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HomeMy WebLinkAboutADM100012 r. t 1i TOV? OF1'AIL 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: Four Seasons Private Residence Application Type: CondThPI ADM Number: ADM100012 Parcel: 2101 -071- 0101 -6 Project Description: CONDOMINIUM MAP OF ONE VAIL ROAD PRIVATE RESIDENCE Participants: OWNER VAIL DEVELOPMENT 09 LLC 10/06/2010 Phone: 212- 412 -496 745 SEVENTH AVE NEW YORK NY 10019 APPLICANT VAIL DEVELOPMENT 09 LLC 10/06/2010 Phone: 212 - 412 -496 745 SEVENTH AVE NEW YORK NY 10019 Project Address: 1 VAIL RD VAIL Location: 13 VAIL ROAD Legal Description: Lot: B &C Block: Subdivision: VAIL VILLAGE FILING 2 Comments: See conditions BOARD /STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: 11/09/2010 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: $100.00 • an 'A.D. ' ! ) i t 1 T . I ♦ e • 1 x fit+ rid r )(t i t Y .. ,. ti:.�. .. �. * f ,``'� '‘,,,.4., } i � r�' � } � r � � � - � �. �4y x i *'� .1,�, ',.,11.'w-d:-,;54,4i4.,1 � C y t 7 " A �I " C � r � b e {, �, � f 'r3!$ � e !.:•11. t"4 6 �.. ' . . a , ' ' i r �r k c . � . i t.. Y - C a <3, Y l�alC'9ti -6 4.,: .°' s rt 44' r . `g e vP Q a , Qor ii LTi i lvoel ¢ • nlentvt' ,. d x * 75 a F n age o .,.Z .: 1 • z' �y `. N '! Y S'•f r ! •' 1 ∎ E ' r _� { e 1 ,' . �%• .. R;q� &X... •�` ; "' ii : y �.. l �,`�l r , t• . . t ,.:0, -! 1 " Condominium and Townhouse Plat Application for Review by the Planning and Environmental Commission General Information: Condominium and townhouse plats which do not constitute "conversions" from rental as de- fined in Section 13 -7 -2, Definitions, Vall Town Code may be approved by the administrator, subject to review by other Town of Vail departments. Please see Section 13 -6, Condominium and Townhouse Plats, Vail Town Code for more de- tailed information. Vail Town Code can be found on the Town's website at www.vailgov.com. Fee: $100 Recording Fees: Please visit the Eagle County website htto: / /www.eaolecountv,us /clerk /publicRecords.cfm for the most up -to -date recording fees and check with your planner prior to submitting the payment. A check written out to the Eagle County Clerk and Recorder Is required to be submitted once the plat has been approved by the Planning and Environmental Commission and prior to the rec of the plat.. P r' �j / � Description of the Request: _ AOM IAt k. r1, ip O P V N T V e t1 "A ,,t� E Fc Si 61 t C rU Physical Address: / i i ' g- o�( V A . r I � C o 8/657- 0 l Pa Number: z s o t `- o • - ' i -01 -0/7 - aw � (Contact Eagle Co. Assessor at 970 - 328 - for parcel no.) Property Owner: V t 1 Si �E sJi�c,, 0 L L— C Mailing Address: 7 `( 5 S w t 1"� { �� i-e A/ /V /00 / • one: / 2 - 2- el C. Owner's Signature: ^� �� Prim Coma • • ' n e - n tat • ' Mailing ddress: ' e'"� O c D , L,_a. 1''{ Se- tn�vi Ave g V ) i Al v ( N Y / 00 / Phone; Z ( 2 - Y 12- - 2 `� 9 6, , co al E -Mail• Lo r;, l.�,,n 9 c�5 For Office Use Only: Cash CC: Visa / MC Last 4 CC # — Rig c ., Th Auth # Check # Fee Paid: I 177 Received From: - -C-(V e Meeting Date: PEC No.: � 001 Planner: (..$.- Project No: -f 03 - J'Kg g Zoning: Land Use: Location of the Proposal: Lot: Block: Subdivision: 1 n ECE0 V E - -10 U OCT 06 2010 TOWN OF VAIL TOWN OF VAIL, COLORADO Statement ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Statement Number: R100001484 Amount: $100.00 10/06/201010:04 AM Payment Method:Credit Crd Init: SAB Notation: VISA - RANDALL KIPP Permit No: ADM100012 Type: Administrative Parcel No: 2101- 071 - 0101 -6 Site Address: 1 VAIL RD VAIL Location: 13 VAIL ROAD Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ACCOUNT ITEM LIST: `Pk/ t 1 DO 311d603 ` BSAI DRAFT 11/24/09 Recording Requested By and When Recorded Mail To: Ballard Spahr Andrews & Ingersoll LLP 1225 17 Street, Suite 2300 Denver, Colorado 80202 Attn: Gwendolyn C. Allen, Esq. RESIDENCE CLUB DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ONE VAIL ROAD RESIDENCE CLUB DMWEST #7274549 v5 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 2 ARTICLE II ESTABLISHMENT OF OWNERSHIP INTERESTS 2 2.1 Description of Common Interest Community 2 2.2 Club Ownership - Division Into Units 3 2.3 Four Seasons Network 4 2.4 Severance From Common Elements or Appurtenant Easements 4 2.5 Unit Allocated Interests. 5 ARTICLE III INTERESTS, USE RIGHTS AND RESTRICTIONS 6 3.1 Use Rights and Property Interests. 6 3.2 Use of Club Units 10 3.3 Assignment of Reservation Rights to Network 10 3.4 Occupancy 10 3.5 Rental and Occupancy Plans. 10 3.6 Failure to Vacate 11 3.7 Use Restrictions 12 3.8 Use of Intellectual Property 12 3.9 Additional Declarant's Rights. 13 3.10 Reservation of Development Rights 14 3.11 Club Association Easements. 15 3.12 Covenants Running With the Land 16 3.13 Separate Mortgages 16 3.14 Subordination and Partition of Tenancy -in- Common Attributes. 17 3.15 Transfer of Fractional Interest 17 3.16 Protection of Interest 17 3.17 Compliance With Laws 18 3.18 No Increased Insurance 18 3.19 Antennae and Exterior Appliances 18 ARTICLE IV THE CLUB ASSOCIATION 18 4.1 Membership in Club Association 18 4.2 Transfer of Membership in the Club Association 19 4.3 Voting in the Club Association 19 4.4 Declarant Control of the Association 19 4.5 Board of Directors 19 ARTICLE V MANAGEMENT 19 5.1 Allocation of Maintenance and Repair Obligations. 19 5.2 Specific Powers and Duties of the Club Association 21 DMWEST #7274549 v5 i 5.3 Authority and Duty to Engage Club Association Manager 27 5.4 Limited Liability - Club Association Manager and Association 27 5.5 Club Association - Personal Liability, Indemnification 28 ARTICLE VI ASSESSMENTS AND PERSONAL CHARGES 28 6.1 Creation of Personal Obligations For Assessments 28 6.2 Purpose of Assessments 28 6.3 Club Expenses 28 6.4 Limitation on Club Assessment 29 6.5 Reduction of Club Association Budget 29 6.6 Payment of Club Assessment 30 6.7 Special Assessments 30 6.8 Personal Charges. 31 ARTICLE VII ENFORCEMENT OF RESTRICTIONS 31 7.1 In General. 31 7.2 Certain Specific Enforcement Powers 32 7.3 Waiver of Homestead Exemption 35 ARTICLE VIII CLUB ASSOCIATION AS ATTORNEY -IN -FACT 35 8.1 Appointment 35 8.2 General Authority 35 ARTICLE IX DAMAGE, DESTRUCTION, OR CONDEMNATION 35 9.1 Club Property 35 9.2 Taking of All Club Property 36 9.3 Partial Taking of Club Property 36 9.4 Taking of Club Units 37 9.5 Removal of Club Units from Network 37 9.6 No Limitation of Remedies 37 ARTICLE X PROTECTION OF MORTGAGEES 37 10.1 Conflict 37 10.2 Application of Assessments 37 10.3 Subordination of Assessment Lien. 38 10.4 Limitation of Enforcement Against Mortgagees 38 10.5 Notice by Mortgagees 38 10.6 Notice 38 ARTICLE XI INSURANCE 39 11.1 Club Association 39 11.2 Statutory Insurance Requirements 40 DMWEST #7274549 v5 11 11.3 Unavailability of Insurance 41 ARTICLE XII MISCELLANEOUS PROVISIONS 41 12.1 Amendment 41 12.2 Termination. 42 12.3 Declarant's Right to Cure Alleged Defects 43 12.4 Notices 44 12.5 Right of First Refusal 45 12.6 Notification of Sale of Fractional Interest 46 12.7 Third Party Beneficiary Rights 46 12.8 Successors 47 12.9 Violation or Nuisance 47 12.10 Violation of Law 47 12.11 Interpretation 47 12.12 Construction, Waiver 47 12.13 Termination 47 12.14 Indemnity 47 12.15 Constructive Notice and Acceptance; Incorporation of Club Declaration into Deeds 48 12.16 Cumulative Remedies 48 12.17 Attorneys' Fees and Costs 48 12.18 No Public Dedication 48 12.19 Governing Law 49 12.20 Arbitration 49 12.21 Provisions Run With Land 49 12.22 Conflict of Provisions 49 12.23 Acknowledgements 50 LIST OF EXHIBITS Exhibit A - Legal Description of Development Land Exhibit B - Master Definitions Exhibit C - Unit Allocated Interest DMWEST #7274549 v5 111 RESIDENCE CLUB DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ONE VAIL ROAD RESIDENCE CLUB THIS RESIDENCE CLUB DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR ONE VAIL ROAD RESIDENCE CLUB is made as of , 20 , by VAIL RESIDENTIAL 09 LLC, a Delaware limited liability company ( "Declarant "). RECITALS A. Declarant is the owner of certain real property consisting of land located in Vail, Eagle County, Colorado, as more particularly described in Exhibit A attached hereto and defined in the Master Definitions attached hereto as Exhibit B as the "Development Land ". B. Declarant is developing on the Development Land a resort project consisting initially of (1) the Hotel, which is expected to include approximately 120 hotel guestrooms and suites and other related amenities (which, from time to time, might include a private health club /spa, meeting space, skier services facilities, retail shops, restaurants, ski concierge and other commercial areas and similar amenities as well), (2) approximately 35 condominium units, 16 of which are intended to be used and occupied as typical whole - ownership condominium units and are defined in the Master Definitions attached hereto as Exhibit B as the "Private Residence Units," and 19 of which are intended to be subjected to a plan of fractional ownership and are defined in the Master Definitions attached hereto as Exhibit B as the "Club Units," in which fractional interests will be sold, as more particularly defined in the Master Definitions attached hereto as Exhibit B as the "Fractional Interests ", and (3) the Resort Common Areas, being the areas intended for the common benefit of some or all of the holders of Ownership Interests. C. Under the Resort Declaration, the Development Land will be divided into three Components: (1) the Hotel Component, (2) the Private Residence Component, and (3) the Club Component. The Private Residence Component, as further defined in the Master Definitions, will essentially consist of the Private Residence Units and the interests of the owners thereof in the Common Elements. The Club Component, as further defined in the Master Definitions, will essentially consist of the Club Units and the interests of the owners of Fractional Interests therein in the Common Elements. The Hotel Component consists of all the real property within the Resort other than the Private Residence Component and the Club Component. The Hotel Component includes the Hotel and the Resort Common Areas. The "Resort" consists of the Development Land and all improvements located thereon. D. The Resort is subject to a master declaration (the "Resort Declaration ") and governed by a master association (the "Resort Association"). The Resort Association is a master association (as that term is defined under the Colorado Common Interest Ownership Act (the "Act ")) that governs the entire Resort. Under this Club Declaration and under the Private Residence Declaration, common interest communities (as that term is defined under the Act) shall be created and separate condominium associations shall govern each of the Club DMWEST #7274549 v5 Component and the Private Residence Component, respectively. Under such declarations and /or other Governing Instruments of such Components, certain powers of each common interest community shall be delegated to the Resort Association. E. By this Club Declaration, it is the intention of Declarant to establish a common scheme and plan for the use, enjoyment, repair, maintenance, restoration and improvement of the Club Component, Club Units and the Common Elements and the interests therein conveyed or reserved, and for the payment of taxes, assessments, insurance premiums and other expenses pertaining thereto. Declarant intends that the owners, Mortgagees, occupants and all other persons hereafter acquiring any interest in the Club Units, or any part thereof, shall at all times enjoy the benefits of, and shall hold, sell and convey their interests subject to the rights, easements, covenants, conditions, restrictions and obligations hereinafter set forth, all of which are hereby declared to be in furtherance of a general plan to promote and protect the cooperative aspect of the Club Property and are established for the purpose of enhancing and perfecting the value, desirability and attractiveness of the Club Property. NOW, THEREFORE, in furtherance of such intent, Declarant hereby declares that the Club Property shall be held, conveyed, hypothecated, mortgaged, encumbered, leased, rented, used, occupied and improved subject to the following covenants, conditions and restrictions set forth in this Club Declaration, as this Club Declaration may be amended from time to time, all of which covenants, conditions and restrictions are declared to be in furtherance of the Club Regime established for the purpose of enhancing and perfecting the value, desirability and enjoyment of the Club Property. All of the covenants, conditions and restrictions contained herein shall constitute covenants running with the land and equitable servitudes and liens and shall be binding upon and for the benefit of Declarant and each Fractional Interest in any of the Club Units and /or the Common Elements conveyed by Declarant shall be binding upon and for the benefit of all parties having or acquiring a Fractional Interest therefrom including, but not limited to, the heirs, executors, administrators and assigns of any such parties and all subsequent owners of a Fractional Interest. ARTICLE I DEFINITIONS Unless otherwise defined herein, all capitalized terms used in this Club Declaration shall have the meaning set forth in the Master Definitions attached hereto as Exhibit B. All defined terms used and /or referred to in the Recitals are further defined in the Master Definitions. ARTICLE II ESTABLISHMENT OF OWNERSHIP INTERESTS 2.1 Description of Common Interest Community. This Club Declaration creates a "common interest community" as defined in and that is subject to the Act. The common interest community created hereunder is called the "One Vail Road Residence Club" and its governing association is called the "One Vail Road Club Owners' Association, Inc.," (as more particularly defined in the Master Definitions as the "Club Association "). The One Vail Road Residence Club is located within the Resort which is located in the Town of Vail, Eagle County, Colorado. The One Vail Road Residence Club consists of Club Units through as set forth on the DMWEST #7274549 v5 2 Club Map. The One Vail Road Residence Club is a "condominium" (as that term is defined under the Act). 2.2 Club Ownership - Division Into Units. As of the recording of this Club Declaration, the Club Component is hereby divided into nineteen (19) Club Units; however, Declarant reserves the right to divide the Club Component into as many as thirty -five (35) Club Units, which is the maximum number of Club Units into which the Club Component may be divided. Declarant, in order to establish a plan of condominium ownership for the Club Property, hereby divides the Club Property into the following elements with the ownership interests therein as set forth below: (a) Club Unit. Each Club Owner (and its Permitted Users) shall own a separate fee simple Fractional Interest in a Club Unit; (b) Common Elements. Each Club Owner shall own a non - exclusive undivided interest in the Common Elements; and (c) Licensed Parking Space. Each Club Owner (and its Permitted Users) shall have a nonexclusive irrevocable license to collectively use two parking spaces located in the Parking Areas while in residence (subject to restrictions in the Governing Instruments). (d) Club Regime. (e) Legal Description of a Fractional Interest. A Fractional Interest may legally be described by reference to the Club Unit number, by reference to the purchaser's undivided ownership interest in such Club Unit expressed as a fraction, by reference to the purchaser's Reservation Group, and by reference to the purchaser's right to use and occupy a Club Unit for up to a certain number of nights per Use Year as the purchaser's Primary Use Time pursuant to this Club Declaration, The Club Rules and Regulations and the Network Rules substantially in accordance with the following legal description: An undivided 1 /12th fee simple interest in and to Unit No. of the One Vail Road Residence Club, according to the Condominium Map recorded in the Office of the Eagle County Clerk and Recorder on at Reception No. and the Residence Club Declaration of Covenants, Conditions and Restrictions for One Vail Road Residence Club recorded in the Office of the Eagle County Clerk and Recorder on at Reception No. (the "Residence Club Declaration ") and as further defined and made subject to that certain Resort Declaration of Covenants, Conditions and Restrictions for One Vail Road Resort recorded in the Office of the Eagle County Clerk and Recorder on at Reception No. (the "Resort Declaration "), as each may be amended from time to time- together with an undivided interest in the non - exclusive perpetual easement rights as more specifically described as "Common Elements" in such Resort Declaration; together with the DMWEST #7274549 v5 3 right to reserve the use of a Club Unit of the Unit Type purchased under Reservation Group for up to 21 nights per Use Year as the grantee's Primary Use Time in accordance with the Residence Club Declaration, the Rules and Regulations from time to time promulgated and amended by the Board of Directors of One Vail Road Residence Club Owners' Association, Inc. (the "Club Rules and Regulations "), and the Network Rules (as defined in the Residence Club Declaration) as follows: 7 nights during Gold Season and 14 nights during Platinum Season (each as defined in the Club Rules and Regulations). (f) Other Fractional or Timeshare Plans. No Club Unit or Fractional Interest shall be contributed or subjected to any other timeshare plan or plan of fractional ownership except by (i) Declarant pursuant to Declarant's Development Rights, as set forth in Section 3.10(b) and (ii) during the Period of Declarant Control, with the prior written consent of Declarant, which consent may be withheld in Declarant's absolute and unfettered discretion. 2.3 Four Seasons Network. Membership in the Network is an appurtenance to each Fractional Interest in a Club Unit in accordance with the Project Affiliation Agreement, the Club Rules and Regulations and the Network Rules. Network Manager shall have the right to amend the terms and conditions of the Project Affiliation Agreement and Network Rules from time to time as set forth therein. In accordance with the terms of the Project Affiliation Agreement and the Network Rules, Network Manager may require Club Owners to be current in the payment of all Assessments as a condition to accepting reservation requests for such year.In the event that the Project Affiliation Agreement is terminated in accordance with its terms, the Club Owners may designate the Club Association as their agent to establish reservation procedures for the Club Regime, which may or may not be identical to the reservation procedures set forth in the Project Affiliation Agreement, by which use of the Club Units among all of the Club Owners shall be determined. Furthermore, as set forth in the Project Affiliation Agreement, upon the termination of the Club Regime's affiliation with the Network, the Club Regime will cease to be a Network Project and the Club Owners will not be able to access other Network Projects through the Network's reservation system and the Network Documents shall no longer apply to the Club Regime. In, addition, the Club Association, and all Club Owners shall cease using and thereafter abstain from using any and all personal or intellectual property related to the Network including, but not limited to, the reservation and exchange system for the Club Regime and any and all computer hardware and software (except as otherwise set forth in the Project Affiliation Agreement). 2.4 Severance From Common Elements or Appurtenant Easements. No Club Owner shall be entitled to sever his, her or its Fractional Interest, or any portion thereof, from his, her or its undivided interest in the Common Elements or in any easement interests appurtenant thereto 1 This legal description is for a 1 /12th Fractional Interest. A legal description for a Fractional Interest other than a 1 /12th interest will be substantially the same as this legal description except that the fraction and corresponding nights of use set forth therein will reflect a corresponding pro rata adjustment. Declarant may sell fractions larger or smaller than a 1 /12th Fractional Interest. DMWEST #7274549 v5 4 or licenses granted under the Resort Declaration, or from his, her or its membership in Network. The Declarant and its successors, assigns and grantees and each Club Owner each covenant and agree that the Fractional Interests and the corresponding undivided interest in the Common Elements and the easements, licenses and other interests appurtenant thereto, shall not be separated or separately conveyed or encumbered, and (a) each such undivided interest in the Common Elements and any easements appurtenant to a Fractional Interest and /or Club Unit shall be deemed to be conveyed or encumbered with its respective Fractional Interest even though the description in the instrument of conveyance or encumbrance may refer only to title to the Fractional Interest, and (b) each such Fractional Interest shall be deemed to be conveyed or encumbered with its respective undivided interest in the Common Elements and in any easements, licenses or other interests appurtenant thereto even though the description in the instrument of conveyance or encumbrance may refer only to the title to the respective undivided interest. 2.5 Unit Allocated Interests. (a) Allocation of Interests. The Unit Allocated Interest assigned to each Club Unit is set forth on Exhibit C. The Unit Allocated Interests have been assigned to the Club Units in accordance with the formulae set out in Section 2.6(b) below and are further allocated among the Fractional Interests in each Club Unit as set forth below. (b) Formulae for Determining Unit Allocated Interests. The Unit Allocated Interests allocated to each Club Unit have been calculated by the following formulae: (i) Undivided Interests in the Common Elements. The undivided interest in the Common Elements assigned to each Club Unit shall be allocated based on the ratio of the average square footage of each Club Unit of a particular Unit Type to the aggregate square footage of all Club Units, such that each Club Unit shall be assigned the Unit Allocated Interest in the Common Elements shown on Exhibit C. The undivided interest in the Common Elements assigned to a Club Owner shall be equal to the product of (x) the Unit Allocated Interest assigned to the Club Unit in which such Club Owner owns a Fractional Interest and (y) the size, expressed as a fraction, of such Club Owner's Fractional Interest. (ii) Club Expense Liability. Subject to the special allocations pursuant to Section 2.6(c) Club Expenses shall be allocated among the Club Units based on the ratio of the average square footage of each Club Unit of a particular Unit Type to the aggregate square footage of all Club Units, such that each Club Unit shall be assigned the Unit Allocated Interest in the Club Expenses shown on Exhibit C. The percentage of Club Expenses assigned to each Club Owner shall be equal to the product of (x) the Unit Allocated Interest of such Club Expenses assigned to the Club Unit in which such Club Owner owns a Fractional Interest and (y) the size, expressed as a fraction, of such Club Owner's Fractional Interest. (iii) Voting. Each Club Unit shall be allocated a percentage of the total voting power in the Club Association based on the ratio of the average square footage of each Club Unit of a particular Unit Type to the aggregate square footage of all Club DMWEST #7274549 v5 5 Units, such that each Club Unit shall be assigned the Unit Allocated Interest in the total voting power shown on Exhibit C. The percentage of the total voting power in the Club Association assigned to each Fractional Interest shall be equal to the product of (x) the Unit Allocated Interest of total voting power in the Club Association assigned to the Club Unit in which such Fractional Interest is owned and (y) the size, expressed as a fraction, of such Fractional Interest. (iv) Determination of Square Footage. In the event of any discrepancy between the Unit Allocated Interest and the result derived from the application of a formula because of a change in the actual square footage of a Club Unit as constructed, or any other reason, the Unit Allocated Interest prevails. (v) Reallocation. The effective date for reallocating Unit Allocated Interests to Club Units as a result of the exercise of Development Rights shall be the date on which the amendment required therefor is recorded. Reallocation of Unit Allocated Interests shall be in accordance with Section 2.6(b) and Exhibit C shall be amended to reflect such reallocated Unit Allocated Interests. (c) Apportionment of Club Assessments. Club Assessments shall be assessed to the Club Units in proportion to their respective Unit Allocated Interests, subject to adjustment for: (i) Club Expenses which are separately metered or assessed to the Club Units or Club Owners by third parties or pursuant to service agreement with third parties;(ii) Club Expenses or portions thereof benefiting fewer than all of the Club Units or Club Owners which shall be assessed exclusively against the Club Units or Club Owners benefited in proportion to the benefits derived therefrom as established by the Club Association Board; (iii) any increased cost of insurance based upon risk which shall be assessed to Club Units in proportion to the risk as established by the Club Association Board; (iv) any Club Expense caused by the misconduct of any Club Owner(s) or their Permitted Users or Permittees, which may be assessed exclusively or on such other equitable basis as the Club Association Board shall determine against such Club Owner(s) or their Permitted Users or Permittees; and (v) any Club Expenses which are charged equally to the Club Units. The adjustment determinations set forth above in this Section 2.6(c) shall be made at the sole discretion of the Club Association Board. (d) Recording Data for Additional Easements and Licenses. Other documents, including the Resort Declaration, may include certain encumbrances, easements and /or licenses applicable to the One Vail Road Residence Club. Such documents will have been recorded prior to or simultaneously with the recording of this Club Declaration, in the Office of the County Recorder. ARTICLE III INTERESTS, USE RIGHTS AND RESTRICTIONS 3.1 Use Rights and Property Interests. (a) Use Rights. Subject to all the terms and conditions contained elsewhere in this Club Declaration, the other Governing Instruments, and the Network Documents, the ownership of a Fractional Interest shall entitle its owner to the following: DMWEST #7274549 v5 6 • (i) Fractional Interest and Primary Use Time. For each Fractional Interest owned, the right during each Use Year to use and occupy an Assigned Club Unit of such Club Owner's Unit Type and the Club Furnishings therein and other Club Property, if any, and the non - exclusive right to use, enjoy and benefit from the Common Elements for up to the number of nights per Season specified in the Original Deed or such other document transferring a Fractional Interest and referred to as Primary Use Time, provided that such Club Owner shall have reserved such use and occupancy in accordance with the procedures for the making of reservations for Primary Use Time as set forth in the Club Rules and Regulations and the Network Rules. Notwithstanding anything herein to the contrary, (x) all Fractional Interests with equal fee simple ownership interests shall have the opportunity to reserve the same number of nights per Season of Primary Use Time, and (y) all Club Owners, excluding Declarant in accordance with Section 3.10 and Section 3.15, are expressly prohibited from combining or dividing Club Units and/or Fractional Interests. Up to a maximum of seven (7) nights of Primary Use Time may be rented subject to and in accordance with the Club Rules and Regulations and the Network Rules. (ii) Privilege Use Time. The opportunity, on a space available basis, to use and occupy an Assigned Club Unit of such Club Owner's Unit Type and the Club Furnishings therein and other Club Property, if any and the non - exclusive right to use, enjoy and benefit from the Common Elements during the Owners' Privilege Use Time, provided that such Club Owner shall have reserved such use and occupancy in accordance with the procedures for the making of reservations for Privilege Use Time set forth in the Club Rules and Regulations (up to a maximum of seven (7) nights per Use Year per Fractional Interest) and the Network Rules. Privilege Use Time reservations may not be rented or passed along to others. (b) Club Rules and Regulations. Network Rules, and the Reservation System. All Club Owners shall be entitled to make reservations for the use and occupancy of a Club Unit during their respective Primary Use Time and, subject to availability on a space available basis, Privilege Use Time pursuant to the Club Rules and Regulations established from time to time by the Club Association Board and the Network Rules established from time to time by Network Manager. The Club Rules and Regulations and Network Rules shall specify the manner in which reservations of a Club Owner's Primary Use Time and Privilege Use Time are to be requested and confirmed. Unless amended in accordance therewith, the Club Rules and Regulations shall provide that the right to reserve Primary Use Time, if unused in any year, is lost and does not accrue for use in subsequent years. The Club Rules and Regulations and Network Rules shall contain such schedules, conditions, restrictions and limitations as are deemed necessary or desirable by the Club Association Board or Network Manager, respectively. (i) The Club Association Board may from time to time, without the consent of the Club Owners or Mortgagees, but together with the consent of the Club Association Manager, amend the Club Rules and Regulations to include, by way of enumeration and without limitation, one or more of the following features (which amendment right may be delegated to the Club Association Manager in accordance with Section 5.2(b)): DMWEST #7274549 v5 7 (A) a preferential reservation system for and restrictions on use and occupancy of holidays, such as New Year's Day, Martin Luther King Jr. Day, Presidents' Day or any of the preceding weekend days, Easter, Memorial Day, Fourth of July, Labor Day or any of the preceding or following weekend days, Veterans' Day or any of the preceding or following weekend days, Thanksgiving or the Friday, Saturday or Sunday immediately following Thanksgiving, Christmas Eve, Christmas Day, the weekend days before and after Christmas Day, or such other holiday period or special event period designated by the Club Association Board from time to time; (B) a