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HomeMy WebLinkAboutADM11000441 1 AIL TO WXOF Project Name: Application Type: 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 GORE CREEK PLACE AMENDED PLAT CondThPl ADM Number: ADM110004 Parcel: 2101- 072 - 2200 -1 2101 - 072 - 2100 -3 2101 - 072 - 2200 -2 2101 - 072 - 2200 -4 Project Description: Amendment to the Condominium plat for Gore Creek Participants: OWNER CAREY, ROBERT B. CAREY, ROBERT B. PARADISE VALLEY AZ 85253 APPLICANT WENDY MALLAS 728 WEST LIONSHEAD CIRCLE VAI L CO 81657 Project Address: 825 FOREST RD VAIL COMMON ELEMENT: GORE CREEK PLACE Legal Description: Lot: 3 Block: Subdivision: Gore Creek Place Comments: See conditions Location: BOARD /STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: 08/23/2011 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). 08/22/2011 08/22/2011 Phone: 970-754-3620 Planner: Warren Campbell DRB Fee Paid: $100.00 General Information: Administrative Plat Corrections are required to make changes to previously approved plats where the character and Intent of the original plat Is not altered. Examples Include address changes, plat note amend- ments, plat tide corrections, easement vacations, and other minor corrections, This process is Intended to allow for the correction of plat errors and minor plat amendments where no "subdivision" occurs and conformance with applicable provisions of the Vail Town Code have been demonstrated. Please see Section 13 -13, Administrative Plat Correction Procedures, Vail Town Code for more detailed information, the Vail Town Code can be found on the Town's website at www.vaik w.com Fee: $100 Recording Fels: Please visit the Eagle County website htW: / /www.Cag&=* e s ch 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 recording of the plat. Description of ..ire Request: Approval of Amended Plat Map Physical Address: 8 2 5 W. Fore Road, Vail, CO 81657 Parcel Number: Entire project (Contact Eagle Co. Assessor at 970 - 328 -81140 for parcel no.) Property Owner• Gore Creek Place Homeowners Association Mailing Address: 728 West Lionshead Circle Vail CO 81657 Phone: 970 -754 -3620 owner's Signature: Primary Contact/ Owner Representative: Wendy Ma 11 a s Mailing Address 728 West Lionshead Circle, Vail, CO 81657 E-Mail: wmallas w a ilreaorts.com Phone: 970 -754 -3620 Fax: 970-754 -7815 For Qfnee yse Only: Cash CC: Visa / MC Last 4 CC # Auth # Check # _ Fee Paid. [ r 1. talja(l, Meeting Date: Planner: Received From: -LM PE:C No.: 1 IM I I t 0 0LI Project No: Zoning: Land Use: Location of the Proposal: Lot: Block: Subdivisk r CjJ - e�� 5 �1 0'-' r , ",,�J16,22au2p11 OF VA! Administrative Application Plat Correction r 7 UMV W *VA JOINT PROPERTY OWNER WRITTEN APPROVAL LETTER This form Is applicable to all Planning and Environmental Commission applicants that share ownership of the sub- ject property. For example, the subject property where construction Is occurring Is a duplex, condominium or multi- tenant building. This form shall be completed by the appikant`s neighbor / joint property owner. In the case of a multiple- family dwelling or mum - tenant building, the authority of the association shall complete this form and mall to: Community Development Department, 75 South Frontage Road, Vail, CO 81657 or fax to 970.479.2452. I, nt name c3ore Creek Place Homeowners Association (� } a joint owner, or authority of the association, of property located at 825 W. Forest Road, Vail, CO 81657 provide this letter as written approval of the plans dated Decembe 1 0, 2010 why have been submitted to the Town of Van Community Development Department for the proposed Improvements to be completed at the ad- dress noted above. I understand that the proposed Improvements Include, Modifying the plat map to convert the attics and crawl spaces from a General Common Element to Limited Common Elements per the attached recorded Amendment to the Declaration. (Date) itionally, please check the statement below which Is most applicable to you; I undembnd that m/nor modMutlons may be made to the plans over the course of the review pAxez to en- sure cumpl/anc a w/th the Town s applkabk codes and regulatlons nlmal here) A Y request that all moult ab+ons, mthor or obli -& ise, wh/crh are made to the plans over the course of the m ►dew proc>sss, be brought to my attaatlon by the applicant for oddlb'anwl approval before undoyang further re- view by the Town. (Inhyal here) F:bdevlFonnsWem r(stiPlanningWA Mlldminlotrative Plot_r,orrection_1oo110 r ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** TOWN OF VAIL, COLORADO Statement ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** Statement Number: R110001044 Amount: $100.00 08/22/201104:13 PM Payment Method: Check Init: SAB Notation: 6322 GOODMAN & WALLACE ----------------------------------------------------------------------------- Permit No: ADM110004 Type: Administrative Parcel No: 2101 - 072 - 2200 -1 2101 - 072 - 2100 -3 2101- 072 - 2200 -2 2101 - 072 - 2200 -4 Site Address: 825 FOREST RD VAIL Location: COMMON ELEMENT: GORE CREEK PLACE Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ************************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** ACCOUNT ITEM LIST: Account Code Description Current Pmts -------------- - - - - -- ------------------------ - - - - -- ------ - - - - -- PV 00100003112500 Administrative Fee 100.00 Land Title Guarantee Company -'^ CUSTOMER DISTRIBUTION L and 11UG GU MANiEE CO MPANY WWW. LT G C. C OM Date: 08 -18 -2011 Our Order Number: V50031588 Property Address: GORE CREEK PLACE CONDOMINIUMS VAIL, CO 81657 Ifyou have any inquiries or require further assistance, please contact one of the numbers below. For Title Assistance: Vail Title Dept. 610 WEST LIONSHEAD CIRCLE #200 VAIL, CO 81657 Phone: 970 - 476 -2251 Fax: 970 - 476 -4534 EMail: eaglecountyrequests@ltgc.com GOODMAN & WALLACE *TMX* 105 EDWARDS VILL BLVD #D201 PO BOX 1886 EDWARDS, CO 81632 Attn: ANDREW OWEN Phone: 970 - 926 -4447 Fax: 970 - 926 -5009 Copies: 1 EMail: andrew @goodmanwallace.com Linked Commitment Delivery �/--N r AUG 2 2 2011 TOWN OF VAIL Land Title Guarantee Company P"" l aid I GUARANTEE COMPANY NNW. LT G C. C ON Property Address: GORE CREEK PLACE CONDOMINIUMS VAIL, CO 81657 Buyer/Borrower: TO BE DETERMINED Date: 08 -18 -2011 Our Order Number: V50031588 Seller /Owner: GORE CREEK PLACE, LLC, A COLORADO LIMITED LIABILITY COMPANY Need a map or directions for your upcoming closing? Check out Land Title's web site at www.ltgc.com for mrecuons to anv of our 54 office iocauons. ESTIMATE OF TITLE FEES TBD Commitment $100.00 If an Title Guarantee Company will be closing this transaction, above fees will be collected at that time. TOTAL $100.00 Porm CONTACT 06/04 THANK YOU FOR YOUR ORDER! LAND TITLE GUARANTEE COMPANY INVOICE NO. VA -4729 Land Title GUARANTEE COMPANY GOODMAN & WALLACE 105 EDWARDS VILL BLVD #D201 EDWARDS, CO 81632 Owner: GORE CREEK PLACE, LLC, A COLORADO LIMITED LIABILITY COMPANY Address: GORE CREEK PLACE CONDOMINIUMS VAIL, CO 81657 Invoice Date: August 18, 2011 Order No. V50031588 Invoice Charges TBD Commitment $100.00 - Amount Due - $100.00 Due and payable upon receipt. For Remittance please refer to Invoice No. VA -4729 Please make checks payable to: Land Title Guarantee Company 5975 Greenwood Plaza Blvd. Suite 125 Greenwood Village, CO 80111 -4701 First American Title Insurance Company ALTA COMMITMENT Our Order No. V50031588 Schedule A Cust. Ref.: Property Address: GORE CREEK PLACE CONDOMINIUMS VAIL, CO 81657 1. Effective Date: August 08, 2011 at 5:00 P.M. 2. Policy to be Issued, and Proposed Insured: "TBD" Commitment Proposed Insured: TO BE DETERMINED 3. The estate or interest in the land described or referred to in this Commitment and covered herein is: A Fee Simple 4. Title to the estate or interest covered herein is at the effective date hereof vested in: GORE CREEK PLACE, LLC, A COLORADO LIMITED LIABILITY COMPANY 5. The Land referred to in this Commitment is described as follows: SEE ATTACHED PAGE(S) FOR LEGAL DESCRIPTION Our Order No: V50031588 LEGAL DESCRIPTION GORE CREEK PLACE, PHASE I, ACCORDING TO THE CONDOMINIUM MAP RECORDED JULY 5, 2006, RECEPTION NO. 200617776 AND AS DEFINED AND DESCRIBED IN THE CONDOMINIUM DECLARATION FOR GORE CREEK PLACE RECORDED JULY 5, 2006, RECEPTION NO. 200617775, COUNTY OF EAGLE, STATE OF COLORADO. GORE CREEK PLACE, ACCORDING TO THE CONDOMINIUM PLAT FOR GORE CREEK PLACE - PHASE II RECORDED DECEMBER 22, 2006, RECEPTION NO. 200635130, A SUPPLEMENT TO THE CONDOMINIUM PLAT FOR GORE CREEK PLACE - PHASE I RECORDED JULY 5, 2006, RECEPTION NO. 200617776, AND AS DEFINED AND DESCRIBED IN THE CONDOMINIUM DECLARATION FOR GORE CREEK PLACE RECORDED JULY 5, 2006, RECEPTION NO. 200617775, AND THE SUPPLEMENTAL CONDOMINIUM DECLARATION FOR GORE CREEK PLACE RECORDED DECEMBER 22, 2006, AT RECEPTION NO. 200635129, COUNTY OF EAGLE, STATE OF COLORADO. ALTA COMMITMENT Schedule B - Section 1 (Requirements) Our Order No. V50031588 The following are the requirements to be complied with: Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to -wit: Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable. Item (d) Additional requirements, if any disclosed below: NOTE: ADDITIONAL REQUIREMENTS OR EXCEPTIONS MAY BE NECESSARY WHEN THE BUYERS NAMES ARE ADDED TO THIS COMMITMENT. COVERAGES AND /OR CHARGES REFLECTED HEREIN, IF ANY, ARE SUBJECT TO CHANGE UPON RECEIPT OF THE CONTRACT TO BUY AND SELL REAL ESTATE AND ANY AMENDMENTS THERETO. ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50031588 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. 2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Any and all unpaid taxes, assessments and unredeemed tax sales. 7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a) , (b) , or (c) are shown by the Public Records. 8. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND IN UNITED STATES PATENT RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98. 9. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503, SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND JULY 13, 1939 IN BOOK 123 AT PAGE 617. 10. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE PLAT OF WEST DAY SUBDMSION RECORDED MARCH 10, 2005 RECEPTION NO. 908760. 11. TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT, AND VAULT AGREEMENT RECORDED OCTOBER 01, 2004 AT RECEPTION NO. 893080. 12. TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT, AND VAULT AGREEMENT ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50031588 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: RECORDED NOVEMBER 04, 2004 AT RECEPTION NO. 896693. 13. TERMS, CONDITIONS AND PROVISIONS OF GORE CREEK PLACE DEVELOPMENT AGREEMENT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908751. 14. TERMS, CONDITIONS AND PROVISIONS OF GORE CREEK PROTECTIVE COVENANTS BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908753. 15. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT - BIKE PATH RECORDED MARCH 10, 2005 AT RECEPTION NO. 908759. 16. TERMS, CONDITIONS AND PROVISIONS OF COOPERATIVE AND EASEMENT AGREEMENT RECORDED JUNE 24, 2005 AT RECEPTION NO. 920513. 17. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT REGARDING DENSITY ALLOCATION RECORDED JUNE 24, 2005 AT RECEPTION NO. 920515 AND AS AMENDED IN INSTRUMENT RECORDED SEPTEMBER 16, 2009 UNDER RECEPTION NO. 200920432. 18. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT PERMITTING ENCROACHMENT RECORDED JULY 20, 2005 AT RECEPTION NO. 923304. 19. TERMS, CONDITIONS AND PROVISIONS OF TUNNEL EASEMENT AGREEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617768. 20. TERMS, CONDITIONS AND PROVISIONS OF CONSTRUCTION STAGING AND SUPPORT EASEMENT AGREEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617769. 21. TERMS, CONDITIONS AND PROVISIONS OF AGREEMENT REGARDING DENSITY ALLOCATION RECORDED JULY 05, 2006 AT RECEPTION NO. 200617770 AND AS AMENDED IN INSTRUMENT RECORDED SEPTEMBER 16, 2009 UNDER RECEPTION NO. 200920432. ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50031588 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 22. TERMS, CONDITIONS AND PROVISIONS OF CHAIRLIFT EASEMENTS AGREEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617771. 23. TERMS, CONDITIONS AND PROVISIONS OF PUBLIC PEDESTRIAN EASEMENT AND EMERGENCY ACCESS EASEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617772. 24. TERMS, CONDITIONS AND PROVISIONS OF PRIVATE PEDESTRIAN ACCESS EASEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617773. 25. TERMS, CONDITIONS AND PROVISIONS OF PRIVATE PEDESTRIAN ACCESS EASEMENT RECORDED JULY 05, 2006 AT RECEPTION NO. 200617774. 26. TERMS, CONDITIONS AND PROVISIONS OF HOLY CROSS ELECTRIC ASSOCIATION, INC. ENERGY UNDERGROUND RIGHT OF WAY EASEMENTS RECORDED AUGUST 23, 2006 AT RECEPTION NO. 200623084. 27. TERMS, CONDITIONS AND PROVISIONS OF ENCROACHMENT AGREEMENT RECORDED DECEMBER 22, 2006 AT RECEPTION NO. 200635128. 28. TERMS, CONDITIONS AND PROVISIONS OF SEWER MAIN EASEMENT RECORDED DECEMBER 22, 2006 AT RECEPTION NO. 200635127. 29. TERMS, CONDITIONS AND PROVISIONS OF APPLICATION FOR REVOCABLE PERMIT RECORDED FEBRUARY 07, 2007 AT RECEPTION NO. 200703485. 30. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT RECORDED MARCH 31, 2008 AT RECEPTION NO. 200806946. 31. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE CONDOMINIUM PLAT OF GORE CREEK PLACE, PHASE I RECORDED JULY 5, 2006 UNDER RECEPTION NO. 200617776. 32. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON ALTA COMMITMENT Schedule B - Section 2 (Exceptions) Our Order No. V50031588 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: THE CONDOMINIUM PLAT OF GORE CREEK PLACE, PHASE II RECORDED DECEMBER 22, 2006 UNDER RECEPTION NO. 200635130. 33. TERMS, CONDITIONS AND PROVISIONS OF CONDOMINIUM DECLARATION FOR GORE CREEK PLACE, WHICH ARE A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED JULY 05, 2006, UNDER RECEPTION NO. 200617775, SUPPLEMENTAL DECLARATION RECORDED DECEMBER 22, 2006 RECEPTION NO. 200635129, FIRST AMENDMENT TO DECLARATION RECORDED JANUARY 26, 2011 UNDER RECEPTION NO. 201101515. 34. TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED MAY 22, 2009 AT RECEPTION NO. 200909872. 35. ANY AND ALL LIENS, ENCUMBRANCES, COVENANTS, CONDITIONS AND RESTRICTIONS ASSOCIATED WITH INDIVIDUAL UNITS WITHIN GORE CREEK PLACE CONDOMINIUM, PHASE I AND PHASE II. LAND TITLE GUARANTEE COMPANY and LAND TITLE GUARANTEE COMPANY - GRAND JUNCTION DISCLOSURE STATEMENTS Note: Pursuant to CRS 10 -11 -122, notice is hereby given that: A) The sect real property may be located in a special taxing district. B) A Certificate of Taxes ue listing each taxing jurisdiction may be obtained from the County Treasurer's authorized agent. C) The information regarding special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor. Note: Effective September 1, 1997, CRS 30 -10 -406 requires that all documents received for recording or filing in the clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that, the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or filing information at the top margin of the document. Note: Colorado Division of Insurance Regulations 3 -5 -1, Paragraph C of Article VII requires that "Every title entity shall be responsible for all matters which appear of record prior to the time o recording whenever the title entity conducts the closing and is responsible for recording or filing of legal documents resulting from the transaction w ch was closed ". Provided that Land Title Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal documents from the transaction, exception number 5 will not appear on the Owner s Title Policy and the Lenders Policy when issued. Note: Affirmative mechanic's lien rotection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, gection 2 of the Commitmen from the Owner s Pollicy to be issued) upon compliance with the following conditions: A) The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B) No labor or materials have been furnished by mechanics or material -men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C) The Company must receive an appropriate affidavit indemnifying the Company against un -filed mechanics and material -men's hens. D The Company must receive payment of the appropriate premium. E If there has been construction, improvements or mayor repairs undertaken on theproperty to be purchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. Note: Pursuant to CRS 10 -11 -123, notice is hereby given: This notice applies to owner's policy commitments containing a mineral severance instrument exception, or exceptions, in Schedule B, Section 2. A) That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the surface estate and that there is a substantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal energy in the property; and B) That such mineral estate may include the right to enter and use the properr - iy without me surface owner's permission. Note: Pursuant to CRS 10- 1- 128(6)(a) It is unlawful to knowingly provide false, incomplete, or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the company. Penalties may include imprisonment, fines, information to an insurance company for the purpose of defrauding or incomplete, or misleading facts or information to a policyholder or claimant for the purpose of defrauding or attempting attempting to defraud the policyholder or claimant with regard to a setdemwnt or award payable from insurance proceeds shall be reported to the Colorado division of insurance within the department of regulatory agencies. Nothing herein contained will be deemed to obligate the company to provide any of the coverages referred to herein unless the above conditions are fully satisfied. DISC LOSME 02/2011 First American Title Insurance Company PRIVACY POLICY We are Committed to Safeguarding Customer Information In order to better serve your needs now and in the future, we may ask you to provide us with certain information. We understand that you may be concerned about what we will do with such information - particularly any personal or financial information. We agree that you have a right to know how we will utilize the personal information you provide to us. Therefore, together with our parent company, the First American Corporation, we have adopted this Privacy Policy to govern the use and handling of your personal information. Applicability This Privacy Policy governs our use of the information which you provide to us. It does not govern the manner in which we may use information we have obtained from any other source, such as information obtained from a public record or from another person or entity. First American has also adopted broader guidelines that govern our use of personal information regardless of its source. First American calls these guidelines its Fair Information Values, a copy of which can be found on our website at www.firstam.com. Types of Information Depending upon which of our services you are utilizing, the types of nonpublic personal information that we may collect include: * Information we receive from you on applications, forms and in other communications to us, whether in writing, in person, by telephone or any other means; • Information about your transactions with us, our affiliated companies, or others; and • Information we receive from a consumer reporting agency. Use of Information We request information from you for our own legitimate business purposes and not for the benefit of any nonaffiliated party. Therefore, we will not release your information to nonaffiliated parties except: (1) as necessary for us to provide the product or service you have requested to us; or (2) as permitted by law. We may, however, store such information indefinitely, including the period after which any customer relationship has ceased. Such information may be used for any internal purpose, such as quality control efforts or customer analysis. We may also provide all of the types of nonpublic personal information listed above to one or more of our affiliated companies. Such affiliated companies include financial service providers, such as title insurers, property and casualty insurers, and trust and investment advisory companies, or companies involved in real estate services, such as appraisal companies, home warranty companies, and escrow companies. Furthermore, we may also provide all the information we collect, as described above, to companies that perform marketing services on our behalf, on behalf of our affiliated companies, or to other financial institutions with whom we or our affiliated companies have joint marketing agreements. Former