construction will have the right to be heard by the Owners and to access, inspect, correct the condition of, or redesign any portion of the Common Elements or the Units, including any improvement as to which a defect is alleged. In addition, the Condominium Association or the Owner will notify the builder who constructed the subject improvement prior to retaining any other expert as an expert witness or for other litigation purposes. 7.3 Alternative Method for Resolving Disputes. In accordance with and in furtherance of Section 124 of CCIOA, Declarant; the Condominium Association, its officers, directors, and committee members; any Owner; all Persons subject to this Declaration; and any Person not otherwise subject to this Declaration who agrees to submit to this Section 7.3 (each such entity being referred to as a "Bound Party ") agree to encourage the amicable resolution of disputes, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit those claims, grievances or disputes described in Section 7.4 of this Declaration (each, a "Claim "), to the procedures set forth in Section 7.5 of this Declaration. 7.4 Claims. Unless specifically exempted below, all Claims arising out of or relating to the interpretation, application or enforcement of this Declaration, or the rights, obligations and duties of any Bound Party under this Declaration, or relating to the design or construction of the Units or the Common Elements (including, without limitation any soils related issues) will be subject to the provisions of Section 7.5 of this Declaration. Notwithstanding the above, unless all parties thereto otherwise agree, the following will not be Claims and will not be subject to the provisions of Section 7.5 of this Declaration: (a) Any suit by the Condominium Association against any Bound Party to enforce the provisions of Article 9 of this Declaration (Assessments); (b) Any suit by the Condominium Association, Club Association, Declarant or Club Declarant to obtain a temporary restraining order or injunction (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to . maintain the status quo and preserve the Condominium Association's ability to act under and enforce the provisions of Article 4 (Covenants, Conditions and Restrictions); 1 654397.29 39 (c) Any suit between or among Owners, to the extent such suit asserts a Claim which would constitute a cause of action independent of this Declaration; and (d) Any suit by the Parking Unit Owner regarding a construction defect relating to the i '' Garage or pursuant to the New Parking Warranty. With the consent of all parties thereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 7.5. 7.5 Mandatory Procedures. (a) Notice. Any Bound Party having a Claim ( "Claimant ") against any other Bound Party ( "Respondent ") (Claimant and Respondent are hereinafter referred to individually, as a "Party," or, collectively, as the "Parties ") will notify each Respondent in writing (the "Notice "), stating plainly and concisely (i) the nature of the Claim, including the Persons involved and Respondent's role in the Claim; (ii) the legal basis of the Claim (i.e., the specific authority out of which the Claim arises); (iii) the proposed remedy; and (iv) the fact that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim. (b) Negotiation and Mediation. (i) The Parties will make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in negotiation. (ii) If the Parties do not resolve the Claim within 30 days after the date of the Notice (or within such other period as may be agreed upon by the Parties) ( "Termination of Negotiations "), Claimant will have 30 additional days to submit the Claim to mediation under the auspices of an independent mediation service designated by the Parties, or if the Parties can not agree then as designated jointly by each of the Parties' desired mediation service, and providing dispute resolution services in the Eagle County, Colorado, area. (iii) If Claimant does not submit the Claim to mediation within such time, or does not appear for the mediation, Claimant will be deemed to have waived the Claim, and Respondent will be released and discharged from any and all liability to Claimant on account of such Claim; provided, however, that nothing herein will release or discharge Respondent from any liability to any Person other than Claimant. (iv) Any settlement of the Claim through mediation will be documented in writing by the mediator and signed by the Parties. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation, or within such other time as determined by the mediator or agreed to by the Parties, the mediator will issue a notice of termination of the mediation proceedings ( "Termination of Mediation "). The Termination of Mediation notice will set forth that the Parties are at an impasse and the date that mediation was terminated. 654397.29 40 yg } 1 i (v) Within five business days of the Termination of Mediation, Claimant will make a final written settlement demand ( "Settlement Demand ") to Respondent, and l Respondent will make a final written settlement offer ( "Settlement Offer ") to Claimant. If Claimant fails to make a Settlement Demand, Claimant's original Notice will constitute the Settlement Demand. If Respondent fails to make a Settlement Offer, Respondent will be deemed to have made a "zero" or "take nothing" Settlement Offer. (c) Final and Binding Arbitration. (i) If the Parties do not agree in writing to a settlement of the Claim within 15 days of the Termination of Mediation, Claimant will have 15 additional days to submit the Claim to arbitration in accordance with the Rules of Arbitration contained in Exhibit D or such rules as may be required by the agency providing the arbitrator. If not timely submitted to arbitration or if Claimant fails to appear for the arbitration proceeding, the Claim will be deemed abandoned, and Respondent will be released and discharged from any and all liability to Claimant arising out of such Claim; provided, however, that nothing herein will release or discharge Respondent from any liability to Persons other than Claimant. (ii) This subsection 7.5(c) is an agreement to arbitrate and is specifically enforceable under the applicable arbitration laws of the State of Colorado. The arbitration award (the "Award ") will be final and binding with no right to appeal, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Colorado. i (d) Allocation of Costs of Resolving Claims. 1. (i) Except as provided for below, each Party, including, without limitation, any Owner and the Condominium Association, will share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the arbitration proceeding ( "Post Mediation Costs "). Under no circumstances will either Party be entitled to recover its any attorneys' fees from the other party (except as specifically provided under Section 123 of CCIOA),. BY ACQUIRING AN OWNERSHIP INTEREST AND AS A MEMBER OF THE CONDOMINIUM ASSOCIATION, EACH OWNER ACKNOWLEDGES AND AGREES THAT SUCH OWNER AND THE CONDOMINIUM ASSOCIATION HAVE WAIVED AND WILL BE DEEMED TO HAVE WAIVED THE RIGHT TO ANY AWARD OF ATTORNEYS' FEES (EXCEPT AS SPECIFICALLY PROVIDED UNDER SECTION 123 OF CCIOA) IN CONNECTION WITH THE ARBITRATION OF A DISPUTE UNDER THIS SECTION 7.5(d). (ii) Any Award which is equal to or more favorable to Claimant than Claimant's Settlement Demand will cause Claimant's Post Mediation Costs to be added to the Award, such costs to be borne equally by all Respondents. Any Award which is equal to or less favorable to Claimant than any Respondent's Settlement Offer will award to such Respondent its Post Mediation Costs. With respect to any Award which is less favorable to Claimant than Claimant's Settlement Demand yet more favorable to i 654397.29 41 f i is , c i Claimant than Respondent's Settlement Offer, each Party will bear its own Post Mediation Costs. i (e) Limitation on Damages. No Party, including, without limitation, any Owner and the Condominium Association, will be entitled to receive any award of damages in connection with the arbitration of a Claim other than such Party's actual damages, and Declarant, the Condominium Association and any Owner will be deemed to have waived their right to receive any damages in a dispute other than actual damages, including, without limitation, attorneys' i' fees (except as specifically provided under Section 123 of CCIOA), special damages, consequential damages, and punitive or exemplary damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AS MAY BE IN EFFECT FROM TIME TO TIME, BY ACQUIRING AN OWNERSHIP INTEREST AND AS A MEMBER OF THE CONDOMINIUM ASSOCIATION, EACH OWNER KNOWINGLY AND WILLINGLY ACKNOWLEDGES AND AGREES THAT SUCH OWNER AND THE CONDOMINIUM i ' ASSOCIATION HAVE WAIVED AND WILL BE DEEMED TO HAVE WAIVED, IN 1 CONNECTION WITH THE ARBITRATION OF ANY DISPUTE UNDER SECTION 7.5(c), THE RIGHT TO ANY AWARD OF CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, i INCIDENTAL, OR OTHER NON - COMPENSATORY DAMAGES OR SIMILAR DAMAGES, INCLUDING ALL DAMAGES FOR EMOTIONAL DISTRESS, WHETHER FORESEEABLE OR UNFORESEEABLE AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON (BUT NOT LIMITED TO) CLAIMS ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, VIOLATION OF BUILDING CODES (LOCAL, STATE OR FEDERAL), CONSTRUCTION DEFECTS (INCLUDING SOILS RELATED ISSUES), MISREPRESENTATION OR NEGLIGENCE OR OTHERWISE. 1! (f) Multiple Party Claims. Multiple Party Claims not consolidated or administered as a class action pursuant to the following sentence will be subject to, and will be arbitrated individually. Only with the written request of all Parties involved, but not otherwise, the t arbitrator may (i) consolidate in a single arbitration proceeding any multiple Party Claims that 6 are substantially identical; and (ii) arbitrate multiple Claims as a class action in accordance with the rules and procedures adopted by Construction Arbitration Services, Inc. 1. (g) Enforcement of Resolution. If the Parties agree to a resolution of any Claim through negotiation or mediation in accordance with Section 7.5(b) above and any Party t` thereafter fails to abide by the terms of such agreement, or if any Party fails to comply with an 1 '' Award, then any other Party may file suit or initiate administrative proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in this Section 7.5. In such event, the Party taking action to enforce an agreement or Award will be entitled to recover from the non - complying Party (or if more than one non - complying Party, t from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including, without limitation, attorneys' fees and court costs to the extent specifically provided under Section 123 of CCIOA. 7.6 Legal Proceedings. Subject to the provisions of Sections 7.1 through 7.5 of this f. Declaration, the Condominium Association will have the right, but not the obligation, to institute legal proceedings to enforce all rights under this Declaration, the Bylaws and the Rules. The , 1. 654397.29 42 t s i I i i t I decision to institute legal proceedings by seeking the approval of Owners of Ownership Interests is to which at least 67% of the votes in the Condominium Association are allocated, pursuant to Section 7.2 of this Declaration, will be in the sole discretion of the Board and will be governed by the considerations detailed in Section 7.2, if applicable. Failure to commence such legal proceedings will not constitute a waiver of any such rights. ANY LIMITATIONS ON DAMAGES AND ALL WAIVERS OF LIABILITY AND RIGHTS TO AWARDS OF DAMAGES SET FORTH IN ANY SECTION OF THIS DECLARATION WITH RESPECT I TO OWNERS, INCLUDING, WITHOUT LIMITATION, SECTIONS 7.5(c), 7.5(e) AND 7.5(f), WILL APPLY WITH EQUAL FORCE AND EFFECT WITH RESPECT TO THE CONDOMINIUM ASSOCIATION IN ANY LEGAL PROCEEDINGS INSTITUTED BY THE CONDOMINIUM ASSOCIATION UNDER THIS SECTION 7.6. THE PROVISIONS OF SECTIONS 7.1 THROUGH 7.6 WILL BE BINDING UPON THE OWNERS AND THE CONDOMINIUM ASSOCIATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AS MAY BE IN EFFECT FROM TIME TO TIME i i 7.7 Enforcement of Declaration, Bylaws, and Rules. (a) Sanctions and Self -Help. Except as provided in Section 5.1(c), after notice and an opportunity to be heard as provided in the Bylaws, the Condominium Association, acting i through the Board or any authorized agent, may: (i) impose sanctions (including, without limitation, reasonable monetary fines and suspension of the Owner's right to vote in Condominium Association matters) for violations of this Declaration, the Bylaws, or the Rules; (ii) exercise self -help to cure any violations of this Declaration, the Bylaws or the Rules that an Owner of Permittee fails or refuses to cure; and (iii) suspend any services it provides to any Owner who is more than 15 days delinquent in paying any Assessment or other charge due to the Condominium Association. All of the remedies set forth in this Declaration and the Bylaws will be cumulative of each other and any other remedies available at law or in equity. If the Condominium Association prevails in any action to enforce the provisions of this Declaration, the Bylaws, or the Rules, it will be entitled to recover all costs, including, without limitation, attorneys' fees and court costs to the extent specifically provided under Section 123 of CCIOA, reasonably incurred by it in such action. Y t I (b) No Waiver. In no event will the Condominium Association's failure to enforce any covenant, restriction or rule provided for in this Declaration, the Bylaws, or the Rules constitute a waiver of the Condominium Association's right to later enforce such provision or any other covenant, restriction or rule. 1 7.8 Procedures for Addressing Disputes Arising Between the Condominium Association and Owners. The provisions of this Article 7 contain the Condominium Association's responsible governance policy regarding the procedures for addressing disputes arising between the Condominium Association and Owners as required under Section 209.5(1)(b)(VIII) of CCIOA. ARTICLE 8 MOLD DISCLOSURE i t Molds, mildew, fungi, bacteria and microbiologic organisms (collectively, "Molds ") are present in soil, air and elsewhere in the environment. Molds can proliferate in various R 65439729 43 a B r 1 i environments, including, among others, damp areas such as bathrooms and within walls and partitions. Certain parties have expressed concerns about the possible adverse effects on human health from exposure to Molds. Due to various reasons, including the varying sensitivities of different individuals to various types of Molds and other contaminants, as of the date of this 1 Declaration there currently exist no state or federal standards regarding acceptable levels of exposure to Molds. According to the Consumer Product Safety Commission and the American Lung Association, some diseases or illnesses have been linked with biological pollutants in the indoor environment, including some forms of Molds. However, it is believed that many of these conditions may also have causes unrelated to the indoor environment. Therefore, as of the date of this Declaration it is unknown how many potential health problems relate primarily or exclusively to indoor air quality or Molds. By acquiring an Ownership Interest, each Owner acknowledges and agrees that Declarant is not qualified and has not undertaken to evaluate all aspects of this very complex issue. EACH OWNER ACKNOWLEDGES THAT DECLARANT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, l CONCERNING, THE PAST, CURRENT OR FUTURE, PRESENCE OR ABSENCE OF MOLDS IN OR IN THE VICINITY OF ITS UNIT, ANY COMMON ELEMENT WALL(S) LOCATED WITHIN ITS UNIT, OR ANY LIMITED COMMON ELEMENTS ALLOCATED TO ITS UNIT OR IN ANY OTHER PORTION OF THE CONDOMINIUM PROJECT. Declarant recommends that each Owner, at the Owner's expense, conduct its own investigation and consult with such experts as such Owner deems appropriate regarding the occurrence and effects of Molds, the potential sensitivity or special risk individuals who will occupy or use the Unit to which the Owner's Ownership Interest relates or any Limited Common Elements allocated to the Unit may have with respect to Molds, and methods to reduce or limit Molds l within the Unit or any Limited Common Elements allocated to the Unit. The provisions of this Article 8 will be binding upon the Owners to the fullest extent permitted by applicable law, as may be in effect from time to time t i ARTICLE 9 ASSESSMENTS 1 ' 1 t 9.1 General Assessments. Each Unit is subject to assessments for the Unit's Common Allocations of all applicable Common Expenses (the "General Assessments "). In no event will the Parking Unit Owner or the Commercial Owners be subject to Assessments for any Residential Expenses. In no event will the Residential Owners, Fractional Owners, or the Parking Unit Owner be subject to Assessments for any Commercial Expenses. General Assessments will commence not later than 60 days after the conveyance of the first Unit to an Owner other than Declarant. Each Fractional Owner will be liable only for proportionate amount of the General Assessments assessed against the applicable Fractional Unit as established in the Club Declaration. General Assessments assessed by the Condominium Association and applicable to Fractional Units shall be payable to the Condominium Association by the Club Association; provided, however, that the Condominium Association shall have all of the enforcement rights provided in Section 9.6 with respect to the Fractional Ownership Interest of any Fractional Owner who is delinquent in the payment of the Fractional Owner's portion of such General Assessments. General Assessments will be calculated, paid, adjusted and reconciled in accordance with the following provisions: E ; f 654397.29 44 , 1 ( I (a) Budget and Payment. The Board will assess General Assessments against each Unit based on the budget adopted by the Board and ratified by the Owners pursuant to Section 6.3. Each Owner is obligated to pay the Condominium Association the General Assessments made against such Owner's Unit, and the payment will be due in equal monthly installments on or before the first day of each month of each Fiscal Year or in another reasonable manner designated by the Board. The Board's failure to fix the General Assessments prior to the commencement of any Fiscal Year will not be deemed a waiver or modification of any of the provisions of this Declaration or a release of any Owner from its obligation to pay the General Assessments or any installment of them for that Fiscal Year, but the General Assessments fixed for the preceding Fiscal Year will continue until the Board fixes the new General Assessments. Notwithstanding the foregoing, with respect to Fractional Units, each Factional Owner of an Ownership Interest in a particular Fractional Unit will only be liable for the portion of the t' General Assessment made against the Fractional Unit to which such Fractional Owner's Ownership Interest relates as provided for in the Club Declaration. 