procedure for determining priority of reservation by lot, drawing, rotation or otherwise on an annual or rotating basis based on a Fractional Interest's Reservation Group: (C) restrictions on use and occupancy of a Use Period if a Club Owner is not current on Assessments or is otherwise in violation of the provisions of the Governing Instruments; (D) penalties, including forfeitures of reservation rights for the Use Year, for untimely cancellations or reservations; (E) short term reservation procedures for Privilege Use Time; (F) a schedule of fees to be separately charged to Club Owners who use Privilege Use Time to cover the additional expenses of such use, including but not limited to, additional administrative, janitorial and maid service costs; (G) procedures to coordinate the plans of Club Owners for moving their personal effects into and out of the Club Units with a view toward scheduling such moves, so that there will be a minimum of inconvenience to other Club Owners; and (H) such other conditions, restrictions and limitations as the Club Association Board shall deem necessary or desirable under the circumstances to assure a manageable, efficient, cost - effective and fair system. Not withstanding the foregoing, Club Owners will at all times be subject to both the Club Rules and Regulations and the Network Rules with respect to use of their Primary Use Time and Privilege Use Time. (ii) Service Periods. The Club Rules and Regulations shall provide that the Club Association shall have the right to reserve as a Service Period at least four (4) days and a maximum of seven (7) days per Use Year on a super - priority basis. The Club Rules and Regulations shall further govern the annual reservation of actual Service Periods permitted by this Subsection. DMWEST #7274549 v5 8 (iii) Owner of Record and Designated Users. For each Fractional Interest, the Club Owners thereof shall designate a single natural person (the "Owner of Record "), who shall be the individual (1) with whom the Club Association shall communicate with in connection with such Fractional Interest, including, without limitation, receiving all notices required under the Governing Instruments and Network Documents, (2) who shall possess all of the voting rights with respect to such Fractional Interest, and (3) who, together with the Designated Users (as defined below), shall have the right to reserve and use a Club Unit. The Club Owners shall also have the ability to name up to three (3) additional individuals ( "Designated Users ") who may reserve, in addition to the Owner of Record, and use, without the Owner of Record in residence, the Primary Use Time and Privilege Use Time associated with such Fractional Interest in accordance with and subject to the Club Rules and Regulations and the Network Rules. The Club Rules and Regulations shall provide the procedures for appointing the Owner of Record and the Designated Users and may provide that the Owner of Record or such Designated Users may be changed from time to time for a fee established by the Club Association Board. Further, the Club Rules and Regulations and /or Network Rules may (y) allow individuals other than the Owner of Record or a Designated User to make reservations on behalf of and for the use by the Owner of Record or a Designated User and (z) grant additional rights and place additional restrictions and limitations upon the Owner of Record and the Designated Users; provided that such restrictions do not interfere with the Club Owners' basic rights of use and occupancy as set forth herein. Upon death of the Owner of Record of a Fractional Interest owned by natural persons, and until such time title is confirmed in the decedent's heir or beneficiary, the administrator or personal representative of the decedent may act as Owner of Record on behalf of the decedent's estate upon presentation to the Club Association Manager of satisfactory documentation regarding his or her appointment. Upon the death of a Club Owner who held a Fractional Interest as a tenant in common with one or more other Club Owners, the surviving Club Owner(s) shall within thirty (30) days of the death of a Club Owner, provide written notice to the Club Association of the death, and the name and address of the personal representative of the estate of the deceased Club Owner. If the deceased Club Owner held the Fractional Interest as a joint tenant, the surviving joint tenant shall within thirty (30) days of the death of the Club Owner, provide notice of the death to the Club Association and a copy of the Death Certificate. The Club Association may record the death certificate and an affidavit stating that the deceased was a joint tenant in the Fractional Interest. (c) No Day Use. Except to the extent of use and access privileges available to the general public, Club Owners and their Permitted Users shall only be permitted to access and use the Common Elements and the Club Property while in residence at an Assigned Club Unit unless otherwise permitted by the Club Association Board and, with respect to portions of the Resort that are not Club Property, the Resort Association Board. As a result, no Network Member may occupy a Club Unit or use any facilities of the Club Property except during such period as the Network Member has properly reserved the Club Unit in accordance with the Club Governing Instruments and/or the Network Documents. Use, of the Club Units and the recreational facilities of the Club Regime is limited strictly to the period of reserved occupancy, and solely to the personal use of Club Owners, their guests, invitees, lessees, Network Users, External Exchange Users and other entities owning Fractional Interests. DMWEST #7274549 v5 9 3.2 Use of Club Units. Notwithstanding the specific Club Unit in which a Club Owner has a Fractional Interest, it is the express intent of this Residence Club Declaration, which intent is consented to by each Club Owner through acceptance of a conveyance hereunder, that, during the term of the Project Affiliation Agreement, all Club Units shall be available for use by all Network Members in this Club Regime and in all other Network Projects, if any, at all times on a first come first served reservation basis, subject to the priority rights of Club Owners and other provisions set forth in the Club Rules and Regulations, and the Network Rules. Owners of Network Fractional Interests at other Network Projects shall be entitled to utilize the Club Units subject to the priority rights and other provisions set forth in, the applicable Network Documents. 3.3 Assignment of Reservation Rights to Network. The Club Association, through the Project Affiliation Agreement, has affiliated the Club Regime with the Network, which is operated and administered by Network Manager, providing Club Owners the right to use and occupy accommodations at other Network Projects and Network Users to use and occupy Club Units pursuant to the terms of the Network Documents. 3.4 Occupancy. No Club Owner nor the Club Owner's Permitted Users shall occupy any Club Unit or exercise any other rights of ownership with respect to any Club Unit other than the rights provided to him, her or it in this Club Declaration. Each Club Owner shall keep the Assigned Club Unit occupied by him, her or it and the Club Furnishings therein in good condition and repair during his, her or its Use Period(s), vacate the Assigned Club Unit at the expiration of his, her or its Use Period(s), remove all persons and property therefrom (excluding only the Club Furnishings), leave the Assigned Club Unit and the Club Furnishings therein in good and sanitary condition and repair and otherwise comply with such check out and other procedures and regulations as may from time to time be contained in the Club Rules and Regulations and /or the Network Rules. Any Club Owner may permit his, her or its Assigned Club Unit for Primary Use Time to be occupied by such Club Owner's Permitted Users (not in excess of the number of occupants permitted by the Club Rules and Regulations) for the purposes permitted by this Club Declaration during his Use Period(s) without the Owner of Record or a Designated User in residence, but such Club Owner shall be responsible for any loss, damage, destruction or violation of this Club Declaration, the Club Rules and Regulations or the Network Rules (except on the part of a Network User or External Exchange User) which occurs during such occupancy as if such Club Owner were occupying the Assigned Club Unit. 3.5 Rental and Occupancy Plans. (a) Restrictions on, Rental and Occupancy Plans. Notwithstanding anything herein to the contrary, the Club Rules and Regulations or Network Rules may contain provisions that may limit or restrict the right of Club Owners to allow use of a Club Unit by a guest unaccompanied by the Owner of Record or a Designated User. The Club Rules and Regulations or Network Rules may specifically prohibit Club Owners from advertising, promoting or publicizing any Fractional Interest(s) to the general public for rent or listing any Fractional Interest(s) with a rental agency or real estate broker for rental purposes. For further clarity, the rental by Club Owners of their Fractional Interests shall be permitted only with respect to rentals to the general public conducted by a Club Owner directly or through a rental agent, in strict accordance with the Resort Rules and Regulations and the Club Rules and Regulations, and shall exclude the use or occupancy of Club Units under any other timeshare, fractional ownership, DMWEST #7274549 v5 10 interval exchange or other membership plans or arrangements (collectively, "Occupancy Plans ") through which a participant in the plan or arrangement acquires an ownership interest in the Club Unit with attendant rights of periodic use and occupancy or acquires contract rights to such periodic use and occupancy of the Club Unit or a portfolio of accommodations including the Club Unit; provided the foregoing prohibition shall not apply to any Occupancy Plan established by Declarant, Hotel Owner or Hotel Manager or any of their respective affiliates and managed by Hotel Owner or Hotel Manager or any of their affiliates. Except as specifically permitted by this Section 3.5(a), use of any Club Unit for or under such Occupancy Plans is "commercial use" of that Club Unit and therefore is strictly prohibited. Rentals are subject to an "Access Fee" as defined and further described in Section 3.9 of the Resort Declaration. (b) Rental. Pursuant to its reserved Development Rights, Declarant may rent Club Units and Fractional Interests to the general public for its own account or for the account of Club Owners who have executed a rental agreement with Declarant or Hotel Owner in the form acceptable to Declarant or Hotel Owner, all as more particularly described in any rental program materials prepared by Declarant or Hotel Owner in connection therewith. Declarant, on behalf of itself and its successors, assigns, agents, employees, contractors, subcontractors and other authorized personnel, reserves the exclusive right in, over and through the Club Property for the purpose of conducting rental activities under this Section 3.5(b) as an additional Development Right; provided, however, the exercise of such right shall not unreasonably interfere with the Club Association's use of the Club Property as necessary to perform its duties and obligations pursuant to this Club Declaration and the Governing Instruments or the rights of Club Owners to use and occupy an Assigned Club Unit during such Club Owner's Primary Use Time or Privilege Use Time in accordance with the Club Rules and Regulations and /or the Network Rules. 3.6 Failure to Vacate. A Detaining User shall (a) be subject to immediate removal, eviction or ejection from the Club Unit wrongfully used or occupied; (b) be deemed to have waived any notice required by law with respect to any legal proceedings regarding removal, eviction or ejection; (c) reimburse the Club Association and the Detained User for all costs and expenses incurred by the Club Association and the Detained User as a result of such conduct, including, but not limited to, costs of alternate accommodations, travel costs, court costs and reasonable attorneys' fees incurred in connection with removing, evicting or ejecting the Detaining User from such Club Unit and costs (including reasonable attorneys' fees) incurred in collecting such reimbursement(s); and (d) pay to the Detained User, as liquidated damages (in addition to the costs and expenses set forth in clause (c), above), a sum equal to 200% of the Fair Rental Value per day of the Club Unit for each day or portion thereof, including the day of surrender, during which the Detaining User prevents use and occupancy of the Club Unit; provided, however, that if the Detaining User is a Network User or External Exchange User, the Club Owner whose Assigned Club Unit or part thereof or whose Use Period or part thereof was used by the Network User or External Exchange User shall have no liability pursuant to the provisions of clauses (c) and (d) above. The Club Association shall be responsible for determining, in its sole and absolute discretion, the Fair Rental Value of a Club Unit. The Club Association shall use reasonable efforts to attempt to remove a Detaining User from the Club Unit, and/or to assist the Detained User in finding alternate accommodations during such holdover period and to secure, at the expense of the Club Association, alternate accommodations for any Detained User which alternate accommodations shall be as near in DMWEST #7274549 v5 1 1 value to such Club Unit or part thereof as possible, and the cost thereof shall be assessed to the Detaining User (unless the Detaining User is a Network User or External Exchange User) as a Default Assessment. In the event that the Club Association, in its sole discretion, deems it necessary to contract for a period greater than the actual period for which the use is prevented in order to secure alternate accommodations as set forth above, the cost of the entire period shall be assessed to the Detaining User (unless the Detaining User was a Network User or External Exchange User) as a Default Assessment. By accepting an Original Deed or any other transfer of a Fractional Interest, each Club Owner agrees that, in the event of wrongful occupancy or use by the Club Owner or his, her or its Permitted User, damages would be impracticable or extremely difficult to ascertain and that the measure of liquidated damages provided for herein constitutes fair compensation to those who are deprived of occupancy. If a Club Owner or his, her or its Permitted User, by intentional or negligent act or omission, damages or renders a Club Unit or any Club Furnishings, or any part thereof uninhabitable or unusable for all or any portion of any Use Period, then (i) such Club Owner shall be deemed a Detaining User, (ii) the foregoing provisions of this Section 3.6 shall apply and (iii) such Club Owner shall be liable to the Club Owner(s) and/or Permitted User(s) entitled to occupy or use such Club Unit or part thereof during such subsequent Use Period(s) just as if such Club Owner had refused to vacate the Club Unit, or part thereof at the end of his, her or its Use Period(s). For the purposes of this Section 3.6, the act or negligence of a Permitted User shall be deemed to be the act of the applicable Club Owner. 3.7 Use Restrictions. The maximum occupancy of any Club Unit shall be as provided in the Club Rules and Regulations. Except as required to prevent damage or injury to persons or property in an emergency, no Club Owner shall make or authorize any alterations, additions or improvements to the Club Unit or to the Resort or any portion thereof (including, but not limited to, any personal property which constitutes a part of the Resort), or alter any Club Unit which such Club Owner may from time to time occupy, or remove, alter or replace any portion of the Club Furnishings. It is the obligation of the Club Association to perform all of the foregoing acts with respect to the Club Property pursuant to Article 5 of this Club Declaration, subject to the rights of the Resort Association in accordance with the Resort Declaration. The foregoing prohibitions, however, shall not modify or affect the obligation of each Club Owner to exercise prudent care and ordinary maintenance and upkeep of all property subject to his, her or its use during periods of occupancy. Each Club Owner by accepting an Original Deed or any other transfer of a Fractional Interest hereby covenants and agrees to abide by the Resort Rules and Regulations, the Club Rules and Regulations and the Network Rules. Use and occupancy of the Club Property is limited to private, residential use, whereby the Club Units are occupied only as vacation accommodations, pursuant to procedures for reserving use by Club Owners, Permitted Users, Network Users, External Exchange Users and any non - residential, for - profit or commercial use of the Club Property by any Club Owner, Permitted User, Network User or External Exchange User is prohibited. 3.8 Use of Intellectual Property. Notwithstanding any contrary provision of this Club Declaration or the other Governing Documents: DMWEST #7274549 v5 1 (a) no Club Owner shall have the right, license or ability (or otherwise through the purchase or ownership of a Fractional Interest acquire any entitlement) to use any trade name, trademark or service mark associated with the Hotel or Hotel Manager. Each Club Owner, by his, her or its acceptance of a deed to a Fractional Interest, acknowledges that the name by which the Hotel Business, the Hotel Component, the Club Component or any other portion of the Resort is referred to may be changed from time to time to be compatible with the trademark or service mark associated with the Hotel; and (b) no Club Unit or Fractional Interest may be identified or affiliated in any way with any hotel "flag" (that is, the brand name of any hotel management or franchise company, such as Ritz - Carlton, or St. Regis), other than the brand name (if any) by which the Hotel Business is identified. 3.9 Additional Declarant's Rights. (a) Sales, Re -sales and Related Purposes. Declarant, for itself and its successors, assigns, agents, employees, contractors, subcontractors and other authorized personnel, reserves, for a period commencing on the Starting Date and terminating fifteen (15) years following the Starting Date, the exclusive right in, over and through those portions of the Club Property as reasonably required by Declarant, (1) to market and sell the Club Units and Network Fractional Interests at other Network Projects or other fractional plans developed or marketed by the Declarant from time to time, including, but not limited to, showing of the, property and the display of promotional devices; (2) to maintain customer relations and provide post -sales service to Club Owners, their Permitted Users, Network Users and External Exchange Users; (3) to display signs and to erect, maintain and operate, for sales and administrative purposes, model units and a customer relations, customer service and sales office complex within the Club Property; (4) to use any Club Unit in which Declarant owns all Fractional Interests therein as a model unit or for other purposes (i.e., such Club Unit will not be available for reservation or use by Club Owners); and (5) to show the Club Units. The exercise of such rights shall not unreasonably interfere with the Club Association's use of the Club Property as necessary to perform its duties and obligations pursuant to this Club Declaration and the other Club Governing Instruments or the rights of Club Owners to use and occupy the Club Units as permitted hereby, by the Club Rules and Regulations, Network Rules and by the other Governing Instruments. The rights granted under this Section 3.9(a) shall include, without limitation, the right of Declarant and Hotel Owner to enter unoccupied Club Units in connection with sales and resales of Fractional Interests. (b) Conveyance of Property to the Club Association. Declarant shall convey any personal property located in the Club Component (other than the Club personal property within the Club Units which shall be conveyed at the closing of sale of the first Fractional Interest in each Club Unit) to the Club Association prior to the expiration of Declarant Control and may do so at any time upon not less than thirty (30) days written notice to the Club Association Board, provided that any such property shall be free of monetary encumbrances as of the date of such conveyance. DMWEST #7274549 v5 13 3.10 Reservation of Development Rights. (a) Expansion Rights. Declarant expressly reserves the right to subject all or any part of the Development Land (the "Expansion Property ") to the provisions of this Club Declaration. The consent of the existing Unit Owners, Mortgagees or other holders of security interests in any portion of the Development Property shall not be required for any such expansion, and Declarant may proceed with such expansion without limitation at its sole option. In addition, Declarant also expressly reserves the right to add unspecified portions of the Resort owned by Declarant to the Club Component as allowed by the Act. Additional development rights not previously reserved may be reserved within all or any portion of the Expansion Property as allowed by the Act (collectively, the "Expansion Rights "). (b) Development and Withdrawal Rights. Declarant expressly reserves the right: (i) to create Club Units, limited common elements (as such term is defined under the Act) and Common Elements (collectively, the "Additional Improvements "); (ii) to combine Club Units (in which no Fractional Interests have been sold); (iii) to subdivide Club Units (in which no Fractional Interests have been sold); (iv) to rent Club Units; (v) to subject Club Units (in which no Fractional Interests have been sold) to Occupancy Plans; (vi) to convert Club Units (in which no Fractional Interests have been sold) into Common Elements; (vii) to convert Common Elements into Club Units; (viii) to grant easements over portions of the Resort as are necessary or desirable to construct, operate, maintain or repair the Resort; and (ix) to allocate any portion of the Resort owned by Declarant or easements thereover as Common Elements or limited common elements or designate it for business or commercial uses in accordance with applicable Law (collectively, the "Development Rights "). Declarant may exercise any or all of the Development Rights so reserved at any time with respect to all or any of the Resort designated as subject to Development Rights in this Declaration. No assurances are made with respect to the boundaries of any portions of the Resort that may be developed or the order in which the such portions of the Resort may be developed. Exercise of a Development Right with respect to any portion of the Resort does not require exercise of a Development Right on any other portion of the Resort subject to Development Rights. No assurances are made, however, that any further development will occur. If all or any part of the Expansion Property is submitted to this Declaration, the right to reserve property for future development shall apply to such property as well. Declarant expressly reserves the right to withdraw all or any portion of the Club Component owned by Declarant from the Club Component by recording a document evidencing such withdrawal in the Office of the County Recorder (the "Withdrawal Rights "). The portion of the Club Component withdrawn shall be subject to whatever easements, if any, are reasonably necessary for access to or operation of the Club Component. Declarant shall prepare and record in the Office of the County Recorder whatever documents are necessary to evidence such easements and shall amend the Club Map to include reference to the recorded easement. (c) Termination of Expansion and Development Rights. The Expansion Rights, Development Rights and Withdrawal Rights reserved to Declarant for itself, its successors and assigns, shall expire one hundred (100) years after the date of recording this Declaration in the Office of the County Recorder. Declarant may at any time release and relinquish some or all of the Expansion Rights, Development Rights and /or Withdrawal Rights with respect to all or any part of the Real Estate subject to such rights by instrument executed by Declarant and effective when recorded in the Office of the County Recorder. Upon the DMWEST #7274549 v5 14 expiration or other termination of the Expansion Rights, Development Rights and /or Withdrawal Rights, any portion of the Resort that is then subject to such rights and that is not already defined as part of the Resort Common Areas, Hotel Component, Private Residence Component or Club Component, shall become Resort Common Areas or Units, as applicable. (d) Interference With Expansion or Development Rights. Neither the Club Association nor any Club Owner may take any action or adopt any rule or regulation that will interfere with or diminish any Expansion Rights, Development Rights and /or Withdrawal Rights reserved by this Section 3.10 without the prior written consent of Declarant. (e) Transfer of Expansion or Development Rights. Any Expansion Rights or Development Rights created or reserved under this Section 3.10 for the benefit of Declarant may be transferred to any person by an instrument expressly describing the rights transferred in whole or in part and recorded in the Office of the County Recorder. Such instrument shall be executed by Declarant and the transferee. 3.11 Club Association Easements. (a) Grant of Easement to the Club Association. The Club Association, for itself, its successors and assigns, and its and their agents, employees, contractors, subcontractors, and other authorized personnel, shall have the right and is hereby granted, for so long as the Club Association or its successors and assigns shall be required hereunder to manage and maintain the Club Property, a non - exclusive easement in gross in, over and through the Club Property for the management, operation, repair and maintenance of the Club Property; provided, however, that use of such easement shall not (A) unreasonably interfere with or diminish the rights of Club Owners, their Permitted Users, Network Users, External Exchange Users, Hotel Owner and its Permitted Users to occupy the Club Units, (B) unreasonably interfere or diminish the rights of Club Owners, Network Users, External Exchange Users or Permitted Users to use the Common Elements, or (C) unreasonably interfere with or diminish the rights of Resort Association or Hotel Owner under this Club Declaration and the Resort Declaration. In amplification and not in limitation thereof, the Club Association and its respective successors and assigns shall have the right at any reasonably necessary time, whether or not in the presence of the Club Owner thereof, to enter upon any Club Unit for the purpose of (1) making emergency repairs therein, (2) abating any nuisance or any dangerous, unauthorized, prohibited or unlawful activity being conducted or maintained in such Club Unit, (3) protecting property rights and welfare of any Club Owner, Permitted User, Network User or External Exchange User, (4) maintaining or repairing the topside and underside of the horizontal surfaces and the interior of the vertical surfaces of the balconies and patios contiguous and related to each Club Unit, or (5) for any other purpose reasonably related to the performance by the Club Association of its duties and obligations under the terms of this Club Declaration. Such right of entry shall be exercised in such a manner as to avoid any unreasonable or unnecessary interference with the possession, use and enjoyment of the rightful occupant of such Club Unit and shall be preceded by reasonable notice to such occupant in the event of entry into a Club Unit, whenever the circumstances permit; provided, however, the use of such easements shall not unreasonably interfere with the rights of Club Owners to use and occupy their Assigned Club Units. DMWEST #7274549 v5 15 (b) Easement for Operation of Exchange Program. Network Manager, for itself, its successors and assigns, and its and their agents, employees, contractors, subcontractors and other authorized personnel shall have the right and is hereby granted a non - exclusive easement in, over and through the Club Property for the purpose of providing accommodations to Network Members and for the operation of the Network in accordance with the Network Rules. In amplification and not in limitation thereof, the use of such easement (i) shall not interfere with the ability of Club Owners to make reservations for Primary Use Time during that period reserved therefor to Club Owners in accordance with the Club Rules and Regulations other than as specifically set forth in the Club Rules or the Network Rules, and (ii) shall not interfere with the Club Association's use of the Club Property as necessary to perform its duties and obligations hereunder and pursuant to the Club Rules and Regulations. In accordance with the Network Rules, Network Manager shall have the ability to release unreserved Primary Use Time owned by Club Owners to the Network in accordance with the Network Rules. (c) Club Owners' Reciprocal Easements. In order to permit the use and occupancy of all Club Units and the other Club Property in accordance with the provisions of this Club Declaration, the Club Rules and Regulations and the Network Rules, each Club Owner shall have and is hereby granted a non - exclusive easement over the Club Property; provided, however, use of the Club Property and use and occupancy of the Club Units shall be in accordance with this Club Declaration, the Club Rules and Regulations and the Network Rules (d) Easements Granted by the Club Association. The Club Association shall not grant any easement, license or new use right to, over or within the Club Property without the express written consent of the Resort Association. 3.12 Covenants Running With the Land. Each of the easements provided for in this Club Declaration shall be deemed to be established upon the recordation of this Club Declaration, and shall thenceforth be deemed to be covenants running with the land burdening the Club Component and for the use and benefit of the Club Association, the Resort Association, the Fractional Interests and the Club Owners thereof, whether or not such easements are set forth in the Original Deeds to the Fractional Interests or any other subsequent conveyance of a Fractional Interest. Each easement set forth herein shall survive the termination of this Club Declaration. 