Customers Even if you are no longer our customer, our Privacy Policy will continue to apply to you. Confidentiality and Security We will use our best efforts to ensure that no unauthorized parties have access to any of your information. We restrict access to nonpublic personal information about you to those individuals and entities who need to know that information to provide products or services to you. We will use our best efforts to train and oversee our employees and agents to ensure that your information will be handled respnsibly and in accordance with this Privacy Policy and First American's Fair Information values. We currently maintain physical, electronic, and procedural safeguards that comply with referral regulations to guard your nonpublic personal information. WEBSI TE Information on the calculation of premiums and other title related charges are listed at First American's website: www.firstam.com NOTICE OF PRIVACY POLICY OF LAND TITLE GUARANTEE COMPANY, INC., A COLORADO CORPORATION AND MERIDIAN LAND TITLE, L.L.C., A COLORADO LIMITED LIABLTTY COMPANY, D /B /A LAND TITLE GUARANTEE COMPANY - GRAND JUNCTION This Statement is provided to you as a customer of Land Title Guarantee Company, a Colorado corporation and Meridian Land Title, LLC, d/b /a Land Title Guarantee Company - Grand Junction. We want you to know that we recognize and respect your privacy expectations and the requirements of federal and state privacy laws. Information security is one of our highest priorities. We recognize that maintaining your trust and confidence is the bedrock of our business. We maintain and regularly review internal and external safeguards against unauthorized access to non - public personal information ( "Personal Information "). In the course of our business, we may collect Personal Information about you from: • applications or other forms we receive from you, including communications sent through TMX, our web -based transaction management system; • your transactions with, or from the services being performed by, us, our affiliates, or others; • a consumer reporting agency, if such information is provided to us in connection with your transaction; and • the public records maintained by governmental entities that we either obtain directly from those entities, or from our affiliates and non - affiliates. Our policies regarding the protection of the confidentiality and security of your Personal Information are as follows: • We restrict access to all Personal Information about you to those employees who need to know that information in order to provide products and services to you. • We maintain physical, electronic and procedural safeguards that comply with federal standards to protect your Personal Information from unauthorized access or intrusion. • Employees who violate our strict policies and procedures regarding privacy are subject to disciplinary action. • We regularly access security standards and procedures to protect against unauthorized access to Personal Information. WE DO NOT DISCLOSE ANY PERSONAL INFORMATION ABOUT YOU WITH ANYONE FOR ANY PURPOSE THAT IS NOT PERMITTED BY LAW. Consistent with applicable privacy laws, there are some situations in which Personal Information may be disclosed. We may disclose your Personal Information when you direct or give us permission; when we are required by law to do so, for example, if we are served a subpoena; or when we suspect fraudulent or criminal activities. We also may disclose your Personal Information when otherwise permitted by applidable privacy laws such as, for example, when disclosure is needed to enforce our rights arising out of any agreement, transaction or relationship with you. Our policy regarding dispute resolution is as follows. Any controversy or claim arising out of or relating to our privacy policy, or the breach thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Form PRSV.POL.LTG.1 Commitment for Title Insurance ISSUED BY First American Title Insurance Company FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation (Company', for a valuable consideration, commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the Proposed Insured names in Schedule A, as owner or mortgage of the estate or interest in the land described or referred to in Schedule A, upon payment of the premiums and charges and compliance with the Requirements; all subject to the provisions of Schedules A and B and to the Conditions of this Commitment. This Commitment shall be effective only when the identity of the Proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A by the Company. All liability and obligation under this Commitment shall cease and terminate six (6) months after the Effective Date or when the policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue the policy or policies is not the fault of the Company. The Company will provide a sample of the policy form upon request. This Commitment shall not be valid or binding until countersigned by a validating officer or authorized signatory. IN WITNESS WHEREOF, First American Title Insurance Company has caused its corporate name and seal to be affixed by its duly authorized officers on the date shown in Schedule A. CONDITIONS 1. The term mortgage, when used herein, shall include deed of trust, trust deed, or other security instrument. 2. If the proposed Insured has or acquired actual knowledge of arty defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and shall fail to disclose such knowledge to the Company in writing, the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations. 3. Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties included under the definition of the Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions and Conditions and Stipulations and the Exclusions from Coverage of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. This Commitment is a contract to issued one or more title insurance policies and is not an abstract of title or a report of the condition of title. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest or the status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. 5. The policy to be issued contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. 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Campbell CONDOMINIUM DECLARATION FOR GORE CREEK PLACE -Ten Z 30, 2006 614446. 17 AKHANS 07/3106 11 59 AM 200617775 1 OF 76 TABLE OF CONTENTS Article 1 DEFINITIONS AND EXHIBITS ........................................... ............................... 1 1.1 Definitions ................................... ............................... ........ ..............................1 1.2 Exhibits ................................................................................... ............................... 8 Article 2 CREATION OF THE CONDOMINIUM PROJECT; UNITS AND ALLOCATIONS..................................................................... ............................... 8 2 .1 Creation .................................................................................... ..............................8 2.2 Name ....................................................................................... ............................... 8 2.3 Division of Property ................................................................ ............................... 8 2.4 Designation of Boundaries ...................................................... ............................... 8 (a) Units ............................................................................ ............................... 8 (b) Structural Elements ..................................................... ............................... 8 (c) Utility /Service Elements ............................................. ............................... 9 (d) Unit Mechanical Equipment ........................ (e) Improvements in Unit ........... ............................... ..................... 9 (fl Penetrations .................................................................. ..............................9 2.5 Unit Subdivisions, Connections and Boundary Changes ....... ............................... 9 2.6 Tunnel and Tunnel Easement .................................................. ............................... 9 2.7 Limited Common Elements .................................................... ............................... 9 (a) Deck ............................................................................ ............................... 9 (b) Patio ............................................................................ .............................10 (c) Hot Tubs ...................................................................... .............................10 (d) Doors and Windows .................................................... .............................10 2.8 Allocations .............................................................................. .............................10 (a) Ownership of Common Elements ............................... .............................10 (b) Liability for Common Expenses ............................... ............................... 10 (c) Votes in the Association ........................................... ............................... 10 2.9 Reservation of Special Declarant Rights ................................ .............................10 (a) Development Rights .................................................... .............................10 (b) Improvements ........................................................... ............................... 11 (c) Boundary Relocation; Subdivision ............................. .............................1l (d) Marketing .................................................................... .............................11 614446.17 AKHANS 06(29/06 10:32 AM -i- 200617775 2 OF 76 TABLE OF CONTENTS 614446.17 AKHANS 0629/06 10 32 AM -ii- 200617775 3 OF 76 (e) Easements ................................................................... .............................12 (fl Appoint Board and Officers ...................................... ............................... 12 (g) Amend Declaration ..................................................... .............................12 2.10 Number of Units ..................................................................... .............................12 Article3 EASEMENTS ......................................................................... .............................12 3.1 Easements Benefiting Owners ................................................ .............................12 3.2 Easements Benefiting Association .......................................... .............................12 3.3 Easements Benefiting Declarant ............................................. .............................13 3.4 Connecting Tunnel Easements .............................................. ............................... 13 3.5 Easements for Encroachments ................................................ .............................13 3.6 Easements to Repair, Maintain, Restore and Reconstruct .... ............................... 14 3.7 Easements for Utilities and Mechanical Equipment ............... .............................14 3.8 Right of Entry ....................................................................... ............................... 14 3.9 Emergency Access Easement ................................................. .............................14 3.10 Public Pedestrian Easement .................................................. ............................... 15 3.11 Recreation Path Easement ....................................................... .............................15 3.12 Chairlift Easements ................................................................. .............................15 3.13 Additional Easements ........................................................... ............................... 15 (a) Declarant's Right to Grant Easements ........................ .............................15 (b) Association's Right to Grant Easements ................... ............................... 15 3.14 Easements Run with Property ............................................... ............................... 15 3.15 Other Recorded Easements and Licenses Affecting the Property .......................16 Article 4 COVENANTS, CONDITIONS AND RESTRICTIONS ....... .............................16 4.1 Administration ........................................................................ .............................16 4.2 Compliance ............................................................................. .............................16 4.3 Units ........................................................................................ .............................16 (a) Permitted Uses .......................................................... ............................... 16 (b) Prohibited Uses ........................................................... .............................16 4.4 Association's Units ............................................................... ............................... 17 4.5 Prohibited Uses Generally .................................................... ............................... 17 (a) Insurance Risks ......................................................... ............................... 17 614446.17 AKHANS 0629/06 10 32 AM -ii- 200617775 3 OF 76 TABLE OF CONTENTS 414449.17 AXHANS 06/29/06 10:32 AM - III - 200617775 4 OF 76 (b) Barbecue Grills ........................................................... .............................17 (c) Overloading ................................................................. .............................17 (d) Nuisance ...................................................................... .............................17 (e) Violation of Law ......................................................... .............................17 4.6 Manner of Use ....................................................................... ............................... 17 (a) Pets .............................................................................. .............................17 (b) Leases .......................................................................... .............................18 (c) Building Exterior; Decks .......................................... ............................... 18 (d) Signs ............................................................................ .............................18 (e) Refuse Removal ........................................................ ............................... 18 (f) Obstruction of Common El ements ............................ ............................... 18 4 .7 Rules ....................................................................................... .............................18 4 .8 Indemnity ................................................................................ .............................19 4.9 Provisions Run with Property ............................................... 19 ............................... 4.10 Enforcement ............................................................................ .............................19 Article 5 OPERATION, MAINTENANCE AND REP AIR ................ ............................... 20 5.1 Association's Duties ............................................................. ............................... 20 (a) Maintenance of Common Elements .......................... ............................... 20 (b) Election to Perform Owners' Duties ......................... ............................... 21 5.2 Owners' Duties ..................................................................... ............................... 21 5.3 Maintenance Standard ........................................................... ............................... 21 Article 6 THE ASSOCIATION AND BOARD .................................. ............................... 21 6.1 Formation of the Association; Membership ......................... ............................... 21 6.2 Powers ..................................................................................... .............................22 6.3 Budget ................................................................................... ............................... 23 (a) Preparation of Budget ............................................... ............................... 23 (b) Ratification of Budget ............................................... ............................... 24 Article 7 CONSTRUCTION DEFECTS, DISPUTES, DISPUTE RESOLUTION ANDLITIGATION .............................................................. ............................... 24 7.1 Testing for Construction Defects .......................................... ............................... 24 7.2 Consensus for Association Litigation ................................... ............................... 25 414449.17 AXHANS 06/29/06 10:32 AM - III - 200617775 4 OF 76 TABLE OF CONTENTS 7.3 Alternative Method for Resolving Disputes ......................... ............................... 26 7.4 Claims ................................................................................... ............................... 26 7.5 Mandatory Procedures .......................................................... ............................... 27 (a) Budget and Payment ................................................. ............................... 32 (b) Adjustment .................................................................. .............................32 (c) Reconciliation ............................................................. .............................32 9.2 Special Assessments ............................................................. ............................... 33 (a) General Benefit Expenses ......................................... ............................... 33 (b) Limited Benefit Expenses ......................................... ............................... 33 (c) Reimbursable Expenses ............................................ ............................... 33 (d) Restoration Deficit .................................................... ............................... 33 (e) Voluntary Capital Expenses ...................................... ............................... 34 9.3 Working Capital Fund ........................................................... ............................... 34 9.4 Payment of Assessments; Notice and Acceleration .............. ............................... 35 9.5 Enforcement of Assessments ................................................ ............................... 35 (a) Suit .............................................................................. .............................35 (b) Lien and Foreclosure ................................................. ............................... 35 614448.17 AKHANS 06.29106 10:32 AM -iv- 200617775 5 OF 76 (a) Notice ........................................................................ ............................... 27 (b) Negotiation and Mediation ....................................... ............................... 27 (c) Final and Binding Arbitration ................................... ............................... 28 (d) Allocation of Costs of Resolving Claims .................. ............................... 28 (e) Limitation on Damages ............................................. ............................... 28 (fl Multiple Party Disputes ............................................ ............................... 29 (g) Enforcement of Resolution ....................................... ............................... 29 7.6 Legal Proceedings ................................................................. ............................... 29 7.7 Enforcement of Declaration, Bylaws, and Rules .................. ............................... 30 (a) Sanctions and Self - Help ............................................ ..................•............ 30 (b) No Waiver ................................................................... .............................30 Article 8 MOLD DISCLOSURE & WAIVER .................................... ............................... 30 Article9 ASSESSMENTS ................................................................... ............................... 31 9.1 General Assessments ............................................................ ............................... 31 (a) Budget and Payment ................................................. ............................... 32 (b) Adjustment .................................................................. .............................32 (c) Reconciliation ............................................................. .............................32 9.2 Special Assessments ............................................................. ............................... 33 (a) General Benefit Expenses ......................................... ............................... 33 (b) Limited Benefit Expenses ......................................... ............................... 33 (c) Reimbursable Expenses ............................................ ............................... 33 (d) Restoration Deficit .................................................... ............................... 33 (e) Voluntary Capital Expenses ...................................... ............................... 34 9.3 Working Capital Fund ........................................................... ............................... 34 9.4 Payment of Assessments; Notice and Acceleration .............. ............................... 35 9.5 Enforcement of Assessments ................................................ ............................... 35 (a) Suit .............................................................................. .............................35 (b) Lien and Foreclosure ................................................. ............................... 35 614448.17 AKHANS 06.29106 10:32 AM -iv- 200617775 5 OF 76 TABLE OF CONTENTS 9.6 Disputes and Records ............................................................ ............................... 35 9.7 Owners not Exempt from Liability ....................................... ............................... 36 9.8 Declarant's Responsibility for Assessments ......................... ............................... 36 Article10 ALTERATIONS ................................................................... ............................... 36 10.1 Permitted Unit Alterations .................................................... ............................... 36 10.2 Boundary Relocation ............................................................ ............................... 37 10.3 Connection of Adjoining Units ............................................. ............................... 38 10.4 Unit Disconnection ............................................................... ............................... 39 10.5 Construction ............................................................................ .............................40 10.6 Alteration of Common Elements .......................................... ............................... 41 10.7 Alterations by Declarant ....................................................... ............................... 41 Article11 INSURANCE .......................................................................... .............................41 11.1 Association's Insurance ........................................................ ............................... 41 (a) Property Insurance .................................................... ............................... 42 (b) Liability Insurance .................................................... ............................... 42 (c) Worker's Compensation and Employer's Liability .. ............................... 43 (d) Automobile Insurance ............................................... ............................... 43 (e) Directors' and Officers' Insurance ............................ ............................... 43 (fl Fidelity Insurance ...................................................... ............................... 43 (g) Other Insurance ......................................................... ............................... 43 (h) Licensed Insurers ...................................................... ............................... 43 11.2 Owners' Insurance ................................................................ ............................... 44 (a) Property Insurance .................................................... ............................... 44 (b) Liability Insurance .................................................... ............................... 44 (c) Other Insurance ......................................................... ............................... 44 (d) Assignment of Proceeds ............................................ ............................... 45 11.3 Certificates of Insurance; Notices of Unavailability ............. ............................... 45 11.4 Waiver of Claims .................................................................. ............................... 45 11.5 Proceeds ................................................................................ ............................... 45 Article12 CASUALTY ......................................................................... ............................... 46 12.1 Restoration Decision ............................................................. ............................... 46 614449.17 AKHAN5 0629/06 10:32 AM -v- 200617775 6 OF 76 TABLE OF CONTENTS 12.2 Disposition of Insurance Proceeds ........................................ ............................... 47 12.3 Manner of Restoration .......................................................... ............................... 47 (a) Plans ............................................................................ .............................47 (b) Requirements ............................................................ ............................... 47 (c) Coordination by Association ..................................... ............................... 48 12.4 No Abatement ....................................................................... ............................... 48 Article 13 CONDEMNATION ................................................................ .............................48 13.1 Taking of Condominiums ..................................................... ............................... 48 13.2 Taking of Common Elements ............................................... ............................... 48 Article14 TERMINATION ..................................................................... .............................49 14.1 Termination Agreement .......................................................... .............................49 14.2 Sale of Condominium Project ............................................... ............................... 49 14.3 Proceeds ................................................................................ ............................... 50 Article15 AMENDMENT ..................................................................... ............................... 50 15.1 Required Votes ...................................................................... ............................... 50 15.2 Amending Documents .......................................................... ............................... 51 (a) Approved Writing ..................................................... ............................... 51 (b) Certificate by Association ......................................... ............................... 51 (c) Recording .................................................................... .............................51 (d) Presumption of Validity ............................................ ............................... 52 Article 16 OWNER'S ACKNOWLEDGMENTS AND WAIVERS .... ............................... 52 16.1 Owner's Acknowledgments .................................................. ............................... 52 (a) Mountain Activities .................................................. ............................... 52 (b) Construction Activities ............................................. ............................... 52 (c) Commercial Activities .............................................. ............................... 53 (d) Waiver and Release ................................................... ............................... 53 16.2 Lift Tickets and Other Fees ................................................... ............................... 54 16.3 Disclaimer ............................................................................... .............................54 16.4 No View Easement ............................................................... ............................... 54 16.5 Geologically Sensitive Area ................................................. ............................... 54 16.6 Security ................................................................................. ............................... 54 614449.17 AKHANS 06/29Mfi 1032 AM -vi- 200617775 7 OF 76 TABLE OF CONTENTS 16.7 Inspection by Others; Waiver of Post Inspection Liability ... ............................... 55 16.8 Drainage and Soils Condition ............................................... 55 ............................... (a) Acknowledgment ........................................................ .............................55 (b) Waiver of Liability of Declarant ............................... ............................... 56 Article 17 CONVEYANCING AND ENCUMBRANCING ................ ............................... 56 17.1 Units ........................................................................................ .............................56 17.2 Common Elements ................................................................ ............................... 56 17.3 Transferee Liability ............................................................... ............................... 56 (a) General ........................................................................ .............................56 (b) First Mortgage Foreclosure ....................................... ............................... 57 (c) Reallocation .............................................................. ............................... 57 17.4 Estoppel Certificates ............................................................. ............................... 57 Article 18 GENERAL PROVISIONS ................................................... ............................... 57 18.1 The Act; Severabil ity .............................................................. ......................... . ... 57 18.2 Interpretation of Declaration ................................................. ............................... 58 18.3 Notices .................................................................................. ............................... 58 18.4 Partition ................................................................................... .............................58 18.5 Assignment of Special Declarant Rights .............................. ............................... 58 18.6 Taxation of Units .................................................................. ............................... 58 EXHIBITA THE PROPERTY ...................................................................... 1 ............................... EXHIBIT B ADDITIONAL LAND ................................................................ ..............................1 EXHIBIT C COMMON ALLOCATIONS I .................................................... ............................... EXHIBIT D OTHER RECORDED EASEMENTS AND LICENSES AFFECTING THE PROPERTY...................... ............................... .................... ............................... 1 EXHIBIT E ARBITRATION RULES ............................................................ ..............................1 -vii - 611449.17 AKHANS 06/19/06 10:32 AM 200617775 8 OF 76 CONDOMINIUM DECLARATION FOR GORE CREEK PLACE THIS CONDOMINIUM DECLARATION FOR GORE CREEK PLACE (this "Declaration ") is made as of 7 f[ n 14 2006 by GORE CREEK PLACE, LLC, a Colorado limited liability company. RECITALS This Declaration is made with respect to the following facts: A. "Declarant' is the owner of the "Property" (as those terms are defined in Section 1.1). B. In accordance with the provisions of the Act (as defined in Section 1. 1), Declarant desires to establish the Property as a condominium project consisting of condominium units designated for separate ownership and common elements designated for ownership in common by the owners of those condominium units. DECLARATION NOW, THEREFORE, Declarant declares as follows: ARTICLE 1 DEFINITIONS AND EXHIBITS 1.1 Definitions The following initially - capitalized, defined terms have the respective meanings set forth below: "Act" means the Colorado Common Interest Ownership Act, C.R.S. § 38- 33.3 -101, et seq., as amended from time to time. "Additional Land" means the real property legally described in the attached Exhibit B, which Declarant may add to the Property pursuant to the exercise of Development Rights under Section 2.9(a). "Alteration" is defined in Section 10.5. "Assessments" is defined in Section 9.4 "Association" means Gore Creek Place Homeowners Association, Inc., a nonprofit Colorado corporation, formed or to be formed pursuant to Section 6.1. "Board" means the Board of Directors of the Association. 611448.17 AY-MANS 06/29/06 10:72 AM 200617775 9 OF 76 "Boundary Relocation" means: (i) the combination of two or more adjoining Units into a single Unit; or (ii) the alteration of the boundary or boundaries separating two or more adjoining Units. "Building" means each of the residential buildings located on the Property, as depicted on the Map. "Bylaws" means the Articles of Incorporation and the Bylaws of the Association. "Casualty" is defined in Section 12.1. "Central Mechanical Equipment" means all water lines and related equipment in the Condominium Project, wherever located, and any submeters installed by the Association as needed to allocate water usage by each Unit pursuant to Section 9.1(b), the fire sprinkler system and fire alarm system and related lines and equipment, wherever located in the Condominium Project. "Claims" is defined in Section 7.3: "Commercial Activities" is defined in Section 16.1(c). "Common Allocation" means, with respect to each Unit, the percentage allocated to the Unit as set forth on Exhibit C . The Common Allocation for each Unit has been determined by dividing the Measured Area of the Unit by the total Measured Area of all the Units. As additional Units are created pursuant to Declarant's exercise of Development Rights in accordance with Section 2.9(a), the Common Allocation for each Unit shall, upon creation of such additional Units, be recalculated by dividing the Measured Area of the Unit by total Measured Area of all the Units, including the newly added Units. "Common Alteration" is defined in Section 10.6(b). "Common Element Taking" is defined in Section 13.2. "Common Elements" means all portions of and areas within the Condominium Project that are not part of the Units. Limited Common Elements and General Common Elements are both part of the Common Elements. A portion of the Common Elements may be referred to as a "Common Element." "Common Expenses" means, except for those costs and expenses expressly excluded below, all costs, expenses and financial liabilities incurred by the Association pursuant to this Declaration or the Bylaws including, without limitation: all costs incurred by the Association pursuant to the Tunnel Easement, all costs of operating, managing, administering, securing, protecting, insuring, ventilating, lighting, decorating, cleaning, maintaining, repairing, renewing, replacing or restoring (to the extent not covered by insurance or condemnation proceeds), the Common Elements, including the Central Mechanical Equipment; all costs of providing water, 614446.17 AKHANS 0629106 10:32 AM 2 200617775 10 OF 76 sewer, waste disposal, telecommunications, electricity, natural gas and other services, energy and utilities to, the Common Elements and the Association's personal property and equipment located in, or used in connection with the operation or maintenance of, the Common Elements; all costs of providing water service to the Units to the extent not charged directly to the Unit Owners pursuant to Section 9.1(b); taxes on any property owned by the Association; and funding of working capital and reasonable reserves for Common Expenses. Except to the extent provided in Sections 9.2 and 17.3(c), Common Expenses will not include Limited Benefit Expenses, Reimbursable Expenses, the costs of any Restoration Deficit, Voluntary Capital Expenses or any other cost or expense which, pursuant to this Declaration, may be separately assessed (i.e., in addition to General Assessments for Common Expenses) against any Condominium(s). "Condominium" means a Unit, together with the undivided interest in the Common Elements and all Easements, rights, licenses and appurtenances allocated or made appurtenant to the Unit pursuant to this Declaration. "Condominium Project" means the condominium, as defined in Section 103(9) of the Act, created by this Declaration and consisting of the Property and all improvements located thereon. "Connecting Tunnel" is defined in Section 2.6. "Construction Activities" is defined in Section 16.1(b). "Deck" is defined in Section 2.7(a). "Declarant" means Gore Creek Place, LLC, a Colorado limited liability company, or any Person designated as a successor to Declarant's rights and obligations under this Declaration in a written instrument signed by Declarant recorded in the Records. Notwithstanding the foregoing, Special Declarant Rights may be transferred only in accordance with Section 304 of the Act. "Declarant Control Period" means the period beginning on the date the Association is formed and ending on the first to occur of (i) 60 days after 75% of the total number of Units that may be created pursuant to Section 2.10 have been conveyed to Owners other than Declarant; (ii) two years after the last conveyance of a Unit by Declarant in the ordinary course of business; (iii) two years after any right to create new units pursuant to this Declaration was last exercised; or (iv) the date on which Declarant, in its sole discretion, voluntarily terminates the Declarant Control Period pursuant to a Recorded statement of termination executed by Declarant. If Declarant terminates the Declarant Control Period pursuant to the preceding clause (iv), Declarant may require that, for the balance of what would have been the Declarant Control Period had Declarant not terminated it, certain actions of the Association or the Board, as described in the Recorded statement of termination, be approved by Declarant before they become effective. 