1 (b) Adjustment. If, during any Fiscal Year, the Board determines that the estimated expenses or revenues of the Condominium Association, as set forth in the budget upon which the General Assessments were based, are in error for any reason (including, without limitation, t ' nonpayment by any Owner of its General Assessments), then, to the extent the Board estimates that payments of General Assessments during the balance of the Fiscal Year will be inadequate or more than required to meet the Condominium Association's obligations intended to be covered by such General Assessments, the Board may amend the budget and increase or decrease the General Assessments for the balance of such Fiscal Year by giving not less than 30 days' prior notice to all Owners. Notwithstanding the previous sentence, however, if any amendments individually or in aggregate with all previous amendments in any Fiscal Year would increase the total General Assessments for a Fiscal Year by more than 10% of the General Assessments called for by the budget previously ratified by the Owners pursuant to Section 6.3, then the Board must submit the amendment for ratification by the Owners pursuant to Section 6.3 before increasing the General Assessments based on the amendment. l: (c) Reconciliation. As soon as reasonably practicable after the end of each Fiscal Year, the Board will reconcile the actual costs and expenses incurred by the Condominium Association during that Fiscal Year against the General Assessments that the Condominium Association received and intended to cover the costs and expenses. To the extent that any Owner has paid more than its proper share of the costs and expenses, the Board may either (i) refund the overpayment to the Owner; (ii) credit the overpayment against the Owner's General Assessments for the next Fiscal Year; or (iii) deposit the overpayment into the Reserve Fund if overpayments were received from all Owners in proportion to each Owner's Common Allocations. To the extent any Owner has underpaid its share of the costs and expenses, the Board may either (A) demand in writing that the Owner pay the amount of the underpayment of General Assessments to the Condominium Association within a time period specified by the Board, but not less than 30 days after the Board gives its demand to the Owner; or (B) include the is underpayment in the Owner's General Assessments for the next Fiscal Year. 9.2 Special Assessments. The Condominium Association may levy from time to time one or more special assessments ( "Special Assessments ") for the purpose of defraying in whole or in part the cost of any construction, restoration, unexpected repair or replacement of a capital 65439729 45 q, 1 g , t l i 1 E i improvement or for carrying out the other responsibilities of the Condominium Association in accordance with this Declaration. Each Special Assessment will be allocated among the Units in accordance with the provisions Sections 9.2(a) through 9.2(e). Each Owner will pay all Special Assessments assessed against the Owner's Unit. Each Fractional Owner will be liable only for proportionate amount of any Special Assessments assessed against the applicable Fractional Unit as established in the Club Declaration. Special Assessments will be paid at the time(s) and in the manner (for example, by lump sum payment or in installments) reasonably determined by the Board. The Board may require that Special Assessments be paid before the subject services or materials are provided. Notwithstanding the foregoing, with respect to Fractional Units, each Factional Owner of an Ownership Interest in a particular Fractional Unit will only be liable for the portion of any Special Assessment made against the Fractional Unit to which such Fractional Owner's Ownership Interest relates as provided for in the Club Declaration. (a) General Benefit Expenses. If the Condominium Association incurs any costs or expenses that benefit all Units ( "General Benefit Expenses "), then the Board, in its discretion, will assess the General Benefit Expenses as a Special Assessment against each Unit in amount 1 equal to the General Benefit Expense times such Unit's Project -Wide Allocation. The Board may assess Special Assessments for General Benefit Expenses without the approval of the Owners. (b) Limited Benefit Expenses. If the Condominium Association incurs any costs or expenses that solely benefit one or more Units but less than all Units (such as, for example, the costs of repairing a utility line or Limited Common Element that serves only one or two Units or 1 a group of Units but no others) ( "Limited Benefit Expenses "), then the Board, in its reasonable discretion, will assess the Limited Benefit Expenses as a Special Assessment against the Unit or Units benefited by such Limited Benefit Expenses as follows: any Limited Benefit Expenses (' incurred for the benefit of only one Unit will be assessed solely to that Unit; and any Limited Benefit Expenses incurred for the benefit of two or more Units will, unless the Owners of all benefited Units otherwise agree to a different proportion, be assessed against each benefited Unit in proportion to the ratio of the Unit's Project -Wide Allocation to the sum of the Project -Wide Allocations of all benefited Units. The Board may assess Special Assessments for Limited Benefit Expenses without the approval of the Owners, subject to the provisions of Section 6.3(c). Notwithstanding the foregoing, the Board may not incur a Limited Benefit Expense (other than when deemed necessary by the Board in order to protect property, to provide safety or to comply r : with laws) with respect to a Limited Common Element which is exclusively allocated to the Residential Owners as a whole or the Fractional Owners as a whole. With respect to such Limited Common Elements, the Residential Owners will approve the budget and bear the expense related to those Limited Common Elements allocated exclusively to the Residential Units. The Fractional Owners will approve the budget and bear the expense related to those Limited Common Elements allocated exclusively to the Fractional Units. An example of such items are the separate storage spaces which are allocated to the Residential Units and Fractional Units, respectively. F l (c) Reimbursable Expenses. If the Condominium Association incurs any costs or expenses as a result of or in connection with (i) the cost of separately metered utilities or Central i r Mechanical Equipment Services pursuant to Section 5.1(b)(ii); (ii) an increase in any insurance premium for which an Owner is responsible pursuant to Section 4.8(a) or 11.1(a), (iii) subject to 65439729 46 , i 1 Section 11.4, the willful misconduct or negligence or violation of any law, this Declaration, the Bylaws or the Rules by an Owner or its Permittees; (iv) subject to Sections 4.13 and 5.1(c), bringing an Owner or the Owner's Unit into compliance with the provisions of this Declaration (including, without limitation, Sections 4.9 and 5.2) or any other document governing the Condominium Project; or (v) the cost of causing a proposed Termination Agreement to be circulated pursuant to Section 14.1, then, in each such event, the Board will assess the costs and expenses ( "Reimbursable Expenses ") as a Special Assessment against the Unit. The Board may assess Special Assessments for Reimbursable Expenses without the approval of the Owners. (d) Restoration Deficit. If, following any damage, destruction or Taking of the Common Elements, or any portion of them, the total costs of performing any restoration of the Common Elements required by this Declaration or CCIOA exceeds the amount of the insurance proceeds, condemnation award or other funds available for the cost of restoration (such as funds in the Reserve Fund), then the Board may assess Special Assessments to cover the deficit (a "Restoration Deficit "). The Board will assess against each Unit its Project -Wide Allocation, Garage Allocation, Residential Allocation or Commercial Allocation, as applicable, of the 1 Special Assessments for a Restoration Deficit. The Board may assess Special Assessments for a Restoration Deficit without the approval of the Owners. 1 (e) Voluntary Capital Expenses. Provided the requisite number of Owners petition the Board as provided below, the Board may make Special Assessments for the purpose of paying Voluntary Capital Expenses. "Voluntary Capital Expenses" may include any costs and expenses of any capital improvement to the Common Elements, including all design, construction and associated financing costs, except for (i) costs incurred in order to reduce Common Expenses (which costs will be included in Common Expenses); (ii) costs required to be incurred to cause the Condominium Project to comply with applicable law (which costs will be included in Common Expenses); and (iii) costs that constitute all or any part of a Restoration Deficit. Any petition before the Condominium Association (or Owners) to make a Special Assessment for Voluntary Capital Expenses must include provisions describing in detail the proposed improvements to be made and whether all of the Units, or one or more but less than all of the Units, will be subject to the Special Assessment. If less than all of the Units will be subject to such Special Assessment, the proposal will also include provisions describing which Units will be subject to such Special Assessment and the manner in which the total amount of the Special Assessment will be allocated among the Units subject to it In order to approve any Special Assessment for Voluntary Capital Expenses, the Board must be presented with a petition signed by owners representing (A) 67% of the votes in the Condominium Association if all of the Units will be subject to the Special Assessment; or (B) 100% of the votes in the Condominium Association that are allocated to the Units that will be subject to the Special Assessment if less than all of the Units will be subject to the Special Assessment. If the petition presented to the Board contains the requisite number of signatures, the Board will (subject to any approval right it has over the design of such proposed improvements pursuant to this Declaration) assess the total amount of a Special Assessment for Voluntary Capital Expenses against (1) all of the Units, if all of the Units are subject to the Special Assessment pursuant to the approved proposal, by allocating to each Unit its Project -Wide Allocation of the total amount; or (2) the Units subject to the Special Assessment (if less than all) pursuant to the approved petition, by allocating to each the portion of the Special Assessment specified in the approved petition. 654397.29 47 i : 1 1 9.3 New Parking Warranty. In no event will the General Assessments or Special Assessments include reimbursement for any amounts paid by Declarant pursuant to the "New Parking Warranty" as that term is defined in the Parking Easement Agreement Recorded on t June 24, 2005 at Reception No. 920514, or any amounts paid by Declarant pursuant to any construction warranty related to the New Parking Warranty. 9.4 Working Capital Fund. To provide the Condominium Association with sufficient working capital to cover the cost of unforeseen expenditures or to purchase any additional 1. equipment or services, an initial "Working Capital Fund" will be established in an amount equal to one month of then current General Assessments per Unit. Fractional Owners shall be liable only for a portion of the contribution to the Working Capital Fund applicable to their Fractional Unit in an amount proportionate to their Fractional Ownership Interest. For each Ownership l Interest, the contribution to the Working Capital Fund is due on the closing of the sale of the Ownership Interest to an Owner other than Declarant or Club Declarant. Such contributions will be made by the Owner that purchases the Ownership Interest from Declarant or Club Declarant I at the closing of the Owner's purchase of its Ownership Interest. Amounts contributed to the Working Capital Fund do not constitute advance payments of General Assessments. i s 9.5 Payment of Assessments; Notice and Acceleration. Each Owner will pay all General Assessments and Special Assessments (collectively, "Assessments ") assessed against such Owner's Unit by the Board in accordance with the terms of this Declaration; provided, however, that each Fractional Owner will be liable for and will pay only for a proportionate amount of the Assessments assessed against the applicable Fractional Unit as established in the Club F ` Declaration. Notwithstanding anything contained in this Declaration to the contrary, if the Club Declaration does not specify the manner in which Assessments levied pursuant to this Declaration are to be allocated among the Fractional Owners of Ownership Interests in a Fractional Unit, then each Fractional Owner of an Ownership Interest in such Fractional Unit shall be liable for a share of the Assessment which is proportionate to such Fractional Owner's undivided interest in such Fractional Unit relative to the sum of all other Fractional Owners' undivided interests in such Fractional Unit. Each Assessment is a separate, distinct and personal debt and obligation of the Owner against whose Unit the Assessment is assessed, or in the case of Fractional Units, of each of the Fractional Owners who hold an Ownership Interest in the Fractional Unit as divided among them in accordance with the Club Declaration. All Assessments are payable in full without offset for any reason whatsoever. Each Owner's obligation to pay Assessments is entirely independent of any obligation of the Condominium Association to the Owner or of Declarant or any other Owner to that Owner. Any Assessment or installment of an Assessment not paid within 15 days after it becomes due is delinquent. If an Assessment or installment of an Assessment is delinquent, the Condominium Association may recover all of the following (collectively, the "Delinquency Costs "): (a) interest from the date due at the rate established from time to time by the Board (but not to exceed the lesser of 21% per year or the maximum rate under applicable law); (b) late charges and other monetary penalties imposed by the Condominium Association pursuant to this Declaration and CCIOA; and (c) all collection and enforcement costs, including reasonable attorneys' fees, incurred by the Condominium Association and permitted by CCIOA. If any installment of an Assessment is not I paid within 15 days after it becomes due then the Board, at its option, may declare all unpaid installments of the subject Assessment for the current Fiscal Year to be immediately due and payable in full without further demand or notice and may enforce the collection of the i i p 654397.29 48 ' t i , 1 Assessment (including any installments whose due dates were so accelerated) in accordance with Section 9.6, subject, however, to the protection afforded First Mortgagees pursuant to Section 17.4(b). 9.6 Enforcement of Assessments. The amount of any delinquent Assessments (including any installments whose due dates are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs may be enforced against the Owner liable for them in either or both of the following ways (to the extent permitted by law or regulation), at the option of the Board: 1 , (a) Suit. The Condominium Association may bring a suit or suits at law to enforce the Owner's obligation to pay a delinquent Assessment (including any installments whose due dates are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs. Each action will be brought in the name of the Condominium Association. Any judgment rendered in the action in favor of the Condominium Association will include a sum for reasonable attorneys' fees and costs incurred by the Condominium Association in bringing the action against the defaulting Owner. Upon full satisfaction of the judgment, the Condominium Association, by one of its officers, will execute and deliver to the judgment debtor an appropriate satisfaction of the judgment. (b) Lien and Foreclosure. Assessments (including any installments whose due dates 1 are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs constitute a lien on the Units (or in the case of Fractional Units, a lien on the individual Fractional Ownership Interests in the Fractional Unit) against which they are assessed from the date due. The lien is subject to the provisions of Section 316 of CCIOA. If an Assessment is delinquent, if the Condominium Association gives a notice concerning the delinquency that, substantially complies with the provisions of Section 9.5, and if the delinquent Assessment is not paid in full by the due date specified in the notice, then the Condominium Association may foreclose the lien securing the Assessment, any installments whose due dates are accelerated by the Board pursuant to Section 9.5, and any associated Delinquency Costs in accordance with the laws of the State of Colorado, subject, however, to the protection afforded First Mortgagees pursuant to Section 17.4(b). At its election, the Condominium Association may commence a single judicial foreclosure action relating to a lien on a Fractional Unit, joining as defendants multiple Fractional Owners of the applicable Fractional Unit and their respective junior lienors, in accordance with Section 316.5 of CCIOA. 9.7 Disputes and Records. Any Owner or an Owner's authorized representative may inspect and audit the books and records of the Condominium Association during business hours upon reasonable prior notice. If an Owner disputes the amount of any Assessment against its Unit and is unable to resolve the issue through an inspection of the Condominium Association's books and records, the Owner will pay in a timely manner the full amount of the disputed Assessment until, if ever, it is finally determined that the amount is incorrect (in which case the Condominium Association will promptly refund any overpayment). If the Owner fails to pay the disputed Assessment while the dispute is pending, the Condominium Association may immediately pursue any of its remedies for the failure (including, without limitation, suit against the Owner and /or foreclosure of its Unit) and the pendency of the dispute resolution proceeding is not a bar or defense to any actions by the Condominium Association. 654397 29 49 1 i 1 r i i 9.8 Owners not Exempt from Liability. No Owner is exempt from liability for payment of Assessments by waiver of the use or enjoyment of any of the Common Elements, by abandonment of its Unit, or otherwise. 