3.13 Separate Mortgages. Each Club Owner shall have the right to mortgage or otherwise to encumber all, but not less than all, of such Club Owner's Fractional Interest. Subject to the provisions of Article VII of this Club Declaration, any Mortgage shall be subordinate to all of the provisions of the Governing Instruments and Network Documents and, in the event of foreclosure, the provisions of the Governing Instruments and Network Documents shall be binding upon any Club Owner whose title is derived through foreclosure by private power of sale, judicial foreclosure or otherwise. Notwithstanding any other provision of the Governing Instruments or Network Documents, no breach of the provisions herein contained, nor the enforcement of any lien created pursuant to the provisions hereof, shall impair, defeat or render invalid the priority of the lien of any Prior Mortgage encumbering a Fractional Interest or encumbering Hotel Owner's interest in the Resort. DMWEST #7274549 v5 16 3.14 Subordination and Partition of Tenancy -in- Common Attributes. (a) Subordination. It is intended that this Club Declaration and all documents promulgated hereunder and, if applicable, the Resort Declaration and all documents promulgated thereunder, shall govern all rights with respect to the use, possession, enjoyment, management and disposition of the Fractional Interests. Accordingly, all rights with respect to the use, possession, enjoyment, management or disposition of a Fractional Interest or Club Unit which a Club Owner might otherwise have as a tenant -in- common (including, but not limited to, any common law or statutory right jointly to use, possess or manage commonly owned Club Property) are hereby unconditionally and irrevocably subordinated to this Club Declaration and any documents promulgated hereunder, and to the Resort Declaration and all documents promulgated thereunder, for so long as this Club Declaration, any documents promulgated hereunder, or the Resort Declaration and all documents promulgated thereunder, respectively, shall remain in effect; provided, however, that in the event that an election to terminate this Club Declaration is made pursuant to Section 12.2 of this Club Declaration, a Club Owner shall have the rights specified in such Section. (b) Partition. Except as provided in Section 12.2 of this Club Declaration, no Club Owner, Mortgagee or other person or entity acquiring any right, lien or interest in the Club Property shall seek or obtain, through any legal procedures, judicial partition of a Fractional Interest, a Club Unit, the Club Property or the Common Elements or the sale thereof in lieu of partition. If, however, any Fractional Interest is owned by two (2) or more persons as tenants -in- common or as joint tenants or as husband and wife, nothing herein contained shall prohibit a judicial sale of such Fractional Interest in lieu of partition as between such interest holders. 3.15 Transfer of Fractional Interest. Each Fractional Interest shall constitute an estate in real property separate and distinct from all other Fractional Interests in the same Club Unit and the other Club Units, which estate may be separately conveyed and encumbered subject to this Section 3.15. No Club Owner shall sell, assign, transfer, hypothecate or encumber less than all of his interest in his Fractional Interest; provided, however, that nothing herein contained shall restrict the manner in which title to the Fractional Interest may lawfully be held under Colorado law (e.g., joint tenants, tenants -in- common, or the like). Any sale, assignment, transfer, hypothecation or encumbrance by any Club Owner of less than all of his, her or its interest in his, her or its Fractional Interest shall be null, void and of no effect. Notwithstanding anything to the contrary in this Section 3.15. Declarant, as to Fractional Interests owned by Declarant, reserves as a special Declarant right the right to divide or combine any Fractional Interests and to sell, assign, transfer, hypothecate or encumber Fractional Interests of any size. 3.16 Protection of Interest. Except as provided in Section 3.13 of this Club Declaration, no Club Owner shall permit such Club Owner's Fractional Interest to be subject to any lien (other than the liens of current Taxes), claim or charge, the enforcement of which may result in a sale or threatened sale of a Club Unit or of a Fractional Interest of any other Club Owner or in any interference in the use or enjoyment of the Club Property by any other Club Owner. In the event of a threatened sale of the Club Property, or the Club Unit or any part thereof; or should the use and enjoyment of any portion thereof by any Club Owner be threatened by reason of any lien, claim or charge against the Fractional Interest of any other Club Owner (the "Club Owner in Violation "), or should proceedings be instituted to effect any such DMWEST #7274549 v5 17 sale or interference, any Club Owner (as used in this Section 3.16, the "Curing Club Owner ") acting on his, her or its own behalf or through the Club Association, or the Club Association acting on behalf of any one or more Club Owners (if promptly indemnified to its satisfaction) may, but shall not be required to, pay or compromise the lien, claim or charge without inquiry into the proper amount or validity thereof and, in such event, the Club Owner in Violation shall forthwith pay the amount so paid or expended to the Curing Club Owner or the Club Association, whosoever shall have paid or compromised the lien, claim or charge, together with such reasonable attorneys' fees and related costs as the Curing Club Owner or the Club Association may have incurred. No Club Owner shall permit his, her or its interest in any funds from time to time in possession of the Club Association to be subjected to any attachment, lien, claim or charge or other legal process and each Club Owner shall promptly restore any funds held by the Club Association to the extent depleted by the reason of the assertion of any such attachment, lien, claim, charge or other legal process and shall reimburse the Club Association for all reasonable attorneys' fees or other costs incurred in respect thereof. 3.17 Compliance With Laws. No Club Owner or such Club Owner's Permitted Users shall permit anything to be done or kept within the Club Property or within any other portion of the Resort which violates any Laws. 3.18 No Increased Insurance. Nothing shall be done or kept in any Club Unit or within any other portion of the Club Property which will increase the rate of insurance on the Club Association without the prior written consent of the Club Association Board. No Club Owner shall permit anything to be done or kept in his, her or its Club Unit, or do or place anything within the Club Property, which would result in the cancellation of insurance of the Club Association. 3.19 Antennae and Exterior Appliances. No Club Owner or Permitted User shall erect, attach or cause to be erected or attached, any item, including but not limited to towers, antennae, aerials, dishes, reflectors or other facilities for the reception or transmission of radio or television broadcasts or other means of communication, or wiring for electrical or telephone installation, television antennae, security systems, machines, bird feeders or decorative items, air conditioning units or appliances, on the exterior of, or that protrude through the walls or roof of, the Resort without the prior written consent of the Club Association, which shall not grant such consent without the prior written consent of the Resort Association Board, which consent may be withheld for any reason. Notwithstanding anything to the contrary contained herein, the Club Association shall not prohibit any use or activity at a Club Unit or at the Club Component that are expressly required to be permitted by the Act (such as displaying certain flags and political signs), if any. ARTICLE IV THE CLUB ASSOCIATION 4.1 Membership in Club Association. Each Club Owner shall be a Club Association Member and shall remain a Club Association Member until such Club Owner ceases to be a Club Owner. DMWEST #7274549 v5 18 4.2 Transfer of Membership in the Club Association. The membership of each Club Owner in the Club Association is appurtenant to and inseparable from his, her or its ownership of a Fractional Interest and shall be automatically transferred upon any effective assignment or transfer of the ownership of his, her or its entire Fractional Interest to any assignee or transferee and such membership shall be nontransferable whether by gift, bequest or otherwise. 4.3 Voting in the Club Association. Voting in the Club Association shall be in accordance with the provisions of the Club Articles and the Club Bylaws. 4.4 Declarant Control of the Association. There shall be a Period of Declarant Control of the Club Association, during which Declarant, or persons designated by Declarant, may appoint and remove the members of the Club Association Board. The Period of Declarant Control shall commence upon filing of the Resort Articles and shall terminate no later than the earlier of: (a) sixty (60) days after conveyance of seventy -five percent (75 %) of the Club Units that may be created to purchasers other than Declarant; (b) two (2) years after the last conveyance of a Club Unit in the ordinary course of business; or (c) two (2) years after any right to add new Club Units was last exercised. Declarant may voluntarily surrender the right to appoint and remove officers and members of the Club Association Board before termination of that period, but in that event Declarant may require, for the duration of the Period of Declarant Control, that specified actions of the Resort Association or Club Association Board, as described in a recorded instrument executed by Declarant, be approved by the Declarant before they become effective. For purposes of this Section 4.4, a Club Unit shall be deemed conveyed to a Non - Declarant Club Owner after conveyance of 100% of the Fractional Interests in the Club Unit. 4.5 Board of Directors. During the Period of Declarant Control, the Club Association Board shall consist of three persons appointed by Declarant. After the expiration or termination of the Period of Declarant Control the members of the Club Association Board shall be selected in accordance with the Club Bylaws; provided that within sixty (60) days after the conveyance of twenty -five (25 %) of the Club Units to Club Owners other than Declarant at least one (1) Director shall be elected by Members other than Declarant and not later than the termination of the Period of Declarant Control, two (2) Directors shall be elected by Members other than Declarant. ARTICLE V MANAGEMENT 5.1 Allocation of Maintenance and Repair Obligations. (a) The Club Association's Obligations. The Club Association shall have the primary obligation and liability to (i) maintain the Club Property including, but not limited to, Club Units as well as all items that comprise the Club Units or that are contained therein or that DMWEST #7274549 v5 19 exclusively service the Club Units in compliance with all applicable Laws and in good order, condition and repair and in accordance with the Resort Quality Standard, and (ii) to clean and maintain on a regular basis the topside of the horizontal surfaces and the interior of the vertical surfaces of the balconies and patios contiguous and related to the Club Units (i.e., to keep such areas in a clean, attractive and sanitary condition and keep free from rubbish and litter) and in accordance with the Resort Quality Standard. The Club Association shall also have the primary obligation and liability to administer to the affairs of the Club Owners and to maintain and repair portions of the Club Component that are neither Club Units nor Common Elements, if any, and any personal property, including the Club Furnishings owned by the Club Association from time to time in accordance with the Resort Quality Standard. (b) Items Comprising a Club Unit or Contained Therein or Servicing such Unit. In avoidance of doubt, the following is intended to clarify what "comprises" a Club Unit or what is "contained" in or what "exclusively services" such Club Unit for the purposes of Section 5.1(a): First, all items that are included within the definition of "Unit" shall be deemed to "comprise" a Club Unit, and all items that are "excepted" from such definition of "Unit" (e.g., as such term is currently defined, (1) the bearing walls, windows and window frames, exterior door and door frames, columns, exterior floors, roofs, railings, fences, foundation slabs, exterior wall surfaces and central services, pipes, ducts, chutes, and flues, conduits, wires and other utility installations wherever located within each such Unit, and (2) all balconies and patios contiguous and related to each such Unit) shall not be deemed to "comprise" a Club Unit. Second, all F &E and all Club Furnishings that are located entirely or partially within a Club Unit (for example, an exhaust fan located in a bathroom of a Club Unit, the cover of which is within the Club Unit but the motor of which extends into the attic space above the ceiling of the Club Unit, is deemed to be within the Club Unit in which it is located) shall be deemed to be "contained" in such Unit. Third, all equipment located within the walls, floors or ceilings immediately contiguous to a Club Unit and exclusively serving such Club Unit shall be deemed to "exclusively service" such Club Unit (e.g., a fan coil unit, fuse box and smoke and fire system dedicated to but not located within a Club Unit). In furtherance of the foregoing, all of the following shall expressly not be deemed to "comprise" or be "contained" in or "exclusively service" a Club Unit: (i) all equipment that does not exclusively serve a single Club Unit (e.g., multiple fan cooling unit, hot water circulating pump, fire protection system, roofs, elevators, hallways, fire escape stairs, railing and fences, foundations and slabs, each of which serves more than one Club Unit); (ii) all items not within a Club Unit which are part of the physical structure that creates and /or supports a Club Unit (e.g., studs, beams, fasteners, connectors, nails, screws, nuts bolts, junction boxes, insulation, exterior siding, pipes, ducts, chutes, flues, conduits, sub - floors, ceilings and drywall, exterior doors and windows); and (iii) all items which are part of a utility distribution system (e.g., water lines, sewer pipes, ducts and vents, electrical lines, connectors and boxes, and gas lines). For clarification, the items in this category are part of a system that delivers utilities to a Club Unit, but do not include the fixture or other items designed to operate when certain utilities are delivered through such system (e.g., an exhaust fan or light fixture). DMWEST #7274549 v5 20 Notwithstanding the foregoing, all items not deemed to "comprise" or be "contained" in a Club Unit under the foregoing provisions that require repair as a result of prior alterations or other actions by the Club Association shall also be the responsibility of the Club Association to repair (e.g., if the Club Association is installing shelving in a Club Unit and in so doing damages electrical wires within the wall of such Club Unit, if the Club Association removes or modifies a water line within the walls of a Club Unit and in so doing damages such water lines, or if the Club Association causes the plumbing to back up, then the Club Association shall be responsible for repairing the damaged electrical wires, repairing the altered water line (if it ever requires repair), and cleaning out the plumbing). 5.2 Specific Powers and Duties of the Club Association. The Club Association, acting alone (through the Club Association Board, its officers, or other duly authorized representatives) may, subject to the provisions of the Club Governing Instruments and Network Documents (for as long as the Network Documents apply to the Club Regime), exercise any and all rights and powers herein enumerated and, except as specifically limited herein, all the rights and powers of a non - profit corporation under the laws of the State of Colorado. The following powers and duties are in amplification and not in limitation of the foregoing powers: (a) Bank Accounts. The Club Association shall have the power and duty to establish and maintain a General Account and a Reserve Account, and to deposit therein all funds collected by the Club Association from the Club Association Members in connection with its rights and duties hereunder as follows: (i) All funds shall initially be deposited in a General Account. Funds deposited in a General Account may be used by the Club Association only for the purposes for which such funds have been collected. (ii) Within ten (10) days after deposit in a General Account, all amounts collected for Club Reserve Expenses shall be deposited in a Reserve Account. The Club Association shall keep accurate books and records reflecting the amount in such Reserve Account. Funds deposited in such Reserve Account shall be held in trust and, except in an emergency, may be used by the Club Association only for the specific purposes for which such funds have been collected. Funds held in such Reserve Account and used in an emergency shall be replaced in such Reserve Account as soon as practicable after the date upon which emergency arose but in no event later than the end of the Fiscal Year immediately following the Fiscal Year in which such emergency occurred. Interest, if any, earned on Reserve Account funds shall be accumulated therein and shall be used only for payment of Club Reserve Expenses and any taxes incurred by the Club Association as a result of the earning of such interest. (b) Delegation of Powers - Employment of Agents. The Club Association shall have the power and duty to delegate the authority and responsibilities of the Club Association hereunder to one or more agents, including, without limitation, the Club Association Manager as provided for in Section 5.3 of this Club Declaration, and the power to employ the services of any person or corporation as Club Association Manager (in accordance with Section 5.3), or other employees as may be directed by the Club Association Board, to manage, conduct, and perform the business, obligations and duties of the Club Association in accordance DMWEST #7274549 v5 21 , with the Resort Quality Standard. In accordance with Section 38- 33.3 -220 of the Act and to the maximum extent permitted under the Act, the Club Association hereby reserves the right to delegate any or all of its powers under this Club Declaration to the Resort Association. (c) Club Association Budgets and Financial Statements. The Club Association shall have the power and duty to cause to be regularly prepared Club Association Budgets and financial statements for the Club Association and copies thereof to be distributed to all Club Association Members as follows: (i) Within ninety (90) days after adoption of any Club Association Budget, a summary of the Club Association Budget shall be distributed by ordinary first - class mail or by such other means of transmission as permitted by applicable Law, to Club Owners and the Club Association Board shall schedule a meeting of the Club Association to, among other things, consider the Club Association Budget. Such meeting shall be scheduled, in accordance with the Club Bylaws, after the distribution of the Club Association Budget but before the beginning of the Fiscal Year. The Club Association Budget will be deemed approved by the Club Association Members unless vetoed at a noticed meeting by the Club Association Members holding at least two - thirds of the voting interests in the Club Association as determined in accordance with the Unit Allocated Interests, whether or not a quorum is present. In the event that the proposed Club Association Budget is vetoed, the periodic Club Association Budget last proposed by the Club Association Board and not vetoed by the Club Association Members shall continue to apply to the current period, as Indexed, until a subsequent Club Association Budget proposed by the Club Association Board is not vetoed by the Club Association Members in accordance with the preceding sentence. The Club Association Budget shall contain at least the following information: (A) Estimated revenue and expenses on an accrual basis or any other method as determined by the Club Association or its accountants; (B) A summary of the total cash reserves of the Club Association currently available for replacement or major repair of common facilities for which the Club Association is wholly or partially responsible and for contingencies, which summary shall be based on the most recent review or study conducted in accordance with Section 5.2(u) and which shall include all the current estimated replacement cost, estimated remaining life, and estimated useful life of each major component of such common facilities. (ii) A Club Annual Report shall be distributed within ninety (90) days after the end of each Fiscal Year by such means of transmission as permitted by applicable Law. The Club Annual Report may be prepared by a certified public accountant. If the Club Annual Report is not prepared by such an accountant, the Club Annual Report shall be prepared by the Club Association Manager or by an officer of the Club Association and shall be accompanied by the certificate of the person preparing the Club Annual Report that the Club Annual Report was prepared without audit from the books and records of the Club Association. In lieu of the distribution of the Club DMWEST #7274549 v5 22 Association Budget and the Club Annual Report, the Club Association Board may elect to distribute a summary of the Club Association Budget and the Club Annual Report. (iii) The Club Association shall have the power and duty to open, at any reasonable time during usual business hours, the books and records of the Club Association for inspection by any Club Association Member or Declarant's Mortgagee upon the written demand by such Club Association Member or Declarant's Mortgagee; provided, however, that the Club Association shall be obligated to open its books and records for inspection by a Club Association Member only if the Club Association Member requests such inspection for a purpose reasonably related to the Club Association Member's interests as a Club Association Member. The inspection may be made in person or by an agent or attorney and shall include the right to copy and make extracts. (iv) The Club Association Board shall have the power and duty to establish reasonable rules with respect to (A) notice to be given to the custodian of records by a the person desiring to make the inspection; (B) hours and days of the week when such an inspection may be made; and (C) payment of the cost of reproducing copies of documents requested by a Club Association Member or the Declarant's Mortgagee. (v) Subject to the provisions of Section 5.2(c)(iii) and Section 5.2(c)(iv), each member of the Club Association Board shall have the absolute right at any time to inspect all books, records and documents of the Club Association and the physical properties owned or controlled by the Club Association. The right of inspection by a member of the Club Association Board includes the right to make extracts and copies of documents. (d) Insurance - Club Association. (i) The Club Association shall have the power and duty to obtain and pay the cost of insurance in accordance with Section 11.1. (ii) To the extent required under applicable Law, the Club Association shall prepare and distribute to its Members a summary of the Club Association's insurance policies, which shall be distributed to its Members within sixty (60) days of the beginning of the Fiscal Year. (iii) The Club Association shall, as soon as reasonably practical, notify its Members by first -class mail (or by such other means of transmission as permitted by applicable Law) if any of the policies described in Section 5.2(d)(ii) has lapsed, been canceled, and is not immediately renewed, restored, or replaced, or if there is a significant change, such as a reduction in coverage or limits or an increase in the deductible, as to any of those polices. If the Club Association receives any notice of nonrenewal of a policy described in Section 5.2(d)(ii), the Club Association shall immediately notify its Members if replacement coverage will not be in effect by the date the existing coverage will lapse. DMWEST #7274549 v5 23 (iv) To the extent that any of the information required to be disclosed pursuant to Section 5.2(d)(ii) is specified in the insurance policy declaration page, the Club Association may meet its obligation to disclose that information by making copies of that page and distributing it to all of its Members. (e) Levy and Collection of Assessments and Other Charges. The Club Association shall have the power and duty to determine, levy, collect and enforce Club Assessments against the Club Owners in the manner provided in Articles V and Article VI of this Club Declaration in order to pay the Club Expenses and Club Reserve Expenses and do all things necessary to enforce each Club Owner's obligations hereunder. The Club Assessment shall be determined in proportion to the Unit Allocated Interest. (0 Minutes, Agenda and Policies. The Club Association shall have the power and duty to provide each Club Association Member with (i) a copy of the minutes of Club Association Board meetings within sixty (60) days following the date of such meeting by such means of transmission as permitted by applicable Law, and (ii) a list of the order of business to be considered at the annual meeting of Club Association Members not later than thirty (30) days prior to the date for such meeting, which list shall contain the name, address and a brief biographical sketch (if available) of each Club Association Member nominated to stand for election to the Club Association Board. (g) Roster. The Club Association shall have the power and duty to compile a Roster of the Club Owners (the "Club Roster "). Upon the written request of a Club Association Member (which written request shall state the purpose for which such request is made), the Club Association shall furnish such Club Association Member with a copy of the Club Roster and may charge such Club Association Member a reasonable fee therefor. Within ten days after receiving such written request (which request must state the purpose for Club Roster is being requested), the Club Association may deliver to the requesting Club Association Member a written offer of an alternative method of achieving the purpose identified in such written request without providing access to or a copy of the Club Roster. An alternative method which reasonably and in a timely manner accomplishes the proper purpose set forth in such written request shall be deemed a reasonable alternative, unless within a reasonable time after acceptance of the offer the Club Association fails to do those things which it offered to do. Any rejection of such offer shall be in writing and shall indicate the reasons such alternative does not meet the proper purpose of such request. Each Club Association Member who requests and receives a copy of the Club Roster hereby agrees not to make any use of the Club Roster prohibited by applicable Laws (including, without limitation, use of the Club Roster to solicit money or property or for any other commercial purpose) or to distribute a copy of the Club Roster to any person who is not a Club Owner or for any purpose unrelated to any Club Owner's interest as a Club Owner and Club Association Member. Any Club Association Member who uses or distributes the Club Roster in a manner prohibited under this Section 5.2(g) shall, in addition to all other rights, powers and remedies available to the Club Association under this Club Declaration, indemnify and defend the Club Association, the Club Association Board and the Club Association Manager against and hold the Club Association, the Club Association Board and the Club Association Manager harmless from any and all claims arising from or related to such Club Association Member's use of the Club Roster. DMWEST #7274549 v5 24 (h) Rules and Regulations. The Club Association shall have the power and duty to adopt, amend, publish and enforce, from time to time, Club Rules and Regulations relating to the possession, use and enjoyment of the Club Property which Club Rules and Regulations shall be consistent with the provisions of the Governing Instruments and the Network Documents. Such Club Rules and Regulations shall be adopted and /or amended by the Club Association Board, subject to any applicable requirements of the Governing Documents and /or the Act. (i) Statements of Status: Club Units. (i) The Club Association shall have the power and duty to issue a Statement of Status within ten (10) days of the mailing or delivery of a request therefor by any Club Owner, Mortgagee thereof, prospective Mortgagee thereof, purchaser or other prospective transferee of a Fractional Interest. Such Statement of Status shall be binding upon the Club Association in favor of any person who may rely thereon in good faith. (ii) The Club Association shall have the power and duty to provide a copy of the Club Declaration, Club Articles, Club Bylaws Club Rules and Regulations and Network Rules within ten (10) days of the mailing or delivery of a request therefor by any Club Owner, Mortgagee thereof, prospective Mortgagee thereof, purchaser or other prospective transferee of a Fractional Interest; to the extent permissible under applicable Law, such delivery may be by mail or by such other means of transmission as permitted by applicable Law. (iii) The Club Association shall have the power to charge a fee for providing the Statement of Status or the requested documents, which fee shall not exceed the reasonable cost of preparation and /or reproduction thereof. (j) Taxes. The Club Association shall have the power and duty to pay the Taxes attributable to the Club Property and shall have the power to discharge, contest or protest liens or charges affecting the Club Property, to the extent they are not separately levied against each Fractional Interest. (k) Utilities. The Club Association shall have the duty to pay the utilities expenses, including water, electrical, telephone, cable television, gas, refuse pick -up, garbage disposal and other utility services for the Club Component (whether payable directly to the utility company in question or as a reimbursement to the Resort Association for Resort Utility Expenses). (1) Professional Advisors. The Club Association shall have the power to obtain and pay the cost of professional advisors necessary or proper in the operation and management of the Club Property in accordance with the Resort Quality Standard, the maintenance and repair of the Club Property in accordance with the Resort Quality