614448.17 AKHAN$ 0&29/06 10 32 AM 200617775 11 OF 76 "Declarant Development Period" means the period beginning on the date this Declaration is Recorded and ending on the tenth anniversary of the date on which this Declaration was Recorded. "Delinquency Costs" is defined in Section 9.4. "Development Rights" is defined in Section 2.9(a). "Easements" means all easements that burden or benefit the Condominium Project or a portion of it, including (i) easements established or granted under this Declaration; (ii) easements which first burdened or benefited the Property before the Recording of this Declaration; and (iii) easements which first burden or benefit the Property after this Declaration is recorded. "Emergency Access Easement" is defined in Section 3.9. "First Mortgage" means a Mortgage that is Recorded and has priority of record over all other Recorded liens except those liens made superior by statute (e.g., general ad valorem tax liens and special assessments and mechanics' liens); provided, however, the term First Mortgage shall not include the Deed of Trust described on the Joinder of Lienor attached to this Declaration and made a part hereof. "First Mortgagee" means the holder, from time to time, of a First Mortgage on any Unit or Units as shown by the Records. If there is more than one holder of a First Mortgage, the holders will be treated as, and act as, one First Mortgagee for all purposes under this Declaration and the Bylaws. "Fiscal Year" means the fiscal accounting and reporting period of the Association selected by the Board from time to time. "Garage" means a portion of the Tunnel which is partitioned off and connected to the lowest level of a Unit. Each Garage is a Limited Common Element allocated to the Unit to which it is connected. "GCP Building Code Modification" means the Request for Administrative Modification for Gore Creek Residences, Vail, Colorado presented to the Town of Vail Building Department as Project No. D32929, and dated May 10, 2005 with Addendum dated July 1, 2005, which modified the Town's building code for the Condominium Project. "General Assessments" is defined in Section 9.1. "General Benefit Expense" is defined in Section 9.2(a). "General Common Elements" means all Common Elements that are not Limited Common Elements. For example, the Tunnel, the Tunnel Easement, all landscaping at the Condominium Project and the improvements in the Emergency Access Easement are General 614448.17 AKHANS 06,29/06 10:72 AM 200617775 12 OF 76 Common Elements. A portion of the General Common Elements may be referred to as a "General Common Element" (and labeled on the Map as "GCE "). "Hot Tub" is defined in Section 2.7(c). "Indemnity Claims" is defined in Section 4.8. "Limited Benefit Expenses" is defined in Section 9.2(b). "Limited Common Elements" means the portions of the Common Elements allocated to the exclusive use of one or more, but fewer than all, of the Units. For example, all portions of the exterior of each Building is a limited Common Element allocated to the Units located in such Building, and any Deck connecting to a Unit is a Limited Common Element allocated to such Unit. A portion of the Limited Common Elements may be referred to as a "Limited Common Element." Some of the Limited Common Elements are designated in this Declaration and on the Map and identified by the initials "LCE" followed by the number of the Unit to which the Limited Common Elements are allocated. For example, a Limited Common Element allocated only to the use of Unit 7 may be identified as "LCE -7." "Map" means the Condominium Plat for Gore Creek Place, which was Recorded on the same date as this Declaration and is made a part of this Declaration, as such Condominium Plat may be amended in accordance with this Declaration. "Measured Area" means for each Unit the area in square feet of all floor space included in the Unit measured from the vertical boundaries of the Unit (as described in Section 2.4). "Mold" is defined in Article 8. "Mortgage" means an unpaid or outstanding mortgage, deed of trust, deed to secure debt or any other form of security interest encumbering a Unit. "Mountain Activities" is defined in Section 16.1(a). "Mountain Recreational Areas" is defined in Section 16.1(a). "Owner" means a Person or Persons, including Declarant, owning fee simple title to a Unit from time to time. The term Owner includes a contract vendee under an installment land contract, but does not include the vendor under such a contract or a Security Holder (unless and until a Security Holder becomes an owner in fee simple of a Unit). "Patio" is defined in Section 2.7(b). "Permitted Unit Alteration" is defined in Section 10.1. " Permittee" means a Person, other than an Owner, rightfully present on or in rightful possession of a Unit or Common Element, or a portion of a Unit or Common Element; including, 614446,17 AKHANS 06/291061Q32 AN1 200617775 Q OF 76 without limitation, (i) a tenant of an Owner or the Association or (ii) an agent, employee, customer, contractor, licensee, guest or invitee of an Owner, the Association, or a tenant of either of them. "Person" means a natural person, corporation, partnership, limited liability company, trust or other entity, or any combination of them. "Property" means the real property described on Exhibit A and on which the Condominium Project is located and the Tunnel Easement. "Public Pedestrian Easement" is defined in Section 3.10. "Records" means the real property records maintained by the Clerk and Recorder of Eagle County, Colorado; to "Record" or "Recording" means to file or filing for recording in the Records; and "of Record" or "Recorded" means recorded in the Records. "Recreation Path" means the bicycle and pedestrian path depicted on the Map and labeled "Recreation Path." "Recreation Path Easement" is defined in Section 3.11. "Reimbursable Expenses" is defined in Section 9.2(c). "Reserve Fund" is defined in Section 6.3. "Restoration Deficit" is defined in Section 9.2(d). "Rules" means the policies, procedures, rules and regulations that the Association adopts from time to time. "Security for an Obligation" means the vendor's interest in an installment land contract, the mortgagee's interest in a mortgage, the beneficiary's interest in a deed of trust, the purchaser's interest under a sheriff's certificate of sale during the period of redemption, or the holder's or beneficiary's interest in a lien. "Security Holder" means any Person owning or holding a Security for an Obligation encumbering a Condominium, including any First Mortgagee. "Shared Area" is defined in Section 103(a). "Special Assessments" is defined in Section 9.2. "Special Declarant Rights" means the rights reserved by Declarant in Section 2.9. "Supplemental Declaration" means an amendment to this Declaration prepared and Recorded by Declarant as necessary to exercise Development Rights pursuant to Section 2.9(a). 6144U. 17 AMANS 06n9/06 10:32 AM 6 200617775 14 OF 76 "Supplemental Map" means an amendment to the Map prepared and Recorded by Declarant as necessary to exercise Development Rights pursuant to Section 2.9(a). "Taking" is defined in Section 13.1. "Termination Agreement" is defined in Section 14.1. "Termination Allocation" is defined in Section 14.3. "Town" means the Town of Vail, Colorado. "Transferee" is defined in Section 173(a). "Tunnel" means the underground tunnel which contains, among other things, a drive aisle, parking spaces and mechanical rooms. The Tunnel is depicted on the Map and, except for the Garages, which are Limited Common Elements, is a General Common Element. The Tunnel and the Connecting Tunnel are connected to one another and part of the same structural system. "Tunnel Easement" means that certain Tunnel Easement Agreement dated 7u a t 3 D , 2006, and Recorded at Reception No. ao 0 (, 177W S "Unit" means a portion of the Condominium Project designated for separate ownership. Each Unit is designated for separate ownership in this Declaration, and its boundaries are delineated on the Map and described in Section 2.4. The definition of "Unit'' excludes all Common Elements, including, without limitation, (a) any Limited Common Elements allocated, exclusively or otherwise, to the Unit, and (b) any Common Elements passing through or existing partly or wholly inside the boundaries of the Unit (e.g., any ducts, pipes flues, chases or equipment serving portions of the Condominium Project other than the Unit). "Unit Connection" is defined in Section 10.3(a). "Unit Disconnection" is defined in Section 10.4(a). "Unit Mechanical Equipment" means the mechanical equipment located within and serving exclusively a single Unit, as well as HVAC and other mechanical equipment located outside a Unit, but exclusively serving the Unit, such as the mechanical equipment located in the crawl space immediately beneath a Unit that exclusively serves such Unit. Unit Mechanical Equipment is a part of the Unit in which it is located or the Unit which it exclusively serves. In no event shall Unit Mechanical Equipment be defined to include any Central Mechanical Equipment or any Utility /Service Elements. "Utility/Service Elements" is defined in Section 2.4(c). "Voluntary Capital Expenses" is defined in Section 9.2(e). "Working Capital Fund" is defined in Section 9.3. 6144x. 17 AMANS 06/-9106 10:72 AM / 200617775 15 OF 76 1.2 Exhibits The Exhibits listed below are attached to and incorporated in this Declaration: Exhibit A — The Property Exhibit B — Additional Land Exhibit C - Common Allocations Exhibit D - Other Recorded Easements and Licenses Affecting the Property Exhibit E - Arbitration Rules ARTICLE 2 CREATION OF THE CONDOMINIUM PROJECT AND ALLOCATIONS 2.1 Creation Declarant declares that, upon the Recording of this Declaration executed pursuant to the Act, the Property will be a "condominium" within the meaning of Section 103(9) of the Act and, thus, constitutes the Condominium Project. 2.2 Name The name of the Condominium Project is "Gore Creek Place." 2.3 Division of Property Declarant, pursuant to the Act, hereby divides the Property into the Units (identified by number on Exhibit C and depicted on the Map) and the Common Elements and designates the Units for separate ownership and the Common Elements for common ownership solely by the Owners. 2.4 Designation of Boundaries (a) Units The vertical and horizontal boundaries of each of the Units are described below and are graphically depicted on the Map. (i) Horizontal Boundaries The upper horizontal boundary of each Unit is the underside of the joist in the unfinished ceiling of the top level contained in such Unit. The lower horizontal boundary of each Unit is the unfinished surface of the top of the floor slab or subfloor immediately beneath the lowest level contained in such Unit. Notwithstanding anything contained in this Declaration or on the Map to the contrary, each Owner, by taking title to a Unit, acknowledges and agrees that the attic space above and the crawl space below the Unit are not included within the Unit boundaries. (ii) Vertical Boundaries The vertical boundaries of each Unit are generally the unfinished interior surface of the wallboard or plasterboard forming a part of the perimeter walls of the Unit as depicted on the Map. Without limiting the generality of Section 10.6(a), no Owner may remove, penetrate or do anything to otherwise impair the fire - separation capability or acoustical separation capability of any perimeter wall forming the vertical boundary of any Unit. (b) Structural Elements All structural elements of each Building, including, without limitation, bearing walls, bearing columns, structural slabs and decks for floors, ceilings or roofs, 614446.17 AKHANS 06129/06 10:32 AM 200617775 16 OF 76 structural girders, beams and joists, and foundations and footings, are Common Elements, regardless of whether they are located wholly or partially within the boundaries of any Unit. (c) Utility /Service Elements Any shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits or utility lines (collectively, "Utility /Service Elements ") that exclusively serve a Common Element are a part of the Common Elements. Any Utility /Service Elements that serve two or more but fewer than all Units are Limited Common Elements allocated to the Units they serve. Any Utility /Service Elements that serve all of the Units are General Common Elements. (d) Unit Mechanical Equipment Each Unit includes its Unit Mechanical Equipment, wherever located. (e) Improvements in Unit Subject to Sections 2.4(b), 2.4(c) and 2.4(d), above, all spaces, interior partitions and other fixtures and improvements within the boundaries of any Unit are a part of the Unit. (f) Penetrations Where a Unit boundary is penetrated by an opening (e.g., a flue, chase, window, door or garage door), the boundary at such penetration is the surface which would result from the extension of the nearest adjacent surface comprising the boundary that is penetrated by the opening. 2.5 Unit Subdivisions, Connections and Boundaa Changes No Unit may be subdivided into two or more Units except by Declarant pursuant to Section 2.9(c); provided however, that no Unit may be subdivided into more than one Unit if, as a result of the subdivision, there would be more than 30 Units in the Condominium Project. Subject to this Section 2.5, a Boundary Relocation may be made by Declarant pursuant to Section 2.9(c) or by Owners pursuant to Section 10.2; a Unit Connection may be made pursuant to Section 10.3; and a Unit Disconnection may be made pursuant to Section 10.4. 2.6 Tunnel and Tunnel Easement Vehicular access to the Project is provided from West Forest Road through an underground tunnel on a parcel of real property adjacent to the Property (the "Connecting Tunnel "). The Connecting Tunnel is connected to and a part of the same structural system as the Tunnel and is located on the Additional Land. Pursuant to the Tunnel Easement, each Owner has the right to use the Connecting Tunnel, and the Association is responsible for certain costs associated with the Connecting Tunnel. 2.7 Limited Common Elements The Limited Common Elements consist of those designated in the Act, those designated in Section 2.4(c), those designated by the Board pursuant to Section 10.3, those designated "LCE" or otherwise allocated on the Map, and the following: (a) Deck Each area entitled "Deck" on the Map is an exterior deck area (a "Deck "). The air space above each Deck, from its finished floor surface to the lower of 10 feet above its finished floor surface or the underside of any soffit or other portion of the exterior of the Building that projects over the Deck, constitutes a Limited Common Element allocated for the 61"49.17 AKH"S 06 10:32 AM 9 200617775 17 OF 76 exclusive use of the Unit to which the Deck is allocated, as shown on the Map (e.g., the Deck designated on the Map as "LCE -7" is allocated to the exclusive use of Unit 7). (b) Patio Each area entitled "Patio" on the Map is an exterior patio area (a "Patio'D. The air space above each Patio, from its finished floor surface to the lower of 10 feet above its finished floor surface or the underside of any soffit or other portion of the exterior of the Building that projects over the Patio, constitutes a Limited Common Element allocated for the exclusive use of the Unit to which the Patio is allocated, as shown on the Map (e.g., the Patio designated on the Map as "LCE -7" is allocated to the exclusive use of Unit 7). (c) Hot Tubs Each area entitled "Hot Tub," if any, on the Map is a hot tub and related improvements (each a "Hot Tub "). Each Hot Tub is a Limited Common Element allocated for the exclusive use of the Unit to which the Hot Tub is allocated, as shown on the Map (e.g., the Hot Tub designated on the Map as "LCE -7" is allocated to the exclusive use of Unit 7). (d) Doors and Windows All doors, garage doors and windows in the boundary walls of a Unit are Limited Common Elements allocated to the Unit. The glazing, sashes, frames, sills, thresholds, hardware, flashing and other components of those doors, garage doors and windows are parts of the doors and windows and are allocated pursuant to this Section 2.7(d). 2.8 Allocations (a) Ownership of Common Elements Each Unit is allocated a percentage of undivided interest in the Common Elements equal to its Common Allocation. (b) Liabilily for Common Expenses Each Unit is allocated, and the Owner of the Unit is liable for, a percentage of all Common Expenses equal to the Unit's Common Allocation. All other costs and expenses of the Association are allocated among the Units as otherwise provided in this Declaration (such as the allocation of Limited Benefit Expenses set forth in Section 9.2(a), the allocation of Reimbursable Expenses set forth in Section 9.2(c), and the allocation of Voluntary Capital Expenses set forth in Section 9.2(e)). (c) Votes in the Association In all matters coming before the Association for which a vote of the Owners is required, each Unit is allocated one vote. Notwithstanding the foregoing, the Association is not entitled to any votes for any Unit(s) it owns. 2.9 Reservation of Special Declarant Rights Declarant reserves the following Special Declarant Rights: (a) Development Rights During the Declarant Development Period, Declarant may but is not obligated to (i) construct and create additional Units and Common Elements, (ii) convert Units into Common Elements, (iii) withdraw real estate from the Property; (iv) add all or any portion of the Additional Land to the Property; or (v) add any other real estate to the Property to the extent allowed under the Act, including, without limitation, Section 222 (the 614446.17 AKHANS 06/29.'06 10 AM 10 200617775 18 OF 76 "Development Rights "). The Development Rights apply to portions of the Property, including any Additional Land included in the Property pursuant to this Section 9.2(a), but are subject to the limitations of Section 2.10. Declarant shall exercise any Development Right by preparing, executing and Recording a Supplemental Declaration as necessary to effectuate the exercise of such Development Right, which Supplemental Declaration shall be accompanied by a Supplemental Map, as required by the Act. If Declarant, by exercising any Development Right, creates any new Common Elements, then the Supplemental Declaration shall describe such newly created Common Elements. If Declarant, by exercising any Development Right, creates any new Units, such Supplemental Declaration shall include a revised Exhibit C , which shall show the new Common Allocations for all of the Units, calculated in accordance with the formula included in the definition of Common Allocation in Section I.I. Except as expressly provided to the contrary in this Declaration, Declarant's exercise of any Development Right shall not require the consent of any other Owner. (b) Improvements During the Declarant Development Period, Declarant may, but is not required to, complete any one or more of the following improvements or alterations at the sole cost and expense of Declarant: (i) constructing any improvements indicated on the Map; (ii) remodeling, refurbishing or improving any one or more of the Common Elements; (iii) remodeling or refurbishing any Unit owned by Declarant; (iv) removing and reinstalling or relocating the Condominium Project's mailboxes; (v) installing security equipment, such as cameras, monitors and video recorders, on or about the Property; (vi) installing utility lines, running through existing or newly created chases in the Common Elements or in any or all of the Units, as may be necessary or desirable to provide additional utility services in some or all of the Units; (vii) constructing or installing lighting in or on any of the Common Elements; and (viii) constructing or installing signage relating to the Condominium Project. (c) Boundary Relocation; Subdivision During the Declarant Development Period, Declarant may from time to time make Boundary Relocations affecting any Unit(s) then owned by Declarant or may subdivide any Unit then owned by Declarant into two or more Units, subject to Section 2.5. To effect a Boundary Relocation or subdivision during the Declarant Development Period, Declarant shall execute, acknowledge and Record an amendment to this Declaration (including the Map) showing the affected Units, their new boundaries and dimensions and any changes to their identifying numbers, and revising Exhibit C to show any changes in Common Allocations resulting from the Boundary Relocation or subdivision. The revised Common Allocations resulting from any Boundary Relocation or subdivision made by Declarant must be based on the formula set forth in the definitions of "Common Allocation" and "Measured Area" as set forth in Section 1.1. Nothing in this Section 2.9(c) prohibits Declarant, as an Owner, from making a Boundary Relocation pursuant to Section 10.2. (d) Marketing During the Declarant Development Period, Declarant may maintain sales offices, management offices and model Unit(s) in any Unit(s) owned by Declarant or in the Common Element, but Declarant's use of a Common Element may not preclude access to any Unit not owned by Declarant. Declarant may change the locations of the offices and model Unit(s) from time to time during the Declarant Development Period. During the Declarant 614W I? MWANS 06(29!06 1032 AM I I 200617775 19 OF 76 Development Period, Declarant may maintain signs on any Common Elements advertising the Units for sale and directing prospective purchasers to the offices or model Unit(s). Upon the termination of the Declarant Development Period, Declarant has a period of 30 days to remove any property of Declarant located on any portion of the Common Elements used for office or model purposes. (e) Easements Declarant may use the Easements described in Section 3.3 for so long as those Easements remain in effect. (f) Appoint Board and Officers Subject to the provisions of the Bylaws, during the Declarant Control Period Declarant may appoint and remove the members of the Board and the officers of the Association. (g) Amend Declaration In addition to the amendments to this Declaration which Declarant may expressly make pursuant to the provisions of this Declaration, Declarant may during the Declarant Development Period amend this Declaration (including the Map) in any manner authorized by the Act. 2.10 Number of Units Initially, the Condominium Project consists of eight Units. The maximum number of Units that may be created, by subdivision or otherwise, equals 30. ARTICLE 3 EASEMENTS 3.1 Easements Benefiting Owners Each Owner, and its Permittees, has a non - exclusive Easement over and through the Common Elements for ingress and egress to such Owner's Unit. Each Owner has a non - exclusive Easement to use the Common Elements, subject to the terms and conditions of this Declaration and the Rules. To the extent that any Unit is allocated the exclusive use of a particular Limited Common Element pursuant to this Declaration and/or the Map, (such as, for example, a Deck) the Owner of that Unit has an Easement for the exclusive use and enjoyment of that Limited Common Element. In those cases where a Limited Common Element is allocated to more than one Unit pursuant to this Declaration, the Owners of the Units to which that Limited Common Element is allocated have a nonexclusive Easement for the use and enjoyment of that Limited Common Element. Notwithstanding any provision of this Declaration to the contrary, whenever an Owner has an Easement to use any Limited Common Element pursuant to this Declaration, and regardless of whether the Easement is deemed exclusive or nonexclusive or whether it concerns a Deck or another Limited Common Element, the right of the Owner and its Permittees to use that Limited Common Element is subject to the Easements described in Sections 3.2 through 3.7, inclusive, and Sections 3.9 through 3.11, inclusive. 