1 t 9.9 Declarant's Responsibility for Assessments. Until the Condominium Association levies Assessments, Declarant will pay the Condominium Association's costs and expenses. After Assessments commence as provided in Section 9.1 Declarant's obligations for Assessments may be satisfied in the form of cash or by "in kind" contributions of services or materials to the f Condominium Association, or by any combination of these, provided such form of payment does not result in an increase in the amount of Assessments due from other Owners. ARTICLE 10 ALTERATIONS I 10.1 Permitted Unit Alterations. An Owner may, subject to the terms and provisions of this Article 10, construct an alteration or improvement to its Unit (a "Permitted Unit Alteration ") that: z (a) Does not, either during construction or after completion, impair the structural stability, or building systems of, including, without limitation, any acoustical separation assemblies or other components designated to mitigate the transmission of sound or fire through walls and other physical separations, or diminish the support of any portion of the Condominium Project; (b) Does not, during construction, substantially and unreasonably impair the use of any Common Element by any Owner or Permittee entitled to use that Common Element; i (c) Does not, during construction, change the appearance of or otherwise adversely is affect the Common Elements; (d) Does not, after completion, change the appearance of or otherwise adversely affect the Common Elements; f i (e) Does not, after completion, affect the appearance of the Condominium Project, when viewed from any area outside the altered Unit; and 1. (f) Is consistent with any brand standards established by the then - acting management company for the Condominium Project. i At least 30 days prior to the commencement of construction, an Owner intending to perform a Permitted Unit Alteration will provide plans and specifications for the Permitted Unit r Alteration to the Board. Any change, addition, alteration or improvement of any Unit that does not constitute a Permitted Unit Alteration is prohibited (unless otherwise permitted pursuant to this Article 10) and may be enjoined by the Condominium Association or any aggrieved Owner, subject to the provisions of Section 4.13. In no event will any Owner or the Condominium Association enclose or cause to be enclosed any Deck or Patio. Each Owner, by acquiring its Ownership Interest, acknowledges and agrees that notwithstanding that a Common Element Wall may be located in the Unit, in no event may a Permitted Unit Alteration include any change to 1 i 654397.29 50 t : i' t any Common Element Wall. Due to its nature as airspace only, the Parking Unit may not be altered; provided, however, that the Parking Unit Owner may make the alterations to the Common Elements described in Section 10.5. tt as 10.2 Boundary Relocation. Except provided in Section 2.5, the Owner(s) of one or more p P () t adjoining Unit(s) may make a Boundary Relocation affecting the Unit(s) of the same type owned i' by the Owner(s) in accordance with this Section 10.2. In no event may the Parking Unit Owner i make a Boundary Relocation affecting the Parking Unit, otherwise subdivide the Parking Unit or cause there to be more than one Parking Unit within the Condominium Project. The Owner(s) of the Unit(s) directly affected by any proposed Boundary Relocation must make an application to the Board for the Boundary Relocation, signed by those Owner(s), which includes the following: (a) Plans and specifications for the proposed Boundary Relocation in the level of detail required by the Board showing all walls (including any Common Element Wall(s)), doors and other improvements that will be demolished or constructed (if any); (b) Evidence sufficient to the Board (which evidence may include, if applicable, t' i reports of licensed architects or structural or mechanical engineers) that the proposed Boundary Relocation will comply with the requirements of Sections 10.1(a) through 10.1(e); (c) Evidence sufficient to demonstrate to the Board that the proposed Boundary 1 Relocation will comply with all applicable laws (including, without limitation, zoning, subdivision and building codes), and either that the proposed Boundary Relocation will not violate the terms of any Security for an Obligation encumbering the affected Unit(s) or that the t I respective Security Holder(s) have approved the proposed Boundary Relocation; i (d) The proposed reallocation of interests, if any, such as reallocation of Common I Allocations, or any other rights or responsibilities allocated among the Units pursuant to this g Declaration (which reallocation must be based on the same formulas as set forth in this Declaration for the allocations being changed); (e) A form of proposed amendment to this Declaration (including the Map) sufficient to show the altered boundaries of the affected Unit(s), their dimensions and identifying numbers and the reallocation of interests, if any, proposed pursuant to Section 10.2(d), i (0 A deposit against attorneys' fees and costs which the Board may incur in reviewing and effectuating the application, in an amount reasonably estimated by the Board; and i (g) Other information as the Board may reasonably request. q r When the Board determines that the submitted application satisfies the requirements of Sections 10.2(a) through 10.2(g), it will consider the proposed application and vote whether to approve it. If the proposed Boundary Relocation and related amendment are approved by the affirmative vote of at least two- thirds of the members of the Board, the Board will cause the amendment to be signed by the President or another authorized officer of the Condominium Association, acknowledged and Recorded. The Owner(s) requesting a Boundary Relocation t must pay all of its costs and expenses as well as the costs and expenses incurred by the Board or the Condominium Association in connection with the Boundary Relocation. f i f 654397.29 51 1 F t t S 6 1 is r 1 I 5 10.3 Connection of Adjoining Units. i `: (a) Two adjoining Units may be physically connected without combining those Units into a single Unit, so that each connected Unit will retain its separate identity, identifying number, and Common Allocations (a "Unit Connection "), if the Board approves the Unit Connection in accordance with the following provisions; provided, however, that the Parking Unit Owner may not make a Unit Connection affecting the Parking Unit. The Owner of the Units to be connected pursuant to a proposed Unit Connection will make an application to the Board for the Unit Connection, signed by the Owner, which (i) identifies the Units to be connected; (ii) specifies, in such detail as required by the Board, all demolition or construction i necessary to create the connecting opening(s) in the Common Element Wall between the Units to 1 be connected (the "Shared Area "); and (iii) includes any other information reasonably requested f by the Board. 1. (b) The Board will approve an application for a Unit Connection if all of the 1 following conditions are satisfied: (i) the Units to be connected by a proposed Unit Connection are owned by the same Owner; (ii) the Units are of the same type, (i.e., Residential Units or Commercial Units); (iii) sufficient evidence is presented to the Board that the proposed Unit Connection (A) will comply with all applicable laws (including, without limitation, zoning and building codes); and (B) either will not violate the terms of any Security for an Obligation encumbering the Unit(s) or has been approved by the respective Security Holder(s); (iv) the creation of the Shared Area will not impair or adversely affect (A) the structural stability or building systems of the Building or the Condominium Project; (B) any Easement or right granted k o pursuant to this Declaration; or (C) any Common Element other than the Common Element Wall(s) dividing the Units to be connected which is or are to be demolished to create the Shared Area; and (v) the Owner of the Units to be connected agrees to such other conditions imposed by the Board (which may include, without limitation, a requirement that construction and i' o demolition work relating to the proposed Unit Connection be commenced and completed within i. a reasonable time). (c) If the Board approves an application for a Unit Connection, then it will concurrently redesignate the Shared Area from a General Common Element to a Limited i Common Element. Upon redesignation, the Shared Area will be allocated to the two Units connected pursuant to the Unit Connection. Upon approval of a Unit Connection, the Board will i also cause a statement executed by the President or another authorized officer of the Condominium Association to be Recorded that (i) identifies the two Units connected by the Unit Connection; (ii) gives notice that those Units are the subject of an approved Unit Connection pursuant to this Declaration; (iii) gives notice that those Units may not be conveyed apart from is one another until the Board approves a Unit Disconnection regarding those Units; and 0 (iv) specifies any conditions imposed by the Board pursuant to Section 10.3(b). From and after the Recording of the statement, the Units described in it may not be conveyed apart from one another and any attempt to do so is void and of no force or effect until the Board approves a Unit i ' Disconnection regarding those Units. The Owner requesting a Unit Connection must pay all costs and expenses incurred by the Board or the Condominium Association in connection with $ the Unit Connection. I i o m 65439729 52 1 s 10.4 Unit Disconnection. (a) Subject to the provisions of this Section 10.4, the Board may disconnect Units connected pursuant to a Unit Connection (a "Unit Disconnection ") if (i) the Owner of the connected Units makes an application requesting that the connected Units be disconnected and satisfies any conditions imposed by the Board regarding the proposed Unit Disconnection; or (ii) the Owner of the connected Units fails to satisfy the conditions imposed by the Board pursuant to Section 10.3(b). An application made pursuant to clause (i) above will be signed by the Owner; identify the Units to be disconnected; specify, in such detail as required by the Board, all demolition or construction necessary to replace the Common Element Wall(s) dividing the Units to be disconnected that existed between the Units before the creation of the Shared Area; and include any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Disconnection if all of the following conditions are satisfied: (i) sufficient evidence is presented to the Board that the proposed Unit Disconnection will comply with all applicable laws (including, without limitation, zoning and building codes); (ii) sufficient evidence is presented to the Board either that the proposed Unit Disconnection will not violate the terms of any Security for an Obligation encumbering the Unit(s) or that the respective Security Holder(s) has or have approved the proposed Unit Disconnection; (iii) the replacement of the Common Element Wall(s) at the Shared Area will not impair or adversely affect (A) the structural stability or building systems of the Condominium Project; (B) any Easement or right granted pursuant to this Declaration; or (C) any Common Element other than the Common Element Wall(s) dividing the Units to be disconnected which is or are to be constructed; and (iv) any conditions imposed by the Board concerning the proposed Unit Disconnection. (c) If the Board approves a Unit Disconnection, it will concurrently redesignate the Shared Area of the connected Units from a Limited Common Element to a General Common Element and cause a statement executed by the President or another authorized officer of the 4 Condominium Association to be Recorded that (i) identifies the Units to be disconnected by the Unit Disconnection; (ii) gives notice that those Units are no longer the subject of a Unit Connection (and, therefore, may thereafter be conveyed separately); and (iii) specifies any conditions imposed by the Board pursuant to Section 10.4(b) that must be satisfied before the Unit Connection is effective. Within the time period specified by the Board (which time period will not exceed 60 days from the date of Board approval of a Unit Disconnection), the Owner of the Units to be disconnected will replace at its cost and expense the Common Element Wall(s) that existed between the Units before the creation of the Shared Area The Owner must pay all costs and expenses incurred by the Board or the Condominium Association relating to the Unit Disconnection. 10.5 Alterations Related to the Parking Unit. The Parking Unit Owner may re- stripe the surface of the Garage underlying the Parking Unit so long as (a) the re- striping does not have a materially adverse impact on the flow of traffic within, and into and out of the Garage; (b) the re- striping does not alter the location of the drive aisles, if any, within the Parking Unit; and (c) any reconfiguration of the Parking Spaces within the re- striped area complies with all applicable laws. In connection with re- striping the Garage underlying the Parking Unit, the Board may 654397.29 53. require the Parking Unit Owner to take safety precautions, including, without limitation, manually operating the exhaust system within the Garage. 10.6 Construction. Any Owner(s) performing any construction or demolition work relating to a Permitted Unit Alteration, a Boundary Relocation, a Unit Connection, a Unit Disconnection, or a re- striping pursuant to Section 10.5 (each, an "Alteration ") will comply with the following additional provisions: << (a) Such Owner(s) will obtain all necessary permits and governmental authorizations for the Alteration; (b) If the Alteration will involve the alteration, movement, removal or repositioning of any wall or the penetration of any floor slab, such Owner must have a cable survey performed by a licensed structural engineer to ensure the continuing integrity of the Condominium Project, and must obtain the approval of the Town and any other governmental entity with jurisdiction over the Condominium Project prior to commencement of the Alteration work; (c) Such Owner(s) will comply with the Rules when constructing the Alteration; (d) The Alteration and the construction of it will comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants; (e) Prior to commencing any construction, such Owner(s) will provide the Board with evidence sufficient to demonstrate that the insurance required to be maintained by such Owner(s) pursuant to Section 11.2 is in full force and effect and that the contractor performing the work maintains worker's compensation insurance in the amount required by law, contractor's liability insurance with the limits the Board reasonably requires and, if any contractor is performing any design work, professional liability insurance with limits that the Board reasonably requires; (f) Such Owner(s) will cause the Alteration to be constructed and completed diligently, in a good and workmanlike manner, and free and clear of all mechanics' and materialmen's liens and other claims or liens; provided, however, that if any mechanics' lien claim is recorded against the Condominium Project because of or relating to the Alteration, such Owner will have the lien released (by payment, bonding or other available process) within 30 days after recordation of the claim; (g) During the construction process, such Owner(s) will, to the extent consistent with good construction practice, keep the area affected in a safe, neat and clean condition; (h) Such Owner(s) will minimize any impact from the construction process on other Units or Common Elements and the Board, in its discretion, may require such Owner to post a bond or other security in an amount reasonably determined by the Board in order to protect the. Common Elements during the pendency of and immediately after the Alteration work; (i) Such Owner(s) will perform the Alteration work, or cause the work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on the Condominium Project; 65439729 54 (j) Such Owner(s) will reimburse the Condominium Association for all costs incurred by the Condominium Association in connection with the Alteration, such as the increase in costs of trash removal due to the performance of the Alteration work; and (k) Such Owner(s) will pay or cause to be paid all costs of design and construction of the Alteration and upon completion of any Alteration, such Owner will provide the Board with as -built drawings of the altered Unit(s). 10.7 Alteration of Common Elements. Y° (a) Except to the extent permitted in connection with an approved Boundary Relocation, Unit Connection or Unit Disconnection, and except as otherwise provided in Section 5.2 and Section 10.5, no Owner or Owner's Permittee may construct anything upon, remove anything from, or alter any of the Common Elements, or paint, decorate or landscape any portion of the Common Elements. Notwithstanding the preceding sentence, in addition to the permitted alterations described in the preceding sentence, an Owner may make an alteration to a Limited Common Element allocated exclusively to the Owner's Unit upon the prior written approval of the Condominium Association. If the Condominium Association, in its reasonable discretion pursuant to the preceding sentence, permits an Owner to make an alteration to a Limited Common Element allocated to the Owner's Unit, the Owner will perform such work according to the standards prescribed for an Alteration in Section 10.6 and subject to any other conditions the Condominium Association may impose. In any event, no Owner or Owner's Permittee may do anything which impairs or negatively affects (i) the structural stability or building systems of the Condominium Project; (ii) any Easement or right granted pursuant to this Declaration; or (iii) any Common Element. (b) The Condominium Association may construct an alteration or improvement to a Common Element (a "Common Alteration ") if (i) the Common Alteration does not permanently impair the structural stability or building systems of or lessen the support of any portion of the Condominium Project (provided, however, that any impairment will not be deemed permanent if it is susceptible of being cured and will be cured by the proposed Common Alteration); (ii) the Common Alteration does not have a materially adverse effect, either during construction or upon completion, upon the use of any Unit or Limited Common Element for its permitted purposes (unless the Owner of the affected Unit consents in writing to the Common Alteration); and (iii) the cost of the Common Alteration constitutes a Common Expense and a budget that includes such cost is ratified by the Owners pursuant to Section 6.3, or the cost of the Common Alteration constitutes a Voluntary Capital Expense and a Special Assessment is approved pursuant to Section 9.2(e). The Condominium Association will comply with the provisions of Section 10.6 (except Section 10.6(j)) in constructing any Common Alteration, as if the Condominium Association were an Owner. 10.8 Alterations by Declarant. Nothing in this Article 10 restricts or prohibits Declarant from making any alteration or improvement that Declarant has reserved the right to make pursuant to Section 2.8(b) or Section 2.8(c). The provisions of this Article 10 do not apply to any alteration or improvement made by Declarant pursuant to Section 2.8(b) or Section 2.8(c). ti 654397 29 55 1 e 1 I i Q 10.9 No Alteration of Fractional Units. Notwithstanding anything in this Article 10 to the contrary, no Owner may construct any Alteration or improvement to a Fractional Unit, or make any alteration to a Limited Common Element allocated to such Fractional Unit, except as expressly permitted by the Club Declaration. I 1 ARTICLE 11 it INSURANCE 11.1 Condominium Association's Insurance. The Condominium Association has the following responsibilities with respect to insurance and, except as otherwise expressly provided in this Declaration, the cost of all insurance maintained by the Condominium Association under t this Section 11.1 will be included in the Common Expenses. 