Standard, and the enforcement of this Club Declaration, the Club Articles, the Club Bylaws, the Resort Rules and Regulations, and the Club Rules and Regulations, if any, including, but not limited to, landscape architects, recreation experts, architects, planners, lawyers and accountants. DMWEST #7274549 v5 25 , (m) Right of Entry. The Club Association shall have the power to enter any Club Unit, at any reasonable time and whether or not in the presence of the occupant, for the purposes and with the limitations set forth in Section3.11(a). (n) Hold Title and Make Conveyances. The Club Association shall have the power to acquire, hold title to and convey, with or without consideration, real and personal property and interests therein, including but not limited to easements, subject to Section 3.11(d). (o) Services. The Club Association shall have the power to contract, directly or through the Club Association Manager, or otherwise provide for all services necessary or convenient to the management, maintenance and operation of the Club Property and the operation of the Club Regime in accordance with the Resort Quality Standard. (p) Designate Officers. Subject to the express terms and conditions of this Club Declaration, the Club Association shall have the power to select, appoint and remove the officers, agents and employees of the Club Association, prescribe such powers and duties for them as are not inconsistent with law, the Club Articles, the Club Bylaws or this Club Declaration, and, subject to the provisions of the Club Bylaws, fix their compensation. (q) Reserves. The Club Association shall have the power and duty to establish, maintain and expend reserve funds for payment of Club Reserve Expenses and for the Club Association's Resort Reserve Expenses. (r) Architectural Approval. The Club Association shall have the power to review and act upon requests for changes to the Club Property. (s) Enforcement. The Club Association shall have the power and the duty to enforce the provisions of the Governing Instruments and the provisions of any agreement to which the Resort Association is a party in accordance with Article VII. (t) Litigation. The Club Association shall have the power to prosecute or defend, in the name of the Club Association, any action affecting or relating to the Club Association and any action in which all or substantially all of the Club Owners have an interest. (u) Review of Accounts. The Club Association shall have the power and duty to do all of the following: (i) Review a current reconciliation of the Club Association's General Accounts on at least a quarterly basis; (ii) Review a current reconciliation of the Club Association's Reserve Accounts on at least a quarterly basis; (iii) Review, on at least a quarterly basis, the current Fiscal Year's actual reserve revenues and expenses compared to the anticipated reserve revenues and expenses set forth in the current Fiscal Year's Club Association Budget; DMWEST #7274549 v5 26 (iv) Review the latest account statements prepared by the financial institutions where the Club Association has its General Accounts and Reserve Accounts; (v) Review an income and expense statement for the Club Association's General Accounts and Reserve Accounts on at least a quarterly basis; and (vi) At least once every three years, cause to be conducted a reasonably competent and diligent visual inspection of the accessible areas of the major components which the Club Association is obligated to repair, replace, restore, or maintain as part of a study of the Reserve Account requirements if the current replacement value of the major components is equal to or greater than one -half of the gross Club Association Budget but excluding the Reserve Accounts for that period. The Club Association shall review this study and shall consider and implement necessary adjustments to the analysis of the Reserve Account requirements as a result of such review. (v) Possession and Use of Units. The Club Association, on behalf of the Club Owners, is authorized to arrange for the assignment of the possession and use of Club Units by Network Members from other Network Projects, and the possession and use of accommodations at other Network Protects by Club Owners. In this regard and with respect to the Network, the Club Association has entered into the Project Affiliation Agreement for the Club Regime. Notwithstanding anything in this Residence Club Declaration to the contrary, it is the intent of this Residence Club Declaration that the Project Affiliation Agreement may only be terminated in accordance with its own terms, subject to applicable Law. (w) Other Necessary Acts. The Club Association shall have the power to do all other things or acts deemed by the Club Association to be necessary, desirable or appropriate for the operation, maintenance and use of the Club Property. 5.3 Authority and Duty to Engage Club Association Manager. The Club Association shall have the authority to engage and the obligation to use its best efforts to engage and maintain a reputable firm as the Club Association Manager (which may be the Hotel Manager and /or Resort Association Manager), to manage, conduct and perform the business, obligations, functions and duties of the Club Association in accordance with the Resort Quality Standard pursuant to a Club Association Management Agreement. The Club Association Manager shall have the right to ingress and egress over such portions of the Club Property as is necessary for the performance of such business, duties and obligations, and the Association may grant easements to the Club Association Manager for such ingress and egress. 5.4 Limited Liability - Club Association Manager and Association. Neither the Club Association nor the Club Association Manager shall be responsible for the acts, omissions or conduct of any Club Owner, Permittee, Permitted User, Network User or External Exchange User or for the breach of any of the obligations of any Club Owner, Permittee, Permitted User, Network User or External Exchange User. Notwithstanding the duty of the Club Association to maintain and repair Club Property, and except to the extent covered by insurance, the Club Association shall not be liable to Club Owners for injury or damage, other than for the cost of maintenance and repair, caused by any latent condition of the Club Property to be maintained DMWEST #7274549 v5 27 , and repaired by the Club Association or caused by natural elements or other Club Owners, persons or entities. All users of the Club Property and the Club Units do so at their own risk. 5.5 Club Association - Personal Liability, Indemnification. No director or officer of the Club Association shall be personally liable to any Club Owner, or to any other party, including the Club Association, for any damage, loss or prejudice suffered or claimed on account of any act, omission, error or negligence of the Club Association, the Club Association Board or any other representative or employee of the Club Association or any officer of the Club Association, provided that such person has, upon the basis of such information as may be possessed by him or her, acted in good faith, and without willful or intentional misconduct. The Club Association hereby agrees to indemnify any director or officer of the Club Association against any liability for any damage, loss or prejudice suffered or claimed (including attorney's fees and cost of defense) on account of any act, omission, error or negligence by such director or officer in representing the Club Association, provided that such person has, upon the basis of such information as may be possessed by him or her, acted in good faith, and without willful or intentional misconduct. ARTICLE VI ASSESSMENTS AND PERSONAL CHARGES 6.1 Creation of Personal Obligations For Assessments. From and after the date of the first closing of escrow for the sale of a Fractional Interest, Declarant, for each Fractional Interest owned by Declarant, hereby covenants, and each Club Owner accepting the conveyance of a Fractional Interest, whether or not it shall be so expressed in the Original Deed, shall be deemed to have covenanted and agreed for each Fractional Interest owned, to pay the Club Assessment, all Special Assessments, and all Reconstruction Assessments, which shall be established, made and collected as hereinafter provided. Club Assessments and Special Assessments, together with interest thereon, costs and reasonable attorneys' fees shall be the personal obligation of each Club Owner at the time each such Assessment becomes due and payable and shall be a lien and charge upon the Fractional Interest against which such Assessment is made. Subject to Section 10.2, the personal obligation for delinquent Assessments and Personal Charges shall pass to a successor -in -title to a Fractional Interest, except for Declarant or an affiliate of Declarant, with respect to any Fractional Interest that Declarant, or such affiliate, reacquires after the initial conveyance of such Fractional Interest by Declarant. No Club Owner may waive or otherwise avoid liability for such Assessments or Personal Charge by non -use of his, her or its Fractional Interest or any part thereof or any abandonment thereof. 6.2 Purpose of Assessments. Club Assessments and Special Assessments shall be used exclusively to fund the Club Association Budget and the Club Expenses. 6.3 Club Expenses. The Club Expenses include, but are not limited to, the estimated aggregate amount of expenses, as set forth in the Club Association Budget, that are incurred directly by the Club Association during the applicable Fiscal Year: (a) to pay the Club Association's share of all Common Expenses allocated to the Club Association under the Resort Declaration; DMWEST #7274549 v5 28 • (b) to carry out the other duties and powers of the Club Association under this Club Declaration and to administer the Club Regime; (c) to provide for the payment of the fees of the Club Association Manager, (d) to operate, maintain, improve, repair, and replace the Club Property that are the obligations of the Club Association pursuant to this Club Declaration; (e) to pay Taxes levied on or attributable to the Club Property to the extent they are not separately levied against each Fractional Interest; (f) to pay for all insurance obtained by or procured on behalf of the Club Association pursuant to the Resort Declaration or the Club Declaration; (g) to provide for a contingency fund in the event that some Club Assessments may not be paid on a current basis and to provide for the unpaid share of any Club Assessment levied during the previous Fiscal Year against any Fractional Interest for which a default in payment thereof has occurred, to the extent that the same becomes uncollectible; (h) to provide for the payment of the Club Reserve Expenses; and (i) to pay all costs and fees relating to the operation of the reservation system and the Network that are allocable to the Club Regime and assessed by Network Manager pursuant to the Project Affiliation Agreement and the Network Rules. Club Expenses shall not include any expense constituting a Personal Charge (but can include reserve or contingency funds for unpaid Personal Charges). 6.4 Limitation on Club Assessment. The Club Assessment (not including Taxes levied against any Fractional Interest) for any applicable Fiscal Year subsequent to the first full Fiscal Year shall not exceed one hundred twenty percent (120 %) of the Club Assessment (not including real property taxes levied against any Fractional Interest) for the preceding Fiscal Year (without regard to any increase or decrease as set forth in Section 6.5 of this Club Declaration), without the approval of fifty -one percent (51 %) or more of the voting power in the Club Association (excluding Declarant), as determined in accordance with the Unit Allocated Interests. 6.5 Reduction of Club Association Budget. Each Club Owner hereby agrees that in the event the Club Association Board shall determine at any time during the Fiscal Year that the Club Association Budget is, or will be, in excess of the amounts needed to meet the Club Expenses for such Fiscal Year, the Club Association Board shall have the authority, exercisable in its sole discretion, to cause to be prepared an estimate of the amount of such excess, which excess shall then be subtracted from the previously prepared Club Association Budget for the Fiscal Year to which such excess is applicable. The Club Expenses reflected in the reduced total Club Association Budget shall then be allocated among the Club Owners in the same manner as provided in Section 5.2(e) of this Club Declaration (except for deduction of any Personal Charges owed by a Club Owner). Except as may be determined by the Club Owners on an annual basis, (i) no Club Owner shall, by reason of such reduction, be entitled to a refund of all DMWEST #7274549 v5 29 or any portion of any Club Assessment previously paid, and (ii) each Club Owner hereby agrees that any amount assessed and collected in excess of the amount required to meet the Club Expenses (other than Club Reserve Expenses) shall be applied to reduce the amount assessed to meet the Club Expenses, respectively, for the next succeeding Fiscal Year. Any reduction in the Club Association Budget, as provided herein, shall not relieve any Club Owner from his, her or its obligation to pay any past -due Club Assessment or Personal Charges. 6.6 Payment of Club Assessment. The Club Assessment shall be paid as follows: (a) Declarant shall pay the Club Assessment with respect to each Fractional Interest owned by Declarant to the Club Association in installments payable no more frequently than monthly, as determined by the Club Association Board; provided, however, that Declarant's obligations for the payment of the Club Assessment attributable to a Fractional Interest owned by Declarant shall cease as to such Fractional Interest upon conveyance thereof by Original Deed. (b) For any Fiscal Year in which Declarant conveys a Fractional Interest to a Non - Declarant Owner, Declarant and such Club Owner shall each pay the respective portions of the Club Assessment as provided in the Purchase Agreement. For each Fiscal Year thereafter, each such Club Owner shall pay to the Club Association the Club Assessment with respect to each Fractional Interest which such Club Owner owns, either (i) in one lump sum due on or before the date determined by the Club Association Board, or (ii) in installments payable no more frequently than monthly, as determined by the Club Association Board. Whether such Club Assessment is paid through the method provided in (i) or (ii) of the foregoing sentence shall be at the Club Association's discretion. (c) That portion of the Club Assessment which is attributable to (A) Resort Reserve Expenses shall be deposited by the Club Association in a Reserve Account in the name of and as directed by the Resort Association, and (B) Club Reserve Expenses shall be deposited by the Club Association in a Reserve Account as determined by the Club Association. 6.7 Special Assessments. If the Club Assessments collected or to be collected for a particular Fiscal Year are, or will be, inadequate to meet all expenses incurred by the Club Association hereunder (other than for items constituting Personal Charges) for any reason, including, without limitation, nonpayment by any Club Owner of any Club Assessment on a current basis, the Club Association shall immediately determine the approximate amount of such inadequacy, prepare and distribute a supplemental Club Association Budget and allocate and levy against each Fractional Interest (in accordance with the method for allocating Club Expenses as set forth in Section 2.6(b)(ii) a Special Assessment. Any Special Assessment shall be payable in one lump sum or periodically, as determined by the Club Association. Notwithstanding the foregoing, a Special Assessment against a Club Owner or Club Owners may not be imposed without the prior approval of a 51% or more of the voting power in the Club Association (excluding Declarant), as determined in accordance with the Unit Allocated Interests, except for Special Assessments: (i) against all Club Owners in any Fiscal Year which do not exceed five percent (5 %) of the budgeted gross expenses of the Club Association for such Fiscal Year in which the Special Assessment is levied, or (ii) against a Club Owner or Club Owners for the purpose of reimbursing the Club Association for costs incurred in bringing such Club Owner or Club Owners into compliance with provisions of the Governing Instruments. DMWEST #7274549 v5 30 6.8 Personal Charges. (a) Personal Charges are not Assessments and the remedies available to the Club Association against any Club Owner for nonpayment of such Club Owner's Personal Charges are those remedies provided in Section 7.1 and Section 7.2(a) of this Club Declaration. (b) Personal Charges shall be paid by each Club Owner to whom such Personal Charge relates. ARTICLE VII ENFORCEMENT OF RESTRICTIONS 7.1 In General. (a) In the event that any Club Owner or Permitted User(s) should fail to comply with any of the provisions of the Governing Instruments of the Club Association or the Resort Association, the Club Association shall have full power and authority to enforce compliance with such Governing Instruments in any manner provided for therein, by law or in equity, including, without limitation, the right to enforce such Governing Instruments, by bringing an action for damages, an action to enjoin the violation or specifically enforce the provisions of such Governing Instruments, to enforce the liens provided for herein and any statutory lien provided by law, including the foreclosure of any such lien and the appointment of a receiver for a Club Owner and the right to take possession of the Fractional Interest of any Club Owner in any lawful manner. In the event the Club Association shall employ an attorney to enforce the provisions of the Governing Instruments of the Club Association or the Resort Association against any Club Owner or Permitted User(s), the prevailing party shall be entitled to recover from the Club Owner or Permitted User, as applicable, violating any such provisions reasonable attorneys' fees and costs in addition to any other amounts due as provided for herein. (b) All sums payable hereunder by a Club Owner or Permitted User which become Delinquent shall bear interest at the Agreed Rate commencing on the date such payment becomes Delinquent, or if advanced or incurred by the Club Association pursuant to authorization contained in this Club Declaration, commencing thirty (30) days after repayment is requested. (c) Each Club Owner or Permitted User who becomes Delinquent in the payment of any amount due the Club Association shall pay to the Club Association a late charge of Twenty Five Dollars ($25.00), or such other amount as may be determined by the Club Association Board from time to time, for each payment which is Delinquent. (d) All enforcement powers of the Club Association shall be cumulative. Each Club Owner or Permitted User accepting the conveyance or use of a Fractional Interest shall be deemed to have covenanted and agreed that the Club Association shall have all of the rights, powers and remedies set forth in this Article VII and elsewhere in this Club Declaration. (e) Each person or entity comprising a Club Owner shall be jointly and severally liable with each other person or entity comprising such Club Owner for any unpaid Personal Charge or for the violation or breach of any covenant, condition, restriction or provision DMWEST #7274549 v5 31 contained in this Club Declaration caused or committed by such Club Owner or their respective Permitted Users or Permittees. If a Club Owner is comprised of more than one person or entity, each such person or entity shall be jointly and severally liable with each other person or entity comprising such Club Owner for the violation or breach of any covenant, condition, restriction or provision contained in this Club Declaration caused or committed by such person or entity or their Permitted Users or Permittees. 7.2 Certain Specific Enforcement Powers. In amplification of, and not in limitation of, the general powers specified in Section 7.1 of this Club Declaration, the Club Association shall have the following rights and powers: (a) Suspension of Privileges. If any Club Owner, or any Permitted User or Permittee of such Owner, shall be in breach of the Governing Instruments, including but not limited to the failure of such Club Owner to pay any Assessment, Special Assessment or Personal Charges attributable to, or incurred in connection with, a Fractional Interest on or before the due date therefor, or for the failure of a successor -in -title of a Fractional Interest to promptly cure any past due Assessments, Special Assessments, Personal Charges or other amounts due and owing to the Club Association, whether or not the obligation to pay for such Assessments, Special Assessments, Personal Charges or other amounts due arose prior to the time such successor -in -title obtained such Fractional Interest, subject to the limitations hereinafter set forth in Section 6.1 and this Section 7.2(a), the Club Association may suspend such Club Owner's right arising from the ownership of such Fractional Interest to participate in any vote or other determination provided for herein, may request that the Resort Association, or other applicable entity, suspend Management Services and A la Carte Services to such Club Owner, and may assess monetary penalties as may be provided in the Club Bylaws. The Club Association may also withhold use of any Club Property from such Club Owner, prohibit the Club Owner from making any reservations and cancel any reservation previously made by the Club Owner and rent or reallocate any reserved period or use right to which the Club Owner is otherwise entitled. The Club Association may delegate to the Club Association Manager the power, in accordance with the preceding paragraph, to suspend the privileges of any Club Owner or Permitted User during the period of time that such Club Owner or Permitted User is Delinquent in the payment of an Assessment, Special Assessment or Personal Charge duly levied by the Club Association. No such suspension, except a suspension of privileges for the failure of such Club Owner or Permitted User to pay any Assessments, Special Assessment or Personal Charges, any portion thereof or any other amount(s) due hereunder on or before the due date therefor, or imposition of monetary penalties shall be made except after a meeting of the Club Association Board at which a quorum of the Club Association Board is present (pursuant to the Club Bylaws), duly called and held for such purpose. Written notice of such meeting, the purpose thereof, including the reasons for the suspension sought or the monetary penalties sought to be imposed, and whether the Club Owner's or Permitted User's defense shall be oral or written, shall be given to the Club Owner against whom, or against whose Permitted User, such activity is to be taken at least fifteen (15) days prior to the holding of such meeting. Such notice shall be given to the Club Owner and as a courtesy may, but is not required to, be given to a violating Permitted User, as provided at Section 12.4 of this Club Declaration. Such Club Owner or Permitted User shall be entitled to appear at such meeting and present his, her or its case, DMWEST #7274549 v5 32 � r either orally or in writing as designated by the Club Association Board, as to why his, her or its privileges should not be suspended or monetary penalties imposed. The decision as to whether such privileges should be suspended or monetary penalties imposed shall be made by a majority of the members of the Club Association Board present at such meeting. Written notice of suspension or monetary penalties imposed, the reasons therefor and the length or amount thereof shall be given to the affected Club Owner or Permitted User and the suspension or penalties shall become effective on the date such notice is given. If such suspension of privileges or imposition of monetary penalties is based on the failure of a Club Owner or Permitted User to pay Assessments, Special Assessments, Personal Charges or any other amount(s) due hereunder when due attributable to, or incurred in connection with, a Fractional Interest, the suspended privileges of such Club Owner or Permitted User with respect to such Fractional Interest shall be reinstated automatically at such time as the Club Owner or Permitted User shall have paid to the Club Association, in cash or by wire transfer, cashier's or certified check, all amounts past due as of the date of such reinstatement and all monetary penalties imposed, together with accrued and unpaid interest and any late charges imposed which are attributable to, or were incurred in connection with, such Fractional Interest. If such suspension of privileges or imposition of monetary penalties is based on any act or omission other than the failure of a Club Owner or Permitted User to pay Assessments, Special Assessments, Personal Charges or any other amount(s) due hereunder when due, the suspended privileges shall be automatically reinstated upon the earlier of expiration of the period stated in the suspension notice or payment of the monetary penalties imposed. (b) Enforcement by Lien. Subject to the provisions of Section 10.3 of this Club Declaration, there is hereby created a claim of lien, with foreclosure by advertisement and power of sale, on each and every Fractional Interest to secure the prompt and faithful performance of each Club Owner's obligations (i) under the Governing Instruments and (ii) to pay the Club Association any and all Assessments and Special Assessments levied against such owner's Fractional Interest under this Club Declaration, together with interest thereon at the Agreed Rate from the date such payment becomes Delinquent, and all late charges and costs of collection which may be paid or incurred by the Club Association in connection therewith, including reasonable attorneys' fees. The lien is perfected from and after the recording of this Club Declaration without the necessity of recording any notice or claim of lien. At any time within thirty -five (35) days after the occurrence of any default in the performance of a Club Owner's obligations under the Governing Instruments or the payment of any Assessment or Special Assessments, the Club Association or any authorized representative thereof may, but shall not be required to make a written demand for performance or payment to the defaulting Club Owner. Said demand shall state the date and amount of the delinquency or the obligation not performed with respect to which the Club Owner is in default. Each default shall constitute a separate basis for a demand or claim of lien or a lien, but any number of defaults may be included within a single demand or claim of lien. If such delinquency is not paid or default is not cured within ten (10) days after delivery of such demand, or within forty -five (45) days after the date of delinquency or default if no written demand is made, the Club Association may elect, but shall not be obligated, to file and record a notice of default and claim of lien (with a copy to the Mortgagee of such defaulting Club Owner if such Mortgagee has requested a copy and furnished its name and address to the Club Association) on behalf of the Club Association against the Fractional Interest of the defaulting Club Owner in the Office of the DMWEST #7274549 v5 33 County Recorder. Such a notice of default and claim of lien shall be executed and acknowledged by any officer of the Club Association, and shall contain substantially the following information: (i) The name of the defaulting Club Owner; (ii) The total amount of the delinquency, interest thereon, late charges, collection costs and reasonable attorneys' fees or statement of other defaults under the Governing Instruments; (iii) A statement that the notice of default and claim of lien is made by the Club Association pursuant to this Club Declaration; and (iv) A statement that a lien is claimed and will be foreclosed against the Fractional Interest in an amount equal to the amount stated plus costs and expenses permitted by law. The recordation of a duly executed original or copy of such a notice of default and claim of lien, and mailing a copy thereof to the defaulting Club Owner, shall not constitute a condition precedent to nor delay the attachment of the lien. The lien claimed in such a notice of default and claim of lien shall attach to the Fractional Interest without notice at the beginning of the first day of any period for which any Assessment is levied. Any such lien may be foreclosed by appropriate action in court or in the manner provided by law for the foreclosure of a mortgage by advertisement and power of sale contained therein or in the manner provided by law for the enforcement of a judgment as the laws of the State of Colorado may from time to time be changed or amended. The Club Association shall have the power to bid at any foreclosure sale, trustee's sale or judgment sale, to purchase, acquire, lease, hold, mortgage and convey any Fractional Interest acquired at such sale subject to the provisions of this Club Declaration. Reasonable attorneys' fees, court costs, title search fees, interest, accrued Assessments and Taxes, and all other costs and expenses shall be allowed to the extent permitted by law. The proceeds of any foreclosure, trustee's or judgment sale provided for in this Club Declaration shall first be paid to discharge court costs, court reporter charges, reasonable attorneys' fees, title costs and costs of the sale, and all other expenses of the proceedings and sale, and the balance of the proceeds, after satisfaction of all charges, monetary penalties and unpaid Assessments and Special Assessments hereunder or any liens, and subject to the rights of any Mortgagee, shall be paid to the defaulting Club Owner. The purchaser at any such sale shall obtain title to the Fractional Interest after the expiration of any applicable period of redemption free from the sums or performance claimed, except as stated in this Section 7.2(b), but otherwise subject to the provisions of the Governing Instruments and Network Documents, and no such sale or transfer shall relieve such Fractional Interest or the purchaser thereof from liability for any Assessments or Special Assessments, other payments or performance thereafter becoming due or from the lien therefor as provided for in this Section 7.2(b). All sums assessed hereunder but still unpaid shall remain the obligation of and shall be payable by the Club Owner foreclosed upon; but if such sum should prove uncollectible, then it shall be deemed to be a Club Expense, collectable from all of the other Club Owners, including the purchaser thereof at foreclosure, and shall be shared among such Club Owners in the same manner as other Club Expenses are shared. Upon the timely curing of any default for which a notice of default or claim of lien was filed by DMWEST #7274549 v5 34 the Club Association, the officers of the Club Association are hereby authorized to record an appropriate release of such lien in the Office of the County Recorder. 