3.2 Easements Benefiting Association The Association has nonexclusive Easements over and across the Common Elements, and over and across other portions of the Condominium Project to gain access to the Common Elements, as reasonably necessary or convenient for the Association, acting through its Permittees, to exercise its rights and perform its obligations under 614M&17 AKHANS 06ngM610 :32 AM 12 200617775 20 OF 76 this Declaration, including, without limitation, its rights and obligations to enforce this Declaration and the Rules and to operate, manage and control the Common Elements. Without limiting the generality of the previous sentence, the Association has an Easement to enter each Unit to the extent reasonably required to operate, manage and control any Common Elements within the boundaries of the Unit or as reasonably necessary to perform other maintenance and repair duties imposed on the Association by this Declaration. Except in the case of emergency situations concerning threatened injury or damage to persons or property, the Association shall not enter into any Unit pursuant to the Easement established under this Section 3.2 without giving reasonable advance notice to the occupant thereof. 3.3 Easements Benefiting Declarant Declarant reserves Easements over and across the Common Elements as reasonably necessary for the purposes of completing the construction of the Condominium Project, including any improvements or alterations described in Section 2.9(b), and for the purpose of exercising any Development Rights pursuant to Section 2.9(a); constructing and installing any shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits or utility lines necessary to serve those improvements or alterations; storing construction materials relating to those improvements and alterations and their service elements; showing Units and Common Elements to prospective purchasers; displaying signs; and performing any of Declarant's obligations under this Declaration. Declarant's Easements will exist as long as reasonably necessary for those purposes. Without limiting the generality of the previous two sentences, if Declarant elects to install utility lines to provide additional utility services in some or all of the Units, Declarant will have Easements to install the utility lines and chases housing them on, over, under, across and through the interior or exterior Common Elements. 3.4 Connecting Tunnel Easements There is hereby an Easement over and across the Tunnel for lateral and structural support of the Connecting Tunnel. The owner of the Connecting Tunnel, for itself and its agents, employees, tenants, customers, contractors, licensees, guests and invitees, is hereby granted an Easement for pedestrian and vehicular access through and over the Tunnel and for parking in any parking spaces that are located in the Tunnel, but not within any Garage, as reasonably necessary in connection with development of the surface of the property located above the Connecting Tunnel. 3.5 Easements for Encroachments If, as a result of the construction, reconstruction, shifting, settlement, restoration, rehabilitation, alteration or improvement of the Condominium Project or any portion of it, any Common Element encroaches upon any part of any Unit, or any part of any Unit encroaches upon any Common Element or upon any part of another Unit, an Easement exists for the continued existence and maintenance of the encroachment. The Easement will continue for so long as the encroachment exists and will burden the Unit or Common Element encroached upon and benefit the encroaching Unit or Common Element. No Easement exists for any encroachment that is materially detrimental to or interferes with the reasonable use and enjoyment of the Common Element(s) or Unit(s) burdened by the encroachment. 614418.17 AMANS 06/29:06 16.33 AM 13 200617775 21 OF 76 3.6 Easements to Repair, Maintain Restore and Reconstruct With respect to any provision of this Declaration or the Act that authorizes or requires any Person (including, without limitation, the Association) to repair, maintain, restore or reconstruct all or any part of any Unit or Common Element, Easements exist as necessary or convenient to gain access and perform the authorized or required work to the portions of the Condominium Project requiring repair, maintenance, restoration or reconstruction, with persons, materials and equipment to the extent and for the periods reasonably necessary to enable the Person to perform the authorized or required work. Without limiting the generality of the previous sentence, the Association has an Easement to enter each Unit to the extent reasonably required to repair and maintain any Common Elements located in the Unit. The Easements created under this Section 3.6 burden those portions of the Condominium Project through which they run and benefit the Persons authorized or required to perform, and those portions of the Condominium Project requiring, the repair, maintenance, restoration or reconstruction. Except in the case of emergency situations concerning threatened damage to persons or property, no Person shall enter into any Unit pursuant to the Easement established under this Section 3.6 without giving reasonable advance notice to the occupant thereof. Prior to exercising its rights under this Section 3.6, each Owner must notify the Association so that the Association may coordinate the required access through and/or work to the Common Elements or other Units with the impacted Owners. Such Owner's access and work may proceed only at the times and in accordance with the arrangements approved by the Association. 3.7 Easements for Utilities and Mechanical Equipment An Easement exists for the benefit of each Unit and Common Element for the use of all Utility/Service Elements and the Central Mechanical Equipment that serve the Unit or Common Element and run through any other Unit(s) or Common Element(s). The other Unit(s) or Common Element(s) are burdened by the Easement. In addition, an Easement exists for the benefit of each Unit for the existence of any of its Unit Mechanical Equipment that is located within the Common Elements. 3.8 Right of Entry Declarant reserves for the Association an easement for the right, but not the obligation, to enter upon any Unit: (i) for emergency, security and safety reasons; and (ii) to inspect any Unit for the purpose of ensuring compliance with this Declaration, the Bylaws and the Rules. Such right may be exercised by any member of the Board and the Association's officers, agents, employees and managers and, for emergency, security and safety purposes, all police, fire and ambulance personnel and other similar emergency personnel in the performance of their duties. This right of entry shall include the right of the Association to enter upon any Unit to cure any condition that may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure such condition within a reasonable time after requested by the Association, but shall not authorize entry into the residence located on or constituting any Unit without permission of the occupant, except by emergency personnel acting in their official capacities. 3.9 Emergency Access Easement Pursuant to that certain Public Pedestrian Easement and Emergency Access Easement, Recorded 3 UA I .S , 2006, at Reception No.) 0o 0177 7 , a non - exclusive surface easement for emergent access to certain portions of the Property has 614"S. 17 AFHANS 0&29M 10:32 AM 14 200617775 22 OF 76 been granted to the Town and all applicable emergency service providers (the "Emergency Access Easement "). In no event shall the Emergency Access Easement include the Tunnel or any area below the paved or landscaped surface of the Emergency Access Easement, as more particularly described on the Map, and in no event shall emergency vehicles in excess of 12,000 pounds be permitted anywhere on the Emergency Access Easement. 3.10 Public Pedestrian Easement Also pursuant to the Emergency Access Easement, a non - exclusive easement for pedestrian access to certain portions of the Property has been granted to the Town (the "Public Pedestrian Easement "). The Public Pedestrian Easement shall in no event include the Tunnel or any area below the paved or landscaped surface of the Emergency Access Easement and other portions of the Property, as more particularly described on the Map. 3.11 Recreation Path Easement Pursuant to that certain Grant of Easement — Bike Path, dated March 10, 2005, and Recorded at Reception No. 908759, a non - exclusive easement for bicycle and pedestrian uses has been granted to the Town (the "Recreation Path Easement "). The Recreation Path Easement may also include other uses as may be approved from time to time by the Town, over the Recreation Path, as more particularly described on the Map. The Recreation Path Easement does not contemplate snowmobile access or "other non - motorized recreation uses." 3.12 Chairlift Easements Pursuant to that certain Chairlift Easements Agreement, Recorded � f — , 2006, at Reception No.a (017 7 - 7 - 11 easements over a portion of the Property for locat' n, operation and maintenance of a ski lift, chair lift, gondola or other similar infrastructure or facilities, and for the purpose of transportation to and from the Vail Ski Mountain, as more particularly described on the Map, have been granted to the Vail Corporation (the " Chairlift Easements'). 3.13 Additional Easements (a) Declarant's Right to Grant Easements Declarant reserves the non - exclusive right and power to grant, during the Declarant Development Period, such additional specific easements over any portion of the Property owned by Declarant and the Common Elements as may be necessary, in the sole discretion of Declarant, to the orderly development of any portion of the Property. (b) Association's Right to Grant Easements Notwithstanding anything to the contrary in this Declaration, the Association, acting through the Board and without the approval of the Owners, may grant easements over the Common Elements for installation and maintenance of utilities, drainage facilities and roads and for other purposes that benefit the Owners. 3.14 Easements Run with Property Except for the Easements described in Section 3.3, all Easements existing pursuant to this Article 3 are appurtenant to and run with the Property and will be perpetually in full force and effect so long as the Condominium Project exists and inure to the benefit of and are binding upon Declarant, the Association, Owners, Permittees, Security 614446.17 AKHANS 0629/06 10'71 AM 15 200617775 23 OF 76 Holders and any other Persons having any interest in the Condominium Project or any part of it. The Units will be conveyed and encumbered subject to all Easements set forth in this Article 3, whether or not specifically mentioned in the conveyance or encumbrance. 3.15 Other Recorded Easements and Licenses Affecting the Property The recorded easements and licenses identified on Exhibit D , which were created prior to the date of this Declaration, and the easements created by the Map affect the Property. ARTICLE 4 COVENANTS, CONDITIONS AND RESTRICTIONS 4.1 Administration The Condominium Project will be administered in accordance with the provisions of the Act, this Declaration and the Bylaws. All Common Elements are subject to the reasonable supervision, operation, management and control of the Association. 4.2 Compliance Each Owner, Penmittee and Security Holder and all parties claiming under them will take and hold their right, title and interest in any Unit subject to all of the covenants and conditions of the Act, this Declaration, and the Bylaws. Each Owner, Permittee and Security Holder will comply with all applicable provisions of this Declaration, the Bylaws, and any Rules, as those documents may be amended from time to time. Each Owner, Permittee and Security Holder will comply with all applicable provisions of the Act. 4.3 Units (a) Permitted Uses Except as otherwise provided in this Section 4.3(a) and Section 4.4, each Unit may be occupied and used only for: (i) residential uses and uses incidental to them; (ii) rentals of the entire Unit for residential purposes; and (iii) home occupations permitted by applicable zoning laws, so long as such use is incidental to residential use of the Unit, does not involve use of the Unit by any employee or independent contractor (other than the Owner of the Unit), does not involve regular commercial deliveries to or from the Unit other than small packages shipped by an express courier service, does not involve regular visits to the Unit by any customers or prospective customers, does not materially increase the use of any Common Elements, and is not advertised or identified by signage on any directory in the Condominium Project. During the Declarant Development Period, Declarant may also use one or more Units owned by Declarant for sales or management offices or for model Units. (b) Prohibited Uses Except as expressly provided in Section 4.3(a), no Unit may be used for any commercial, professional, industrial or manufacturing purposes. In addition, no Unit may be used for the creation of any "time share estate" as defined in C.R.S. § 38 -33 -110 or any other time share, interval ownership, vacation club, or similar estate or interest in the Unit, no matter how described or classified, by which a purchaser, investor, tenant or licensee obtains the right to exclusive use of the Unit on a recurring basis for a certain period of time or has the right, as a member of a vacation or similar club or organization, to make reservations to use the Unit, as a result of membership in such vacation club or similar organization. 614448.17 AXHMS 0&29M6 10:72 AM 16 200617775 24 OF 76 4.4 Association's Units The Association may use any Unit it owns for any lawful purpose relating to the performance of its obligations under this Declaration or otherwise benefiting the Owners. 4.5 Prohibited Uses Generally Uses other than permitted uses listed in this Article 4 are prohibited unless the Board is expressly empowered to, and does, approve a particular prohibited use. Where the Board is empowered to approve a particular use or action, the Board may impose reasonable conditions upon the use or action as it deems necessary to protect the integrity of the Condominium Project and the rights of other Owners. In addition to other uses prohibited by this Article 4, the following uses are prohibited: (a) Insurance Risks No Unit may be used for any use which would constitute an unusual fire hazard, would result in jeopardizing any insurance maintained on any part of the Condominium Project or would result in any increase in the premium for that insurance; provided, however, that the Board may approve the use if adequate safeguards are undertaken at the Owner's expense and any increase in insurance premiums is allocated to, and paid by, the Owner pursuant to Section 9.2(c)(i). (b) Barbecue Grills Only natural gas and propane gas barbecue grills may be used on Decks or Patios. In no event may any charcoal barbecue grills be used on Decks or Patios or elsewhere within the Condominium Project. (c) Overloadine No Unit or Common Element may be used for any use beyond the maximum loads the floors of the Unit or Common Element are designed to carry. Further, no Unit or Common Element may be used for any use which would place any extraordinary burden on any Common Element, unless the Board gives its prior written consent. (d) Nuisance No Unit or Common Element may be used for any use (i) constituting a public or private nuisance; (ii) consisting of the manufacture of any product; or (iii) which causes undue odor, noise, vibration or glare, including, without limitation, the use of any equipment or machine. No audio system in a Unit may be operated in a manner that is audible from within any other Unit. (e) Violation of Law No portion of the Condominium Project may be used for any use which violates any law, statute, ordinance, rule, regulation or order of any governmental authority having jurisdiction over the Condominium Project, including, without limitation, any of them that regulate or concern hazardous or toxic waste, substances or materials. 4.6 Manner of Use The occupation and use of the Condominium Project by each Owner, the Association and their respective Permittees are subject to the following restrictions: (a) Pets. No animals, livestock, insects, rodents, poultry, reptiles, birds or other pets may be kept in any Unit except usual and ordinary domestic household pets (e.g., dogs, cats, small birds kept in cages, and similar small pets). The Board may adopt Rules from time to time 61"41.17 AKHANS 06MM6 10 AM 17 200617775 25 OF 76 regulating pets within the Condominium Project. No pet may be kept, bred or maintained for any commercial purpose. (b) Leases Subject to Section 4.3, each Owner may lease the Owner's Unit if the lease is in writing and is expressly made subject to this Declaration. Any lease will provide that any breach of this Declaration by the tenant will also be a breach of the lease. As to each lease, the Owner will, within a reasonable time after execution of such lease, provide the Board with (i) a copy of the fully executed lease, if requested by the Board; (ii) the current address and telephone number of the Owner; and (iii) a statement by the Owner that the tenant has received a copy of this Declaration, any material amendments to this Declaration, the Bylaws and the current Rules, and that the tenant has been advised that he or she may have obligations under those documents as a Permittee. The Board may make reasonable Rules regarding the leasing of Units. (c) Building Exterior, Decks Unless approved by the Board or expressly permitted by the Rules, nothing may be installed, attached or otherwise affixed to or on the exterior of any Building or the railing on any Deck or Patio. (d) Signs No signs may be displayed to the public view from any Unit or the Common Elements, except (i) signs maintained and used by Declarant in connection with its initial and ongoing rental or sales activities; and (ii) signs permitted pursuant to Section 106.5 of the Act. (e) Refuse Removal All rubbish, garbage and debris will be regularly removed from and will not be allowed to accumulate on the Condominium Project. All trash, garbage and other debris generated on and awaiting removal from the Condominium Project will be kept in sanitary containers in accordance with the Rules of the Association. (f) Obstruction of Common Elements Nothing may be stored in or on the Common Elements, except in designated storage areas, without the Board's prior written consent; provided however, that Declarant may store construction materials used in connection with the construction activities described in Section 2.9(b) in or on the Common Elements. Nothing may obstruct or otherwise impair access to the Common Elements except as provided in Section 2.9(d). 