1 (a) Property Insurance. The Condominium Association will obtain and maintain l property insurance in amounts, against risks, and containing provisions as the Board reasonably determines from time to time. At a minimum, the Condominium Association's insurance must insure against all risks of direct physical loss for 100% of the full replacement cost (at the time S the insurance is purchased and at the renewal date) of (i) the Common Elements (including all fixtures, improvements and alterations situated on or constituting a part of the Common Elements) and the Units (excluding the finished interior surfaces of the walls, floors and ceilings of the Units or any improvements or betterments installed in the Unit); and (ii) any personal property of the Condominium Association situated in the Common Elements or used in the operation or maintenance of the Common Elements, but excluding any Owner's personal property (or the personal property of the Owner's Permittees). The Condominium Association's insurance may exclude land, excavations, foundations and other items normally excluded from property policies and may provide for a deductible in an amount not to exceed a reasonable and prudent amount as determined by the Board. The Condominium Association's property insurance will be maintained in the name of the Condominium Association (or, to the extent permitted by CCIOA from time to time and approved by the Board, maintained in the name of the managing agent, with the Condominium Association as an additional insured party), for the use and benefit of all Owners, who must be named as additional insureds (but only for liability arising out of an Owner's interest in the Common Elements or membership in the Condominium Association), and Security Holders, who may be named as additional insureds, as their interests may appear. To the extent allowed by the insurance carrier, the Owners and Security Holders need not be named individually in order to constitute additional insured parties, but rather can be g ' named generically (i.e, each Owner is an additional insured party individually with respect to liability arising out of such Owner's interest in the Common Elements or membership in the Condominium Association). To the extent available such property insurance also will (A) contain no provisions by which the insurer may impose a so- called "co- insurance" penalty; (B) permit a waiver of claims by the Condominium Association, and provide for a waiver of subrogation rights by the insurer as to claims, against each Owner and the members of the i ' Owner's household; (C) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner carries; (D) provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect(s) not to restore the damage in accordance with the provisions of this Declaration or CCIOA; (E) provide that no act or omission by any Owner, unless acting within the scope of the Owner's authority on behalf of the i t 1 I 65439729 56 I t t i ' f I Condominium Association, voids the policy or is a condition to recovery under the policy; r (F) provide that it may not be canceled, nor may coverage be reduced, without 30 days' prior notice to the Condominium Association and all additional insureds named in the policy; and (G) include so- called "inflation guard," "building ordinance or law" and "steam boiler and machinery coverage" endorsements. If, as a result of any improvements or alterations made to or concerning a Unit by an Owner, the premium for the Condominium Association's property insurance policy is increased to an amount exceeding what the premium would have been if the 1 Owner had not made the improvements or alterations, the Board may assess the amount of the t increase in premium against the Owner's Unit as a Reimbursable Expense pursuant to Section 9.2(c). i (b) Liability Insurance. The Condominium Association will obtain and maintain i ' Comprehensive Liability Insurance for bodily injury and property damage for the benefit of the Condominium Association and its officers, directors, agents and employees in amounts and with coverage as determined from time to time by the Board. All Owners must be named as i additional insureds, but only for claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements or for liability arising out of such Owner's interest in the Common Elements or membership in the Condominium Association. To the extent allowed by the insurance carrier, the Owners need not be named individually in order t to constitute additional insured parties, but rather can be named generically (i.e, each Owner is an additional insured party individually with respect to claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements or for g liability arising out of such Owner's interest in the Common Elements or membership in the i Condominium Association). Such liability insurance will have a combined single occurrence 1 limit of not less than $5,000,000 and, to the extent available on reasonable terms, will (i) be on a commercial general liability form; (ii) contain a "severability of interest" or "cross - liability" endorsement which precludes the insurer from denying the claim of any named or additional insured due to the negligent acts, errors or omissions of any other named or additional insured; (iii) contain a waiver of subrogation by the insurer as to claims against the Condominium =' Association and the Club Association, including their directors, officers, employees and agents, Owners and members of their households, Declarant and Club Declarant; (iv) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner may carry; (v) provide that no act or omission by any Owner, unless acting within the scope of such Owner's authority on behalf of the Condominium Association, voids the policy or is a condition to recovery under the policy; (vi) insure all of the named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or m connection with the operation, use, ownership or maintenance of the Common Elements;' (vii) provide "dram shop" liability coverage or its equivalent so long as the Condominium Association is selling or serving alcoholic beverages at the Condominium Project; and (viii) provide that it may not be canceled, nor may coverage be reduced, without 45 days' prior notice to the Condominium Association and all additional insureds named in the policy, which shall include the Club Declarant and the Club Association. The liability insurance required to be maintained under this Section 11.1(b) will not include coverage for any liability arising out of the operation, use, ownership or maintenance of any Unit. (c) Worker's Compensation and Employer's Liability. The Condominium Association will obtain and maintain worker's compensation and employer's liability insurance 1 65439729 57 s x f t 1 i ' I I t as determined from time to time by the Board. At a minimum, the Condominium Association will maintain such insurance in amounts and with coverages required by applicable law. (d) Automobile Insurance. If the Condominium Association operates owned, hired or non -owned vehicles, the Condominium Association will obtain and maintain comprehensive automobile liability insurance at a limit of liability of not less than $500,000 for combined bodily i injury and property damage. (e) Directors' and Officers' Insurance. The Condominium Association will obtain and maintain directors' and officers' liability coverage in the amount it determines from time to f time is 1 (f) Fidelity Insurance. The Condominium Association will obtain and maintain fidelity insurance covering losses resulting from dishonest or fraudulent acts committed by the t Condominium Association's directors, officers, managing agents, trustees, employees or volunteers who manage the funds collected and held for the benefit of the Condominium } Association. The policy will name the Condominium Association as the insured (or obligee) include a provision requiring at least 30 days' written notice to the Condominium Association before any cancellation of, or material modification in, the policy, and provide coverage in an amount equal to at least three months' General Assessments against all Units, based on the General Assessments most recently approved by the Board. If the Condominium Association engages a managing agent that handles funds of the Condominium Association, the managing agent must also maintain fidelity insurance satisfying the foregoing requirements of this Section 11.1(f) and CCIOA and provide evidence of the coverage to the Board. i r (g) Other Insurance. In addition to the insurance required by Sections 11.1(a) through 11.1(0 above, the Condominium Association will obtain and maintain any other i insurance required by law and the Condominium Association may obtain and maintain other E` insurance as the Board, from time to time, deems appropriate to protect the Condominium Association or the Owners. I (h) Licensed Insurers. All policies of insurance required to be maintained by the Condominium Association will be placed with insurers licensed in the State of Colorado. The [' carrier will be required to provide to the Board at the inception of the policies and on each anniversary date, a summary that includes a description of the type of policy, the coverage and limits of coverage, the amount of annual premium and the policy renewal dates. If obtainable without additional expense, the licensed insurance broker or agent will certify that the policy complies with and satisfies the requirements of the appropriate section of this Declaration. i 11.2 Owners' Insurance. Each Owner has the following responsibilities with respect to insurance, provided, however, that with regard to each Fractional Unit, the Fractional Owners I will comply with the insurance requirements as set forth in the Club Declaration, but if the Club Declaration fails to specify the manner in which the following insurance coverages are to be procured or if the Club Declaration provides for different types of coverages, the Club I Association will be responsible for ensuring compliance with the following requirements on behalf of the Fractional Owners: i. } 654397 29 58 : i s i 1 t 1 (a) Property Insurance. Each Owner must maintain at its expense (or will cause its Permittee to maintain at its expense) property insurance upon the Owner's Unit and all personal property and fixtures within the Owner's Unit, including the finished interior surfaces of the walls, floors and ceilings of the Unit and any improvements or betterments installed in the Unit, or in any Limited Common Element allocated to the Owner's Unit, in such amounts, against such risks, and containing such provisions as the Owner may reasonably determine from time to time. At a minimum, such property insurance must insure against all risks of direct physical loss for 100% of the full replacement cost (at the time the insurance is purchased and at the renewal 1 date) of such property. Such property insurance will (i) permit a waiver of claims by the Owner, and provide for a waiver of subrogation rights by the insurer as to claims, against the Condominium Association, its directors, officers, employees and agents, the other Owners and 1 the members of such Owners' household; (ii) be written as a primary policy, not contributing with and not supplemental to any coverage that the Condominium Association carries; and f (iii) provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect not to restore the damage in accordance with the provisions of this Declaration or CCIOA. All insurance carried under this Section 11.2(a) will provide that it may not be canceled, nor may coverage be reduced, without 30 days' prior notice to the Condominium Association and, notwithstanding that each Owner may select the amount and type of such insurance, for purposes of the waiver of claims set forth in Section 11.4, each Owner is deemed to have elected to obtain such insurance on a 100% replacement cost basis. Notwithstanding the foregoing, the Parking Unit Owner is not required to maintain property insurance on the Parking Unit, due to its nature of being solely airspace, but is responsible for maintaining (or causing to be maintained) property insurance on all personal property owned by the Parking Unit Owner or its Permittees which is located within the Parking Unit or other portions of the Condominium Project, including signage and motor vehicles. t (b) Liability Insurance. Each Owner will maintain at its expense bodily injury and property damage liability insurance for the benefit of the Owner and any additional insured it names, in amounts and with coverage as are from time to time customarily maintained by prudent owners of similar property; provided, however, that such liability insurance must (i) have a combined single occurrence limit of not less than $1,000,000 in the case of a Residential Unit and $5,000,000 in the case of a Commercial Unit or the Parking Unit; (ii) be written as a primary policy, not contributing with and supplemental to any coverage that the Condominium Association or another Owner carries; (iii) insure all of the named and additional insured parties i against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation, use, ownership or maintenance of the Owner's Unit; and (iv) contain a waiver of subrogation by the insurer as to claims against the Condominium I Association and the Club Association and their directors, officers, employees and agents, owners f. and members of their households, Declarant and Club Declarant. (` (c) Other Insurance. Each Owner may obtain additional insurance, at its own expense, affording condominium assessment, loss of rents, personal liability and any other r L I coverage obtainable, to the extent and in the amount the Owner deems necessary to protect its interests. Any such insurance must contain waivers pursuant to Section 11.4 and must provide t that it is without contribution as against the insurance maintained by the Condominium Association. i t 65439719 59 t t (d) Assignment of Proceeds. If a casualty loss is sustained and there is a reduction in the amount of proceeds that would otherwise be payable under any policy of insurance carried by the Condominium Association due to the existence of any insurance carried by an Owner or Permittee, that Owner or the Permittee is liable to the Condominium Association to the extent of the reduction and will pay the amount of the reduction to the Condominium Association upon demand; such Owner also hereby assigns the proceeds of its insurance, to the extent of such reduction, to the Condominium Association. 11.3 Certificates of Insurance; Notices of Unavailability. Each Owner must provide to the Condominium Association at the closing of the acquisition of its Unit and no less than 10 days prior to expiration of any coverage, certificate(s) of insurance evidencing the insurance required to be carried under Sections 11.2(a) and 11.2(b). Upon prior written request, the Condominium Association will provide (or cause the applicable insurance carrier to provide) an Owner or a Security Holder with a certificate of insurance evidencing the insurance required to be carried by the Condominium Association under Sections 11.1(a) and 11.1(b). If the insurance described in Sections 11.1(a) and 11.1(b) is not reasonably available, or if any policy of such insurance is canceled or not renewed and the Condominium Association does not obtain a replacement policy for it, the Condominium Association promptly will give notice of the fact to all Owners. 11.4 Waiver of Claims. The Condominium Association will make no claim against any Owner or the members of the Owner's household, for any loss, damage, injury or liability, no Owner will make any claim against the Condominium Association, its directors, officers, employees or agents, or any other Owner or member of such Owner's household for any property loss or damage to property, and all such claims are hereby waived, to the extent that the loss, damage, injury or liability is covered by any insurance policy that is required under this Declaration (a) to be maintained by or for the benefit of the waiving Person (assuming in the case of property insurance policies that such insurance policy is maintained on a 100% replacement cost basis); and (b) to provide for a waiver of subrogation rights by the insurer. Such waiver shall also apply to all claims to the extent that such loss, damage, injury or liability would have been covered by property insurance required under this Declaration had the waiving party maintained such property insurance. For purposes of this Section 11.4, the deductible or self - insured retention amount under any property insurance policy required to be, or in fact, maintained by a waiving Person is deemed to be covered by the policy so that, in addition to waiving claims for amounts in excess of the deductible or self - insured retention (up to the covered limits, or deemed covered limits, of the policy), the waiving Person waives all claims for amounts within the deductible or self - insured retention. 11.5 Proceeds. Except as provided in Section 11.2(d), the Condominium Association has no claim to and each Owner may receive all proceeds of any insurance policy maintained by such Owner. The Board is solely responsible for adjustment of any losses under insurance policies 1' maintained by the Condominium Association and is hereby irrevocably appointed the agent of all Owners, Security Holders and other Persons having an interest in the Condominium Project for purposes of adjusting all claims arising under insurance policies maintained by the Condominium Association and executing and delivering releases when claims are paid. The Condominium Association will receive all proceeds of any insurance policy maintained by the Condominium Association, except other insured parties under liability insurance policies will be entitled to proceeds arising out of their insured losses. The Condominium Association will hold 654397.29 60 any proceeds of any property insurance it maintains in trust for the for the Owners and Security Holders. The Board will disburse the proceeds of any property insurance relating to damage to any Unit or Common Element in accordance with Section 12.2. Notwithstanding the foregoing, the Board may appoint an insurance trustee, which may be a commercial bank or other institution with trust powers authorized to do business in the State of Colorado, the managing agent, or another entity with fiduciary capabilities acceptable to the Board. In such event, the insurance proceeds will be paid to the insurance trustee, who will hold the insurance proceeds in trust for the Condominium Association, the Owners and the Security Holders and who will disburse the insurance proceeds in accordance with the provisions of this Declaration otherwise applicable to the Board. ARTICLE 12 CASUALTY 12.1 Restoration Decision. If any Unit or Common Element is damaged or destroyed by fire or other casualty (a "Casualty "), the provisions of this Article 12 apply. Promptly after any Casualty occurs, the Board will obtain at least two bids from licensed contractors for the full and lawful repair and restoration of all damaged Units and Common Elements. Upon receiving the bids and after sufficient discussions with the adjuster for the Condominium Association's insurer, the Board will notify the Owners of the amounts of the bids, the probable amount of insurance proceeds and other funds (such as funds in the Reserve Account) that are available for restoration, and whether, based on that information, the Board believes a Restoration Deficit will result if the Owners elect to fully restore all damaged Units and Common Elements. In the notice, the Board will also call a meeting of the Owners to vote on the question of whether to fully restore all damaged Units and Common Elements. The Condominium Association will fully restore the damaged Units and Common Elements to their condition prior to the Casualty and as required by law, and the Board will promptly enter into construction contracts and proceed with the restoration work, unless at the meeting: t t (a) The Condominium Project is terminated pursuant to Article 14; or (b) At least 67% of all Owners, which 67% must include the Owner of any Unit including Owners of Fractional Ownership Interests in a Fractional Unit whose boundaries will be changed or the use or enjoyment of which (including its allocated Limited Common Elements) will be prevented or materially impaired as a result of not fully restoring all damaged Units and Common Elements, vote (i) not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project; (ii) to approve plans and specifications for a limited restoration that will restore the damaged area to a condition compatible with the remainder of the Condominium Project and that may include, without limitation, demolition, restoration or alteration of all or part of any damaged Unit or Common Element; and (iii) to adopt, if applicable, an amendment to this Declaration (including the Map) to reflect the conversion of all or part of one or more damaged Unit(s) to Common Elements or of all or part of one or more damaged Common Element(s) to one or more Unit(s) and the corresponding reallocation of the Common Allocations allocated to the Units pursuant to this Declaration (which reallocation will be based on the same formulas set forth in this Declaration for determining the Common Allocations). 