7.3 Waiver of Homestead Exemption. Each Club Owner hereby agrees that neither Declarant's nor any Association's rights or remedies nor any Club Owner's obligations under the terms of any of the Governing Instruments shall be released, diminished, impaired, reduced or affected by, and the liability of each Club Owner under the Governing Instruments shall be absolute and unconditional irrespective of, any homestead exemption or any other exemption under applicable Law. Each Club Owner hereby expressly waives all homestead exemption rights and rights under any other exemption under applicable Law against the obligations of each Club Owner pursuant to the Governing Instruments. ARTICLE VIII CLUB ASSOCIATION AS ATTORNEY -IN -FACT 8.1 Appointment. Each and every Club Owner hereby irrevocably constitutes and appoints the Club Association as such Club Owner's true and lawful attorney -in -fact in such Club Owner's name, place and stead for the purpose of dealing with the Club Property upon its damage, destruction or condemnation as provided below in Article IX. In addition, the Club Association, or any insurance trustee or substitute insurance trustee designated by the Club Association, is hereby appointed as attorney -in -fact under this Club Declaration for the purpose of purchasing and maintaining insurance under Article XI including: (i) the collection and appropriate disposition of the proceeds of such insurance; (ii) the negotiation of losses and the execution of releases of liability, (iii) the execution of all documents related to the foregoing; and (iv) the performance of all other acts necessary to accomplish such purpose. The Club Association, or any insurance trustee, shall hold or otherwise properly dispose of any insurance proceeds in trust for the Club Owners and their Mortgagees, as their interests may appear. Acceptance by a grantee of a deed or other instrument of conveyance from Declarant from any Club Owner shall constitute appointment of the attorneys -in -fact as provided above. Each Club Owner's appointment of the Club Association as attorney -in -fact as provided herein is a power coupled with an interest, and no further document or instrument is necessary to evidence the Club Association's appointment, 8.2 General Authority. As attorney -in -fact, the Club Association shall have full and complete authority, right and power to make, execute and deliver any contract, assignment, deed, waiver or other instrument with respect to the interest of any Club Owner which may be necessary or appropriate to exercise the powers granted to the Club Association as attorney -in- fact. ARTICLE IX DAMAGE, DESTRUCTION, OR CONDEMNATION 9.1 Club Property. In the event of any damage or destruction other than by normal wear and tear, whether resulting from an insured or uninsured casualty, to any Club Property, the Club Association shall promptly cause, upon the receipt of insurance proceeds and the necessary permits and approvals, such to be repaired, restored or replaced as near as may be possible to its condition immediately prior to such damage or destruction unless this Declaration is terminated DMWEST #7274549 v5 3 5 , pursuant to Section 12.2. The Club Association Board may levy a Reconstruction Assessment on all of the Club Owners in accordance with the method set forth below and in accordance with Section 5.2(e) for the amount required to make up any deficiencies between: (i) the total insurance proceeds, less the cost of recovery, if any, and (ii) all soft and hard costs of design and construction (including permits) arising from or related to such repair and rebuilding together with the cost of collecting such insurance proceeds (the "Reconstruction Shortfall "): (a) Reconstruction Shortfall Per Fractional Interest. For each Fractional Interest, the Reconstruction Assessment against such Fractional Interest shall be an amount determined by multiplying (x) the Reconstruction Shortfall by (y) the applicable Unit Allocated Interest associated with such Fractional Interest by (z) the size of such Fractional Interest, expressed as a fraction. (b) Exceptions. Notwithstanding Section 9.1(a) above, if the loss, damage or destruction was caused by the intentional or negligent act, or failure to act, of any Club Owner or such Club Owner's Permitted User(s), the cost of such repair may be assessed as a Default Assessment against such Club Owner. All insurance monies recovered on account of such damage or destruction, less the cost, if any, of such recovery, shall be applied to the payment of the cost of repairing, replacing and rebuilding, and shall be paid out from time to time by the Club Association Board as such work progresses upon the written certification of the architect or engineer if applicable, or the contractor in charge of such work, stating that the sum requested is justly due to those persons rendering services or furnishing materials in connection with such work. 9.2 Taking of All Club Property. In the event all or a substantial portion of the real property owned by the Club Association is taken under the power of eminent domain or sold under the threat of the power of eminent domain (each such event is referred to herein as a "Taking "), the award or sales proceeds which is paid to the Club Association on account of the Taking of such property, after payment of all expenses incurred in connection therewith, shall be divided among and distributed to the Club Owners (subject to the rights of Mortgagees of the Fractional Interests). The proportionate interest of each Fractional Interest in such proceeds shall be proportional to the product of (x) the size of the Fractional Interest, expressed as a fraction, and (y) the Unit Allocated Interest associated with such Fractional Interest. 9.3 Partial Taking of Club Property. In the event of a partial Taking of the real property owned by the Club Association, all award or sales proceeds with respect to such partial Taking, after payment of all expenses incurred in connection therewith, shall be paid to the Club Association. The Club Association shall use all amounts awarded to it on account of such partial Taking to repair, replace, reconstruct or restore the remaining property owned by the Club Association as nearly as may be possible to its condition immediately prior to such Taking, or if that is not reasonably possible, to acquire and improve other real property to replace the property which was taken; provided, however, that the Club Association shall not be obligated to replace such real property if seventy -five percent (75 %) or more of the voting power in the Club Association (as determined in accordance with the Unit Allocated Interests) elects to distribute the such award or sales proceeds rather than make such replacement, in which case it shall be disbursed to the Club Owners in proportion to the loss suffered by each Club Owner to the aggregate loss suffered by all Club Owners due to such partial Taking, as determined by the Club DMWEST #7274549 v5 36 • Association (subject to the rights of Mortgagees of the Fractional Interest). If 75% or more of the voting power of the Club Association does not so elect, within sixty (60) days after the Club Association's receipt of the award or sales proceeds, to distribute the condemnation award, the Club Association Board shall proceed with such repair and restoration and the acquisition and improvement of new property, and may levy a Special Assessment on the Club Owners in accordance with Section 6.7 to raise any funds needed for such purpose in excess of the condemnation award. If the Club Association Members do not approve such Special Assessment, if such approval is required, the Club Association Board shall perform such repair and restoration work and make such acquisitions as are possible with the available funds. 9.4 Taking of Club Units. Notwithstanding the provisions of Section 9.2 or Section 9.3, in the event of a Taking of some or all of the Club Units, those Club Owners whose Fractional Interests are associated with the Club Units that are taken shall be entitled to retain the award or sales proceeds paid to them for such Taking (subject to the rights of their Mortgagees and of payment of all unpaid Assessments and Personal Charges). The Club Association shall, within one hundred eighty (180) days after the Taking, cause an amended Club Map depicting the new configuration of the Club Units and the revised number of Club Units, and shall prepare an amendment to this Club Declaration to be executed by all Club Owners, their Mortgagees, and other persons or entities required by law to execute such documents consistent with the revised Club Map, and record such amendment in the Office of the County Recorder, and all Club Owners and their Mortgagees hereby agree, and such other persons or entities are deemed to agree, to execute all such documents. 9.5 Removal of Club Units from Network. The Club Owners of Club Units that are not reconstructed or repaired after casualty (or an eminent domain action) to the Resort Quality Standard, and for which, insurance proceeds are distributed as provided herein, shall be removed from the Network. 9.6 No Limitation of Remedies. Nothing contained in this Article IX shall be deemed to limit the right of a Club Owner to pursue all available legal remedies and obtain all compensation to which such Club Owner may be entitled by reason of the Taking of or damage to the Club Unit associated with his, her or its Fractional Interest. ARTICLE X PROTECTION OF MORTGAGEES 10.1 Conflict. The provisions and requirements of this Article X and any other provisions and requirements of this Club Declaration relating to the rights of Mortgagees of Fractional Interests (i) shall prevail over any conflicting provisions of this Club Declaration, the Club Articles and the Club Bylaws; and (ii) are in addition to any other provisions of this Club Declaration. 10.2 Application of Assessments. No Mortgagee who obtains title to a Fractional Interest pursuant to remedies provided in a Mortgage (except upon a voluntary conveyance to the Mortgagee) or by foreclosure of the Mortgage shall be liable for previously accrued Assessments against such Fractional Interests, except those Assessments which accrued or came due during DMWEST #7274549 v5 37 the six (6) months immediately preceding such Mortgagee's acquisition of title to such Fractional Interest and for which payment in full has not been received by the Club Association. 10.3 Subordination of Assessment Lien. (a) Lien Priority. The lien of any assessment created under this Club Declaration which arises before the time at which a Mortgagee of a Fractional Interest obtains title to the Fractional Interest (the "Lien ") (i) shall be subordinate to any Lien for Taxes, and (ii) shall be superior to the lien of any Mortgagee, except to the extent the lien of any such Mortgagee has priority over the Lien under the Act. (b) Continuing Liability of Private Residence Owners. The sale or transfer of title to the Fractional Interest by deed, assignment or conveyance in lieu of foreclosure, or any other voluntary conveyance of title, shall not relieve (i) a Club Owner or its grantee or other successors and assigns from liability from any Assessments or charges which become due and payable before such sale or transfer, or (ii) a Club Owner or its grantee or other successors and assigns (including any foreclosing Mortgagee) from liability from any Assessments or charges which thereafter become due and payable, as the case may be. (c) Liability Exception for Mortgagees. Notwithstanding Section 10.3(b), any Mortgagee who obtains title to a Fractional Interest by foreclosure, conveyance in lieu of foreclosure or pursuant to the remedies provided in a Mortgage shall take the property free of any claims for unpaid Assessments or charges against the Fractional Interest which accrue prior to the acquisition of title to the Fractional Interest by the Mortgagee, except for any claim for an amount of unpaid Assessments based on the Club Association Budget which would have become due, in the absence of any acceleration, during the six months immediately proceeding institution by any Mortgagee of an action or a nonjudicial foreclosure either to enforce or to extinguish its lien. 10.4 Limitation of Enforcement Against Mortgagees. No violation of this Club Declaration by a Club Owner or its Permitted User or enforcement of this Club Declaration against a Club Owner shall impair, defeat or render invalid the lien of any Mortgage against the Club Owner's property, but this Club Declaration shall be enforceable against any Club Owner whose title is acquired by foreclosure, trustee's sale, voluntary conveyance, or otherwise. 10.5 Notice by Mortgagees. All persons and entities holding a Mortgage affecting any Fractional Interest shall give written notice to the Club Association Board of the nature of their interests in the Development Land, as well as the recording information pertaining to all deeds of trust, mortgages and other security instruments encumbering property in the Club Property, and the amount of indebtedness secured by any such deed of trust, mortgage or security instrument. Any person who has not given the notice required by this Section 10.5 shall not be entitled to the rights of a Mortgagee accorded by this Club Declaration. Notwithstanding anything to the contrary, the Club Association Board shall be deemed to have notice of any Mortgagee that is a Mortgagee of Declarant as of the date of this Declaration. 10.6 Notice. All Mortgagees are entitled, upon written request and after furnishing their addresses in writing to the Club Association Board, to receive written notice (by such DMWEST #7274549 v5 38 • r means as the Club Association Manager may direct) from the Club Association Manager of any default by a Club Owner under this Club Declaration which is not cured within thirty (30) days. ARTICLE XI INSURANCE 11.1 Club Association. Unless clearly not applicable, all insurance policies obtained by the Club Association under this Article XI shall comply with all requirements imposed under the Resort Declaration and, in addition, shall name all Club Owners (as a class), Declarant (individually, as long as Declarant owns any Fractional Interests), Hotel Owner (individually), the Club Association Manager (individually), and any Mortgagee or beneficiary under a Mortgage encumbering any Fractional Interests owned by Declarant that are identified by written notice to the Club Board, as additional insureds (with respect to liability insurance policies) and loss payees (with respect to casualty insurance policies). The Club Association shall have the power and duty to obtain and pay the cost of: (a) Damage to Property. On and after the Starting Date, insurance against loss or damage to the Common Elements and any Club Property by fire, vandalism, malicious mischief, environmental terrorism, acts of war and other perils as are covered by the standard form fire and extended coverage all risk policy of insurance (and, with respect to the Common Elements for "broad form covered causes of loss "); provided, however, that the Club Association shall not be required to obtain or maintain earthquake, environmental, terrorism or other insurance coverage not expressly required hereunder, if the same is not available upon commercially reasonable terms. The stipulated amount of such insurance shall be based on the full replacement cost thereof at the time and place of loss, and the Club Association shall either (A) annually update such stipulated full replacement cost amount to reflect then - current estimated full replacement cost thereof, or (B) procure and maintain an endorsement which provides for full reimbursement for the actual cost of repair or replacement thereof, without deduction for depreciation. (b) Burglary and Theft. On and after the Starting Date, insurance against hazards such as burglary and theft covering any Club Property. (c) Directors, Officers and Employees. On and after the Starting Date, to the extent available at a reasonable cost, directors' and officers' liability insurance and, if there are employees of the Club Association, workers' compensation insurance at the statutory limits and employer's liability insurance. The Club Association shall cause to be covered by a fidelity bond or insurance providing for a blanket crime endorsement, any employee or agent of the Club Association Manager or the Club Association who may have charge of funds of any Club Owner, Permitted User, or of the Club Association. The loss coverage under any such bond or policy shall be not less than the maximum amount of funds of the Club Association over which the principals under the bond or policy may reasonably be expected to have control or access at any time. (d) Liability Insurance. On and after the Starting Date, comprehensive public liability insurance against claims for personal injury, bodily injury, death and property damage occasioned by accidents or other events occurring in connection with the Club Property in DMWEST #7274549 v5 39 accordance with the requirements of the Resort Declaration applicable thereto. In accordance with Section 38- 33.3- 313(4)(a) of the Act, each Club Owner shall be an insured person with respect to liability arising out of such Club Owner's interest in the Common Elements or membership in any Association. (e) Other Insurance. On and after the Starting Date, such other insurance as the Club Association Board shall deem necessary or expedient to carry out the functions of the Club Association or protect the Club Association or its Members from liabilities or as may be required by the terms of the Club Association Management Agreement. Such other policies of insurance shall cover such risks, be written by such insurers, and be in such amounts as the Club Association Board shall deem necessary and proper under the circumstances. 11.2 Statutory Insurance Requirements. (a) In accordance with Section 38- 33.3- 313(4)(c) of the Act, no act or omission by a Club Owner, unless acting within the scope of such Club Owner's authority on behalf of an Association, will void any insurance policy or be a condition to recovery under any insurance policy. In accordance with Section 38- 33.3- 313(4)(d) of the Act, if, at the time of a loss under any insurance policy maintained by the Resort Association or the Club Association, there is other insurance in the a name of a Club Owner covering the same risk as covered in such insurance policy, the appropriate Association's insurance policy shall provide the primary insurance. (b) In accordance with Section 38- 33.3- 313(8) of the Act, any policy required by this Club Declaration to be maintained by the Club Association shall provide that the coverage shall not be reduced or cancelled without at least thirty (30) days' advance written notice to the Club Association, the Club Association Manager, Hotel Owner, each Club Owner and Mortgagee to whom a certificate of insurance has been delivered. (c) In accordance with Section 38- 33.3 - 313(5) of the Act, any and all insurance proceeds applicable to the Common Elements or the Resort Common Areas shall be paid to an insurance trustee designated for that purpose, or otherwise to the Resort Association, and not to any Mortgagee, which insurance proceeds shall be held in trust for the Club Association, Club Owners and their Mortgagees as their interests appear. (d) In accordance with Section 38- 33.3- 313(4)(b) of the Act, each insurance policy maintained by the Resort Association or the Club Association shall provide that the insurer waive its right of subrogation under such policy against any Club Owner or member of such Club Owner's household. (e) In accordance with Section 38- 33.3- 313(8) of the Act, any policy of insurance obtained by the Club Association shall require that the insurer issuing the policy (i) provide a certificate of insurance to the Club Association and, upon request, to any Club Owner or Mortgagee and (ii) not cancel or refuse to renew such policy until thirty (30) days after notice of the proposed cancellation or nonrenewal has been mailed to the Club Association, and to each Club Owner and Mortgagee to whom a certificate of insurance has been issued, at their respective last -known addresses. DMWEST #7274549 v5 40 11.3 Unavailability of Insurance. In the event any of the insurance policies required to be obtained hereunder become generally unavailable in the insurance industry then the Club Association Board shall review alternate coverage or other means of protection and shall make reasonable efforts to secure such coverage or protection as a substitute for the unavailable insurance. ARTICLE XII MISCELLANEOUS PROVISIONS 12.1 Amendment. This Club Declaration may be amended as set forth below: (a) By Declarant. This Club Declaration may be amended by Declarant at any time prior to the Starting Date provided that any amendment authorized by this Section 12.1(a) shall be evidenced by an instrument in writing, signed and acknowledged by Declarant. (i) Notwithstanding any provision in this Club Declaration to the contrary, Declarant, acting alone, and without the necessity for the consent of any Club Owners, the Club Association or the Club Association Board, reserves to itself the right and power to modify and amend this Club Declaration to correct clerical, typographical or technical errors, or to modify and amend this Club Declaration to comply with the requirements, standards, or guidelines of any department of real estate or real estate commission or any governmental authority having jurisdiction over the Club Property. (ii) Notwithstanding any provision in this Club Declaration to the contrary, Declarant, acting alone, and without necessity for the consent of any Club Owners, the Club Association or the Club Association Board, reserves to itself the right and power to modify and amend this Club Declaration to comply with the requirements, standards or guidelines of recognized secondary mortgage markets, the department of housing and urban development, the federal housing administration, the veterans administration, the federal home loan mortgage corporation, the government national mortgage association or the federal national mortgage association. (b) By Club Association. Except as otherwise set forth herein, this Club Declaration may be amended from and after the Starting Date only with the approval of (67 %) or more of the voting power in the Club Association (as determined in accordance with the Unit Allocated Interests). (c) Amendments are Binding. Any amendment under the provisions of this Section 12.1 shall be binding upon every Club Owner and every Fractional Interest whether the burdens thereon are increased or decreased, and such amendment shall be effective upon its recordation in the Office of the County Recorder. (d) Amendments to Reflect Expansion or Withdrawal Rights. Concurrent with or subsequent to exercising its Expansion Rights in accordance with Section 3.10(a) or Withdrawal Rights in accordance with Section 3.10(b), Declarant may, without the necessity for the consent of any Club Owner, the Club Association or the Club Association Board, amend this DMWEST #7274549 v5 41 • Club Declaration for the purpose of revising or deleting any provisions or exhibits therein rendered inaccurate as a result of exercising Expansion Rights or Withdrawal Rights. (e) Approval Rights. No provision of this Declaration benefiting the Resort Association, or Declarant may be amended without the prior written consent of the Resort Association. 12.2 Termination. (a) Consent. This Club Declaration shall remain in effect from the date of recordation hereof until such time as it is terminated in accordance with this Club Declaration and upon the consent of Hotel Owner. Except in the case of a Taking of all Club Units by eminent domain, this Club Declaration shall be terminable only upon the approval of Declarant and of seventy -five percent (75 %) or more of the voting power in the Club Association (as determined in accordance with the Unit Allocated Interests) and in accordance with Section 38- 33.3 -218 of the Act. Any such decision to terminate this Club Declaration shall also authorize the Club Association, as trustee for all Club Owners, to sell the interests of the Club Owners in the Club Property subject to the rights of any Mortgagees of the Club Owners. In the event of such termination, Declarant, for each Fractional Interest owned by Declarant, and each Club Owner, by accepting the conveyance of a Fractional Interest, whether or not it shall be so expressed in the deed of conveyance, hereby confers upon the Club Association, as trustee, the power and authority to sell, convey or otherwise transfer the interests of the Club Owners in the Club Property, and this Club Declaration shall terminate upon the consummation of such sale and the recordation of an instrument stating that this Club Declaration is terminated pursuant to this Section 12.2(a). Notwithstanding the termination of this Club Declaration as hereinabove provided in this Section 12.2(a) and the termination thereby of all of the covenants, conditions, restrictions, easements, rules and regulations, liens and equitable servitudes created by this Club Declaration, the existence of the Club Association shall continue for so long as reasonably required to provide for the collection and disbursement of the proceeds from the sale, conveyance or transfer of interests of the Club Owners in the Club Property. (b) Sale in Lieu of Partition. In the event that no conveyance, sale or transfer of the interests of the Club Owners in the Club Property shall have been effected by the Club Association within nine (9) months after termination of this Club Declaration pursuant to Section 12.2(a) have occurred, any Club Owner, including Declarant, shall have the right to petition a court of competent jurisdiction for the sale of the interests of the Club Owners in the Club Property in lieu of partition. Such court shall recognize and give effect to any agreement, document or instrument made or entered into by the Club Association within such nine (9) month period, and pursuant to which the interests of the Club Owners in the Club Property shall be conveyed, sold or transferred. (i) Proceeds. The proceeds from a sale of the interests of the Club Owners in the Club Property (i) by the Club Association pursuant to the power of sale conferred upon the Club Association, as set forth in Section 12.2(a) or (ii) by a court petitioned to do so pursuant to Section 12.2(b), above, shall be distributed by the Club Association, as trustee, to each Club Owner, including Declarant, with respect to each Club Unit, subject to the rights of each Club Owner's Mortgagee and in accordance with DMWEST #7274549 v5 42 the method for determining the Club Assessment; provided, however, that there shall be deducted from the amount due any Club Owner, the amount, if any, of all sums due to the Club Association from such Club Owner. 12.3 Declarant's Right to Cure Alleged Defects. It is Declarant's intent that all improvements constructed or made by Declarant in the Club Property be built or made in compliance with all applicable building codes and ordinances. Nevertheless, due to the complex nature of construction and the subjectivity involved in evaluating such compliance, disputes may arise as to whether a defect exists and Declarant's responsibility therefor. It is Declarant's intent to resolve all disputes and claims regarding Alleged Defects amicably, and without the necessity of time - consuming and costly litigation. Accordingly, the Club Association, Club Association Board and all Club Owners shall be bound by the following claim resolution procedure: (a) Declarant's Right to Cure. In the event that the Club Association, Club Association Board or any Club Owner or Club Owners (collectively, "Claimants" and individually, a "Claimant ") make a contention or allegation of an Alleged Defect, Declarant hereby reserves the right to inspect, repair and/or replace such Alleged Defect as set forth herein. (b) Notice to Declarant. In the event that a Claimant discovers any Alleged Defect, Claimant shall provide notice of the Alleged Defect in accordance with Section 13 -20- 801 of the Colorado Construction Defect Action Reform Act (the "Construction Defect Act "), at the address specified in Section 12.4 of this Club Declaration, or such other address at which Declarant maintains its principal places of business, of the specific nature of such Alleged Defect ( "Notice of Alleged Defect "). (c) Right to Enter, Inspect, Repair, and/or Replace. Subject to any non - waivable requirements or provisions of the Construction Defect Act, within a reasonable time after the receipt by Declarant of a Notice of Alleged Defect or the independent discovery of any Alleged Defect by Declarant, as part of Declarant's reservation of rights, Declarant shall have the right, upon reasonable notice to Claimant and during normal business hours, to enter onto or into, as applicable, any Club Unit, and /or any improvements or other portion of the Club Property for the purposes of inspecting and, if deemed necessary by Declarant, repairing and /or replacing such Alleged Defect. In conducting such inspection, repairs and /or replacement, Declarant and its agents, consultants, contractors and sub contractors, shall be entitled to take any actions as it shall deem reasonable and necessary under the circumstances. (d) Legal Actions. Subject to any non - waivable requirements or provisions of the Construction Defect Act, and subject to mandatory arbitration under Section 12.20, no Claimant shall initiate any legal action, cause of action, proceeding or arbitration against Declarant or its agents, consultants, contractors or subcontractors alleging damages (i) for the costs of repairing or the replacement of any Alleged Defect, (ii) for the diminution in value of any real or personal property resulting from such Alleged Defect, or (iii) for any consequential damages resulting from such Alleged Defect, unless and until (1) Claimant has delivered to Declarant a Notice of Alleged Defect and (2) Declarant has within 120 days after its receipt of such Notice of Alleged Defect, either (x) failed to repair or replace such Alleged Defect or (y) if such Alleged Defect cannot reasonably be repaired or replaced within such 120 day period after all appropriate investigation and consultation, failed to commence such repair or replacement of DMWEST #7274549 v5 43 the Alleged Defect and, thereafter, failed to pursue diligently such repair or replacement to completion. (e) No Additional Obligations; Irrevocability and Waiver of Right. Subject to any non - waivable requirements or provisions of the Construction Defect Act, nothing set forth in this Section 12.3 shall be construed to impose any obligation on Declarant to inspect, repair or replace any item or Alleged Defect for which Declarant is not otherwise obligated to do under applicable Law. The right of Declarant to enter, inspect, repair, and/or replace reserved hereby shall be irrevocable and may not be waived or otherwise terminated except by a writing, in recordable form, executed and recorded by Declarant in the Office of the County Recorder. (f) Waiver. Subject to any non - waivable requirements or provisions of the Construction Defect Act, notwithstanding anything to the contrary in this Section 12.3, Declarant hereby disclaims all warranties relating to the Resort. Declarant makes no warranty or representation of any nature, express or implied, including, but not limited to, those of workmanlike construction, habitability, design, condition, or quality as to the development land underlying the Resort, the Resort, the Resort Common Areas, the Common Elements, the Club Units, the Club Furnishings or the other improvements constituting the Resort, and Declarant hereby expressly disclaims any such representations or warranties. Declarant specifically disclaims, and purchaser for itself and its agents, contractors, successors, assigns, heirs and personal representatives, specifically releases Declarant and Hotel Owner from, any liability for incidental or consequential damages to any person or the residence or any other real or personal property resulting from a defect With regard to the appliances and any other items of tangible personal property, Declarant disclaims all warranties including, but not limited to, those of merchantability or fitness for a particular purpose. 