4.7 Rules In addition to the restrictions, conditions and covenants in this Article 4 concerning the use of the Condominium Project, the Board from time to time may promulgate and amend reasonable Rules not in conflict with the Act, this Declaration or the Bylaws. To the extent not covered elsewhere in the Declaration or the Bylaws, such Rules will include policies specified in Section 209.5 of the Act. Prior to the adoption or amendment of any Rule, the Board must give written notice to each Owner containing the proposed Rule or amendment to a Rule and the Owners must be allowed a reasonable opportunity to be heard at the Board meeting regarding such proposed new or amended Rule. 614446.17 AXHANS 0629'06 10.02 AM 18 200617775 26 OF 76 4.8 Indemnity Subject to Section 11.4, each Owner will be liable to and will protect, defend, indemnify and hold harmless the Association and the other Owners from and against any and all damages, claims, demands, liens (including, without limitation, mechanics' and materialmen's liens and claims), losses, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other expenses of litigation) and liabilities of any kind or nature whatsoever (collectively referred to as "Indemnity Claims ") suffered or incurred by, or threatened or asserted against, the Association or any other Owner as a result of or in connection with (a) the willful misconduct, negligence or breach of the Act, this Declaration, the Bylaws or the Rules by the indemnifying Owner or its Permittees; (b) any repair, restoration, replacement, alteration or other construction, demolition, installation or removal work on or about the Condominium Project contracted for, or performed by, the indemnifying Owner or its Permittees; or (c) the operation, use, ownership or maintenance of the indemnifying Owner's Unit by the indemnifying Owner or its Permittees. The indemnifying Owner will pay for all Indemnity Claims suffered or incurred by the Association for which the indemnifying Owner is responsible promptly upon receipt of a demand for payment from the Association. The amount of the Indemnity Claims will constitute Special Assessments against the indemnifying Owner's Unit. If the indemnifying Owner fails to make such payment within 30 days after receipt of the Association's demand for it, the Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. Nothing in this Declaration relieves any Permittee from liability for its own acts or omissions. Nothing contained in this Section 4.8 will be construed to provide for any indemnification which violates applicable laws, voids any or all of the provisions of this Section 4.8 or negates, abridges, eliminates or otherwise reduces any other indemnification or right which the Association or the Owners have by law. 4.9 Provisions Run with Property Each Condominium, Owner, Permittee and Security Holder are subject to all provisions of this Declaration and those provisions are covenants running with the land or equitable servitudes, as the case may be, and bind every Person having any interest in the Condominium Project and inure to the benefit of every Owner. 4.10 Enforcement (a) This Declaration and the Bylaws constitute a general scheme benefiting each Unit and the Property as a whole and may be enforced by Declarant, the Association or an aggrieved Owner. A violation of any of the provisions of this Declaration causes irreparable damage to the Property. Therefore, subject to the terms and conditions of this Section 4.10 and except as otherwise expressly provided elsewhere in this Declaration, Declarant, the Association and any aggrieved Owner may prosecute a proceeding at law or in equity against any Person violating or attempting to violate the provisions of this Declaration or the Bylaws, including, without limitation, an action for a temporary restraining order, preliminary injunction and permanent injunction. (b) Any Person attempting to enforce the provisions of this Declaration or the Bylaws, including, without limitation, attempting to collect delinquent Assessments, regardless 6144447 AMANS 0629/0610:72AM 19 200617775 27 OF 76 of whether a suit is initiated, may recover reasonable attorneys' fees and other legal costs incurred in successfully enforcing the provision to the extent provided in Section 123 of the Act. Any Owner who is successful in defending such a claim raised against it is also entitled to reasonable attorneys' fees and other legal costs it incurs in successfully defending such a claim to the extent provided in Section 123 of the Act. If the Person is an Owner, the amount of the fees and costs constitute a lien against the Owner's Unit which may be foreclosed in accordance with Section 9.5. In addition, if any Owner fails to comply with this Declaration, the Bylaws or the Rules, the Association may (i) temporarily suspend the Owner's right to use or enjoy any of the Common Elements, (ii) impose monetary penalties, and (iii) impose other appropriate measures; provided, however, that before imposing any of those measures (other than late charges, interest and reasonable collection costs relating to delinquent payments), the defaulting Owner is provided prior notice of the claimed default and an opportunity to be heard by the Board prior to the imposition of the disciplinary measure in accordance with the provisions of the Bylaws. (c) An aggrieved Owner may prosecute any proceeding at law or in equity enforcing the provisions of this Declaration or seeking other relief relating to a violation or attempted violation of the provisions of this Declaration, the Owner will first give written notice to the Board specifying the violation or attempted violation of the provisions of this Declaration, the facts and circumstances surrounding the violation, and the name of the Person alleged to have violated or attempted to violate the provisions of this Declaration. The Board may initiate a proceeding at law or in equity to enforce the provisions of this Declaration, to prevent a violation or to obtain damages for damage to the Common Elements resulting from the violation, or may otherwise enforce the provisions of this Declaration. The aggrieved Owner may exercise any of its rights under Section 4.10(a) if (i) the violation or attempted violation results or would result in direct and immediate physical damage to the Owner's Unit, or (ii) the Association fails to enforce or cause enforcement of the violated provisions of this Declaration within 60 days after the Board receives the Owner's notice. This Section shall constitute the Association's written dispute resolution policy in accordance with Section 124 of the Act. ARTICLE 5 OPERATION, MAINTENANCE AND REPAIR 5.1 Association's Duties Subject to the provisions of Article 12 and Article 13, the Association has the following rights and responsibilities with respect to the operation, maintenance and repair of the Condominium Project: (a) Maintenance of Common Elements Except to the extent otherwise provided in Section 5.2, the Association will maintain, repair, replace and restore the Common Elements, including, without limitation, the Central Mechanical Equipment, all Decks, Patios, the exterior and roof of each Building and all windows, garage doors, and exterior doors within the Project, and the costs to do so will be included in Common Expenses, except to the extent paid by insurance or condemnation proceeds or by Owners pursuant to Sections 4.8, 9.2(a), 9.2(b), or 9.2(c). 614,48.17 AKHANS 06/29106 10:32 A.N 20 200617775 28 OF 76 (b) Election to Perform Owners' Duties The Association may elect to maintain, repair, replace or restore any Unit or Limited Common Element, or portion of either of them, that an Owner is required to maintain, repair, replace or restore pursuant to Section 5.2 if. (i) the Owner has failed, for more than 30 days after notice from the Association, to maintain, repair, replace or restore its Unit or Limited Common Element as required under this Declaration; and (ii) the failure adversely affects the appearance of the Unit or Limited Common Element when viewed from any area outside the Unit or Limited Common Element, or impairs the structural integrity or building systems of any portion of the Property, or has an adverse effect on the use of another Unit or Common Element for its permitted and intended use. If, however, the required maintenance, repair, replacement or restoration cannot be cured because of its nature or scope within the 30 -day period, the Association may not perform the repair, maintenance, replacement or restoration so long as such Owner commences performance of its obligations within the 30 -day period and diligently completes it. The Owner will pay all costs incurred by the Association in accordance with this Section 5.1(b) upon receiving the Association's demand for payment. If the Owner fails to make the payment within 30 days of receiving a demand for it, the Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. 5.2 Owners' Duties Subject to the provisions of Article 12 and Article 13, each Owner will at its expense (i) maintain at all times in good and clean condition, and perform all required repairs, replacements or restorations of its Unit, the Unit Mechanical Equipment, and any Utility /Service Elements and Hot Tubs allocated exclusively to the Owner's Unit as a Limited Common Element; (ii) clean and keep in a sanitary condition any Hot Tub, Deck and Patio allocated to its Unit; (iii) perform its responsibilities in a manner that does not unreasonably disturb other Owners or their Permittees; and (iv) promptly report to the Association any defect or need for repairs for which the Association is responsible. Except as expressly provided above, no Owner may alter, repair, replace, or maintain any part of the exterior of any Building. 5.3 Maintenance Standard For the benefit of all Owners, each Owner and the Association will perform their respective maintenance and repair obligations under Sections 5.1 and 5.2 in a manner consistent with a first -class residential project located in Eagle County, Colorado. ARTICLE 6 THE ASSOCIATION AND BOARD 6.1 Formation of the Association, Membership The Association will be formed no later than the date the first Unit is conveyed to an Owner other than Declarant. Each Owner is a member of the Association as soon and for so long as it is an Owner. Following a termination of the Condominium Project, the members of the Association will consist of all Owners entitled to share in the distribution of proceeds of a sale of the Property. Membership in the Association automatically terminates when a Person ceases to be an Owner, whether through sale, intestate succession, testamentary disposition, foreclosure or otherwise, and the new Owner automatically succeeds to that membership in the Association. The Association will recognize a new member upon presentation by a new Owner of satisfactory evidence of the sale, transfer, succession, 614448.17 AMANS 06n9M 1032 AM 21 200617775 29 OF 76 disposition, foreclosure or other transfer of a Unit. Membership in the Association may not be transferred, pledged or alienated in any way, except to the new Owner upon conveyance of a Unit. Any prohibited transfer is void and will not be recognized by the Association. 6.2 Powers The Association will serve as the governing body for the Condominium Project and has the responsibilities set forth in this Declaration and the Bylaws. The Association may, but shall not be obligated to: (a) adopt and amend the Bylaws and Rules, provided that the Bylaws and Rules will not be inconsistent with this Declaration or the Act; (b) adopt and amend budgets for revenues, expenditures and reserves and assess and collect any Assessments and any other amounts due from Owners or others to the Association; (c) hire and terminate managing agents and other employees, agents and independent contractors; (d) institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more Owners on matters affecting the Condominium Project; (e) make contracts and incur liabilities; (f) borrow funds to cover Association expenditures and pledge Association assets as security therefor, provided that Common Elements may be subjected to a security interest only pursuant to Section 17.2; (g) regulate the use, maintenance, repair, replacement and modification of the Common Elements; (h) cause additional improvements to be made as a part of the Common Elements including, without limitation, snowmelt systems; (i) acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property (including, without limitation, one or more Condominiums), provided that Common Elements may be conveyed or subjected to a security interest only pursuant to Section 17.2; 0) grant easements, leases, licenses, and concessions through or over the Common Elements; (k) impose and receive any payments, fees or charges for any services provided to Owners; (1) impose charges for late payment of Assessments, recover reasonable attorneys' fees and other legal costs for collection of Assessments and other actions to enforce the power of the Association, regardless of whether or not suit was initiated, and, after notice and an 61444t 17 aKR,ws 06✓29/06 10:32 AM 22 200617775 30 OF 76 opportunity to be heard, levy reasonable fines for violations of this Declaration or the Bylaws or Rules; (m) impose reasonable charges for the preparation and Recording of amendments to this Declaration or statements of unpaid Assessments pursuant to Section 17.4; (n) provide for the indemnification of its officers and members of the Board and maintain directors' and officers' liability insurance; (o) assign its right to future income, including the right to receive Assessments so long as the Association will continue to have sufficient revenue to meet its maintenance obligations under this Declaration; (p) exercise any other powers conferred by this Declaration or the Bylaws; (q) exercise all other powers that may be exercised in the State of Colorado by legal entities of the same type as the Association; and (r) exercise any other powers necessary and proper for the governance and operation of the Association. This Declaration may not impose any limitations on the powers of the Association to deal with Declarant which are more restrictive than the limitations imposed on the power of the Association to deal with any other Person. 6.3 Budget (a) Preparation of Budget The Board will cause a proposed budget for the Association to be prepared and adopted annually, not less than 30 days prior to the beginning of each Fiscal Year of the Association (except that, for the first Fiscal Year of the Association, the Board may adopt the estimated budget prepared by Declarant). The proposed budget will include all of the following: (i) the estimated revenue and expenses (including, without limitation, Common Expenses) of the Association for the subject Fiscal Year, in reasonable detail as to the various categories of revenue and expense; (ii) the current cash balance in the Association's reserve fund for the major repair or replacement of Common Elements, the Association's equipment, furniture and other personal property and for contingencies (including, without limitation, the amount of the deductible under the Association's property insurance policy), which fund will be established, maintained and invested by the Board in accordance with the standards set forth in Section 7- 128 401, C.R.S. (the "Reserve Fund "); 614448.17 AKHANS 06nWO6 10:32 AM 23 200617775 31 OF 76 (iii) an estimate of the amount required to be spent during the subject Fiscal Year from the Reserve Fund for the major repair or replacement of Common Elements or the Association's equipment, furniture or other personal property; and (iv) a statement of the amount required to be added to the Reserve Fund during the subject Fiscal Year to cover anticipated withdrawals and adequately address contingencies and anticipated needs in future Fiscal Years. (b) Ratification of Budget Within 90 days after the Board adopts any proposed budget for the Association, the Board will mail, by ordinary first -class mail, or otherwise deliver a summary of the proposed budget to all Owners and will set a date for a meeting of the Owners to consider ratification of the proposed budget. Such meeting will occur within a reasonable time after mailing or other delivery of the summary. The Board will give notice to the Owners of such meeting as provided for in the Bylaws. The budget proposed by the Board does not require approval of the Owners and will be deemed approved by the Owners in the absence of a veto at such noticed meeting of Owners representing 80% of all the Units, whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic budget last proposed by the Board and not vetoed by the Owners will continue in effect until such time as a subsequent budget proposed by the Board is not vetoed by the Owners. For the first Fiscal Year of the Association, the Board may adopt Declarant's estimated budget for the Association and assess General Assessments pursuant to Section 9.2(a) of this Declaration based on it if the Board submits such budget to the Owners for ratification in accordance with this Section 6.3(b) within 60 days after adopting it. ARTICLE 7 CONSTRUCTION DEFECTS, DISPUTES, DISPUTE RESOLUTION AND LITIGATION 7.1 Testiniz for Construction Defects (a) The Association shall not undertake or authorize any testing, including, without limitation, investigative testing, destructive testing or invasive testing of any kind for defects in construction of any Unit or Common Element without first determining, based upon the presence of some readily observable evidence or condition, that a defect may exist. In making such a determination the Board shall rely on the opinions and/or the conclusions of a qualified expert (e.g., a structural engineer); even in the event such evidence or conditions exist, the Association shall not be obligated to authorize or undertake such testing. (b) In determining whether to authorize such testing, the Board shall be governed by the following considerations: (i) whether the Association's position is strong enough to justify taking any other or further action; 61444&17 AKHAIJS 06!29/0610:72 AM 24 200617775 32 OF 76 (ii) whether, although a technical violation may exist or may have occurred, it is of such a material nature as to be objectionable to a reasonable Person or to justify expending the Association's resources; and (iii) whether it is in the Association's best interests, based upon hardship, expense, inconvenience or other reasonable criteria, to pursue the matter further. (c) Notwithstanding the foregoing, under no circumstances shall the Association authorize such testing as is contemplated under this Section 7.1 unless the nature of the suspected defect is such that: (i) it poses a significant risk to life, health, safety or personal property; and (ii) it threatens or affects the structural integrity, functionality, or performance of the Property (or a portion thereof) for its intended use. (d) In the event the Board undertakes or authorizes testing for construction defects, then prior to any testing taking place, Declarant and others responsible for the construction shall be entitled to notice of the alleged defect, access to the area of the alleged defect, and an opportunity to inspect the area and repair any defect that is found to exist. Declarant and others responsible for construction shall also be entitled to be present during any testing and may record (via videotape, audio tape, still photographs, or any other recording method) all testing conducted and all alleged defects found. (e) In the event that testing discloses any defects, Declarant and others responsible for construction shall be given a reasonable amount of time, based on the nature and extent of the defect, to repair or correct the condition. If Declarant or others responsible for construction fail to repair or correct the condition, the Board shall have the right, but not the obligation, to proceed with a Claim pursuant to this Article 7 of this Declaration. In determining whether to proceed with such a Claim, the Board shall be governed by the same standards as set forth in Section 7.6 below. 