65439729 61 ;. If the Condominium Project is terminated, the Condominium Association will perform limited restoration of the Units and Common Elements as necessary to return them to a safe, lawful and saleable condition. If the Owners vote not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project, the Condominium Association will perform the limited restoration and Record the amendment to this Declaration, if any, approved by the requisite number of Owners pursuant to Section 12.1(b). If, however, the Owners elect to fully restore all damaged Units and Common Elements, the Board will assess a Special Assessment pursuant to Section 9.2(d) to the extent necessary to cover any Restoration Deficit. 12.2 Disposition of Insurance Proceeds. All proceeds of property insurance received by or disbursed to the Condominium Association in connection with a Casualty will be applied first to the full or limited restoration of the damaged Units and Common Elements, as provided in Section 12.1, and then, if any insurance proceeds remain after the full or limited restoration, the excess proceeds will be paid to the Owners, subject to the rights of their Security Holders, as follows: (a) If the Owners elect not to fully restore all damaged Units and Common Elements and to terminate the Condominium Project pursuant to Article 14, then each Owner will be paid the Termination Allocation of the excess proceeds applicable to such Owner's Ownership Interest pursuant to Section 14.3; (b) If the Owners elect not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project, then any of such excess proceeds attributable to any damaged Units that are not restored or to any Common Elements that are not restored and were necessary for the use and enjoyment of any Units or Limited Common Elements that are not fully restored will be paid to the Owners of Ownership Interests in these Units or the Owners of Ownership Interests in the Units to which those Limited Common Elements are allocated to the extent of the insurance coverage allocated to those Units or Common Elements, and each Owner will be paid the Project -Wide Allocation of the remainder of the excess proceeds applicable to such Owner's Ownership Interest, if any; or (c) If the Owners elect to fully restore all damaged Units and Common Elements, then each Owner will be paid the Project -Wide Allocation of the excess proceeds applicable to such Owner's Ownership Interest. 12.3 Manner of Restoration. The restoration of any Unit or Common Element under this Article 12 is subject to the following requirements: (a) Plans. Except in the case of a limited restoration in accordance with Section 12.1(b), the restoration will be completed in accordance with the as -built plans and specifications of the Unit or Common Element immediately prior to the damage. (b) Requirements. The Condominium Association will: (i) Obtain all necessary permits and governmental authorizations for the restoration; 654397.29 62 (ii) Comply with all applicable zoning and building codes and other (��) P Y PP � g g applicable laws, ordinances and restrictive covenants; (iii) Perform the restoration in a diligent, good and workmanlike manner, free and clear of all mechanics' and materialmen's liens and other claims; (iv) During the construction process, to the extent required by good construction practices, keep the area affected thereby in a safe, neat and clean condition; (v) Minimize any impact from the construction process on other Units or Common Elements or other portions of the Condominium Project; and (vi) Perform any restoration or construction work, or cause such work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on the Condominium Project. (c) Coordination by Condominium Association. The Condominium Association has full authority and responsibility to coordinate the manner of completion and scheduling of any restoration under this Article 12 to ensure the completion of the restoration in an efficient manner. Each Owner will cooperate and cause its contractors and agents to cooperate in the Condominium Association's coordination of any restoration. As used in this Article 12, a "restoration" will include any repair, replacement, restoration, reconstruction, construction or demolition required as a result of any damage or destruction. 12.4 No Abatement. Each Unit will continue to be subject to Assessments following any damage to or destruction of any portion of the Condominium Project, without abatement or modification as a result of the damage or destruction. ARTICLE 13 CONDEMNATION 13.1 Taking of Units. If all or a part of any Unit or the use of, but not title to, any Limited Common Element allocated to the Unit, is taken by the exercise of the power of eminent domain or is conveyed in lieu of such exercise (each, a "Taking "), the Owner(s) of Ownership Interests in the Unit is /are solely responsible for negotiating with the condemning authority concerning the award for the Taking and may receive the award after the liens of all Security Holders on the affected Unit or portion of it are satisfied or otherwise discharged. If only part of a Unit is acquired by a Taking, the Owner(s) of Ownership Interests in the Unit is /are responsible for restoring the Unit as necessary to return the Unit to a safe and lawful condition that does not adversely affect the use or enjoyment of the other Units or Common Elements or detract from the general character or appearance of the Condominium Project. The plans and specifications for the restoration are subject to the Board's prior approval. The restoration will be completed in accordance with the approved plans and specifications and the provisions of Section 12.3(b), as if the Owner(s) of Ownership Interests in the Unit to be restored were the Condominium Association. If a condemning authority acquires by a Taking all or a part of one or more Units in such a manner that such Unit(s) is or are no longer subject to this Declaration, then the Condominium Association will consider and pass, pursuant to Article 15, an amendment to this 654397.29 63 1 I Declaration revising the Common Allocations of each of the remaining Units, and, if necessary, the allocation of any Limited Common Element previously allocated to the Unit(s) that is or are I' no longer subject to this Declaration. i t 13.2 Taking of Common Elements. A "Common Element Taking" means any Taking by which a condemning authority acquires title to any Common Element. The Board is solely t responsible for negotiating, and may negotiate with the condemning authority on behalf of all Owners concerning, the amount of the award for any Common Element Taking, and the Board's acceptance of an award is binding on all Owners. If a Common Element Taking occurs, the Condominium Association is responsible for restoring the remaining Common Elements as necessary to return them to a safe and lawful condition that does not adversely affect the use or enjoyment of the Units or other Common Elements or detract from the general character or appearance of the Condominium Project. If the net award (i.e., net of costs of collection) received by the Condominium Association from any Common Element Taking exceeds the amount actually incurred by it in connection with any required restoration of the Common t Elements, the Condominium Association will pay or credit each Owner with the Termination Allocation of the excess condemnation award applicable to such Owner's Ownership Interest, as if the award resulted from a sale of the Condominium Project pursuant to Section 14.2; provided, however, that the valuation date used to determine the fair market value of each Unit pursuant to Section 14.3 for purposes of determining the Termination Allocations will be the date immediately preceding the earlier of the date that title or the date that possession is transferred to the condemning authority in connection with the Common Element Taking. If the net amount of the award so received is insufficient to effect such restoration, the Board may assess a Special t Assessment to cover the Restoration Deficit in accordance with Section 9.2(d). ARTICLE 14 TERMINATION 14.1 Termination Agreement. The Condominium Project may be terminated only pursuant to 1 a written agreement to terminate executed and acknowledged (or ratified and acknowledged in l writing) by the Owners of Ownership Interests to which 67% of the votes in the Condominium Association are allocated (a "Termination Agreement "). i (a) Manner of Termination. Any Owner(s) desiring to terminate the Condominium Project may propose such termination only by submitting a draft Termination Agreement to the Board. Within 15 days of receipt of such draft Termination Agreement, the Board will notify the Parking Unit Owner in writing of its option to obtain the Replacement Parking Easement in lieu t of the Parking Unit Owner's Termination Allocation pursuant to Section 14.4 in the event that I the Termination Agreement is approved pursuant to this Article 14. The Parking Unit Owner will have 30 days from the date of receipt of the Board's notice to make its election, in writing, to obtain the Replacement Parking Easement in lieu of its Termination Allocation. Failure of the Parking Unit Owner to make a written election within such 30 -day period will constitute an election to receive the Parking Unit Owner's Termination Allocation. Promptly upon receipt of the Parking Unit Owner's written election or the expiration period of the 30 -day period during which the Parking Unit Owner may make such election, the Board will amend the draft Termination Agreement, if necessary, to reflect the Parking Unit Owner's election, including that the Condominium Project will be sold subject to the Replacement Parking Easement, and will t i 654397.29 64 . t { s t cause the Termination Agreement to be circulated among the Owners for execution (or ratification) and acknowledgment. The costs of revising and circulating the Termination Agreement must be assessed against the Owner(s) submitting the draft Termination Agreement as a Reimbursable Expense, except to the extent that the Termination Agreement is approved, in which case such expenses will be included in the Common Expenses. (b) Effectiveness of Termination Agreement. A Termination Agreement is effective when (i) the requisite number of Owners have executed and acknowledged it or a ratification of it; and (ii) the Termination Agreement and all ratifications, if any, are Recorded. A Termination Agreement will state a date after which it is automatically void unless it is effective by that date. A Termination Agreement will also state that, when it becomes effective, the Condominium Project is deemed terminated and the Condominium Association will sell the Condominium Project, including all Units and Common Elements, on behalf of all Owners, upon terms and conditions of sale approved by the Board; provided, however, that those terms will be at least as favorable as the minimum terms set forth in the Termination Agreement, and subject to the Replacement Parking Easement, if applicable. 14.2 Sale of Condominium Project. When a Termination Agreement becomes effective, the Condominium Project is deemed terminated, the Condominium Association will sell the entire Condominium Project (i.e., all Units and all Common Elements) for the benefit of the Owners, and the resulting sales proceeds will be allocated in accordance with Section 14.3. Upon approval of a Termination Agreement, (a) each Owner (including dissenting Owners) is deemed to grant the Condominium Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to sell the Condominium Project for the benefit of the Owners; and (b) accordingly, the Condominium Association has full and complete authority, right and power to make, execute and deliver any contract, deed or other instrument necessary and appropriate to accomplish that purpose. Notwithstanding the termination of the Condominium Project, the Condominium Association (and its officers and the Board) will continue to exist and hold office, respectively, with all of its and their powers specified in this Declaration and the Bylaws (including, without limitation, the power to impose Assessments) until the Condominium Project is sold and all proceeds (i.e., sales proceeds and, if applicable, insurance proceeds or condemnation proceeds) are distributed. Unless otherwise specified in the Termination Agreement or otherwise precluded by law, until a sale of the Condominium Project is concluded, each Owner has an exclusive right to occupy its former Unit (or to occupy a Fractional Unit in accordance with the terms and conditions of the Fractional Ownership Plan) and remains liable for all Assessments and other obligations imposed on the Owner pursuant to this Declaration. 14.3 Proceeds. Except as provided in Section 14.4, the Condominium Association will pay to each Owner the Termination Allocation of the net proceeds of the sale of the Condominium Project applicable to such Owner's Ownership Interest following termination of the Condominium Project (together with the Termination Allocation of any insurance proceeds or condemnation proceeds). However, no payment will be made to an Owner until all liens on its Ownership Interest are paid out of the Owner's share of the proceeds, in the order of priority of such liens. A Unit's "Termination Allocation" means the percentage obtained by dividing the fair market value of the Unit by the total fair market values of all of the Units. The valuation date used in determining the fair market value of each Unit is the date immediately prior to the 1 654397.29 65 date the Termination Agreement becomes effective (or, if the termination is attributable to a Casualty where the Owners elect to terminate the Condominium Project pursuant to Section 12.1(a), the valuation date is the date immediately prior to the date on which the casualty occurred). The fair market value of each Unit as of the appropriate valuation date will be determined by one or more independent appraisers selected by the Board, which appraiser(s) must have at least five years' experience in appraising similar projects in the Eagle County, Colorado area. The Condominium Association will distribute to the Owners the values determined by the independent appraisers; provided, however, that the Condominium Association will distribute the Termination Allocation for each Fractional Unit to the Fractional Owners, if any, in accordance with the Club Declaration. Those values are final and binding on all Owners for purposes of establishing the Termination Allocations unless within 30 days after distribution they are disapproved in writing by the Owners of Ownership Interests to which at least 25% of the votes in the Condominium Association are allocated. 14.4 Replacement Parking Easement. In the event of a termination of the Condominium Project pursuant to this Article 14, the Parking Unit Owner will have the option to obtain an Easement over the Land for the purpose of parking up to 237 passenger motor vehicles (the "Replacement Parking Easement "). If the Parking Unit Owner elects to obtain the Replacement Parking Easement, the terms and provisions of the Replacement Parking Easement will be #` negotiated between the Parking Unit Owner and the prospective purchaser of the Condominium Project and finalization of the Replacement Parking Easement will be an express condition to the sale of the Condominium Project pursuant to Section 14.2. The Parking Unit Owner's option to receive the Replacement Parking Easement must be exercised only in accordance with Section 14.1(a). The Replacement Parking Easement will be in lieu of the Parking Unit Owner's Termination Allocation and all Termination Allocations will be figured without regard to the Parking Unit. Each Owner, by acquiring an Ownership Interest, is deemed to grant to the Condominium Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to grant the Replacement Parking Easement to the Parking Unit Owner at the Parking Unit Owner's election. If the revised Termination Agreement becomes effective, the Board will cause the Replacement Parking Easement to be Recorded contemporaneously with the Recording of the executed and acknowledged Termination Agreement. If the Parking Unit Owner elects to receive the Replacement Parking Easement, the Parking Unit Owner will have no claim to any proceeds from the sale of the Condominium Project, which the Parking Unit Owner acknowledges, by electing to receive the Replacement Parking Easement, will diminish the value of the Condominium Project upon a termination. The Parking Unit Owner's receipt of the Replacement Parking Easement in lieu of any proceeds of sale is in recognition of the value of the Parking Unit and, in accordance with Section 218(5) of CCIOA, is given to the Parking Unit Owner in lieu of proceeds so as to preserve the proportionate interests of all Owners with respect to both the sale of the Condominium Project and the distribution of the Replacement Parking Easement. p 4 p : } F } 65439729 66 ARTICLE 15 AMENDMENT 15.1 Required Votes. (a) Declarant, without the vote or consent of the Board or the Owners, may amend this Declaration or the Map to correct clerical, typographical or technical errors. (b) Declarant, without the vote or consent of the Board or the Owners, may amend the Declaration to comply with the requirements, standards or guidelines of recognized secondary mortgage markets, the U.S. Department of Housing and Urban Development, the Federal Housing Administration, the Veteran's Administration, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association or the Federal National Mortgage Association.; (c) Amendments to this Declaration contemplated by Sections 10.2 and 13.1 may be made by the Board on behalf of the Condominium Association and do not require the approval of the Owners. Amendments to this Declaration contemplated by Sections 2.8(a), 2.8(c), and 2.8(h) may be made by Declarant and do not require the approval of the Owners. (d) Except as otherwise expressly permitted under this Declaration and CCIOA, any amendment to this Declaration that increases the Special Declarant Rights, increases the maximum number of Units, or changes the boundaries of any Unit or the allocated interests of any Unit, requires the vote or agreement of the Owners of Ownership Interests to which at least 67% of the votes in the Condominium Association are allocated, including 67% of the votes allocated to Ownership Interests not owned by Declarant. (e) Except as otherwise expressly permitted under CCIOA, any amendment to this Declaration that changes the uses to which any Unit is restricted requires the vote or agreement of the Owners of Ownership Interests to which at least 67% of the votes in the Condominium Association are allocated. (f) Any amendment to this Declaration that changes a specific clause or provision prescribing a certain percentage of affirmative votes or written consents for action to be taken under that clause or provision, requires the affirmative vote or written consent of those Owners of Units to which at least that percentage (as prescribed in that clause or provision) of the votes in the Condominium Association are allocated unless otherwise stated. (g) Any amendment to this Declaration made during the Declarant Control Period affecting a right that Declarant may exercise during that period or any amendment to this Declaration made during the Declarant Development Period affecting a right that Declarant may l: exercise during that period requires the written approval of Declarant in each case. (h) Except as provided in Sections 15.1(a) through Section 15.1(g), this Declaration (including the Map) may be amended by the affirmative vote or written consent of the Owners of Ownership Interests to which a majority of the votes in the Condominium Association are allocated. 