12.4 Notices. Notices provided for in this Club Declaration shall be in writing and shall be deemed sufficiently given either when delivered personally (including, without limitation, delivery by a nationally recognized overnight carrier such as Federal Express) or by such other means of transmission as permitted by applicable Law, at the appropriate address set forth below (in which event, such notice shall be deemed effective only upon such delivery) or forty -eight (48) hours after deposit of same in any post office box in the state or other jurisdiction to which the notice is addressed, seventy -two (72) hours after deposit of same in any such post office box other than in the state to which the notice is addressed, postage prepaid, addressed as set forth below. Any notice to a Club Owner required under this Club Declaration shall be addressed to the Club Owner at the last address for such Club Owner appearing in the records of the Club Association. Notices to the Club Association shall be addressed as follows: One Vail Road Residence Club Owners' Association, Inc. 1 Vail Road Vail, Eagle County, Colorado 81657 Attn: President Notices to the Club Association Manager shall be addressed to the address designated by the Club Association Manager by written notice to all Club Owners. DMWEST #7274549 v5 44 r Notices to Declarant shall be addressed as follows: Vail Residential 09 LLC Notices to Hotel Owner shall be addressed as follows: Vail Hotel 09 LLC The addresses and addressees for purposes of this Section 12.4 may be changed by giving notice of such change in the manner herein provided for giving notice. Unless and until such notice is received, the last address and addressee as stated by notice or as provided herein, if no notice of change has been sent or received, shall be deemed to continue in effect for all purposes hereunder. 12.5 Right of First Refusal. If a Club Owner, or the Club Association pursuant to Section 12.2(a), desires to sell, convey, or otherwise transfer ownership of his, her or its Fractional Interest and such Club Owner receives an offer to purchase such Fractional Interest from a bona fide third party which such Club Owner desires to accept, the Club Owner, prior to accepting such an offer, shall notify Declarant and provide Declarant with a copy of the offer received ( "Purchase Offer "), which shall have been executed by the Club Owner, subject to Declarant's rights under this Section 12.5, and shall include a summary of all material business terms of the proposed purchase, including price, financing terms, timing of closing, conditions of closing, any commission, finders fees or other compensation payable to any broker in connection with such purchase and any other terms and conditions that Declarant may from time to time require to be included in such summary. Declarant shall then have the right and option to purchase the Fractional Interest at the same price and on the same terms as set forth in the Purchase Offer, including financing. If Declarant elects to purchase the Fractional Interest as provided herein, such election shall be made by written notice and countersigned copy of the Purchaser Offer, sent to the Club Owner within fifteen (15) days following receipt by Declarant of the Club Owner's notice. Such notice and countersigned Purchase Offer from Declarant shall be deemed to create a binding contract between the Club Owner and Declarant for Declarant to purchase the Fractional Interest in accordance with the terms and provisions of the Purchase Offer. If Declarant does not send such notice and countersigned Purchaser Offer to the Club Owner of its election to purchase the Fractional Interest within such fifteen (15) day period, the Club Owner shall thereafter be free to sell the Fractional Interest to the person or entity submitting the Purchase Offer in accordance with the terms and provisions of the Purchase Offer. In the event that the price or other terms of the Purchase Offer are altered in any way from those that were initially submitted to Declarant, Club Owner shall be obligated to notify Declarant of the new terms and present Declarant with the option to purchase the Fractional Interest at the DMWEST #7274549 v5 45 • ► new price and terms. If the transaction contemplated by a Purchase Offer ( "Original Purchase Offer ") presented to and declined by Declarant does not close within twelve (12) months from the date of such Original Purchase Offer, the Club Owner shall be obligated to submit to Declarant, in accordance with this Section 12.5, (x) such Original Purchase Offer if it still qualifies as a Purchase Offer and (y) any other Purchase Offer received by such Club Owner which such Club Owner desires to accept. This right of first refusal shall run with the land and shall be binding on all successors and assigns of all Club Owners and shall terminate upon the earlier to occur of (a) the tenth year anniversary of the Starting Date, (b) the date on which the last Fractional Interest owned by Declarant has been sold, and (c) the recordation in the Office of the County Recorder of an instrument executed by a duly authorized representative of Declarant surrendering such right of first refusal. In any and all events, membership in the Network, in accordance with the Project Affiliation Agreement and the Network Rules, and the Declarant's right of first refusal as set forth above shall be a requirement of any successor in title to a Club Owner, the same being a covenant running with the land and the membership being an appurtenance to each Fractional Interest. 12.6 Notification of Sale of Fractional Interest. No later than thirty (30) days after the sale or transfer of any Fractional Interest under circumstances whereby the transferee becomes the Club Owner thereof, the transferor or the transferee shall notify the Club Association in writing of (a) the name and address of the transferee and transferor and (b) the date on which such sale or transfer is to be or was consummated; such notice shall contain (i) a statement executed by the transferee that the transferee has received from the Club Owner, and acknowledges receipt of, a copy of the Governing Instruments, the Network Rules and a Statement of Status, (ii) a statement executed by the transferee that the transferee has received a copy of then effective Club Association Budget, (iii) a statement executed by the transferee that the transferee agrees to be bound by all of the provisions of the Governing Instruments and Network Documents, and (iv) the name and address of any Mortgagee of such transferee. Any outstanding and unpaid Assessments and Personal Charges shall be paid to the Club Association prior to the transfer of such Fractional Interest. Any outstanding and unpaid Assessments and Personal Charges shall be the obligation of the transferee unless paid prior to transfer by the transferor. Unless and until such notice is given and any unpaid Assessments and Personal Charges have been paid to the Club Association on behalf of the transferor, the Club Association shall not be required to recognize the transferee for any purpose and the transferor shall remain liable for all such unpaid Assessments and Personal Charges. Prior to (i) receipt of any such notification by the Club Association or the Club Association Manager and (ii) the payment of Assessments and Personal Charges by the transferor, any and all communications required or permitted to be given by the Club Association shall be deemed duly given and made to the transferee if duly and timely made and given to such transferee's transferor. 12.7 Third Party Beneficiary Rights. Hotel Owner is hereby declared to be a third party beneficiary of any and all rights that accrue to Declarant under this Declaration. The Resort Association is hereby declared to be a third party beneficiary of any and all rights that accrue to Declarant or the Resort Association, or which benefit the Resort Association, Hotel Owner and the Resort Association shall have each and every right and power set forth hereunder to enforce such rights. DMWEST #7274549 v5 46 • • 12.8 Successors. The provisions of this Club Declaration shall be binding upon all parties owning a Fractional Interest or having or acquiring any right, title or interest therein and shall be for the benefit of each Club Owner and such Club Owner's heirs, successors and assigns. Each Club Owner shall be fully discharged and relieved of liability on the covenants herein insofar as such covenants relate to each Fractional Interest upon ceasing to own such Fractional Interest and paying all sums and performing all obligations hereunder insofar as the same relate to each Fractional Interest up to the time his, her or its Fractional Interest is terminated. The obligations and rights of Hotel Owner under this Club Declaration shall be binding upon, and inure to the benefit of, any and all successors in Ownership Interest to the Hotel. Any party having an Ownership Interest in the Hotel shall be fully discharged and relieved of liability on the covenants herein upon ceasing to own such Ownership Interest in the Hotel and paying all sums and performing all obligations hereunder insofar as the same relate to the time prior to the termination of such Ownership Interest. 12.9 Violation or Nuisance. Every act or omission whereby any provision of the Governing Instruments is violated in whole or in part is hereby declared to be a nuisance and may be enjoined or abated whether or not the relief sought is for negative or affirmative action, by Hotel Owner, the Resort Association, the Club Association or any Club Owner. 12.10 Violation of Law. Any violation of any state, municipal or local law, ordinance or regulations pertaining to the ownership, occupancy or use of any of the Club Property is hereby declared to be a violation of this Club Declaration and subject to any or all of the enforcement procedures set forth herein. 12.11 Interpretation. The captions of the Articles, Sections hereof are for convenience only and shall not be considered to expand, modify or aid in the interpretation, construction or meaning of this Club Declaration. As used herein the singular shall include the plural and the masculine shall include the feminine and neuter. 12.12 Construction, Waiver. The provisions of this Club Declaration shall be liberally construed to effect its purpose of creating a uniform plan for the development of a transient residential community. The failure to enforce any provision of this Club Declaration shall not constitute a waiver thereof or of the right to enforce such provision thereafter. 12.13 Termination. The plan of condominium ownership and the Club Association created by this Club Declaration and the Club Articles and Club Bylaws shall terminate and be of no force and effect when this Club Declaration is terminated in the manner provided in this Club Declaration. 12.14 Indemnity. To the extent not covered by insurance maintained or required to be maintained by the claiming Club Owner or the Club Association, each Club Owner shall indemnify, defend and hold each other Club Owner, the Club Association, the Club Association Manager, Declarant, Hotel Owner, Hotel Manager, the Resort Association and the Resort Association Manager harmless from and against any and all claims, damages, liabilities and expenses (including costs and attorneys' fees incurred in the defense of any claim) arising from the use or occupancy of indemnifying Club Owner's Assigned Club Unit or from the conduct of its business or from any activity, work or things done, permitted or suffered by the indemnifying DMWEST #7274549 v5 47 Club Owner, or by the Tenants, Permitted Users or Permittees of the indemnifying Club Owner, in or about the Assigned Club Unit or elsewhere in the Resort. This provision shall not permit any party to be indemnified for claims, damages, liabilities and expenses arising from the negligence or willful misconduct of that party. 12.15 Constructive Notice and Acceptance; Incorporation of Club Declaration into Deeds. Every person or entity who now or hereafter owns or acquires any right, title or interest in or to any portion of the Club Property is and shall be conclusively deemed to have consented and agreed to every covenant, condition, restriction and provision contained in this Club Declaration, whether or not any reference to this Club Declaration is contained in the instrument by which such person acquired an interest in the Club Property. Any deed or other instrument by which all or any portion of the Club Property is conveyed, whether by fee, easement, leasehold interest or otherwise, shall be subject to the provisions of this Club Declaration and any instrument of conveyance shall be deemed to incorporate the provisions of this Club Declaration, whether or not such instrument makes reference to this Club Declaration. 12.16 Cumulative Remedies. Each remedy provided for in this Club Declaration shall be cumulative and not exclusive. The failure to exercise any remedy provided for in this Club Declaration or any other document shall not constitute a waiver of such remedy or of any other remedy provided herein or therein. 12.17 Attorneys' Fees and Costs. If any party shall bring an action or proceeding (including, without limitation, any cross - complaint, counter- claim, third party claim or arbitration proceeding) against a Club Owner, the Club Association Manager, the Club Association, Hotel Manager, Resort Association Manager, Resort Association Board, Declarant or Hotel Owner or any of their officers or directors, by reason of the alleged breach or violation of any provision hereof, or for the enforcement of any provision hereof, or to interpret any provision hereof, or otherwise arising out of this Club Declaration, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of such action or proceeding, including, but not limited to, its reasonable attorneys' fees, which shall be payable by the non - prevailing party whether or not such action or proceeding is prosecuted to judgment or award. For the purposes of this Club Declaration, the term "attorneys' fees" shall mean the fees and expenses of counsel to the parties hereto, which may include fees incurred with respect to post - judgment motions, contempt proceedings, garnishment, levy, debtor and third -party examinations, discovery, bankruptcy, litigation, and may include expenses such as printing, photostating, duplicating, facsimiles, filing fees, air freight charges and fees billed for law clerks, paralegal and other persons not admitted to the bar but performing services under the supervision of an attorney, all of which shall be deemed to have accrued upon the occurrence of the act or omission giving rise to the incurrence of such fees. 12.18 No Public Dedication. Nothing herein contained shall be deemed a gift or dedication of any portion of the Club Property or portion thereof to the general public, or for the general public or for any public use or purpose whatsoever; it being the intention and understanding of the parties hereto that this Club Declaration shall be limited to and for the purposes herein expressed solely for the benefit of the Club Owners. DMWEST #7274549 v5 48 • • 12.19 Governing Law. This Club Declaration shall be governed by the laws of the State of Colorado without giving effect to the principles of conflict of laws thereof. 12.20 Arbitration. All disputes not involving claims for indemnity or unpaid Assessments and arising under this Club Declaration between Declarant, Hotel Owner, the Club Association, the Resort Association and /or the Resort Association Manager, on the one hand, and any Club Owner or Permitted Users, on the other hand, shall, upon the request of any party, be resolved by binding arbitration conducted by a single, neutral arbitrator, except that, if the amount in controversy exceeds $250,000, then, the arbitration shall be conducted by three (3) arbitrators, each of which shall be qualified according to the criteria set forth in this Section 12.20. Notwithstanding the preceding sentence, if the dispute involves an Alleged Defect and after any applicable cure period in accordance with Section 12.3, Declarant may, in its sole discretion, elect not to have the dispute decided by arbitration. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator selected shall be neutral and impartial, knowledgeable as to the subject matter of the dispute and experienced in arbitration proceedings. The arbitrator shall have at least ten (10) years experience with mixed -use, high -end resort projects. If a dispute involves an Alleged Defect, the arbitrator shall also have experience in complex construction arbitration. The decision of the arbitrator shall be conclusive and binding upon the parties and shall be enforceable through procedures adopted under the laws of the State of Colorado for the enforcement of arbitration awards. The cost of the arbitration shall be borne equally by the parties unless otherwise awarded by the arbitrator. Any claim which any party has against another party pertaining to the matters set forth or referred to in this Club Declaration must be presented by the claiming party to the other within one (1) year of the date the claiming party knew or should have known of the facts giving rise to the claim. Unless the party against whom any claim is asserted waives the time limits set forth above, any claim not brought within the time periods specified shall be waived and forever barred. When a matter must be resolved by arbitration, the arbitrator shall use the following standard to resolve such matters: the arbitrator shall determine whether the action in question needs to be taken, and if so, then the arbitrator shall determine which party's position is most reasonable under the circumstances. When considering whether the action needs to be taken, the arbitrator shall rule that such action be taken if such action is required to maintain or elevate the Resort to the Resort Quality Standard. The arbitrator, in its discretion, may determine and apportion liability between the parties, but in no event shall the arbitrator award punitive damages to any party. 12.21 Provisions Run With Land. The provisions of this Club Declaration are intended to run with the land. When any interest in real property in the Club Property is conveyed, the interest shall be burdened by the provisions of this Club Declaration for the benefit of the remaining portions of the Club Property and the interest conveyed shall be entitled to the benefit of this Club Declaration until terminated pursuant to Section 12.2. 12.22 Conflict of Provisions. This Club Declaration is subject to the provisions of the Resort Declaration recorded in the office of the County Recorder. In the event of any conflict between this Club Declaration and the Governing Instruments of the Resort Association, the latter shall control. In the event of any conflict between this Club Declaration and the Club Articles, this Club Declaration shall control. In the event of any conflict between the Club Articles and the Club Bylaws, the Club Articles shall control. In the event of any conflict DMWEST #7274549 v5 49 r between the Club Bylaws and the Club Rules and Regulations, the Club Bylaws shall control. In the event of any conflict between the Club Rules and Regulations and the Resort Rules and Regulations, the Resort Rules and Regulations shall control. Notwithstanding the foregoing general rule, when making reservations, the following shall apply: (i) where a Network Member is attempting to complete a reservation during the Home Project Reservation Period and his /her Home Project Rules conflict in any way with the Network Rules, then the Home Project Rules shall govern; and (ii) where a Network Member is attempting to complete a reservation, following the expiration of the Home Project Priority Period, then the Network Rules shall govern where there is a conflict with the Home Project Rules as they relate to the making or confirmation of any Network reservation. 12.23 Acknowledgements. Each Club Owner is hereby advised of the following matters affecting the Club Units, the Resort and the Club Owners' use and enjoyment thereof: (a) Incomplete Development. The Resort is located in an area that is subject to on -going construction activities relating to the development of Vail Village in general (collectively, 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 traveling on the roads within Vail Village; and (ii) construction activities including, without limitation, grading, excavation, clearing, site work and construction of improvements. (b) Commercial Activities. A variety of commercial activities are and will be conducted in and adjacent to the Resort (as further described below, the "Commercial Activities "). The Commercial Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Commercial Activities may include, without limitation: (i) office and retail uses, (ii) retail sales and rentals, (iii) real estate sales, (iv) live music and other entertainment, (v) sales of tickets; (vi) restaurant and bar operations; (vii) sales of services relating to recreational activities; (viii) parking activities; (ix) the installation, operation and maintenance of illuminated and non - illuminated signage; (x) weddings, banquets, meetings and conferences; and (xi) any other uses or activities permitted by law. The Commercial Activities may occur during daytime and nighttime. Commercial Activities and commercial businesses at the Resort must comply with applicable Laws and regulations and with zoning and other governmental requirements applicable to the Resort. Commercial Activities, and the impacts and disturbances generated by them, may occur in and around the Resort. (c) Ski Area. The Commercial Activities will also include activities relating to the recreational areas known as Vail Mountain (defined in the Master Definitions as the "Ski Area "). The Ski Area represents a unique and desirable amenity that includes many year -round activities. As such, the Ski Area may generate an unpredictable amount of visible, audible and odorous impacts and disturbances from activities relating to the construction, operation, use and maintenance thereof. The activities associated with the Ski Area include, without limitation: (i) vehicular and non - vehicular traffic, including, without limitation, (A) buses, vans, snowcats, snowmobiles and other vehicles which transport residents and guests of the Resort over, around and through the Ski Area and the Resort, and (B) construction vehicles and equipment; DMWEST #7274549 v5 50 • (ii) activities relating to the construction, operation and maintenance of ski trails, skiways and skier bridges and tunnels relating to the Ski Area, including, without limitation, (A) construction, operation and maintenance of the Ski Area access roads, snow - making equipment and chairlifts, gondolas and other skier transportation systems, and (B) operation of snow - grooming vehicles and equipment and safety supervision vehicles; (iii) avalanche control activities conducted in nearby areas; and (iv) activities relating to the use of the Ski Area, including, without limitation, skiing, snow boarding, hiking, horseback riding, bicycling and other recreational activities. Declarant and Hotel Owner are not the operators of the Ski Area and, accordingly, cannot make any representations relating thereto. Neither Declarant or Hotel Owner nor any of their employees or agents have made representations regarding the opening or closing dates of the Ski Area in any given year. The operator of the Ski Area may decide, in its sole discretion, whether any or all of the lifts within the Ski Area should be operated. (d) Other Properties. Neither Declarant nor Hotel Owner nor any of their brokers, sales representatives, agents or employees can make any representations regarding the existence, preservation or permanence of any view from any Club Unit, nor can they give any Club Owner any assurances whatsoever that they can or will take action to restrict or control the development of any of the real property adjacent to or in the vicinity of the Resort. Declarant and Hotel Owner have made no express or implied easements for views or for the passage of light and air to any Club Unit. (e) Access. Declarant, Hotel Owner and /or the Club Association or Resort Association may grant certain easements to the public and /or adjacent property owners across certain portions of the Resort including all sidewalk and plaza areas, for access, utilities, and other purposes. Such easement shall be depicted on the Club Map or otherwise recorded against the Development Land. Roads within the Resort are or may be subject to restricted or gated access limitations, and are or may be subject to the Resort Rules and Regulations. (f) Mountain Conditions. Ownership of real property in mountain areas involves certain inherent inconveniences. These include, but are not limited to, (a) dripping water onto decks and porches from snow melt, (b) snow and ice build -up on roofs, decks and porches during winter months, and the need to remove snow and ice to prevent leaking or damage to these structures, (c) the need to maintain the internal temperature of the Club Unit at a minimum temperature of 60 degrees Fahrenheit in order to prevent broken pipes, (d) limitations to, or disruptions or delays in, public or private access to the Resort and (e) other inconveniences arising from the sometimes severe winter conditions in the Rocky Mountains. (g) No Area or Amenity Representations. Neither Declarant, Hotel Owner, nor their agents, members, officers or employees have made any representation regarding schools, churches, availability of ski, golf or other recreational or community amenities, public facilities or future development of the area in which the Resort is located. (h) Amenities. No interest in or right to use any amenity located near the Resort shall be conveyed to any Club Owner. The owners of any facilities that are not part of the Club Property shall have the right, in their sole discretion, to remove, relocate, discontinue operation of, restrict access to, charge fees for the use of, sell interests in or otherwise deal with DMWEST #7274549 v5 51 1 . such assets in their sole discretion without regard to any prior use of or benefit to any Club Owners. (i) Private Residence Units. Each Club Owner acknowledges that Declarant intends to create within the Resort a condominium regime that will consist of selling whole - ownership condominium units. [Signature Block Follows on Next Page.] DMWEST #7274549 v5 52 IN WITNESS WHEREOF, Declarant has caused this Club Declaration to be executed as of the day and year first -above written. DECLARANT: VAIL RESIDENTIAL 09 LLC, a Delaware limited liability company By: Its: COUNTY OF ) STATE OF ) This instrument was acknowledged before me on , 20 , by , as of Vail Residential 09 LLC, a Delaware limited liability company. Notary Public My Commission Expires: (SEAL) DMWEST #7274549 v5 53 EXHIBIT A TO CLUB DECLARATION LEGAL DESCRIPTION OF DEVELOPMENT LAND [Note — legal description to be revised to reflect Club Component description upon recordation of the Resort Map] A part of Lots A, B and C of Amended Map of Sheet 1 of 2 of Vail Village, Second Filing, Eagle County, Colorado, being more particularly described as follows: Commencing at the Northeast corner of Section 7, Township 5 South, Range 80 West of the Sixth Principal Meridian; thence along the East line of the Northeast Quarter of the Northeast Quarter of said Section 7, and referring all bearings contained herein to said line, S 00 DEGREES 09 MINUTES 28 SECONDS W, a distance of 39.20 feet; thence departing said line N 79 DEGREES 08 MINUTES 45 SECONDS W, a distance of 25.44 feet to the Northeast corner of said Lot A and the Point of Beginning of the herein described parcel of land; thence along the East line of said Lot A and the West right -of way line of Vail Road (50' wide) S 00 DEGREES 09 MINUTES 28 SECONDS W, a distance of 125.00 feet; thence continue along said line S 00 DEGREES 09 MINUTES 28 SECONDS W, a distance of 29.15 feet to the Northeast corner of Condominium Map for the Holiday House as recorded in Book 229 at Page 936; thence along the North and West boundaries of said Condominium Map. The following five (5) courses and distances: 1) N 73 DEGREES 43 MINUTES 44 SECONDS W, 156,13 feet; 2) S 28 DEGREES 00 MINUTES 55 SECONDS E, 67.00 feet; 3) S 61 DEGREES 59 MINUTES 05 SECONDS W, 18.27 feet; 4) S 28 DEGREES 00 MINUTES 55 SECONDS E, 86.00 feet; 5) S 74 DEGREES 12 MINUTES 22 SECONDS W, 101.49 feet to intersect the North right - of -way line of West Meadow Drive (50' wide); thence along said right -of -way line the following