7.2 Consensus for Association Litigation Except as provided in this Section 7.2, the Association shall not commence a judicial or administrative proceeding, including without limitation any proceeding required under Section 7.5 below, without: (a) the approval of at least 80% of the Owners; and (b) the affirmative vote of Declarant so long as Declarant owns any Unit. This Section 7.2 shall not apply, however, to: (i) actions brought by the Association to enforce the terms of this Declaration, the Bylaws or the Rules (including, without limitation, the foreclosure of liens); (ii) the imposition and collection of assessments; (iii) proceedings involving challenges to ad valorem taxation; or (iv) counterclaims brought by the Association in proceedings instituted against it. This Section 7.2 shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings, as provided for herein. 61448.17 AKHANS 06/29/06 10:32 AM 25 200617775 33 OF 76 Prior to the Association or any Owner's commencing any judicial or administrative proceeding which arises out of an alleged defects of any Common Element or Unit, Declarant and others responsible for the construction shall have the right to be heard by the Owners and to access, inspect, correct the condition of, or redesign any portion of the Common Elements or the Units, including any improvement as to which a defect is alleged. In addition, the Association or the Owner shall notify the builder who constructed the subject improvement prior to retaining any other expert as an expert witness or for other litigation purposes. 7.3 Alternative Method for Resolving Disputes In accordance with and in furtherance of Section 124 of the Act, Declarant; the Association, its officers, directors, and committee members; any Owner; all Persons subject to this Declaration; and any Person not otherwise subject to this Declaration who agrees to submit to this Section 7.3 (each such entity being referred to as a "Bound Party") agree to encourage the amicable resolution of disputes, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit those claims, grievances or disputes described in Section 7.4 of this Declaration (collectively, "Claims "), to the procedures set forth in Section 7.5 of this Declaration. 7.4 Claims Unless specifically exempted below, all Claims arising out of or relating to the interpretation, application or enforcement of this Declaration, or the rights, obligations and duties of any Bound Party under this Declaration, or relating to the design or construction of the Units or the Common Elements, shall be subject to the provisions of Section 7.5 of this Declaration. Notwithstanding the above, unless all parties thereto otherwise agree, the following shall not be Claims and shall not be subject to the provisions of Section 7.5 of this Declaration: (a) any suit by the Association against any Bound Party to enforce the provisions of Article 9 of this Declaration (Assessments); (b) any suit by the Association or Declarant to obtain a temporary restraining order or injunction (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association's ability to act under and enforce the provisions of Article 4 (Covenants, Conditions and Restrictions); (c) any suit between or among Owners, to the extent such suit asserts a Claim which would constitute a cause of action independent of this Declaration; (d) any suit in which any indispensable party is not a Bound Party; and (e) any suit as to which any applicable statute of limitations, has expired or would expire within 180 days of giving the Notice required by subsection 7.5(a) of this Declaration. With the consent of all parties thereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 7.5. 614"".17 AKHANS 0W9M6 10:72 AM 26 200617775 34 OF 76 7.5 Mandatory Procedures (a) Notice Any Bound Party having a Claim ( "Claimant ") against any other Bound Party ( "Respondent ") (the Claimant and the Respondent are hereinafter referred to individually, as a "Party," or, collectively, as the "Parties ") shall notify each Respondent in writing (the "Notice "), stating plainly and concisely (i) the nature of the Claim, including the Persons involved and Respondent's role in the Claim; (ii) the legal basis of the Claim (Le., the specific authority out of which the Claim arises); (iii) the proposed remedy; and (iv) the fact that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim. (b) Negotiation and Mediation (i) The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in negotiation. (ii) If the Parties do not resolve the Claim within 30 days after the date of the Notice (or within such other period as may be agreed upon by the Parties) ("Termination of Negotiations "), Claimant shall have 30 additional days to submit the Claim to mediation under the auspices of an independent mediation service designated by the Association or, if the Parties otherwise agree, to an independent agency providing dispute resolution services in the Eagle County, Colorado, area. (iii) If Claimant does not submit the Clain to mediation within such time, or does not appear for the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant. (iv) Any settlement of the Claim through mediation shall be documented in writing by the mediator and signed by the Parties. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation, or within such other time as determined by the mediator or agreed to by the Parties, the mediator shall issue a notice of termination of the mediation proceedings ( "Termination of Mediation "). The Termination of Mediation notice shall set forth that the Parties are at an impasse and the date that mediation was terminated. (v) Within five days of the Termination of Mediation, the Claimant shall make a final written settlement demand ( "Settlement Demand ") to the Respondent, and the Respondent shall make a final written settlement offer ( "Settlement Offer") to the Claimant. If the Claimant fails to make a Settlement Demand, Claimant's original Notice shall constitute the Settlement Demand. If the Respondent fails to make a Settlement Offer, Respondent shall be deemed to have made a "zero" or "take nothing" Settlement Offer. 614448.17 AKHANS 0629/06 10:12 AM 27 200617775 35 OF 76 (c) Final and Bindiniz Arbitration (i) If the Parties do not agree in writing to a settlement of the Claim within 15 days of the Termination of Mediation, the Claimant shall have 15 additional days to submit the Claim to arbitration in accordance with the Rules of Arbitration contained in Exhibit E or such rules as may be required by the agency providing the arbitrator. If not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall be released and discharged from any and all liability to Claimant arising out of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons other than Claimant. (ii) This subsection 7.5(c) is an agreement to arbitrate and is specifically enforceable under the applicable arbitration laws of the State of Colorado. The arbitration award (the "Award') shall be final and binding with no right to appeal, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Colorado. (d) Allocation of Costs of Resolving Claims (i) Each Party, including, without limitation, any Owner and the Association, shall share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the arbitration proceeding ( "Post Mediation Costs "). Under no circumstances shall either Party be entitled to recover its Post Mediation Costs, including any attorneys' fees (except as specifically provided under Section 123 of the Act), from the other party. BY TAKING TITLE TO A UNIT AND AS A MEMBER OF THE ASSOCIATION, EACH OWNER ACKNOWLEDGES AND AGREES THAT SUCH OWNER AND THE ASSOCIATION HAVE WAIVED AND SHALL BE DEEMED TO HAVE WAIVED THE RIGHT TO ANY AWARD OF ATTORNEYS' FEES (EXCEPT AS SPECIFICALLY PROVIDED UNDER SECTION 123 OF THE ACT) IN CONNECTION WITH THE ARBITRATION OF A DISPUTE UNDER THIS SECTION 7.5(d). (ii) Any Award which is equal to or more favorable to Claimant than Claimant's Settlement Demand shall add Claimant's Post Mediation Costs to the Award, such costs to be borne equally by all Respondents. Any Award which is equal to or less favorable to Claimant than any Respondent's Settlement Offer shall award to such Respondent its Post Mediation Costs. With respect to any Award which is less favorable to Claimant than Claimant's Settlement Demand yet more favorable to Claimant than Respondent's Settlement Offer, each party shall bear its own Post Mediation Costs. (e) Limitation on Damages No party, including, without limitation, any Owner and the Association, shall be entitled to receive any award of damages in connection with the arbitration of a Dispute other than such party's actual damages, and Declarant, the Association and any Owner shall be deemed to have waived their right to receive any damages in a Dispute 61444S. 17 AKHAIS 0629/0610:)2 AM 28 200617775 36 OF 76 other than actual damages, including, without limitation, attorneys' fees (except as specifically provided under Section 123 of the Act), special damages, consequential damages, and punitive or exemplary damages. BY TAKING TITLE TO A UNIT AND AS A MEMBER OF THE ASSOCIATION, EACH OWNER KNOWINGLY AND WILLINGLY ACKNOWLEDGES AND AGREES THAT SUCH OWNER AND THE ASSOCIATION HAVE WAIVED AND SHALL BE DEEMED TO HAVE WAIVED, IN CONNECTION WITH THE ARBITRATION OF ANY DISPUTE UNDER SECTION 7.5(c), THE RIGHT TO ANY AWARD OF CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR OTHER NON - COMPENSATORY DAMAGES OR SIMILAR DAMAGES, INCLUDING ALL DAMAGES FOR EMOTIONAL DISTRESS, WHETHER FORESEEABLE OR UNFORESEEABLE AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON (BUT NOT LIMITED TO) CLAIMS ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, VIOLATION OF BUILDING CODES (LOCAL, STATE OR FEDERAL), CONSTRUCTION DEFECTS, MISREPRESENTATION OR NEGLIGENCE OR OTHERWISE. (f) Multiple Party Disputes Multiple party disputes or claims not consolidated or administered as a class action pursuant to the following sentence will be subject to, and will be arbitrated individually. Only with the written request of all parties involved, but not otherwise, the "Arbitrator" (as defined in Exhibit E attached hereto) may: (i) consolidate in a single arbitration proceeding any multiple party claims that are substantially identical, and (ii) arbitrate multiple claims as a class action in accordance with the rules and procedures adopted by Construction Arbitration Services, Inc. ( "CAS'). (g) Enforcement of Resolution If the Parties agree to a resolution of any Claim through negotiation or mediation in accordance with Section 7.5(b) above and any Party thereafter fails to abide by the terms of such agreement, or if any Party fails to comply with an Award, then any other Party may file suit or initiate administrative proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in this Section 7.5. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non - complying Party (or if more than one non - complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including, without limitation, attorneys' fees and court costs to the extent specifically provided under Section 123 of the Act. 7.6 Legal Proceedings Subject to the provisions of Sections 7.1 through 7.5 of this Declaration, the Association shall have the right, but not the obligation, to institute legal proceedings to enforce all rights under this Declaration, the Bylaws and the Rules. The decision to institute legal proceedings by seeking the approval of at least 80% of the Owners pursuant to Section 7.1 of this Declaration, shall be in the sole discretion of the Board and shall be governed by the considerations detailed in Sections 7. 1, if applicable. Failure to continence such legal proceedings shall not constitute a waiver of any such rights. ANY LIMITATIONS ON DAMAGES AND ALL WAIVERS OF LIABILITY AND RIGHTS TO AWARDS OF DAMAGES SET FORTH IN ANY SECTION OF THIS DECLARATION WITH RESPECT 614"1 17 AKHANS 0&139/06 10:33 AM 29 200617775 37 OF 76 TO OWNERS, INCLUDING, WITHOUT LIMITATION, SECTIONS 7.5(c), 7.5(e) AND 7.5(f), SHALL APPLY WITH EQUAL FORCE AND EFFECT WITH RESPECT TO THE ASSOCIATION IN ANY LEGAL PROCEEDINGS INSTITUTED BY THE ASSOCIATION UNDER THIS SECTION 7.6. 7.7 Enfo rcement of Declaration. Bylaws. and Rules. (a) Sanctions and Self -Help After notice and an opportunity to be heard as provided in the Bylaws, the Association, acting through the Board or any authorized agent, may: (i) impose sanctions (including, without limitation, reasonable monetary fines) for violations of this Declaration, the Bylaws, or the Rules; (ii) exercise self -help to cure any violations of this Declaration, the Bylaws or the Rules that an Owner of Permittee fails or refuses to cure; and (iii) suspend any services it provides to any Owner who is more than 15 days delinquent in paying any Assessment or other charge due to the Association. All of the remedies set forth in this Declaration and the Bylaws shall be cumulative of each other and any other remedies available at law or in equity. If the Association prevails in any action to enforce the provisions of this Declaration, the Bylaws, or the Rules, it shall be entitled to recover all costs, including, without limitation, attorneys' fees and court costs to the extent specifically provided under Section 123 of the Act), reasonably incurred by it in such action. (b) No Waiver In no event shall the Association's failure to enforce any covenant, restriction or rule provided for in this Declaration, the Bylaws, or the Rules constitute a waiver of the Association's right to later enforce such provision or any other covenant, restriction or rule. ARTICLE 8 MOLD DISCLOSURE & WAIVER Mold, mildew, fungi, bacteria and microbiologic organisms (collectively, "Mold ") are present in soil, air and elsewhere in the environment. Mold can proliferate in various environments, including, among others, damp areas such as bathrooms and within walls and partitions. Certain parties have expressed concerns about the possible adverse effects on human health from exposure to Mold. Due to various reasons, including the varying sensitivities of different individuals to various types of Mold and other contaminants, as of the date of this Declaration, no state or federal standards regarding acceptable levels of exposure to Mold exist. According to the Consumer Product Safety Commission and the American Lung Association, some diseases or illnesses have been linked with biological pollutants in the indoor environment, including some forms of Mold. However, it is believed that many of these conditions may also have causes unrelated to the indoor environment. Therefore, as of the date of this Declaration, it is unknown how many potential health problems relate primarily or exclusively to indoor air quality or Mold. Each Owner, by taking title to a Unit, is advised that Declarant and the Association are not qualified and have not undertaken to evaluate all aspects of this very complex issue. Each Owner, by taking title to a Unit, acknowledges that Declarant and/or the Association have not performed any testing or evaluation of, and make no representations or warranties, express or implied, concerning, the past, current or future presence or absence of Mold in the Unit, any Limited Common Elements allocated to the Unit, or any other Common 614448.17 AMANS 0&2910610:32 AM 30 200617775 38 OF 76 Elements or in the vicinity of the Unit, any Limited Common Elements allocated to the Unit, or any other Common Elements, or within the vicinity of the Property. Declarant and the Association recommend that each Owner, at the Owner's expense, conduct its own investigation and consult with such experts as the Owner deems appropriate regarding the occurrence and effects of Mold, the potential sensitivity or special risk the Owner, his or her family members, and others individuals who will occupy or use the Unit or any Limited Common Elements allocated to the Unit, may have with respect to Mold, and methods to reduce or limit Mold within the Unit or any Limited Common Elements allocated to the Unit. When excessive moisture or water accumulates indoors, Mold growth can and will occur, particularly if the moisture problem remains unaddressed. There is no practical way to eliminate all Mold in an indoor environment. The key to controlling indoor Mold growth is to control moisture. Each Owner, by taking title to a Unit, agrees to maintain the Unit and any Limited Common Elements allocated to the Unit in such a manner as to reduce the potential for increased Mold formation or growth, including, without limitation, keeping dryer and other vents and/or fans clear and functioning, and preventing and repairing plumbing, window and other leaks and sources of moisture. Each Owner, by taking title to a Unit, agrees to make periodic inspections of the Unit and any Limited Common Elements allocated to the Unit for the presence of Mold or conditions which may increase the ability of Mold to propagate within the Unit or any Limited Common Elements allocated to the Unit, and to monitor the Unit and any Limited Common Elements allocated to the Unit on a continual basis for excessive moisture, water or Mold accumulation. If water or moisture is discovered in or around the Unit or any Limited Common Elements allocated to the Unit, the Owner, by taking title to a Unit, agrees to immediately seek to eliminate the source of the water or moisture. Failure to eliminate the source of moisture can result in additional damage and the growth of Mold. Declarant will not be responsible for damages, and each Owner, by taking title to a Unit, hereby waives all rights to damages and subrogation of damages. Each Owner, by taking title to a Unit, agrees to indemnify Declarant and the Association and hold Declarant and the Association harmless from damages, including in all cases personal injury or property damage, caused by the presence of Mold and/or water or moisture in the Unit or other portions of the Property to the extent that the damages are caused by: (i) the Owner's negligence or failure to properly maintain and monitor the Unit or any Limited Common Element allocated to the Unit; or (ii) the Owner's failure to promptly take appropriate convective measures and minimize any damage caused by water or moisture (including, without limitation, failure to promptly notify and engage the help of appropriate professionals or experts). ARTICLE 9 ASSESSMENTS 9.1 General Assessments Each Unit is subject to assessments for the Unit's Common Allocation of all Common Expenses (the "General Assessments"). General Assessments will commence not later than 60 days after the conveyance of the first Condominium to an Owner other than Declarant. General Assessments will be calculated, paid, adjusted and reconciled in accordance with the following provisions: 614448 17 AMANS 06/29/06 IO32 AM - 31 200617775 39 OF 76 (a) Budget and Payment The Board will assess General Assessments against each Unit based on the budget adopted by the Board and ratified by the Owners pursuant to Section 6.3. Each Owner is obligated to pay the Association the General Assessments made against such Owner's Unit, and the payment will be due in equal quarterly installments on or before the first day of each month of each Fiscal Year or in another reasonable manner designated by the Board. The Board's failure to fix the General Assessments prior to the commencement of any Fiscal Year will not be deemed a waiver or modification of any of the provisions of this Declaration or a release of any Owner from its obligation to pay the General Assessments or any installment of them for that Fiscal Year, but the General Assessments fixed for the preceding Fiscal Year will continue until the Board fixes the new General Assessments. (b) Adjustment If, during any Fiscal Year, the Board determines that the estimated expenses or revenues of the Association, as set forth in the budget upon which the General Assessments were based, are in error for any reason (including, without limitation, nonpayment by any Owner of its General Assessments), then, to the extent the Board estimates that payments of General Assessments during the balance of the Fiscal Year will be inadequate or more than required to meet the Association's obligations intended to be covered by such General Assessments, the Board may amend the budget and increase or decrease the General Assessments for the balance of such Fiscal Year by giving not less than 30 days' prior notice to all Owners. Notwithstanding the previous sentence, however, if any amendments individually or in aggregate with all previous amendments in any Fiscal Year would increase the total General Assessments for a Fiscal Year by more than 10% of the General Assessments called for by the budget previously ratified by the Owners pursuant to Section 6.3, then the Board will submit the amendment