654397.29 67 (i) For any amendment to this Declaration pursuant to Sections 15.1(a) through 15.1(h), (i) written consent of the Parking Unit Owner is required if an amendment (A) has a 1' materially adverse impact on the use and occupancy of the Parking Unit; (B) diminishes the rights of the Parking Unit Owner, as Owner of the Parking Unit; or (C) changes the nature of the Common Expense categories (Project -Wide, Commercial, Garage or Residential) or the manner in which those expenses are allocated between the Units; (ii) written consent of the Commercial Owners is required if an amendment (A) has a materially adverse impact on the use and occupancy of the Commercial Units; (B) diminishes the rights of the Owner of a Commercial Unit; or (C) changes the nature of the Common Expense categories (Project -Wide, Commercial, Garage or Residential) or the manner in which those Common Expenses are allocated between the Units; (iii) written consent of the Fractional Owners is required if an amendment (A) has a materially adverse impact on the use and occupancy of the Fractional Units or the Limited Common Elements which are allocated exclusively to the Fractional Units; (B) diminishes the rights of the Fractional Owner; (C) has a materially adverse impact on the operation of the Fractional Ownership Plan; or (D) changes the nature of the Common Expense categories (Project -Wide, Commercial, Garage or Residential) or the manner in which those Common Expenses are allocated between the Units; and (iv) written consent of Club Declarant and Declarant is required if an amendment, made during such periods when Club Declarant or Declarant still owns any Residential Units, as applicable, (A) has a materially adverse impact on the use and occupancy of such Residential Units; (B) diminishes the rights of the Owners of such Residential Units; or (C) changes the nature of the Common Expense Categories (Project -Wide, Commercial, Garage or Residential) or the manner in which those Common Expenses are allocated between the Units. 15.2 Amending Documents. Except for any amendment that by the terms of this Declaration may be and is duly executed, acknowledged and Recorded by Declarant or by or on behalf of the Board, an amendment to this Declaration is effective only when all of the following events occur: 1 (a) Approved Writing. The amendment is reduced to a writing that is approved (by affirmative vote or written consent) by the Owners of Ownership Units to which at least the applicable required percentage of votes in the Condominium Association are allocated. (b) Certificate by Condominium Association. A written certificate, executed and acknowledged by the President or any other authorized officer of the Condominium Association, is attached to the written amendment which states that the amendment was approved by the applicable required percentage of votes in the Condominium Association pursuant to Section 15.1. (c) Recording. The approved written amendment described in Section 15.2(a) and the certificate described in Section 15.2(b) are Recorded. (d) Presumption of Validity. After an amendment to this Declaration is Recorded, a presumption exists that all votes and approvals regarding the amendment were duly obtained and satisfy the requirements of this Declaration. The presumption may be rebutted by an action commenced within one year from the date the amendment is Recorded; in the absence of an action commenced within the one -year period, the presumption is deemed conclusive. 654397.29 6 p 8 i t t i ARTICLE 16 ( OWNER'S ACKNOWLEDGMENTS AND WAIVERS 16.1 Owner's Acknowledgments. (a) Mountain Activities. The Condominium Project is located adjacent to or in the vicinity of skiing facilities and other all- season recreational areas (the "Mountain Recreational Areas "). The Mountain Recreational Areas are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances from activities relating to the construction, operation, use and maintenance of the Mountain Recreational Areas (the "Mountain Activities "). The Mountain Activities may include, without limitation: (i) movement and operation of passenger vehicles (including, without limitation, buses, vans and other vehicles transporting passengers over adjacent streets and over, around and through the Mountain Recreational Areas), commercial vehicles, and construction vehicles and equipment; (ii) activities relating to the construction, operation and maintenance of roads, trails, ski trails, skiways and other facilities relating to the Mountain Recreational Areas (including, without limitation, tree cutting and clearing, grading and earth moving and other construction activities, construction, operation and maintenance of access roads, snow - making equipment, chairlifts, gondolas, buses or other transportation systems, including, without limitation, operation of vehicles and equipment relating to trash removal, snow removal, snow grooming, and over - the -snow or over - the - terrain transportation purposes, and operation of safety and supervision vehicles); (iii) activities relating to the use of the Mountain Recreational Areas (including, without limitation, skiing, snow - boarding, ski - patrol activities, and other over - the -snow activities, hiking, horseback riding, alpine slide, bicycling and other recreational activities); (iv) ski racing and organized events and competitions relating to the activities described in clause (iii) above; (v) concerts, festivals, art and other shows and displays, fireworks displays, outdoor markets and other performances and special events; (vi) lodging cabins, restaurants, clubs, restrooms and other public use facilities; (vii) public access to adjacent U.S. Forest Service lands; (viii) public parking facilities and the traffic related thereto; and (ix) other activities permitted by law. The Mountain Activities may occur during daytime and nighttime and may be temporarily or permanently interrupted, discontinued or modified, in whole or in part, from time to time (b) Construction Activities. The Condominium Project is located in an area that is subject to or near ongoing construction activities (the "Construction Activities "). The Construction Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Construction Activities may include, without limitation: (i) construction traffic (including, without limitation, construction vehicles, equipment and vehicles used or owned by Declarant, adjacent landowners, and the employees, agents and contractors of either of them; and (ii) construction activities (including, without limitation, I grading, excavation, clearing, site work, relocation of roadways and public utilities, and construction of improvements) relating to the Condominium Project, nearby properties, or the Mountain Recreational Areas. i (c) Commercial Activities. A variety of commercial activities (the "Commercial Activities ") are and may be conducted within the Condominium Project and nearby and adjacent to the Condominium Project (the "Commercial Activity Areas "). The Commercial Activities are 1 ' expected to generate an unpredictable amount of visible, audible and odorous impacts and 1 I f 654397.29 69 4 F disturbances. The Commercial Activities may include, without limitation: (i) operation of full - service hotel(s) and /or fractional, vacation club or similar facilities which may include health spa(s) with associated swimming pool(s) and other indoor or outdoor recreational facilities; (ii) meetings, conferences, banquets and other group events; (iii) sales and rentals of clothing, skis, ski - related equipment, other over - the -snow equipment, bicycles, and other recreational equipment; (iv) sales of tickets for chairlifts, gondolas, other transportation systems, and other activities and events conducted on the Mountain Recreational Areas; (v) indoor and outdoor restaurant and bar operations (including, without limitation, the sale of food and alcoholic and non - alcoholic beverages for on -site and off -site consumption) and preparation of hot and cold food (through the use of barbecue grills, fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities on and immediately adjacent to the Property; (vi) sales of services relating to skiing, other over - the -snow activities, and other recreational activities (including, without limitation, tuning, waxing, repairing, mounting of bindings on, renting, storing and transporting skis, snowboards and similar equipment, ski schools and other forms of individual and group lessons, tours and excursions); (vii) public use of the Property for access to the Mountain Recreational Areas, vehicle passenger drop -off and pick -up, locker room, changing room, rest room and lounge purposes in designated areas, and short-term clothing and equipment storage; (viii) parking activities (including, without limitation, activities relating to valet parking or parking relating to adjacent properties); (ix) the installation, operation and maintenance of illuminated and non - illuminated signage; (x) concerts and other outdoor and indoor entertainment, performances and special events, which may include amplified live or recorded music; (xi) any operation of one or more treatment facilities by Eagle Valley Water and Sanitation District; and (xii) any other uses or activities permitted by law. (d) Waiver and Release. Each Owner, by acquiring an Ownership Interest, acknowledges that the Mountain Activities, the Construction Activities and the Commercial Activities, and the impacts and disturbances generated by the Mountain Activities, the Construction Activities and the Commercial Activities, may occur in and around the Condominium Project, and may occur during daytime and nighttime and may be temporarily or permanently interrupted, discontinued or modified, in whole or in part, from time to time Each Owner, by acquiring an Ownership Interest, forever waives and releases any actions or claims the Owner and its successors and assigns may have against Declarant, the owners and/or operator(s) of the Mountain Recreational Areas, the owners and/or operator(s) of the Commercial Activity Areas, and their successors and assigns which in any way arise out of the existence, occurrence, or the temporary or permanent interruption, discontinuance or modification of the Mountain Activities, the Construction Activities or the Commercial Activities and such impacts and disturbances, or the reconfiguration of the Mountain Recreational Areas or the Commercial Activities Areas. Notwithstanding anything contained herein to the contrary, this Section 16.1 shall not be deemed to limit the rights and obligations of Diamondrock Vail Owner, LLC, and its successors and assigns, under that certain Cooperation and Easement Agreement Recorded June 24, 2005 at Reception No. 920513, by and between Diamondrock Vail Owner, LLC, and The Vail Corporation, as it relates to the Construction Activities. 16.2 Use Rights. By acquiring an Ownership Interest, each Owner acknowledges that no right is created or arises from ownership of an Ownership Interest or membership in the Condominium Association, either (a) to use the Mountain Recreational Areas (including, without limitation, the � 654397.29 / 0 `. f Vail Mountain ski area) or the Commercial Activity Areas; or (b) to any waiver or discount of the prices charged for lift tickets or other fees charged to users of the Mountain Recreational Areas or the Commercial Activity Areas. Any right that any Owner acquires to use the Mountain Recreational Areas or Commercial Activity Areas may be created or arise, if at all, only through a separate agreement with or license granted by the owners or operators of the, Mountain Recreational Areas or the Commercial Activity Areas and is not derived in any way through ownership of an Ownership Interest or membership in the Condominium Association. Notwithstanding the proximity of the Condominium Project to skiing operations conducted in the Mountain Recreational Areas and notwithstanding any chair lift, gondola or similar transportation system in the vicinity of the Land, Declarant does not and will not have any obligation to provide or assure any Units of "ski -in" or "ski -out" access in the course of the use of those skiing facilities, and each Owner acknowledges, by acquiring an Ownership Interest, that such access may not be available and that in any case Declarant and its affiliates do not control the provision of such access. Without limitation on the generality of the foregoing, Declarant specifically discloses and each Owner, acquiring an Ownership Interest, specifically acknowledges that means and ways of access from and to Mountain Recreational Areas are presently owned and controlled by the United States Forest Service. 16.3 Disclaimer. Declarant makes no representations, covenants or warranties to any Owner concerning, the nature, scope, schedule or continuation of the Commercial Activities or the Mountain Activities. By acquiring an Ownership Interest, each Owner acknowledges that (a) the activities may be discontinued from time to time or permanently after the date of this Declaration; (b) the activities may not be operated or conducted during the same hours, days or months as any schedule in effect or contemplated on the date of this Declaration; (c) the activities may be conducted during more hours (during both daytime and nighttime), days, and months than any schedule in effect or contemplated on the date of this Declaration; and (d) more activities may be operated or conducted in the Mountain Recreational Areas or Commercial Activity Areas than occur or are contemplated on the date of this Declaration. 16.4 No View Easement. Notwithstanding anything contained in this Declaration to the contrary, each Owner, by acquiring an Ownership Interest, acknowledges and agrees that there is no Easement or other right, express or implied, for the benefit of any Owner or its Ownership Interest for light, view or air included in or created by this Declaration or as a result of ownership of the Ownership Interest. Likewise, each Owner, by acquiring an Ownership Interest, acknowledges and agrees that any view, sight lines, or openings for light or air available from the Unit, or anywhere else on the Condominium Project, may be blocked or altered in whole or in part in the future by virtue of natural or unnatural causes, including but not limited to future construction or expansion of commercial or residential buildings or facilities, future construction or expansion of ski lifts, gondolas, and associated poles and towers, or by natural (including, but not limited to, disease or insects such as pine beetles) or unnatural loss or alteration of vegetation or mountain slopes. EACH OWNER, BY ACQUIRING AN OWNERSHIP INTEREST, t. HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, OBLIGATIONS OR LIABILITIES CONCERNING EASEMENTS OR OTHER RIGHTS, WHETHER EXPRESS OR IMPLIED, FOR LIGHT, AIR, OR VIEW IN SUCH OWNER'S UNIT AND /OR THE CONDOMINIUM PROJECT; EACH OWNER, BY ACQUIRING AN OWNERSHIP INTEREST, HEREBY ACCEPTS SUCH DISCLAIMER, AND AGREES THAT DECLARANT AND ITS AFFILIATES WILL NOT HAVE ANY OBLIGATION OR 65439729 71 I 1 1 LIABILITY FOR, AND WAIVES ANY CLAIM AGAINST DECLARANT OR ITS i AFFILIATES, AND THEIR CONTRACTORS OR AGENTS, RELATED TO ANY LOSS OF 1 LIGHT, AIR, OR VIEW THAT MAY AFFECT THE UNIT OR THE CONDOMINIUM PROJECT. I 16.5 Security. NEITHER THE CONDOMINIUM ASSOCIATION NOR DECLARANT OR ITS AFFILIATES WILL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN THE CONDOMINIUM PROJECT, AND NEITHER THE 1 CONDOMINIUM ASSOCIATION, NOR DECLARANT OR ITS AFFILIATES, WILL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY, INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN, OR ACTS OF THIRD PARTIES. ALL OWNERS, TENANTS, GUESTS, AND INVITEES OF ANY OWNER, AS APPLICABLE, ACKNOWLEDGE THAT THE 1 CONDOMINIUM ASSOCIATION, ITS BOARD OF DIRECTORS, DECLARANT, ITS AFFILIATES, AND COMMITTEES ESTABLISHED BY ANY OF THE FOREGOING ( ENTITIES, ARE NOT INSURERS AND THAT EACH OWNER AND ITS PERMITTEES a ASSUMES ALL RISK OF LOSS OR DAMAGE TO PERSONS, TO UNITS, AND TO THE I CONTENTS OF UNITS, AND FURTHER ACKNOWLEDGE THAT DECLARANT, ITS 1. AFFILIATES, BOARD OF DIRECTORS, AND COMMITTEES HAVE MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS ANY OWNER, OR ITS PERMITTEES RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR g ANY PARTICULAR PURPOSE, RELATIVE TO ANY SECURITY MEASURES RECOMMENDED OR UNDERTAKEN. 16.6 Other Properties. Each Owner, by acquiring an Ownership Interest, acknowledges that other properties are located adjacent to and in the general vicinity of the Condominium Project (the "Other Properties ") and that the Other Properties may be developed pursuant to the land uses permitted by the Town's zoning ordinances, as well as any other governmental rules, regulations, or policies in effect now or in the future which are applicable to the Other Properties (collectively, the "Ordinances "). Neither Declarant nor Declarant's employees, agents, officers, directors and affiliates make any representations concerning the planned uses of the Other Properties. Each Owner, by acquiring an Ownership Interest, further acknowledges that the zoning for the Condominium Project and the Other Properties is established and governed by the Ordinances. Any amendment of those Ordinances requires approval of the Town. By acquiring t an Ownership Interest, each Owner acknowledges that it has not relied upon any statements or `. representations regarding the Condominium Project or the Other Properties, including, without limitation, any representations made by Declarant or any agents or employees of Declarant or any real estate agency or any agent, except for those statements and representations expressly set forth in this Declaration and the Ordinances. i 16.7 Inspection by Others; Waiver of Post Inspection Liability. It is hereby expressly understood and agreed by Declarant and by any Owner upon acquiring an Ownership Interest t that Declarant relies upon governmental inspectors and other qualified subcontractors and tradesmen to inspect the construction of the Units and the Common Elements in order to verify compliance with construction plans and with any and all building code requirements applicable 1 to residential construction. Declarant and each Owner further expressly understand and agree I i 654397.29 72 i t s 1 1 i ' 1 f t I r that, with respect to the Units and the Common Elements, upon compliance with the inspections required by the local building department and the issuance of a certificate of occupancy by the responsible governmental agency, Declarant will be deemed to have used its best efforts to construct such Units and Common Elements in substantial compliance with the construction i plans and all applicable building code requirements. EXCEPT AS OTHERWISE MAY BE PROVIDED IN A PURCHASE AND SALE OR OTHER AGREEMENT BETWEEN DECLARANT AND AN OWNER, EACH OWNER, BY ACQUIRING AN OWNERSHIP INTEREST, HEREBY KNOWINGLY AND WILLINGLY WAIVES AS AGAINST DECLARANT AND ITS AFFILIATES ANY AND ALL DEMANDS, CLAIMS, ACTIONS AND CAUSES OF ACTION, AND ALL LIABILITY, LOSSES, DAMAGES, COSTS OR EXPENSES THAT HAVE BEEN OR MAY BE INCURRED IN ASSOCIATION THEREWITH, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXEMPLARY DAMAGES, WHICH ARISE FROM OR ARE RELATED TO ANY NONCOMPLIANCE OF THE UNITS OR THE COMMON ELEMENTS WITH CONSTRUCTION PLANS OR BUILDING CODE REQUIREMENTS, WHICH NONCOMPLIANCE IS NEITHER SUBSTANTIAL NOR MATERIAL IN NATURE AND WHICH NONCOMPLIANCE IS DISCOVERED AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR, RESPECTIVELY, SUCH UNITS OR COMMON ELEMENTS; AND ANY SUCH NONCOMPLIANCE WILL BE DEEMED UNINTENTIONAL WITH RESPECT TO DECLARANT. TO THE EXTENT THAT ANY SUBSTANTIAL OR MATERIAL NONCOMPLIANCE WITH APPLICABLE BUILDING CODES OR WITH THE CONSTRUCTION PLANS IS DISCOVERED WITH REGARD TO f ;. ANY UNIT OR THE COMMON ELEMENTS, THE PROVISIONS OF ARTICLE 7 WILL GOVERN SUCH MATTER. THE PROVISIONS OF THIS SECTION 16.7 WILL BE BINDING UPON THE OWNERS AND THE CONDOMINIUM ASSOCIATION TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AS MAY BE IN EFFECT FROM TIME TO TIME, provided, however, that this Section 16.7 does not apply to Diamondrock Vail Owner, LLC, a Delaware