two (2) courses and distances: 1) N 67 DEGREES 34 MINUTES 08 SECONDS W, 264.42 feet; 2) 58.51 feet along the arc of a curve to the left having a radius of 525.00', a central angle of 6 DEGREES 23 MINUTES 09 SECONDS and a chord which bears N 70 DEGREES 45 MINUTES 43 SECONDS W, 58.48' to the Southwest comer of said Lot C; thence along the West line of said Lot C N 10 DEGREES 51 MINUTES 15 SECONDS E, a distance of 251.25 feet to the Northwest comer of said Lot C; thence along the North line of said Lot C S 79 DEGREES 08 MINUTES 45 SECONDS E, a distance of 300.00 feet to the Northeast comer a said Lot C and the Northwest comer of said Lot A; thence along the North line of said Lot A S 79 DEGREES 08 MINUTES 45 SECONDS E, a distance of 152.65 feet to the Point of Beginning, County of Eagle, State of Colorado. Bearings are based on State Plane Coordinates, Colorado Central Zone. DMWEST #7274549 v5 A -1 r EXHIBIT B TO CLUB DECLARATION MASTER DEFINITIONS DMWEST #7274549 v5 B -1 i • EXHIBIT C TO CLUB DECLARATION UNIT ALLOCATED INTEREST [Note — will need to update with final As -Built Square Footages] Average Square Footage Per Unit Type Pursuant to the Unit Allocated Interest Per Club Unit Type Condominium Plans Unit Type Two Bedroom 1,835 3.818% Two Bedroom plus Den - 2,040 4.244% Three Bedroom 2,639 5.490% DMWEST #7274549 v5 C -1 Account Page 1 of 1 Account: R010540 Location Owner Information ;Assessment History Parcel Number 2101 - 071 -01 -016 Owner Name VAIL DEVELOPMENT Actual (2010) $62,152,320 Tax Area SC103 - VAIL (TOWN) - 09 LLC Primary Taxable $10,452,530 SC103 In Care Of Name BARCLAYS Tax Area: SC103 Mill Levy: 44.2270 Situs Address 000001 VAIL RD CAPITAL REAL ESTATE INC Type Actual Assessed Acres Legal Summary Subdivision: VAIL Owner Address 745 SEVENTH AVE Improvements $51,618,500 $8,683,180 VILLAGE FILING 2 Lot: A AND:- Lot: NEW YORK, NY 10019 C AND:- Lot: B PART OF Land $10,533,820 $1,769,350 2.198 BK -0633 PG -0972 ART 11 -23 -93 R906003 EAS 02 -11 -05 R906004 EAS 02 -11 -05 R200705994 EAS 03 -07 -07 R200700334 EAS 01 -05 -07 Transfers Sale Price Sale Date Reception Number Book Page 06/30 /2009 200914031 01/31/2007 200705567 01/31/2007 200705566 01/31/2007 200705565 Images • Photo • GIS Nallk 111.1 111 1407 - http: / /property.eaglecounty.us/ assessor / taxweb /account.jsp ?accountNum= R010540 9/23/2010 Account Page 1 of 1 Account: R008355 Location Owner information Assessment History Parcel Number 2101 - 071 -01 -019 Owner Name VAIL DEVELOPMENT 09 LLC Actual (2010) $1,938,750 Tax Area SC103 - VAIL (TOWN) - SC103 In Care Of Name BARCLAYS CAPITAL Primary Taxable $562,240 Situs Address 000001 VAIL RD REAL ESTATE INC Tax Area: SC103 Mill Levy: Legal Summary Subdivision: VAIL VILLAGE Owner Address 745 SEVENTH AVE 44.2270 FILING 2 Lot: A PT OF NEW YORK, NY 10019 Type Actual Assessed Acres BK -0230 PG -0747 Land $1,938,750 $562,240 0.405 BK -0662 PG -0455 QCD 02 -17 -95 R200705994 EAS 03 -07 -07 Transfers Sale Price Sale Date Reception Number Book Page 06/30 /2009 200914031 01/31/2007 200705567 01/31/2007 200705566 01/31/2007 200705565 Images • GIS 41I http: / /propertv.eas?lecountv.us /assessor / taxweb /account.jsp ?accountNum= R008355 9/23/2010 BSAI DRAFT 11/24/09 MASTER DEFINITIONS As used in the Governing Instruments, the following terms shall have the following meanings: "A la Carte Services" means those services that may be provided from time to time by or on behalf of Hotel Owner to the Unit Owners and their Permitted Users desiring such services. The A la Carte Services are completely discretionary at the election of Hotel Owner and are paid for by Unit Owners and their Permitted Users on a per use, per diem or other periodic basis established by Hotel Owner, and Hotel Owner's provision thereof may be conditioned upon the applicable Unit Owner's execution of an A la Carte Services Agreement. Basic Services and Management Services are expressly excluded from the definition of A la Carte Services. "A la Carte Services Agreement" means an agreement between a Unit Owner and Hotel Owner (or, at Hotel Owner's direction on Hotel Owner's behalf, by Hotel Manager, Resort Association Manager, Private Residence Association Manager or Club Association Manager under a separate contract), pursuant to which A la Carte Services will be provided to such Unit Owner and its Permitted Users by or on behalf of Hotel Owner. "Act" means the Colorado Common Interest Ownership Act (as amended and supplemented from time to time). "Additional Insureds" means, with respect to insurance required for the Resort, (i) Hotel Owner, (ii) the Resort Association, the Private Residence Association and the Club Association, (iii) the Resort Association Board, the Private Residence Association Board and the Club Association Board, and (iv) the Hotel Manager, the Resort Association Manager, the Private Residence Association Manager and the Club Association Manager. "Affiliate Project" means a project for which Network Manager has determined that membership in the Network should be made available on a voluntary basis to owners of ownership interests at such project in accordance with terms and conditions determined by Network Manager in its sole discretion. All Network Private Residences that are affiliated with the Network shall be considered Affiliate Projects. "Agreed Rate" is the prime rate of interest commonly called the "Wall Street Journal Prime Rate" that is published in the Wall Street Journal (or, in the event that the Wall Street Journal ceases publication or ceases publication of the prime rate, the prime rate published in an equivalent financial publication), plus two hundred (200) basis points, but not to exceed an amount of interest which is the maximum amount which can be charged by law under the circumstances. "Alleged Defect" means a contention or allegation that any portion of the Resort, including, without limitation, any Unit, and /or any improvements constructed on the Resort are defective or that Declarant or its agents, consultants, contractors or subcontractors were negligent in the planning, design, engineering, grading, construction or other development thereof. DMWEST #7269366 v5 "Allocated Interest" means, with respect to a Component, the votes in the Resort Association and the percentage of liability for Common Expenses assigned to each Component as set forth on Exhibit D of the Resort Declaration. Liability for Common Expenses may be further adjusted pursuant to Section 1.5.7 of the Resort Declaration. "Assessments" means, collectively or as the context requires, (i) the assessments levied by the Resort Association to cover the costs and expenses of the Resort Association as set forth in the Resort Association Budget, (ii) the Club Assessment, (iii) the Private Residence Assessment, (iv) Reconstruction Assessments or (v) Default Assessments. "Assigned Club Unit" means any Club Unit, the occupancy of which has been assigned to a Club Owner or Permitted User in accordance with the Club Rules and Regulations, assigned to a Network User pursuant to the Network, or assigned to an External Exchange User pursuant to an External Exchange Program. "Association" means any of the Resort Association, the Private Residence Association or the Club Association. "Basic Services" means those services provided by Resort Association to the Hotel Owner and the Unit Owners that generally are essential to the use of the Components for their intended purposes and specifically are set forth on the list of Basic Services attached as Exhibit F to the Resort Declaration. A la Carte Services and Management Services are expressly excluded from the definition of Basic Services. "Check -In Time" and "Check -Out Time" mean the times designated as such in the Club Rules and Regulations. "Club Annual Report" means a report to the Club Owners comprising (a) a balance sheet relating to the Club Association as of the last day of the Fiscal Year, (b) an operating statement for such Fiscal Year, (c) a statement of changes in financial position for such Fiscal Year, and (d) a list of the names, mailing addresses and telephone numbers of the members of the Club Association Board. "Club Articles" means the Articles of Incorporation of the Club Association, which are, or shall be, filed in the Office of the Secretary of State of Colorado, as said Articles may be amended from time to time. "Club Assessment" means for each Fractional Interest an assessment levied by the Club Association against such Fractional Interest to cover Club Expenses and fund the Club Budget in an amount determined in accordance with the Club Declaration. "Club Association" means One Vail Road Residence Club Owners' Association, Inc., a Colorado non - profit corporation which is established for the administration, management and operation of the Club Regime, the members of which are the Club Owners. "Club Association Board" means the Board of Directors of the Club Association. DMWEST #7269366 v5 2 "Club Association Budget" means a pro forma operating statement for a particular Fiscal Year providing for the Club Expenses as further provided in the Club Declaration. "Club Association Management Agreement" means an agreement between the Club Association on the one hand and the Club Association Manager on the other hand providing for the management of the Club Association and the Club Regime. "Club Association Manager" means the managing agent engaged by the Club Association pursuant to the Club Association Management Agreement to manage the Club Association and the Club Regime in accordance with the Club Declaration (and which may be Hotel Owner, Hotel Manager, the Resort Association Manager or the Private Residence Association Manager, or an affiliate of any such party). "Club Association Member" means an owner of a Fractional Interest. "Club Bylaws" means the Bylaws of the Club Association as such Club Bylaws may be amended from time to time. "Club Component" means the planned community unit (as that term is defined under the Act) designated as such on the Resort Plat, which shall consist of the airspace within the boundaries of such unit as shown on the Resort Plat excluding all Resort Common Areas within such boundaries. Upon the recording of the Club Declaration, the Club Component shall be subdivided into the Club Units, together with the Common Elements appurtenant thereto. "Club Declaration" means that certain Residence Club Declaration of Covenants, Conditions and Restrictions for One Vail Road Residence Club recorded or to be recorded in the Office of the County Recorder, as the same may be amended from time to time in the manner provided therein. "Club Expenses" means the estimated aggregate amount of expenses, as set forth in the Club Association Budget and in accordance with the Club Declaration. All costs and fees relating to the operation of the reservation system and the Network that are allocable to the Club Regime and assessed by Network Manager pursuant to the Project Affiliation Agreement and the Network Rules shall be considered Club Expenses. "Club Furnishings" means all furniture, furnishings, appliances and other personal property from time to time owned, leased or held for use in common by the Club Association, together with all fixtures (whether movable or permanent) and equipment located within a Club Unit. "Club Governing Instruments" means, collectively, the Club Declaration, Club Articles, Club Bylaws, Club Rules and Regulations, the Club Map and such other documents promulgated by the Club Association Board thereunder. "Club Map" means the condominium map for the One Vail Road Club recorded or to be recorded in the Office of the County Recorder, as the same may be amended from time to time. DMWEST #7269366 v5 3 "Club Owner" means the owner of a Fractional Interest. "Club Property" means all the real and personal property subject to the Club Regime, including, without limitation, the Club Units and the Club Furnishings. "Club Regime" means the plan of fractional interest ownership to which the Club Units shall be subject, the terms and conditions of which shall be set forth in the Club Declaration, the Club Rules and Regulations and the Network Rules. The Club Regime is commonly known as "One Vail Road Residence Club." "Club Reserve Expenses" means the specific capital expenditures required to be made at any time and from time to time to provide for the repair and replacement of the Club Property required to be repaired and replaced by the Club Association. "Club Rules and Regulations" means any rules and regulations promulgated by the Club Association Board, as may be amended from time to time, relating to the possession, use and enjoyment of the Club Property and governing the use and enjoyment of the Club Component, including without limitation, policies and procedures for the reservation of Use Periods. The Club Rules may also be referred to as the "Reservation Policies and Procedures" or the "Home Project Rules ". "Club Unit" means a Unit that is subject to the Club Declaration and is part of the Club Regime. All Club Units are committed to the Network Plan. Any Unit that ceases to be a Club Unit shall no longer be committed to the Network Plan. "Common Elements" means, as further described in the Private Residence Declaration and the Club Declaration, respectively, the real property rights and interests created by the grant by Declarant of certain easements over, across and through the Resort Common Areas pursuant to Section 3.1 of the Resort Declaration. The term "Common Elements" expressly excludes any fee interest in the Development Land, the Hotel Component, or any improvements thereto. In avoidance of doubt, for all purposes of the Resort Declaration, the Private Residence Declaration, and the Club Declaration, "Common Elements" is as defined above and such meaning is expressly in lieu of the definition of "common elements" as set forth defined in Section 38- 33.3- 103(5) (or any other section) of the Act (as the Act may be amended from time to time) all as permitted by the first sentence of Section 38- 33.3 -103 of the Act. "Common Expenses" means, collectively: (a) all Resort Operating Expenses; (b) all Resort Reserve Expenses; (c) all Resort Utility Expenses; (d) all Resort Association Expenses; and DMWEST #7269366 v5 4 (e) any and all cost of providing Structural and Mechanical Support that is not included within the definitions of "Resort Operating Expenses," "Resort Reserve Expenses" and "Resort Utility Expenses ". "Component" means the Hotel Component, the Private Residence Component and /or the Club Component, as the context requires. "Component Project" means a project that has become affiliated with the Network pursuant to a Project Affiliation Agreement, and for which membership in the Network is an appurtenance of ownership of a Fractional Interest. The Club Regime is a Component Project. "Costs of Enforcement" means all monetary fees, fines, late charges, interest, expenses, costs, including receiver's and appraiser's fees, and reasonable attorneys' fees and disbursements, including legal assistants' fees, incurred by an Association in connection with the collection of Assessments or in connection with the enforcement of the terms, conditions and obligations of the Governing Instruments. "County" means Eagle County, Colorado. "Curing Entity" means any Mortgagee, any Unit Owner, Hotel Owner, any Member, any Association or other entity mat pays the amount due by and cures the default of any Defaulting Entity. "Declarant" means (a) with respect to and as used in the Resort Declaration, Vail Development 09 LLC, a Delaware limited liability company, its successors and assigns; and (b) with respect to and as used in each of the Private Residence Declaration and the Club Declaration, Vail Residential 09 LLC. "Deeded Parking Space" means a parking space located in the Parking Areas in which a Private Residence Owner has a fee interest as part of such Private Residence Owner's fee interest in a Unit, as further described on the Private Residence Map. "Default Assessment" means an Assessment levied in connection with an unpaid amount for which a Unit Owner is responsible including, without limitation, for Costs of Enforcement, liability for negligence and indemnification obligations. "Defaulting Entity" means Hotel Owner, a Unit Owner, an Association or other entity which defaults in its obligations under any of the Governing Instruments. "Delinquent" means any payment due to an Association which remains unpaid for more than the number of days after the due date therefor as set forth in the Association's Governing Instruments or as may be determined by such Association from time to time, or if no such number of days is determined by such Association, fifteen (15) days after the due date therefor. "Designated User" shall, with respect to a Club Owner, have the meaning provided in Section 3.1(b)(iii) of the Club Declaration. DMWEST #7269366 v5 5 "Detained User" means any Club Owner, Permitted User, Network User or External Exchange User prevented from using or occupying his, her or its Assigned Club Unit or part thereof for all or any portion of his, her or its Use Period because of the unauthorized use or occupancy or uninhabitability of such Assigned Club Unit or any material portion of the Resort Common Areas which such party would otherwise be entitled to use or occupy. "Detaining User" means any Club Owner, Permitted User, Network User or External Exchange User or other person or entity who makes unauthorized use or occupancy of a Club Unit or part thereof, or through any act or course of conduct affecting the Resort or any portion thereof renders a Club Unit uninhabitable or any portion of the Resort Common Areas inaccessible to a party that would otherwise be entitled to use and access such areas. "Development Land" means the land located in the Town of Vail, Eagle County, Colorado, as more particularly described in Exhibit A to the Resort Declaration. "Development Rights" means those rights reserved by each Declarant, as applicable, pursuant to Section 1.4 of the Resort Declaration and Section 3.4 of the Private Residence Declaration and Section 3.10 of the Club Declaration. "External Exchange Company" means any company that provides exchange services to the Network and to Network Members under an External Exchange Program. "External Exchange Program" means any contractual arrangement between Network Manager and an External Exchange Company or Companies under which Network Members may reserve, under certain conditions, the use of accommodations in resorts other than Network Projects. "External Exchange User" means any person occupying a Club Unit through an External Exchange Program. "F &E" means fixtures and equipment contained in a Unit, including, without limitation (a) Carpet, hard surface flooring and other flooring materials (b) Ceramic tile, stone, slate, marble, granite and other similar materials (e.g., for shower, vanity, tub enclosure, counter top) (c) Shower door and tub enclosure (d) Cabinets and shelves (e) Wall coverings (e.g., paint, wallpaper, cloth coverings) (f) Interior doors and door frames (g) Interior window coverings (e.g., shutters, drapes, blinds, curtains) DMWEST #7269366 v5 6 (h) Fireplace, hearth and mantle (i) Kitchen and bath counter tops and splashes (j) Interior wood work and other finish work (e.g., wainscoting, molding, thresholds) (k) Light fixtures, recessed lighting and can lights, electrical outlets, light switches, switch plate covers, cable TV connectors, phone jacks (1) Alarm system components within a Private Residence Unit (m) Fire sprinkler heads and other fire suppression equipment (n) Vacuum equipment (o) Stairways and railings (p) Hardware (e.g., hinges, knobs, handles) (q) Toilet (r) Sinks, sink faucets and drain covers (s) Shower head (t) Bathtub (u) Built -in furniture (v) Towel bars, toilet paper holders, paper towel holders (w) Clothing hooks (x) Closets and any built -ins therein (e.g., shelving, clothes bars) (y) Appliances (e.g., range, microwave, stove, refrigerator, washer, dryer, dishwasher, trash compactor, wine storage units, oven hood, warming drawers, garbage disposal) (z) Exhaust fans and vent covers (aa) Mirrors and medicine cabinets (bb) Water heaters and air conditioning units (if located within a Private Residence Unit) (cc) Home theaters and sound and intercom systems DMWEST #7269366 v5 7 (dd) Networking equipment "Fair Rental Value" means for each Club Unit the cost of renting comparable accommodations located in similar ski and mountain communities. "Fiscal Year" means, for any Association, the one (1) year period commencing on the first day of January of each year and ending on the last day of December of the same year, which shall be the fiscal year of such Association; provided, however, that the first Fiscal Year shall be the partial one (1) year period commencing on the Starting Date and ending on December 31 of that year; provided, further, that the Fiscal Year for any Association may be changed by such Association with the prior written consent of the other Associations. "Force Majeure Event" means (a) act of God or other deity, fire, earthquake, flood, explosion, action of the elements (including blizzard or extreme, abnormal, weather conditions), war, invasion, insurrection, riot, mob violence, sabotage, act of terrorism, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the ordinary course on the open market; (b) failure of normal transportation, strike, lockout, action of labor unions; (c) condemnation, requisition, law, order of governmental or civil or military authorities; (d) the inability to obtain governmental approvals or permits despite the exercise of due diligence and good faith efforts; or (e) or any other cause, whether similar or dissimilar to the foregoing, not within the reasonable control of the person or entity affected thereby (financial ability or negligence excepted). "Fractional Interest" means a time -span estate pursuant to Colorado law and includes an undivided fee ownership interest in a Club Unit and the Common Elements appurtenant thereto, together with the right, in perpetuity, to the recurrent exclusive use and occupancy of a Club Unit, either annually or on some other periodic basis and for a period of time that has been or will be allotted from the use or occupancy periods into which each such Club Unit has been or will be divided, all in accordance with the Club Governing Instruments. "General Account" means the separate account(s) with a bank and /or savings and loan association located within Colorado and selected by an Association into which all cash and cash equivalent receipts of the Association shall be deposited. "Governing Instruments" means, collectively, the Resort Governing Instruments, the Private Residence Governing Instruments, and the Club Governing Instruments. "Home Project Reservation Period" shall have the meaning set forth in the Network Rules. "Home Project Rules" means the reservation policies and procedures, as they may be amended from time to time, applicable specifically to a given Network Project and which govern the use and operation of that Network Project, exclusive of the Network Documents. "Hotel" means the Hotel Component, less and except the Resort Common Areas. For clarity, enclosed rooms within the Hotel shall be deemed to include, as part of the Hotel, the Unfinished Perimeter Walls, Floors and Ceilings thereof (as such terms are defined within the definition of Unit below) and any lath, furring, wallboard, plasterboard, plaster, drywall, wall DMWEST #7269366 v5 8 paneling, wood, tile, paint, paper, carpeting, or any other wall, ceiling, or floor covering, any fireplace or stove hearth, facing brick, tile or firebox, fixtures and hardware within the area bounded by the Unfinished Perimeter Walls, Ceilings, and Floors. "Hotel Business" the business of operating and managing the Hotel as a resort hotel in accordance with the Resort Quality Standard as well as performing other related activities typical of such an operation. "Hotel Component" means the planned community unit (as that term is defined under the Act) consisting of all of the real estate, as defined in the Act, within the Resort other than the Private Residence Component and the Club Component. The Hotel Component includes the Hotel and the Resort Common Areas. "Hotel Manager" means the managing agent engaged by Hotel Owner to manage the Hotel (and which may be Hotel Owner or an affiliate of Hotel Owner). "Hotel Owner" means the owner of the Hotel Component. Promptly following recordation of the Resort Declaration, Declarant intends to convey the Hotel Component to its affiliate, Vail Hotel 09 LLC, which will then be the initial Hotel Owner. "Hotel Owner Fractional Interest(s)" means the Fractional Interest(s) owned by Hotel Owner or its affiliates. For purposes of the Club Declaration, a Fractional Interest that is conveyed to a third party by Original Deed and is subsequently reacquired by Hotel Owner through foreclosure proceedings or by acceptance by Hotel Owner of a deed in lieu of foreclosure, or pursuant to an option, right of first refusal (whether pursuant to the Club Declaration, or otherwise) or other agreement with the initial or any subsequent purchaser of such Fractional Interest shall be deemed to be a Hotel Owner Fractional Interest. Any Fractional Interest that is conveyed by Hotel Owner to the Club Association shall no longer be, as of the date of any such conveyance, a Hotel Owner Fractional Interest for any purpose hereunder. "Hotel Owner Mortgagee" means the beneficiary or mortgagee pursuant to a recorded mortgage or deed of trust encumbering a Private Residence Unit or Fractional Interest or any other part of the Resort owned by Hotel Owner. "Indexed" shall mean, as to any sum of money, that such amount shall be cumulatively adjusted annually, upon each anniversary of the recordation of the Resort Declaration in the Office of the County Recorder, to reflect any change in the Consumer Price Index, as compared with such Index from the immediately preceding year. Such adjustment shall be calculated by multiplying the amount in question by a fraction, the numerator of which is the Consumer Price Index as of the month in which the adjustment occurs, and the denominator of which is the Index for the same month one year earlier. "Consumer Price Index" means the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index for all urban consumers, all items, all consumers, for the market area that includes the Hotel, using the years 1982 -84 as a base of 100, or the successor of such Index. If such Index or successor ceases to be published, then amounts which are Indexed shall be adjusted in accordance with changes in a similar measure of the cost of living as selected by the Resort Association. DMWEST #7269366 v5 9 "Laws" means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, regulations, ordinances, codes and published administrative rules or judicial precedents. "Management Services" means those services that are not essential to the use of the Units for residential purposes but are provided by or on behalf of the Resort Association to the Private Residence Association and the Club Association generally and the Unit Owners specifically in accordance with the Resort Declaration. Expenses attributable to the Management Services shall be Resort Association Expenses and shall be allocated between the Club Component and the Private Residence Component in accordance with their respective Allocated Interests. Basic Services and A la Carte Services are expressly excluded from the definition of Management Services. "Member" means a member of the Club Association, the Private Residence Association or the Resort Association, as the context requires. "Mortgage" means a mortgage or deed of trust encumbering an Ownership Interest, including any Prior Mortgage. "Mortgagee" means the beneficiary or mortgagee pursuant to a recorded Mortgage. "Network" means the service name "Four Seasons Network" given to the variety of exchange and reservation services and vacation and travel benefits currently offered and the restrictions currently imposed through Network Manager. The services provided by Network Manager include the operation of the reservation system through which Network Members (including Club Owners during the pendancy of the Project Affiliation Agreement) reserve the use of the accommodations of the Club Property or other Network Projects pursuant to the priorities, restrictions and limitations of the Project Affiliation Agreement and Network Rules. Membership in the Network is an appurtenance to each Fractional Interest in accordance with the terms of the Residence Club Declaration and the Project Affiliation Agreement and may not be partitioned therefrom. The Network is not a legal entity or association of any kind. "Network Documents" means only those instruments governing the use and operation of the Network, including, but not limited to, the Network Rules, which are promulgated, executed or amended by Network Manager from time to time. "Network Fractional Interest" means fractional or other real or personal property interest in accommodations in a Network Project, including a Fractional Interest. "Network Manager" means FSRC Hotel Exchange, Inc., a California corporation, or any of its successors or assigns. Network Manager shall provide reservation and exchange services and related vacation and travel benefits to Club Owners at Network Projects, including the Club Regime during the term of the Club Regime's Project Affiliation Agreement. "Network Member" means the owner of record of a Network Fractional Interest at any Component Project, or an owner of record of a Network Fractional Interest or Network Private Residence at an Affiliate Project who has complied with all of the terms and conditions DMWEST #7269366 v5 10 for membership in the Network as determined by Network Manager for that Affiliate Project. "Network Member(s)" for purposes of this Residence Club Declaration shall include both Club Owners and Network Users. "Network Owner" means the owner of a fractional or other real or personal property interest in a Network Project, including a Club Owner. "Network Plan" means a fractional interest program whereby a Network Owner receives a Network Fractional Interest in a Network Unit together with the right to compete with other Network Owners for reservations to use or occupy any Network Unit and the other Network Projects in accordance with the provisions of the Project Affiliation Agreement and the Network Rules. "Network Private Residence" means a whole ownership condominium or home that is owned by a person who has affiliated such whole ownership condominium or home with the Network pursuant to the Network Rules, which is managed by Four Seasons Hotels Limited or its affiliates. "Network Project" means both Component