limited liability company, and its successors and assigns, to the extent this Section 16.7 conflicts with the terms and provisions of the New Parking Warranty. I 16.8 Post Tension Construction Disclosure. The Condominium Project was constructed using "Post Tension Construction." Post Tension Construction is a method of construction using i; concrete reinforced with a grid of steel cables. While Post Tension Construction is an effective means of constructing a stable and solid structure, any remodeling work must be carefully i evaluated beforehand due to the nature of Post Tension Construction. Any remodeling, reconstruction or other work that involves the movement of any walls or penetration of any floor slabs, ceilings, columns, beams or walls within the Condominium Project must be assessed i beforehand to determine whether or not the grid of steel cables will be adversely affected, which assessment must include a cable survey by a licensed structural engineer and the review and i` approval of the Condominium Association and the Town and any other governmental entity having jurisdiction over the Condominium Project and the construction or other work being done. BY ACQUIRING AN OWNERSHIP INTEREST, EACH OWNER ACKNOWLEDGES AND AGREES THAT IT WILL NOT ALTER, MOVE, REMOVE OR REPOSITION ANY WALL OR PENETRATE ANY FLOOR SLAB, CEILING, COLUMN, BEAM OR WALL IN THE CONDOMINIUM PROJECT WITHOUT FIRST OBTAINING A CABLE SURVEY BY A LICENSED STRUCTURAL ENGINEER AND WITHOUT THE PRIOR WRITTEN t , APPROVAL OF THE CONDOMINIUM ASSOCIATION AND THE TOWN AND ANY , 654397.29 73 „ C i OTHER GOVERNMENTAL ENTITY HAVING JURISDICTION OVER THE CONDOMINIUM PROJECT. BY ACQUIRING AN OWNERSHIP INTEREST, EACH OWNER ACKNOWLEDGES THAT ANY UNAPPROVED ALTERATION, MOVEMENT, REMOVAL OR REPOSITIONING OF A WALL OR ANY PENETRATION OF A FLOOR SLAB, CEILING, COLUMN, BEAM OR WALL COULD RESULT IN INSTABILITY TO THE UNIT AND THE CONDOMINIUM PROJECT AS A WHOLE. IN ADDITION, BY [ ACQUIRING AN OWNERSHIP INTEREST, EACH OWNER ACKNOWLEDGES AND AGREES THAT CONSTRUCTION WORK AT THE CONDOMINIUM PROJECT, INCLUDING WITHOUT LIMITATION, MOVEMENT OF WALLS OR PENETRATION OF FLOOR SLABS, CEILINGS, COLUMNS, BEAMS OR WALLS MAY CAUSE SERIOUS BODILY INJURY AND /OR DEATH IF THE STRUCTURAL STABILITY AND /OR THE GRID OF STEEL CABLES IS AT ALL IMPACTED OR COMPROMISED. ARTICLE 17 CONVEYANCING AND ENCUMBRANCING 17.1 Ownership Interests. Any conveyance of an Ownership Interest includes an undivided interest in the Common Elements allocated to the Unit to which the Ownership Interest pertains under this Declaration, regardless of whether the undivided interest is specifically described in the conveyance. Except as provided in Section 17.2, a description of any Unit that sets forth (a) the identifying number of the Unit; (b) the name of the Condominium Project; (c) the date of recording and the recording data of this Declaration in the Records; and (d) the county in which the Condominium Project is located is, if included in an otherwise proper instrument, sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit but also the undivided interest in the Common Elements allocated to that Unit. A Person who becomes an Owner will promptly notify the Condominium Association of its ownership of an Ownership Interest. An Owner may encumber its Ownership Interest as it sees fit, subject to the provisions of this Declaration, and subject to the provisions of the Club Declaration with respect to Fractional Units. Any conveyance, encumbrance, judicial sale or other transfer, voluntary or involuntary, of an individual interest in the Common Elements will be void unless the Ownership Interest to which that interest is allocated is also transferred. 17.2 Parking Unit. The Parking Unit is intended to replace a parking easement that burdened the Land for the benefit of the Hotel Property prior to recordation of this Declaration, and the Parking Spaces within the Parking Unit are intended for the use and benefit of the Hotel Property's guests and other Permittees. Immediately upon the Recording of this Declaration, Declarant will convey the Parking Unit to the owner of the Hotel Property, and thereafter, the Parking Unit may only be owned by the owner of the Hotel Property and may only be sold, conveyed, or transferred in connection with a sale, conveyance, or transfer of the Hotel Property. 17.3 Common Elements. Except as otherwise provided in Article 14 with respect to the termination of the Condominium Project, the Common Elements or portions of them may be conveyed or subjected to a lien or security interest by the Condominium Association in accordance with Section 312 of CCIOA, with the written approval of Owners of Ownership Interests to which are allocated 67% of the votes in the Condominium Association, including 67% of the votes allocated to Ownership Interests not owned by Declarant. The conveyance or encumbrance does not affect the priority or validity of pre- existing encumbrances. Any net 654397.29 74 proceeds of the sale of a Common Element pursuant to this Section 17.3 will be distributed to the Owners in accordance with Article 13, as if the proceeds are an award paid as a result of the condemnation of the Common Element. 17.4 Transferee Liability. h' (a) General. If any Ownership Interest is voluntarily or involuntarily transferred to any Person, the transferee of the Ownership Interest (the "New Owner ") is liable for all Assessments or Assessment installments against the Ownership Interest beginning as of the time of transfer; provided, however, that the New Owner's Ownership Interest is subject to the Condominium Association's lien for any unpaid Assessments as of the date of the transfer pursuant to this Declaration. (b) First Mortgage Foreclosure. Any First Mortgage is subject to the Condominium Association's lien, and any First Mortgagee acquiring an Ownership Interest through foreclosure of a First Mortgage is liable, for any unpaid Assessments (i) which are delinquent at the time the First Mortgage is Recorded; or (ii) which become due after the First Mortgage is Recorded to the extent of an amount equal to Assessments based on the budget that is approved from time to time pursuant to Section 6.3 that would have become due during the six -month period immediately before the Condominium Association or any Person holding a lien senior to any part of the Condominium Association's lien commences an action or a nonjudicial foreclosure either to enforce or extinguish the lien. (c) Reallocation. Without releasing the transferor from any liability for any unpaid Assessments, any unpaid portion of an Assessment which is not a lien by operation of Section 17.4(b) is part of the Common Expenses and collectible from all Owners liable for Common Expenses, including a New Owner or a First Mortgagee acquiring an Ownership Interest through foreclosure of a First Mortgage. 17.5 Estoppel Certificates. Within 14 days after receiving a written request from any Owner, Security Holder or a designee of either of them, delivered personally or by certified mail, first - class postage prepaid, return receipt requested, to the Condominium Association's registered agent, the Condominium Association will furnish to the requesting party, by personal delivery or by certified mail, first -class postage prepaid, return receipt requested, an estoppel certificate executed by an officer of the Condominium Association and addressed to the requesting party, stating any then unpaid Assessments due from the requesting Owner or the Owner of the Ownership Interest encumbered by the requesting Security Holder's Security for an Obligation, or stating that there are no unpaid Assessments due from such Owner, as the case may be An estoppel certificate furnished by the Condominium Association that relates to the Parking Unit will include an acknowledgment that the Board will accept performance by the requesting Security Holder of the obligations of the Parking Unit Owner stated in the estoppel certificate. An estoppel certificate furnished by the Condominium Association pursuant to this Section 17.5 is binding on the Condominium Association, the Board and every Owner. Such Owner's Ownership Interest will not be subject to a lien for any unpaid Assessments against the Ownership Interest to the extent that (a) the lien arises before the date of the certificate and the amount of the lien exceeds any unpaid amounts stated in the certificate; or (b) the unpaid Assessments are due as of the date of the request and the Condominium Association does not 65439729 75 furnish an estoppel certificate pursuant to this Section 17.5. The Condominium Association may charge the Owner for which such an estoppel certificate is furnished, and the Owner will pay, a reasonable fee for the preparation of the estoppel certificate in an amount determined by the Board from time to time. ARTICLE 18 GENERAL PROVISIONS 18.1 CCIOA; Severability. The Condominium Project and this Declaration will not be subject to the provisions of any amendment to or replacement of CCIOA which becomes effective after the date of Recording of this Declaration, unless the provisions of the amendment or replacement are expressly made binding upon existing condominiums. However, the Condominium Association may elect to subject the Condominium Project to any amendment or replacement by the affirmative vote of all Owners who would be required to approve an amendment to this Declaration pursuant to Section 15.1 concerning the subject matter contained in the amendment to or replacement of CCIOA. If any of the terms, conditions, provisions, sections or clauses of this Declaration conflict with any provision of CCIOA, the provisions of CCIOA control unless CCIOA permits this Declaration to override CCIOA, in which event this Declaration controls. The invalidity of any covenant, restriction, condition, limitation or provision of this Declaration or the application of any of them to any person or circumstance will not impair or affect in any manner the validity, enforceability or effect of the rest of this Declaration, or the application of any covenant, restriction, condition, limitation or provision to any other person or circumstances. 18.2 Interpretation of Declaration. The provisions of this Declaration will be liberally construed to effect its purpose of creating a uniform plan for the ownership and operation of a first -class Condominium Project. Whenever appropriate, singular terms may be read as plural, plural terms may be read as singular, and the neuter gender may be read as the feminine or masculine gender. The titles, headings and captions used throughout this Declaration are for convenience only and may not be used to construe this Declaration or any part of it. 18.3 Notices. Except for notices concerning meetings of the Condominium Association or the Board, which will be given in the manner provided in the Bylaws, any notices required or permitted under this Declaration or the Bylaws to be given to any Owner, the Condominium Association, the Board, the Club Association or any Security Holder will be sent by certified mail, first -class postage prepaid, return receipt requested, to the intended recipient at, in the case of notices to an Owner, the address of such Owner at its Unit or the Owner's permanent address, if provided to the Condominium Association by the Owner; in the case of notices to a Fractional Owner, the Fractional Owner's permanent address; in the case of notices to the Condominium Association or the Board, the address of the Condominium Association's registered agent; in the case of notices to the Club Association, the address of the Club Association's registered agent; or in the case of notices to a Security Holder, the address most recently given to the Condominium Association by notice from such Person. All notices are deemed given and received three business days after mailed as provided in the previous sentence. Any Owner or Security Holder may change its address for purposes of notice by notice to the Condominium Association in accordance with this Section 18.3. The Condominium Association or the Board may change its address for purposes of notice by notice to all Owners in accordance with this Section 18.3. Any such change of address is effective five days after the required notice is given. 654397.29 76 4 I r i 18.4 Partition. The Common Elements are not subject to partition. Any purported conveyance, encumbrance, judicial sale or other voluntary or involuntary transfer of an 1, undivided interest in the Common Elements made separately from the Unit to which that interest is allocated is void. Nothing in this Section 18.4 prevents the sale or encumbrance of all or a portion of the Common Elements in accordance with Section 17.3. I 18.5 Assignment of Special Declarant Rights. Declarant may assign any or all of the Special Declarant Rights in accordance with Section 304 of CCIOA. i 18.6 Taxation of Units. Upon Recording this Declaration, Declarant will deliver a copy of it to the assessor of Eagle County in accordance with Section 105(2) of CCIOA. Each Unit, together with its Common Allocations of the Common Elements, constitutes a separate parcel for purposes of real estate assessment and taxation. The Common Elements will be assessed against each Unit in accordance with the Unit's Project -Wide Allocation and may not be separately assessed or taxed. 18.7 Use of the Name "WDL Vail ". No Person shall use the name "WDL Vail" or any 1 derivative thereof in any manner or context, including without limitation, in the name of any entity that owns an Ownership Interest, in printed or promotional materials or in any other manner, without Declarant's prior written consent. E' 18.8 Ritz - Carlton Marks. "RITZ - CARLTON Marks" means the word RITZ - CARLTON in any form, the Lion & Crown logo and all other words, trademarks, service marks, trade names, symbols, emblems, logos, insignias, indicia of origin, slogans and designs (including restaurant names, lounge names, or other outlet names) used or registered by The RITZ - CARLTON MANAGEMENT COMPANY, L.L.C. or any of its parent, subsidiary or affiliated entities and which are used to identify or are otherwise used in connection with RITZ - CARLTON hotels, private clubs, timeshare resorts, residential properties or other facilities operated under the RITZ - CARLTON name (whether registered or unregistered and whether used alone or in connection with any other words, trademarks, service marks, trade names, symbols, emblems, logos, insignias, indicia of origin, slogans, and designs) including, but not limited to, The Ritz - Carlton Residences and The Ritz - Carlton Club, all as may be amended, modified, deleted or changed by The RITZ - CARLTON MANAGEMENT COMPANY, L.L.C. or any of its parent, subsidiary or affiliated entities - all of the foregoing being indicative of the renowned RITZ - CARLTON brand perception, reputation, programs, processes, procedures, and systems (including the philosophy that drives customer satisfaction, the business management model, business strategies, the employee selection, training and career development approach, and the RITZ - CARLTON Standards). Declarant and all Owners acknowledge that The RITZ - CARLTON MANAGEMENT COMPANY, L.L.C. or any of its parent, subsidiary or affiliated entities are the sole and exclusive owners of all rights, title and interest of every kind and nature in and to the RITZ - CARLTON Marks and all the goodwill associated with the RITZ - CARLTON Marks. Declarant and all Owners further acknowledge that neither they nor any association shall have any rights or interest whatsoever in any of the RITZ - CARLTON Marks and that all use of the RITZ- CARLTON Marks shall be pursuant to, in accordance with and subject to termination under the separate agreement between the Condominium Association and The RITZ - CARLTON i t 654397.29 77 1 '. f 1 t MANAGEMENT COMPANY, L.L.C., and that upon termination of the right to use such marks, Condominium Association and each Owner shall immediately take steps to cease all use of the mark(s) identified in any such notice, and that delivery to the Condominium Association of notice of the termination of the right to use such marks shall be sufficient for all purposes including, but not limited to, being deemed sufficient notice to the Owners of such fact, and that required actions may include, but not be limited to: (a) immediately removing all signage containing the marks from the Condominium Project, and from any off -site location to the extent the sign refers to the Condominium Project; l' (b) immediately destroy all stationery, descriptive literature or printed or written matter bearing the marks; (c) immediately cease and desist from using the marks (or any other variation thereof) orally or in writing in referring to or describing the Condominium Project, � Y g g g ect J Condominium Association, the Club Association or the Owners; and (d) take immediate action to effect changes to the documents of the Condominium Association and Club Association reflecting the mark(s) to eliminate the use of such mark(s) as soon as possible, but in any event, within three (3) months. The provisions of this Section may be enforced by any remedy at law or in equity, including mandatory and/or prohibitory injunctions, and Condominium Association and each Owner acknowledges that in the event of non - performance of any of the above - described restrictions, The RITZ - CARLTON MANAGEMENT COMPANY, L.L.C. or any of its parent, subsidiary or affiliated entities' remedies at law shall be deemed inadequate to enforce the terms of this Section. ARTICLE 19 APPLICATION OF CLUB DECLARATION In addition to the terms and conditions of this Declaration, the Articles, Bylaws and Rules and Regulations, the Fractional Units, all Fractional Owners and the Fractional Ownership Plan shall be subject to the terms and conditions of the Club Declaration and the rights, privileges and obligations of the Fractional Owners with respect to the Fractional Units shall be subject to the terms and conditions of the Club Declaration. The Club Association shall operate and manage the Fractional Ownership Plan in accordance with the terms of the Club Declaration. In connection with the foregoing, the event of any conflict between the Club Declaration and this Declaration, the more restrictive of the two documents shall control; provided, however, that this provision may not be interpreted in a manner that materially adversely impacts the operation of the Fractional Ownership Plan, except to the extent of the limitations contained in this Declaration as originally recorded. [Balance of Page Intentionally Left Blank] � 8 p 65439729 / [ ! � � [ IN WITNESS WHEREOF, Declarant has ex e me this Declaration. DECLARANT: [ RCR VAIL, LLC, a Colorado limited liability company By: Vail Resorts Development Compa ny, a Colorado crpoaion, ilMaaingMembr 1 � [ By Name Tide � [ STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing De bm6o was acknowledged bf re me this d y of , 201¢ by as of Vail Resorts Development Compa n, as Managing Member of RCR Vail, LLC, a Colorado limited liabili! company. [ Witness my ha n and oficia seal. My co mmission expires: . [ ( Notary Public [ [ ( ( � t / t \ [ ( 654397 29 79 [ { ( 1 EXHIBIT A THE LAND LOT 2, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005, RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO, TOGETHER WITH THE NON - EXCLUSIVE EASEMENT AND OTHER BENEFITS CONFERRED BY OR UPON LOT 2 PURSUANT TO THAT CERTAIN PRIVATE PEDESTRIAN ACCESS EASEMENT RECORDED JULY 5, 2006, RECEPTION NO.200617774. 1 654397.29 A -1 4` a G ( ( [ EXHIIT B COMMON ALLOCATIONS (See A #a h d ( ( ( ( . � ( ( [ 1 1 [ . [ { [ ( ( ( ( 654397 29 aQ I S Residential Allocations Pr Unit Garage Commercial Gars Allocation Allocation Measured Area Beds Equal Allocation Parking Unit 5.00% N/A N/A N/A N/A 59.543% R -1 1.17% 1.25% 1.50% 0.8621% N/A 0.527% R -2 0.77% 0.83% 0.91% 0.8621% N/A 0.275% R -3 0.79% 0.85% 0.91% 0.8621% N/A 0.275% R-4 0.95% 1.02% 0.91% 0.8621% N/A 0.275% t R -5 0.65% 0.70% 0.61% 0.8621% N/A 0.275% /` R -6 0.75% 0.81% 0.61% 0.8621% N/A 0.275% s R -7 0.77% 0.82% 0.61% 0.8621% N/A 0.275% R -8 0.75% 0.80% 0.61% 0.8621% . N/A 0.275% R -9 0.74% 0.79% 0.61% 0.8621% N/A 0.275% R -100 0.74% 0.80% 0.91% 0.8621% N/A 0.275% R -101 0.64% 0.69% 0.61% 0.8621% N/A 0.275% R -102 1.26% 1.36% 1.22% 0.8621% N/A 0.527% a R -103 0.73% 0.78% 0.91% 0.8621% N/A 0.275% R -105 0.91% 0.98% 0.91% 0.8621% N/A 0.275% R -107 0.91% 0.97% 0.91% 0.8621% N/A 0.275% R -108 0.56% 0.60% 0.61% 0.8621% N/A 0.275% R -110 0.56% 0.61% 0.61% 0.8621% N/A 0.275% R -111 0.55% 0.59% 0.61% 0.8621% N/A 0.275% R -112 0.57% 0.61% 0.61% 0.8621% N/A 0.275% R -119 0.71% 0.76% 0.61% 0.8621% N/A 0275% R -124 0.86% 0.92% 0.91% 0.8621% N/A 0.275% R -125 0.82% 0.88% 0.91% 0.8621% N/A 0.275% R -126 0.72% 0.77% 0.91% 0.8621% N/A 0.275% R -128 0.78% 0.84% 0.91% 0.8621% N/A 0.275 %, R -129 0.98% 1.05% 0.91% 0.8621% N/A 0.275% R -200 0.72% 0.77% 0.91% 0.8621% N/A 0.275% R -201 0.64% 0.69% 0.61% 0.8621% N/A 0.275% R -202 1.28% 1.37% 1.22% 0.8621% N/A 0.527% R -203 0.73% 0.78% 0.91% 0.8621% N/A 0.275% R -205 1.00% 1.07% 1.22% 0.8621% N/A 0.527% R -207 0.90% 0.96% 0.91% 0.8621% N/A 0.275% R -208 0.60% 0.64% 0.61% 0.8621% N/A 0.275% R -210 0.60% 0.65% 0.61% 0.8621% N/A 0.275% R -211 0.55% 0.59% 0.61% 0.8621% N/A 0.275% R -212 0.60% 0.64% 0.61% 0.8621% N/A 0.275% R -214 0.79% 0.85% 0.91% 0.8621% N/A 0.275% R -215 0.76% 0.82% 0.61% 0.8621% N/A 0.275% R -216 0.93% 1.00% 0.91% 0.8621% N/A 0.275% I. R -217 0.76% 0.82% 0.61% 0.8621% N/A 0.275% R -218 0.54% 0.58% 0.61% 0.8621% N/A 0.275% 1 R -219 0.67% 0.72% 0.61% 0.8621% N/A 0.275% R -220 0.53% 0.57% 0.61% 0.8621% N/A 0.275% R -222 0.77% 0.83% 0.91% 0.8621% N/A 0.275% f R -224 0.83% 0.89% 0.91% 0.8621% N/A 0.275% 1 R -225 0.74% 0.80% 0.91% 0.8621% N/A 0.275% R -226 0.72% 0.77% 0.91% 0.8621% N/A 0.275% R -228 0.78% 0.84% 0.91% 0.8621% N/A 0.275% R -229 0.93% 0.99% 0.91% 0.8621% N/A 0.275% I R -300 0.56% 0.60% 0.61% 0.8621% N/A 0.275 %. R -301 1.39% 1.49% 1.22% 0.8621% N/A 0.527% R -302 1.28% 1.38% 122% 0.8621% N/A 0.527% R -303 0.73% 0.78% 0.91% 0.8621% N/A 0.275% f '' R -305 1.00% 1.08% 1.22% 0.8621% N/A 0.527% R -307 0.90% 0.96% 0.91% 0.8621% N/A 0.275% R -308 0.60% 0.64% 0.61% 0.8621% N/A 0.275% R -310 0.60% 0.65% 0.61% 0.8621% N/A 0.275% R -311 0.55% 0.59% 0.61% 0.8621% N/A 0.275% a' R -312 0.60% 0.64% 0.61% 0.8621% N/A 0.275% f R -314 0.77% 0.83% 0.91% 0.8621% N/A 0.275% R -315 0.98% 1.05% 1.22% 0.8621% N/A 0.527% r R -316 0.91% 0.98% 0.91% 0.8621% N/A 0.275% R -317 0.97% 1.04% 1.22% 0.8621% N/A 0.527% a 1 r f F i 1 1. I I I I i Residential Allocations Unit Project - Wide Commercial Garage Allocation Allocation Measured Area Beds Equal Allocation n8 R -318 0.54% 0.58% 0.61% 0.8621% N/A 0.275% R -319 0.67% 0.72% 0.61% 0.8621% N/A 0.275% R -320 0.53% 0.57% 0.61% 0.8621% N/A 0.275% R -322 0.78% 0.83% 0.91% 0.8621% N/A 0.275% R -324 0.83% 0.89% 0.91% 0.8621% N/A 0.275% R -325 0.74% 0.80% 0.91% 0.8621% N/A 0.275% R -326 0.72% 0.77% 0.91% 0.8621% N/A 0.275% R -328 0.78% 0.84% 0.91% 0.8621% N/A 0.275% R -329 0.93% 1.00% 0.91% 0.8621% N/A 0.275% % R-402 1.66% 1.78% 1.22% 0.8621% N/A 0.527% R -403 0.90% 0.96% 1.22% 0.8621% N/A 0.527% `€ R -405 1.53% 1.64% 1.50% 0.8621% N/A 0.527% R -407 0.90% 0.96% 0.91% 0.8621% N/A 0.275% R-408 0.61% 0.65% 0.61% 0.8621% N/A 0.275% R-410 0.61% 0.65% 0.61% 0.8621% N/A 0.275% R-411 0.55% 0.59% 0.61% 0.8621% N/A 0.275% R-412 0.60% 0.64% 0.61% 0.8621% N/A 0.275% R-414 0.78% 0.84% 0.91% 0.8621% N/A 0.275% R-415 0.97% 1.05% 1.22% 0.8621% N/A 0.527% R-416 0.94% 1.00% 0.91% 0.8621% N/A 0.275% R -417 0.97% 1.04% 1.22% 0.8621% N/A 0.527% R-418 0.54% 0.58% 0.61% 0.8621% N/A 0.275% R-419 0.67% 0.72% 0.61% 0.8621% N/A 0.275% ° ° g R-420 0.53% 0.57% 0.61 /0 0.8621 /o N/A 0.275 /o R -422 0.77% 0.83% 0.91% 0.8621% N/A 0.275% R -424 0.83% 0.89% 0.91% 0.8621% N/A 0.275% R-425 0.74% 0.80% 0.91% 0.8621% N/A 0.275% R-426 0.72% 0.77% 0.91% 0.8621% N/A 0.275% R-428 0.79% 0.84% 0.91% 0.8621% N/A 0.275% R-429 0.88% 0.94% 0.91% 0.8621% N/A 0.275% R -507 1.15% 1.24% 1.22% 0.8621% N/A 0.527% R -508 0.80% 0.86% 0.91% 0.8621% N/A 0.275% R -510 0.80% 0.85% 0.91% 0.8621% N/A 0.275% R -511 0.71% 0.76% 0.61% 0.8621% N/A 0.275% R -512 0.80% 0.85% 0.91% 0.8621% N/A 0.275% R -514 0.79% 0.84% 0.91% 0.8621% N/A 0.275% g R -515 0.98% 1.05% 1.22% 0.8621% N/A 0.527% R -516 0.88% 0.95% 0.91% 0.8621% N/A 0.275% R -517 0.97% 1.04% 1.22% 0.8621% N/A 0.527% R -518 0.53% 0.57% 0.61% 0.8621% N/A 0.275% R -519 0.66% 0.71% 0.61% 0.8621% N/A 0.275% R -520 0.52% 0.56% 0.61% 0.8621% N/A 0.275% g R -522 0.75% 0.80% 0.91% 0.8621% N/A 0.275% R -524 0.81% 0.87% 0.91% 0.8621% N/A 0.275% R -525 0.74% 0.80% 0.91% 0.8621% N/A 0.275% R -526 0.57% 0.61% 0.61% 0.8621% N/A 0.275% R -528 0.61% 0.65% 0.61% 0.8621% N/A 0.275% R -529 0.94% 1.01% 0.91% 0.8621% N/A 0.275% g R -614 0.72% 0.78% 0.61% 0.8621% N/A 0.275% i R -615 1.49% 1.60% 1.79% 0.8621% N/A 0.527% R -616 0.62% 0.67% 0.61% 0.8621% N/A 0.275% R -620 1.10% 1.18% 1.22% 0.8621% N/A 0.275% R -624 1.25% 1.34% 1.22% 0.8621% N/A 0.275% R -625 1.16% 1.24% 1.22% 0.8621% N/A 0.275% C -1 0.30% N/A N/A N/A 16.81% 0.503% C -2 1.16% N/A N/A N/A 64.69% 3.015% 1 C -3 0.33% N/A N/A N/A 18.50% 0.503% TOTAL 100.00% 100.00% 100.00% 100.00% 100.00% 100.00% t t v t a i t t I 1 EXHIBIT C OTHER RECORDED EASEMENTS AND LICENSES AFFECTING THE PROPERTY [TO BE REVISED BASED ON UPDATED TITLE WORK, WHICH IS CURRENTLY PENDING.] 1. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND IN UNITED STATES PATENT RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98. `! 2. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503, SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND JULY 13, 1939 IN BOOK 123 AT PAGE 617. 3. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF WEST DAY SUBDIVISION RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, INCLUDING, BUT NOT LIMITED TO UTILITY EASEMENT TRAVERSING SUBJECT PROPERTY. 4. TERMS, CONDITIONS AND PROVISIONS OF COOPERATION AND EASEMENT AGREEMENT RECORDED JUNE 24, 2005 AT RECEPTION NO. 920513. 5. TERMS, CONDITIONS AND PROVISIONS OF PARKING EASEMENTS AGREEMENT RECORDED JUNE 24, 2005 AT RECEPTION NO. 920514. 1 6. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT REGARDING DENSITY ALLOCATION RECORDED JUNE 24, 2005 AT RECEPTION NO. 920515. 7. TERMS, CONDITIONS AND PROVISIONS OF CONSTRUCTION STAGING AND SUPPORT EASEMENT AGREEMENT RECORDED JULY 05, 2006 AT RECEPTION NO.200617769. 8. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT REGARDING DENSITY ALLOCATION RECORDED JULY 05, 2006 AT RECEPTION NO. 200617770. 9. TERMS, CONDITIONS AND PROVISIONS OF PRIVATE PEDESTRIAN ACCESS EASEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617774. 654397.29 C_ 1 EXHIBIT D ARBITRATION RULES 1 l Claimant will submit a Claim to arbitration under these Arbitration Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant's submission of the Claim to arbitration ( "Arbitration Notice "). 1. Any arbitration conducted under these Rules and in connection with any Claim arising out of or relating to the interpretation, application, or enforcement of the Declaration, or relating to the design or construction of the Common Elements, will conform with and be subject to the rules and procedures adopted and routinely applied by Construction Arbitration Services, Inc. ( "CAS "). 2. The Parties will select a panel of arbitrators (the "Panel ") as follows ( "Party Appointed Arbitrators "): all Claimants will agree upon one Party Appointed Arbitrator, and all Respondents will agree upon one Party Appointed Arbitrator. The Party Appointed Arbitrators will, by agreement, select one Additional arbitrator ( "Additional "). 3. If the Panel is not selected under Rule 1 within 45 days from the date of the Arbitration Notice, any Party may notify the nearest chapter of The Community Associations Institute, for any dispute arising under the Declaration, the Bylaw, or the Rules, or CAS for any dispute relating to the design or construction of improvements on the Common Elements, which will appoint one Additional ( "Appointed Additional ") and will notify the Appointed Additional and all Parties in writing of such appointment. The Appointed Additional will thereafter be the sole arbitrator and any Party Appointed Arbitrators or their designees will have no further duties involving the arbitration proceedings. 4. No Person may serve as an Additional in any arbitration in which that Person has any financial or personal interest in the result of the arbitration. Any Person designated as a Additional or Appointed Additional will immediately disclose in writing to all Parties any circumstance likely to affect impartiality, including any bias or financial or personal interest in the outcome of the arbitration ( "Bias Disclosure "). If any Party objects to the service of any Additional or Appointed Additional after receipt of that Additional's Bias Disclosure, such Additional or Appointed Additional will be replaced in the same manner in which that Additional or Appointed Additional was selected. I 5. The Appointed Additional or Additional, as the case may be ( "Arbitrator ") will fix the date, time and place for the hearing. The place of the hearing will be at a place mutually agreed to by the Parties. In fixing the date of the hearing, or in continuing a hearing, the Arbitrator will take into consideration the amount of time reasonably required to determine Claimant's damages accurately. I t i 6. Any Party may be represented by an attorney or other authorized representative throughout the arbitration proceedings. In the event Respondent fails to participate in the arbitration proceeding, the Arbitrator may not enter an Award by default, but will hear Claimant's case and decide accordingly. 1 t 654397.29 D -1 I i f 1 7. All Persons who, in the judgment of the Arbitrator, have a direct interest in the arbitration are entitled to attend hearings. The Arbitrator will determine any relevant legal issues, including whether all indispensable Parties are Bound Parties or whether the Claim is barred by the statute of limitations. 8. The hearing will be conducted in whatever manner will, in the Arbitrator's judgment, most fairly and expeditiously permit the full presentation of the evidence and arguments of the Parties. The Arbitrator may issue such orders as it deems necessary to safeguard rights of the Parties in the dispute without prejudice to the rights of the Parties or the final determination of the dispute. 9. Notwithstanding the foregoing, multiple Party disputes or Claims not consolidated or administered as a class action pursuant to the following sentence will be subject to, and will be arbitrated individually. Only with the written request of all Parties involved, but not otherwise, the Arbitrator may: (a) consolidate in a single arbitration proceeding any multiple Party Claims that are substantially identical; and (b) arbitrate multiple Claims as a class action in accordance with the rules and procedures adopted by CAS. 10. If the Arbitrator decides that it has insufficient expertise to determine a relevant issue raised during arbitration, the Arbitrator may retain the services of an independent expert who will assist the Arbitrator in making the necessary determination. The scope of such professional's assistance will be determined by the Arbitrator in the Arbitrator's discretion. Such independent professional must not have any bias or financial or personal interest in the outcome of the arbitration, and will immediately notify the Parties of any such bias or interest by delivering a Bias Disclosure to the Parties. If any Party objects to the service of any professional after receipt of a Bias Disclosure, such professional will be replaced by another independent licensed professional selected by the Arbitrator. F 11. No formal discovery will be conducted in the absence of order of the Arbitrator or express written agreement among all the Parties. The only evidence to be presented at the hearing will be that which is disclosed to all Parties at least 30 days' prior to the hearing; provided, however, no Party will deliberately withhold or refuse to disclose any evidence which is relevant and material to the Claim, and is not otherwise privileged. The Parties may offer such evidence as is relevant and material to the Claim, and will produce such additional evidence as the Arbitrator may deem necessary to an understanding and determination of the Claim. The Arbitrator will be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence will not be necessary. The Arbitrator will be authorized, but not required, to administer oaths to witnesses. 12. The Arbitrator will declare the hearings closed when satisfied the record is complete. 13. There will be no post hearing briefs. 14. The Award will be rendered immediately following the close of the hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise agreed by the Parties. The Award will be in writing, will be signed by the Arbitrator and acknowledged 654397.29 D -2 [ before a notary public. « the Aritaobelieves a opinion is necessary, it will be in summary fo rm. 15. Except with respect to awards of attorneys' Ae and e p n e only to the e ent specifically p o /e under Se §o 123 of CCIOA, no Party will be entitled to receive any awa d of damages in connection w!+ the a bitrio of a Dispute other than such [ Party's ac tual da mae. All Parties ma arbitration conducted un der these Rules will be deemed to have waived their right to receive any damages other than actual damages, including, without limi !§o,seiadamages, cneuntiadamages, and punitive or ( exemplary da mages. The provisions of this p raga h15wi]b binding up o all Pa rtie to te fullest e t nt permitted b applicable l w as may be in effect Rom time to time Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address c mmu icke to te Arbitrator at the hearing. [ � ( . ( [ { ( [ ( { ( ( [ [ ( [ { { ( { 9 O- ( k f EXHIBIT E REPRESENTATIVE EXAMPLES OF POSSIBLE COMMON EXPENSES t g ' GARAGE EXPENSES COMMERCIAL EXPENSES PROJECT -WIDE EXPENSES RESIDENTIAL EXPENSES (except to the extent separately allocable to one or more Units) Utilities — gas, electric, water and Utilities — gas, electric, water Utilities — gas, electric, water and Utilities- gas, electric, water and ( sewer, if separately metered and sewer, if separately sewer, if not separately metered sewer, if separately metered metered Insurance Insurance Insurance Insurance Trash removal Trash removal Fire and security monitoring Trash removal I Access control system Management Fee Repairs and maintenance, Front desk staff, PBX and including engineering department, concierge t' and cleaning supplies, if common Garage door maintenance Valet Snow removal, if needed Parking attendant/bellman /valet Sweeping contract Phone Cable Landscape maintenance Housemen Repairs and maintenance, W -Fi and Internet Operation and maintenance of Utilities — phone and cable TV including engineering department common area snowmen and cleaning supplies, if unique to Garage Striping and signage Operation and maintenance Elevator maintenance, if common WiFi and intemet of LCE -C snowmelt; snow and ice removal from LCE -C areas Light bulb maintenance Legal, audit and administrative Spa and pool maintenance Operating and maintenance of Replacement reserve Bank charges Snow and ice removal on Decks, lobbies, stairs and pedestrian funding including Patios and other LCE -R areas accessways mechanical systems, roof, window, building enclosure systems and other items and systems unique to commercial Operation and maintenance of Management fee Meeting room costs snowmelt at drive and other areas Replacement reserve funding Replacement reserve funding Replacement reserve funding including mechanical systems, including mechanical systems, including mechanical systems, roof, window, building enclosure roof, window, building enclosure roof, window, building enclosure systems and other items and systems and other common items systems and items unique to systems unique to Garage residential Elevator maintenance if unique to Elevator maintenance if unique to Garage residential #, Waterproofing and drainage Residential board member charges, if any Management fee Amenity access fees I r t i 1 t 7 654397.29 E - 1 k GARAGE EXPENSES COMMERCIAL EXPENSES PROJECT -WIDE EXPENSES RESIDENTIAL EXPENSES (except to the extent separately allocable to one or more Units) Operation and maintenance of Residential lobbies lounges, P � dewatering pumps hallways, decks, closets and storage Management fee Repairs and maintenance, including engineering department and cleaning supplies, if unique to residential 1 r . ( r is 65439719 E -2 EXHIBIT F HOTEL PROPERTY 1 LOT 1, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED MARCH 10, 2005 RECORDED AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. CONDOMINIUM LODGE UNIT, THE MARK/LODGE IN ACCORDANCE WITH THE. AMENDED DECLARATION OF CONDOMINIUM FOR THE MARK /LODGE RECORDED OCTOBER 17, 1978 IN BOOK 276 AT PAGE 606 AND MARCH 22, 1979 IN BOOK 283 AT PAGE 344 AND THE CONDOMINIUM MAP FOR THE MARK/LODGE RECORDED MARCH 27, 1974 IN BOOK 233 AT PAGE 930 AND THE AMENDED PLAT OF THE SITE PLAN FOR THE MARK/LODGE RECORDED OCTOBER 17, 1978 IN BOOK 276 AT PAGE 607, COUNTY OF EAGLE, STATE OF COLORADO. 654397.29 F -1 e 1 ( EXHIBIT G ( RESIDENTIAL UNITS THAT ARE ELIGIBLE TO BECOME FRACTIONAL UNITS R-119 R 2!8 R-318 R 4!8 R-518 R 6 0 R-124 R 2!9 R-319 R 4!9 R-519 R 6 4 � ( R-125 R 2 0 R-320 R 4 0 R-520 R 6 5 [ R-126 R 2 2 R-322 R 42 R-522 R-128 R-224 R-324 R-424 R52 R-129 R 2 5 R-325 R 4 5 R-525 R-226 R-326 R-426 R52 R-228 R 328 R-428 R 528 [ R R 329 R R 52 ( ( [ � [ ( � ( [ [ ( [ � [ ( [ [ � . [ ( ( 654397 29 GQ f t { � � ( [ EXHIBIT H ; PARKING RIGHTS [ [ [ NUMBER OF VEHICLES i COMMERCIAL UNIT THAT CAN BE VALET PARKED IN [ GARAGE AT ANY TIME ( C-1 2 I 1 C-2 !2 { C-3 2 1 ( Total Commercial Parking Rights 16 / ( / RESIDENTIAL NUMBER OF VEHICLES ( UNIT THAT CAN BE VALET PARKED IN ( GARAGE AT ANY TIME \ R-1 2 ( R-2 1 [ R-3 1 ( [ R-4 1 ( R-5 1 I [ ( R-6 1 , [ R-7 1 ( ( R-8 1 [ R-9 1 { R-100 1 ( ( R-101 1 [ R-102 2 { [ ( 65439729 HQ [ { ( ( ( ( [ RESIDENTIAL NUMBER OF VEHICLES UNIT THAT CAN BE VALET PARKED IN ( GARAGE AT ANY TIME R-103 1 [ R-105 1 R-107 1 [ R 1 ( R 1 1 / R-111 ! > R-112 1 R-119 1 1 ( R-124 • 1 R-125 1 R-126 1 ( R 1 [ R-129 1 R-200 1 1 ( R-201 1 1 R-202 2 { R-203 1 R-205 2 [ R 1 1 ( R-208 1 1 R-210 1 ( R-211 1 1 9 . N- ( ( ( 1 RESIDENTIAL NUMBER OF VEHICLES ( UNIT THAT CAN BE VALET PARKED IN 1 GARAGE AT ANY TIME R-212 ! R-214 ! 1 R-215 ! I R-216 ! R-217 ! R-218 ! R-219 ! I i t R20 1 R-222 1 [ R-224 1 R-225 1 \ R-226 1 R-228 1 / R-229 1 \ R-300 ! \ [ R-301 2 [ R-302 2 / R-303 ! I R-305 2 I R-307 ! R-308 ! \ ( R-310 ! [ { ( 9 1-1-3 I [ I I [ r 1 K RESIDENTIAL NUMBER OF VEHICLES UNIT THAT CAN BE VALET PARKED IN GARAGE AT ANY TIME R-311 1 I [ R-312 1 1 R-314 1 ( R-315 2 1 R-316 1 R-317 2 1 \ R-318 1 [ R-319 1 I R-320 1 : 1 R-322 ! [ [ R-324 1 1 R-325 1 i R-326 1 1 ( ( R-328 ! [ ( R-329 1 { ( R-402 2 ( [ R-403 2 1 [ R-405 2 1 I R-407 ! [ R-408 1 I R-410 1 ( ( R-411 1 [ ( ( 654397.29 H- ( [ \ { ( I ( [ RESIDENTIAL NUMBER OF VEHICLES [ UNIT THAT CAN BE VALET PA�DIN ( GAGE AT ANY TIME [ R-412 ! I R-414 ! / R-415 2 ( R-416 1 I R-417 2 { ( R-418 ! ( ( R-419 ! R-420 ! t R-422 1 ( [ R-424 1 ( R-425 1 ( R-426 1 ; ( R-428 1 ( ( R-429 1 t ( R-507 2 1 I R-508 ! ( R-510 ! R-511 ! [ R-512 ! f [ R-514 ! [ { ( R-515 2 [ [ R-516 ! l 9 1-1-5 ; ( ( { RESIDENTIAL NUMBER OF VEHICLES UNIT THAT CAN BE VALET PARKED IN GARAGE AT ANY TIME R-517 2 [ R ! { R-519 ! R50 1 { R ! ( R-524 1 R-525 ! R-526 ( 1 ( R [ 1 R-529 ! . ( R-614 1 R-615 2 R-616 ! R-620 ! ( R-624 1 R-625 ! [ Su btotal 134 { { Guest Par king Rights 11 Total Residential Parking Rights 14 9 H-6