Projects and Affiliate Projects, to the extent that owners of Network Fractional Interests or Network Private Residences at such Affiliate Projects have become Network Members. "Network Rules" means the rules and regulations governing the reservation and use of the Network accommodations and facilities, which rules and regulations have been promulgated, adopted and/or amended from time to time by Network Manager in its sole discretion and as it deems necessary or desirable in order to enforce the provisions of the Network Documents in a manner that in its reasonable business judgment will be for the principal purpose of improving on the quality and operation of the Network and furthering the collective enjoyment of the accommodations and facilities by present and future members as a whole. "Network Unit" means a condominium unit or similar accommodation in a Network Project, including a Club Unit. "Network User" means an individual who occupies a Network Unit or part thereof pursuant to the Network. "Non - Declarant Club Owners" means all Club Owners other than Hotel Owner. "Non- Declarant Fractional Interests" means all Fractional Interests owned by Club Owners other than Hotel Owner. "Nonprofit Act" means the Colorado Revised Nonprofit Corporation Act, Articles 121 -137, Title 7, Colorado Revise Statutes, as may be amended and supplemented from time to time. "Office of the County Recorder" means the Office of the Clerk and Recorder of Eagle County, Colorado. DMWEST #7269366 v5 11 "Original Deed" means each deed from Declarant executed and delivered by Declarant after the date hereof conveying a Unit Interest, excluding, however, any deed which conveys all or substantially all of the interest in the Resort then owned by Declarant and which expressly recites that it is not an Original Deed within the meaning of the Private Residence Declaration. "Owner of Record" shall, with respect to a Club Owner, have the meaning provided in Section 3.1(b)(iii) of the Club Declaration. "Ownership Interest" means a fee title interest to any part of the Resort which is real estate. "Parking Area Operator" means Resort Association or any other third party hired or engaged by Hotel Owner to manage or lease the Parking Areas. "Parking Areas" means those areas of the Resort designated as parking areas, including the Deeded Parking Spaces, the use and rights of which are set forth in the Resort Declaration. "Period of Declarant Control" means, with respect to each of the Private Residence Association and the Club Association, the period of time permitted under the Private Residence Declaration or Club Declaration, as applicable, during which the Declarant controls such Association (i.e., by having the right to appoint the officers and board of directors thereof), as further described in Section 4.4 of the Private Residence Declaration and in Section 4.4 of the Club Declaration. "Permitted User" means any person who occupies a Unit or any part thereof with the permission of a Unit Owner, including, without limitation, Tenants, members of such Unit Owner's or Tenant's family and his, her or its guests, licensees or invitees. "Permittee" means any person other than a Unit Owner, Hotel Owner or their Tenants or Permitted Users, who is invited to be and remain on the Resort, and includes, without limitation, employees, customers, business invitees and personal invitees of Unit Owners, Hotel Owner and their Tenants or Permitted Users. "Personal Charges" means, to the extent not covered by any applicable insurance or, if covered, proceeds from which are not actually paid to the appropriate Association, any expense resulting from the act or omission of any Unit Owner or his, her or its Permitted Users or Permittees, including, without limitation the cost to repair or replace any damage to any portion of the Resort Common Areas, the Private Residence Property or the Club Property on account of loss or damage caused by such Unit Owner or his, her or its Permitted Users or Permittees and the cost to satisfy any expense to any other Unit Owner(s) or to an Association due to any intentional or negligent act or omission of such Unit Owner or Permitted User or Permittee, or resulting from the breach by such Unit Owner or Permitted User or Permittee of any provisions of the Governing Instruments. In amplification of the foregoing, the act or negligence of a Permitted User or a Permittee shall be deemed to be the act or negligence of the Unit Owner who permits such Permitted User or such Permittee to use and occupy any portion of the Resort Common Areas, the Private Residence Property or the Club Property. DMWEST #7269366 v5 12 "Primary Use Time" means a Club Owner's basic entitlement to use and occupy an Assigned Club Unit of his, her or its Unit Type reserved in accordance with the Club Rules and Regulations and the Network Rules for the maximum number of nights for each Season per Use Year as set forth in such Club Owner's Original Deed or such other conveyance of a Fractional Interest. The Original Deed shall set forth the use rights for each Fractional Interest. "Prior Mortgage" means, with respect to each Unit Interest, any first Mortgage recorded in the Office of the County Recorder and given in good faith and for value until such Mortgage is satisfied or terminated of record. "Private Residence Annual Report" means a report to the Private Residence Owners comprising (a) a balance sheet relating to the Private Residence Association as of the last day of the Fiscal Year, (b) an operating statement for such Fiscal Year, and (c) a statement of changes in financial position for such Fiscal Year. "Private Residence Articles" means the Articles of Incorporation of the Private Residence Association, which are, or shall be, filed in the Office of the Secretary of State of Colorado, as said Articles may be amended from time to time. "Private Residence Assessment" means an assessment levied by the Private Residence Association against each Private Residence Unit sufficient in amount to cover Private Residence Expenses and fund the Private Residence Association Budget in an amount determined in accordance with the Private Residence Declaration. "Private Residence Association" means One Vail Road Private Residences Owners' Association, Inc., a Colorado non - profit corporation which is established for the administration, management and operation of the Private Residence Property, the members of which are the Private Residence Owners. "Private Residence Association Board" means the Board of Directors of the Private Residence Association. "Private Residence Association Budget" means a pro forma operating statement for a particular Fiscal Year providing for the Private Residence Expenses as further provided in the Private Residence Declaration. "Private Residence Association Management Agreement" means an agreement between the Private Residence Association, on the one hand, and the Private Residence Association Manager, on the other, providing for the management of the Private Residence Association and the Private Residence Component (excluding the Private Residence Units). "Private Residence Association Manager" means the managing agent engaged by the Private Residence Association to manage the Private Residence Association and the Private Residence Component in accordance with the Private Residence Declaration (and which may be Hotel Owner, Hotel Manager, the Resort Association Manager or the Club Association Manager, or an affiliate of any of such parties). DMWEST #7269366 v5 13 "Private Residence Association Member" means the owner of a Private Residence Unit. "Private Residence Bylaws" means the Bylaws of the Private Residence Association as such Private Residence Bylaws may be amended from time to time. "Private Residence Component" means the planned community unit (as that term is defined under the Act) designated as such on the Resort Plat, which shall consist of the airspace within the boundaries of such unit as shown on the Resort Plat, excluding all Resort Common Areas within such boundaries. Upon the recording of the Private Residence Declaration, the Private Residence Component shall be subdivided into the Private Residence Units (including the Deeded Parking Spaces), together with the Common Elements appurtenant thereto. "Private Residence Declaration" means that certain Private Residence Declaration of Covenants, Conditions and Restrictions for One Vail Road Private Residences, recorded or to be recorded in the Office of the County Recorder, as the same may be amended from time to time in the manner provided therein. "Private Residence Expenses" means the estimated aggregate amount of expenses, as set forth in the Private Residence Association Budget and in accordance with the Private Residence Declaration. "Private Residence Governing Instruments" means collectively, the Private Residence Declaration, the Private Residence Articles, the Private Residence Bylaws, the Private Residence Rules and Regulations and the Private Residence Map and such other documents promulgated by the Private Residence Association Board thereunder. "Private Residence Map" means the condominium map for the One Vail Road Private Residences recorded or to be recorded in the Office of the County Recorder, as the same may be amended from time to time. "Private Residence Owner" means the owner of a Private Residence Unit. "Private Residence Property" means all of the real and personal property within and exclusive easements appurtenant to the Private Residence Component, if any, for which the Private Residence Association is responsible for maintenance or repair and replacement, expressly excluding the Private Residence Units. "Private Residence Reserve Expenses" means the specific capital expenditures required to be made at any time and from time to time to provide for the repair and replacement of the Private Residence Property to be repaired and replaced by the Private Residence Association. "Private Residence Rules and Regulations" means any rules and regulations promulgated by the Private Residence Association Board, as may be amended from time to time, relating to the possession, use and enjoyment of the Private Residence Property and governing the use and enjoyment of the Private Residence Component. DMWEST #7269366 v5 14 • "Private Residence Unit" means a Unit subject to the Private Residence Declaration, together with the two Deeded Parking Spaces conveyed with and made a part of each such Private Residence Unit. "Privilege Use Time" means a Club Owner's use of an Assigned Club Unit pursuant to the provisions of the Club Rules and Regulations and /or the Network Rules permitting such use, which use is in addition to such Club Owner's Primary Use Time (up to a maximum of seven (7) nights per Use Year per Fractional Interests). "Project Affiliation Agreement" means an agreement among Network Manager and the developer and /or the managing entity of a Network Project under which the accommodations and facilities of the Network Project are included as a part of the Network. "Purchase Agreement" means a purchase and sale agreement by and between Declarant and the person or entity named therein as "Buyer" or "Purchaser" providing for the sale by Declarant and the purchase by such Buyer or Purchaser of a Unit Interest. "Reconstruction Assessment" means an assessment levied by the Private Residence Association or the Club Association, as applicable, for the purpose of raising funds to rebuild, restore or replace any portion of the Private Residence Property or the Club Property, respectively, suffering damage, in accordance with the Private Residence Declaration or the Club Declaration, respectively. "Reservation Group" means that certain alphabetical letter (A through L) assigned to each Fractional Interest in an Original Deed which: (a) is used to identify the order in which each Club Owner's reservation request for Owner Primary Use Time is confirmed by the Club Association Manager pursuant to the Club Rules and Regulations or otherwise used to make reservations pursuant to the Network Rules, (b) shall be included in the legal description of the Fractional Interest and is appurtenant to and may not be separated from the Fractional Interest. "Reserve Account" means (a) one or more interest - bearing accounts with one or more banks and /or savings and loan associations selected by an Association or (b) one or more Treasury Bills and /or Certificates of Deposit, which accounts, Treasury Bills and /or Certificates of Deposit shall contain funds collected as and for Resort Reserve Expenses, Private Residence Reserve Expenses or Club Reserve Expenses, as the case may be. "Resort" means the Development Land and all improvements located thereon (expressly including the Units), commonly known as the One Vail Road Resort. "Resort Annual Report" means a report to the Resort Association Members comprising (a) a balance sheet relating to the Resort Association as of the last day of the Fiscal Year, (b) an operating statement for such Fiscal Year, (c) a statement of changes in financial position for such Fiscal Year, and (d) a list of the names, mailing addresses and telephone numbers of the members of the Resort Association Board. "Resort Articles" means the Articles of Incorporation of the Resort Association, which are, or shall be, filed in the Office of the Secretary of State of Colorado, as said Articles may be amended from time to time. DMWEST #7269366 v5 15 "Resort Association" means the One Vail Road Resort Association, Inc., a Colorado non - profit corporation, the members of which are the Private Residence Association, the Club Association and Hotel Owner. "Resort Association Board" means the Board of Directors of the Resort Association. "Resort Association Budget" means a pro forma operating statement for a particular Fiscal Year providing for the Common Expenses as further provided in the Resort Declaration. "Resort Association Expenses" means the estimated aggregate amount of expenses, as set forth in the Resort Association Budget, that are incurred by the Resort Association during the applicable Fiscal Year to, among other things: provide for the purchase, maintenance and repair of fixtures, equipment in the Resort Common Areas; provide for a contingency fund in the event that some Assessments may not be paid on a current basis and to replace any deficit arising because of any Resort Association Member's failure to pay any amount required under the Resort Declaration; pay the cost of any arbitration or enforcement proceeding to be initiated by the Resort Association or the Resort Association Manager under the Resort Declaration; pay the cost of providing insurance obtained by the Resort Association pursuant to the Resort Declaration; pay the costs of repairs or replacements to the Resort to the extent not covered by insurance; pay the cost of accounting, legal fees and other professional fees; pay the cost of Taxes applicable to the Resort Common Areas; pay the fees of the Resort Association Manager pursuant to the Resort Association Management Agreement; and pay any costs incurred by the Resort Association in performing any act (other than payment of Resort Association Expenses) or obligation pursuant to the Resort Declaration. "Resort Association Management Agreement" means an agreement between the Resort Association, on the one hand and the Resort Association Manager, on the other hand providing for the management of the Resort Association and the Resort Common Areas. "Resort Association Manager" means the managing agent engaged by the Resort Association to manage the Resort Association and the Resort Common Areas (and which may be DMWEST #7269366 v5 1 Hotel Owner, Hotel Manager, the Private Residence Association Manager, the Club Association Manager or an affiliate of any such parties). "Resort Association Member" means the Club Association, the Private Residence Association and Hotel Owner. "Resort Bylaws" means the Bylaws of the Resort Association as such Resort Bylaws may be amended from time to time. "Resort Common Areas" means (a) those portions of the Hotel Component over and through which Hotel Owner has granted certain nonexclusive easement and use rights to the Declarant and to the owners of the Private Residence Component and the Club Component and their successors and assigns, including the Unit Owners pursuant to Article 3 of the Resort Declaration, and (b) certain property owned by one or more governmental entities that is located adjacent to the Resort and which the Resort Association or Hotel Owner is obligated to maintain pursuant to a development agreement or similar agreement with such governmental entities. To the extent the Resort Common Areas are readily locatable or otherwise susceptible of depiction and designation on a land survey plat, such areas are depicted and designated as Resort Common Areas on the Resort Plat. However, it is understood that not all of the Resort Common Areas may be so depicted, and without limiting the generality of the provisions of clause (a) above, the Resort Common Areas are hereby defined to specifically include, without limitation, the following: (a) All areas providing Structural and Mechanical Supports, including (without limitation); (i) the foundations, foundation slabs, columns, girders, beams, supports, bearing walls, perimeter walls (including the exterior "skin" of the buildings on the Development Land), supporting walls, fireplaces, chimneys, flues, chimney chases, roofs, flooring, exterior doors and windows (and frames therefor) on a perimeter wall of a Unit; (ii) the mechanical and utility installations, lines and systems consisting of the equipment and materials making up any central services such as power, light, gas, hot and cold water, hot water heaters, boilers, sewer, plumbing, snowmelt, cable television, telecommunications systems and heating and central air conditioning and other similar systems, lines and installations which exist for use by holders of Ownership Interests in more than one Unit or Component, including the pipes, vents, ducts, flues, cable conduits, wires, telephone wire, and other similar utility installations used in connection therewith); and (iii) the pumps, tanks, motors, fans, storm drainage structures, compressors, and, in general, all apparatus, installations, and equipment of the improvements at the Resort existing for use of the holders of Ownership Interests in more than one Unit or Component. (b) All balconies, decks and patios contiguous to the Units. DMWEST #7269366 v5 17 (c) All areas over which pedestrian easements and rights of use are granted pursuant to Section 3.1.1 of the Resort Declaration, which areas are depicted as Resort Common Areas on the Resort Plat and include (without limitation) certain elevator(s), corridors, lobbies, vestibules, entrances and exits and certain areas where amenities may be located within the Hotel Component. (d) All areas over which vehicular easements are granted pursuant to Section 3.1.1 of the Resort Declaration, which areas are depicted as Resort Common Areas on the Resort Plat and include portions of the Parking Areas. (e) Areas over which service easements are granted pursuant to Section 3.1.3 of the Resort Declaration. For clarity, the Unfinished Perimeter Walls, Floors and Ceilings (as such terms are defined within the definition of Unit below) and any lath, furring, wallboard, plasterboard, plaster, drywall, wall paneling, wood, tile, paint, paper, carpeting, or any other wall, ceiling, or floor covering, any fireplace or stove hearth, facing brick, tile or firebox, fixtures and hardware within the area bounded by the Unfinished Perimeter Walls, Ceilings, and Floors, which are part of the Hotel or part of a Unit are expressly excluded from the Resort Common Areas. "Resort Declaration" means that certain Resort Declaration of Covenants, Conditions and Restrictions for One Vail Road Resort recorded or to be recorded in the Office of the County Recorder, as the same may be amended from time to time in the manner provided therein. "Resort Governing Instruments" means, collectively, the Resort Declaration, the Resort Articles, the Resort Bylaws, the Resort Plat and the Resort Rules and Regulations, and such other documents promulgated by the Resort Association thereunder. "Resort Operating Expenses" means, collectively, the specific non - capital operating expenditures required to be made at any time and from time to time to provide for the operation and maintenance of the Resort Common Areas at the Resort Quality Standard as well as the cost and expense of all Basic Services and Management Services. "Resort Plat" means the land survey plat for the Resort recorded in the Office of the County Recorder simultaneously with the Resort Declaration, as the same may be amended from time to time, which designates the Components and depicts those portions of the Resort Common Areas which can be located and depicted on a land survey plat, all in accordance with Section 38- 33.3 -209 of the Act. "Resort Quality Standard" means the highest of the following standards: (1) the standard required to maintain and operate the Resort in a condition and a quality level no less than that which existed at the time that the Resort was initially completed (ordinary wear and tear excepted), (2) the standard for maintenance and operation of the Hotel required under any management agreement with the Hotel Manager or any franchise or license agreement entered into by and between Hotel Owner and a third party franchisor or licensor of a hotel or other hospitality brand (whether a five star luxury brand or otherwise), or, if no such agreement exists, (3) a world -class luxury physical and service standard consistent with (i) the service standards of DMWEST #7269366 v5 18 the highest quality luxury brands and with the physical standard of quality of the Resort as a world class luxury resort and in a fashion which shall not interfere with the operations of or diminish the status or reputation of the Hotel Business, and (ii) the standard of services provided in the highest quality residential ski resort properties in Wyoming and Colorado, which standard shall include, at a minimum, (A) the types of services provided at other residential ski resort properties of the highest quality in Wyoming and Colorado and (B) whether or not typically provided at such other residential projects, the Basic Services. "Resort Reserve Expenses" means the specific capital expenditures required to be made at any time and from time to time to provide for the repair and replacement, at the Resort Quality Standard, of any part of the Resort Common Areas. "Resort Rules and Regulations" means the rules and regulations relating to the possession, use and enjoyment of the Resort Common Areas promulgated by the Resort Association Board from time to time. "Resort Utility Expenses" means, collectively, the specific expenditures required to be made at any time and from time to time to provide for the provision of utilities to Resort Common Areas. "Roster" means a compilation of the names and addresses of each Unit Owner. "Season" means, as the context requires, Gold Season or Platinum Season, each as defined in the Club Rules and Regulations. "Service Period" means with respect to each Club Unit (a) any period of time which (i) has not been reserved by a Club Owner, Network User or External Exchange User in accordance with the provisions of this Club Declaration, the Club Rules and Regulations, the Network Rules or an External Exchange Program and is designated and reserved by the Club Association for the cleaning, maintenance and repair of such Club Unit and the Club Furnishings therein, or (ii) has been reserved by the Club Association on a super - priority basis in accordance with Section 3.1(b)(ii) of the Club Declaration, (b) the periods of time between Check In Time and Check Out Time, and (c) the period(s) of time, outside of those described in clauses (a) and (b), during which any maintenance or repair thereof or of the Club Furnishings therein is requested by the occupant of such Club Unit or is reasonably necessary to be performed by or on behalf of the Club Association. "Ski Area" means the area known as Vail Mountain, in Eagle County, State of Colorado, as further qualified and described in Section 12.23(c) of the Private Residence Declaration. "Special Assessment" means an assessment levied against each Unit Interest to provide funds to an Association in the event the Private Residence Assessment or the Club Assessment, as applicable, proves inadequate, which assessment shall be in an aggregate amount sufficient to fund such inadequacy. "Starting Date" with respect to the Private Residence Declaration, means the date of the first Original Deed for a Private Residence Unit, with respect to the Club Declaration, DMWEST #7269366 v5 19 • means the date of the first Original Deed for a Club Unit and with respect to the Resort Declaration, the earlier to occur of the Starting Date under the Private Residence Declaration and the Starting Date under the Club Declaration. "Statement of Status" means with respect to a Unit Interest, a written statement setting forth the amount of any delinquent Assessments, Personal Charges or any other amounts unpaid with respect to such Unit Interest. "Structural and Mechanical Support" means the support that the Hotel Component provides to the Units, which is both structural (e.g., columns, beams, walls, tuckpointing, floors, roofs, etc.) and mechanical (e.g., by virtue of the provision of utilities, sanitary service, water service, HVAC, etc.). "Taxes" means (i) any form of personal property, assessment, real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes), and /or license fee and any assessment of any nature imposed upon, levied against or affecting in any way, any legal or equitable interest in the Resort, or any portion thereof, by any authority having the power to tax or assess and where the funds are generated with reference to the Resort and where the proceeds so generated are to be applied by the city, county or other state, state agency or other local taxing authority of a jurisdiction within which the Resort is located; and (ii) any tax, fee, levy, assessment or charge, or any increase therein, imposed by reason of events occurring in connection with the Resort, including but not limited to, a change in the ownership of the Resort, or any portion thereof, and /or any improvements constructed within the Resort. The term "Taxes" does not include any business tax, sales tax, franchise tax or income tax. "Tenant" means any person, other than a Unit Owner, Hotel Owner or their Permittees, who is legally entitled to the use and enjoyment of all or any portion of the Resort under a lease, tenancy agreement, concession agreement or similar entitlement. Tenant is included in the definition of Permitted User. "Unit" means, for purposes of the Governing Instruments, the area and improvements within the boundaries of a Club Unit or a Private Residence Unit, excluding the Resort Common Areas. The term "Unit" shall not mean or be deemed to refer to: (a) other dwelling units such as employee housing units and hotel rooms; (b) the Components; or (c) the Deeded Parking Spaces. In such context, the term Unit shall mean an individual air space unit consisting of any enclosed room or rooms occupying all or any part of a floor or floors of improvements on the Development Land which are designated for separate ownership or occupancy, each of which (i) is or shall be separately shown, numbered and designated as such on the Private Residence Map or the Club Map, as applicable, (ii) is or shall be bounded by and contained within the interior surfaces of Unfinished Perimeter Walls, Unfinished Floors and Unfinished Ceilings thereof, and (iii) does or shall include the airspace so encompassed, excepting therefrom the Resort Common Areas. As used herein, "Unfinished Perimeter Wall" means the studs, supports, and other wooden, metal, or similar structural materials which constitute the interior face of a wall of a Unit; "Unfinished Ceiling" means the beams, joists, and wooden, metal or other structural materials which constitute the ceiling of a Unit; and "Unfinished Floor" means the beams, floor joists, and floor deck material which constitute the DMWEST #7269366 v5 20 floor of a Unit. A Unit shall include any lath, furring, wallboard, plasterboard, plaster, drywall, wall paneling, wood, tile, paint, paper, carpeting, or any other wall, ceiling, or floor covering, any fireplace or stove hearth, facing brick, tile or firebox, fixtures and hardware within the area bounded by the Unfinished Perimeter Walls, Ceilings, and Floors; provided, however, that such Unit shall not include any Resort Common Areas. A Unit reconstructed in substantial accordance with the original plans thereof shall be conclusively presumed to be defined by its boundaries rather than by the metes and bounds (or other description) expressed in the deed or the Private Residence Map or the Club Map, as applicable, regardless of settling or minor variance between boundaries. "Unit Allocated Interest" means, with respect to a Private Residence Unit, the votes in the Private Residence Association and the percentage of liability for Private Residence Expenses assigned to each Private Residence Unit as set forth on Exhibit D of the Private Residence Declaration (subject to adjustment as to liability for Private Residence Expenses as set form in Section 2.7(c) of the Private Residence Declaration), and with respect to a Club Unit, the votes in the Club Association and the percentage of liability for Club Expenses assigned to each Club Unit as set forth on Exhibit D of the Club Declaration (subject to adjustment as to liability for Club Expenses as set forth in Section 2.6(c) of the Club Declaration). "Unit Interest" means, as the context requires, an ownership interest in either a Private Residence Unit or a Fractional Interest. "Unit Owner" means a Private Residence Owner or a Club Owner. "Unit Type" means either a two - bedroom Club Unit, a two - bedroom Club Unit with a den, a three - bedroom Club Unit, a three- bedroom Club Unit with a den, or a four - bedroom Club Unit "Units" means, collectively, each and every Private Residence Unit and Club Unit. "Use Period" means the time period(s) during which a Club Owner has reserved the use and occupancy of a Club Unit in accordance with the provisions of this Club Declaration and the Club Rules and Regulations, including a Club Owner's Primary Use Time and Privilege Use Time, or during which a Network User has reserved the use and occupancy of a Club Unit in accordance with the Network Rules. "Use Year" means the one year period commencing on January 1 and ending on December 31 of the same calendar year. 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