for ratification by the Owners pursuant to Section 6.3 before increasing the General Assessments based on the amendment. Without limiting the generality of the foregoing, the Board may, in its sole discretion, install submeters as part of the Central Mechanical Equipment to measure the amount of water consumed in each Unit and may charge each Unit an amount equal to its proportionate share of water costs incurred by the Association based upon readings of the submeters. (c) Reconciliation As soon as reasonably possible after the end of each Fiscal Year, the Board will reconcile the actual costs and expenses incurred by the Association during that Fiscal Year against the General Assessments that the Association received and intended to cover the costs and expenses. To the extent that any Owner has paid more than its proper share of the costs and expenses, the Board may either (i) refund the overpayment to the Owner; (ii) credit the overpayment against the Owner's General Assessments for the next Fiscal Year; or (iii) deposit the overpayment into the Reserve Fund if overpayments were received from all Owners in proportion to each Owner's Common Allocation. To the extent any Owner has underpaid its share of the costs and expenses, the Board may either (A) demand in writing that the Owner pay the amount of the underpayment of General Assessments to the Association within a time period specified by the Board, but not less than 30 days after the Board gives its demand to the Owner; or (B) include the underpayment in the Owner's General Assessments for the next Fiscal Year. 614446.17 AYMMS M29/06 10:32 AM 32 200617775 40 OF 76 9.2 Special Assessments The Association may levy from time to time one or more special assessments ( "Special Assessments ") for the purpose of defraying in whole or in part the cost of any construction, restoration, unexpected repair or replacement of a capital improvement or for carrying out the other responsibilities of the Association in accordance with this Declaration. Each Special Assessment will be allocated among the Units in accordance with the provisions Sections 9.2(a) through 9.2(e). Each Owner will pay all Special Assessments assessed against the Owner's Unit. Special Assessments will be paid at the time(s) and in the manner (for example, by lump sum payment or in installments) reasonably determined by the Board. The Board may require that Special Assessments be paid before the subject services or materials are provided. (a) General Benefit Expenses If the Association incurs any costs or expenses that benefit all Units (such as, for example, the costs of repairing damage to the Tunnel) ( "General Benefit Expenses'), then the Board, in its discretion, will assess the General Benefit Expenses as a Special Assessment against each Unit in amount equal to the General Benefit Expense times such Unit's Common Allocation. The Board may assess Special Assessments for General Benefit Expenses without the approval of the Owners. (b) Limited Benefit Expenses If the Association incurs any costs or expenses that solely benefit one or more Units but less than all Units (such as, for example, the costs of repairing a utility line or Limited Common Element that serves only one or two Units but no others) ( "Limited Benefit Expenses "), then the Board, in its reasonable discretion, will assess the Limited Benefit Expenses as a Special Assessment against the Unit or Units benefited by such Limited Benefit Expenses as follows: any Limited Benefit Expenses incurred for the benefit of only one Unit will be assessed solely to that Unit; and any Limited Benefit Expenses incurred for the benefit of two or more Units will, unless the Owners of all benefited Units otherwise agree to a different proportion, be assessed against each benefited Unit in proportion to the ratio of the Unit's Common Allocation to the sum of the Common Allocations of all benefited Units. The Board may assess Special Assessments for Limited Benefit Expenses without the approval of the Owners. (c) Reimbursable Expenses If the Association incurs any costs or expenses as a result of or in connection with (i) an increase in any insurance premium for which an Owner is responsible pursuant to Section 4.5(a) or 11.1(a); (ii) subject to Section 11.4, the willful misconduct or negligence or violation of any law, this Declaration, the Bylaws or the Rules by an Owner or its Permittees; or (iii) subject to Sections 4.10 and 5.1(b), bringing an Owner or the Owner's Unit into compliance with the provisions of this Declaration (including, without limitation, Sections 4.8 and 5.2) or any other document governing the Condominium Project; then, in each such event, the Board will assess the costs and expenses ( "Reimbursable Expenses ") as a Special Assessment against the Owner's Unit. The Board may assess Special Assessments for Reimbursable Expenses without the approval of the Owners. (d) Restoration Deficit If following any damage, destruction or Taking of the Common Elements, or any portion of them, the total costs of performing any restoration of the 614441.17 AKHANS 06!29106 10 32 AM 33 200617775 41 OF 76 Common Elements required by this Declaration or the Act exceeds the amount of the insurance proceeds, condemnation award or other funds available for the cost of restoration (such as funds in the Reserve Fund), then the Board may assess Special Assessments to cover the deficit (a "Restoration Deficit "). The Board will assess against each Unit its Common Allocation of the Special Assessments for a Restoration Deficit. The Board may assess Special Assessments for a Restoration Deficit without the approval of the Owners. (e) Voluntary Capital Expenses Provided the requisite number of Owners petition the Board as provided below, the Board may make Special Assessments for the purpose of paying Voluntary Capital Expenses. "Voluntary Capital Expenses" may include any costs and expenses of any capital improvement to the Common Elements, including all design, construction and associated financing costs, except for (i) costs incurred in order to reduce Common Expenses (which costs will be included in Common Expenses); (ii) costs required to be incurred to cause the Condominium Project to comply with applicable law (which costs will be included in Common Expenses); and (iii) costs that constitute all or any part of a Restoration Deficit. Any petition before the Association (or Owners) to make a Special Assessment for Voluntary Capital Expenses must include provisions describing in detail the proposed improvements to be made and whether all of the Units, or one or more but less than all of the Units, will be subject to the Special Assessment. If less than all of the Units will be subject to such Special Assessment, the proposal will also include provisions describing which Units will be subject to such Special Assessment and the manner in which the total amount of the Special Assessment will be allocated among the Units subject to it. In order to approve any Special Assessment for Voluntary Capital Expenses, the Board must be presented with a petition signed by owners representing (A) 67% of the votes in the Association if all of the Units will be subject to the Special Assessment; or (B) 100% of the votes in the Association that are allocated to the Units that will be subject to the Special Assessment if less than all of the Units will be subject to the Special Assessment. If the petition presented to the Board contains the requisite number of signatures, the Board will (subject to any approval right it has over the design of such proposed improvements pursuant to this Declaration) assess the total amount of a Special Assessment for Voluntary Capital Expenses against (1) all of the Units, if all of the Units are subject to the Special Assessment pursuant to the approved proposal, by allocating to each Unit its Common Allocation of the total amount; or (2) the Units subject to the Special Assessment (if less than all) pursuant to the approved petition, by allocating to each the portion of the Special Assessment specified in the approved petition. 9.3 Workine Capital Fund To provide the Association with sufficient working capital to cover the cost of unforeseen expenditures or to purchase any additional equipment or services, an initial "Working Capital Fund" will be established in an amount equal to $4,000 per four - bedroom Unit and $5,000 per five - bedroom Unit. For each Unit, the contribution to the Working Capital Fund is due on the closing of the sale of the Unit to an Owner other than Declarant. Such contributions will be made by the Owner that purchases the Unit from Declarant at the closing of the Owner's purchase of its Unit. Amounts contributed to the Working Capital Fund do not constitute advance payments of General Assessments. 614441.17 AKHANS 0629/0610.32 AM 34 200617775 42 OF 76 9.4 Payment of Assessments, Notice and Acceleration Each Owner will pay all General Assessments and Special Assessments (collectively, "Assessments ") assessed against such Owner's Unit by the Board in accordance with the terms of this Declaration. Each Assessment is a separate, distinct and personal debt and obligation of the Owner against whose Unit the Assessment is assessed. All Assessments are payable in full without offset for any reason whatsoever. Each Owner's obligation to pay Assessments is entirely independent of any obligation of the Association to the Owner or of Declarant or any other Owner to that Owner. Any Assessment or installment of an Assessment not paid within 15 days after it becomes due is delinquent. If an Assessment or installment of an Assessment is delinquent, the Association may recover all of the following (collectively, the "Delinquency Costs "): (a) interest from the date due at the rate established from time to time by the Board (but not to exceed 21% per year); (b) late charges and other monetary penalties imposed by the Association pursuant to this Declaration and the Act; and (c) all collection and enforcement costs, including reasonable attorneys' fees, incurred by the Association. 9.5 Enforcement of Assessments The amount of any delinquent Assessments (including any installments whose due dates are accelerated by the Board pursuant to Section 9.4) and associated Delinquency Costs may be enforced against the Owner liable for them in either or both of the following ways (to the extent permitted by law or regulation), at the option of the Board: (a) Suit. The Association may bring a suit or suits at law to enforce the Owner's obligation to pay a delinquent Assessment (including any installments whose due dates are accelerated by the Board pursuant to Section 9.4) and associated Delinquency Costs. Each action will be brought in the name of the Association. Any judgment rendered in the action in favor of the Association will include a sum for reasonable attorneys' fees and costs incurred by the Association in bringing the action against the defaulting Owner. Upon full satisfaction of the judgment, the Association, by one of its officers, will execute and deliver to the judgment debtor an appropriate satisfaction of the judgment. (b) Lien and Foreclosure Assessments (including any installments whose due dates are accelerated by the Board pursuant to Section 9.4) and associated Delinquency Costs constitute a lien on the Units against which they are assessed from the date due. The lien is subject to the provisions of Section 316 of the Act. If an Assessment is delinquent, if the Association gives a notice concerning the delinquency that substantially complies with the provisions of Section 9.4, and if the delinquent Assessment is not paid in full by the due date specified in the notice, then the Association may foreclose the lien securing the Assessment, any installments whose due dates are accelerated by the Board pursuant to Section 9.4, and any associated Delinquency Costs in accordance with the laws of the State of Colorado, subject, however, to the protection afforded First Mortgagees pursuant to Section 17.3(6). 9.6 Disputes and Records Any Owner or an Owner's authorized representative may inspect the books and records of the Association during business hours upon reasonable prior notice. If an Owner disputes the amount of any Assessment against its Unit and is unable to resolve the 614444.17 AKHANS 06129/0610: 32 AM 35 200617775 43 OF 76 issue through an inspection of the Association's books and records, the Owner will pay in a timely manner the full amount of the disputed Assessment until, if ever, it is finally determined that the amount is incorrect (in which case the Association will promptly refund any overpayment). If the Owner fails to pay the disputed Assessment while the dispute is pending, the Association may immediately pursue any of its remedies for the failure (including, without limitation, suit against the Owner and/or foreclosure of its Unit) and the pendency of the dispute resolution proceeding is not a bar or defense to any actions by the Association. 9.7 Owners not Exempt from Liability No Owner is exempt from liability for payment of Assessments' by waiver of the use or enjoyment of any of the Common Elements, by abandonment of its Unit, or otherwise. 9.8 Declarant's Responsibility for Assessments Until the Association levies Assessments, Declarant will pay the Association's costs and expenses. After Assessments commence as provided in Section 9.1 Declarant's obligations for Assessments may be satisfied in the form of cash or by "in kind" contributions of services or materials to the Association, or by any combination of these. ARTICLE 10 ALTERATIONS 10.1 Permitted Unit Alterations An Owner may, subject to the terms and provisions of this Article 10, construct an alteration or improvement to its Unit (a "Permitted Unit Alteration ") that: (a) does not, either during construction or after completion, impair the structural stability, or building systems of, including, without limitation, any acoustical separation assemblies or other components designated to mitigate the transmission of sound through walls and other physical separations, or diminish the support of any portion of the Condominium Project; (b) does not, during construction, substantially and unreasonably impair the use of any Common Element by any Owner or Permittee entitled to use that Common Element; (c) does not, during construction, change the appearance of or otherwise adversely affect the Common Elements; (d) does not, after completion, change the appearance of or otherwise adversely affect the Common Elements; and (e) does not, after completion, affect the appearance of the Condominium Project, when viewed from any area outside the altered Unit. At least 30 days prior to the commencement of construction, an Owner intending to perform a Permitted Unit Alteration will provide plans and specifications for the Permitted Unit Alteration 614443.17 AKHANS 0629/0610:32AM 36 200617775 44 OF 76 to the Board. Any change, addition, alteration or improvement of any Unit that does not constitute a Permitted Unit Alteration is prohibited (unless otherwise permitted pursuant to this Article 10) and may be enjoined by the Association or any aggrieved Owner, subject to the provisions of Section 4.10. In no event shall any Owner or the Association enclose or cause to be enclosed any Deck. 10.2 Boundary Relocation Except as provided in Section 2.5, the Owner(s) of one or more adjoining Unit(s) may make a Boundary Relocation affecting the Unit(s) owned by the Owner(s) in accordance with this Section 10.2. The Owner(s) of the Unit(s) directly affected by any proposed Boundary Relocation will make an application to the Board for the Boundary Relocation, signed by those Owner(s), which includes the following: (a) plans and specifications for the proposed Boundary Relocation in the level of detail required by the Board showing all walls, doors and other improvements that will be demolished or constructed (if any); (b) evidence sufficient to the Board (which evidence may include, if applicable, reports of licensed architects or structural or mechanical engineers) that the proposed Boundary Relocation will comply with the requirements of Sections 10. l (a) through 10.1(e); (c) evidence sufficient to demonstrate to the Board that the proposed Boundary Relocation will comply with all applicable laws (including, without limitation, zoning, subdivision and building codes), and either that the proposed Boundary Relocation will not violate the terms of any Security for an Obligation encumbering the affected Unit(s) or that the respective Security Holder(s) have approved the proposed Boundary Relocation; (d) the proposed reallocation of interests, if any, such as reallocation of Common Allocations, or any other rights or responsibilities allocated among the Units pursuant to this Declaration (which reallocation must be based on the same formulas as set forth in this Declaration for the allocations being changed); (c) a form of proposed amendment to this Declaration (including the Map) sufficient to show the altered boundaries of the affected Unit(s), their dimensions and identifying numbers and the reallocation of interests, if any, proposed pursuant to Section 10.2(d); (f) a deposit against attorneys' fees and costs which the Board may incur in reviewing and effectuating the application, in an amount reasonably estimated by the Board; and (g) other information as the Board may reasonably request. When the Board determines that the submitted application satisfies the requirements of Sections 10.2(a) through 10.2(g), it will consider the proposed application and vote whether to approve it. If the proposed Boundary Relocation and related amendment are approved by the affirmative vote of at least two- thirds of the members of the Board, the Board will cause the amendment to be signed by the president or another authorized officer of the Association, 614448.17 A"AMS 0629/06 1032 AM 37 200617775 45 OF 76 acknowledged and Recorded. The Owner(s) requesting a Boundary Relocation will pay all costs and expenses incurred by the Board or the Association in connection with the Boundary Relocation. 10.3 Connection of Adioinine Units. (a) Two adjoining Units may be connected without combining those Units into a single Unit, so that each connected Unit will retain its separate identity, identifying number, and Common Allocation (a "Unit Connection"), if the Board approves the Unit Connection in accordance with the following provisions. The Owner of the Units to be connected pursuant to a proposed Unit Connection will make an application to the Board for the Unit Connection, signed by the Owner, which (i) identifies the Units to be connected; (ii) specifies, in such detail as required by the Board, all demolition or construction necessary to create the connecting opening(s) in the wall between the Units to be connected (the "Shared Area "); and (iii) includes any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Connection if all of the following conditions are satisfied: (i) the Units to be connected by a proposed Unit Connection are owned by the same Owner; (ii) sufficient evidence is presented to the Board that the proposed Unit Connection (A) will comply with all applicable laws (including, without limitation, zoning and building codes); and (B) either will not violate the terms of any Security for an Obligation encumbering the Unit(s) or has been approved by the respective Security Holder(s); (iii) the creation of the Shared Area will not impair or adversely affect (A) the structural stability or building systems of the Building or the Condominium Project; (B) any Easement or right granted pursuant to this Declaration; or (C) any Common Element other than the wall(s) dividing the Units to be connected which is or are to be demolished to create the Shared Area; and (iv) the Owner of the Units to be connected agrees to such other conditions imposed by the Board (which may include, without limitation, a requirement that construction and demolition work relating to the proposed Unit Connection be commenced and completed within a reasonable time). (c) If the Board approves an application for a Unit Connection, then it will concurrently redesignate the Shared Area from a General Common Element to a Limited Common Element. Upon redesignation, the Shared Area will be allocated to the two Units connected pursuant to the Unit Connection. Upon approval of a Unit Connection, the Board will also cause a statement executed by the president or another authorized officer of the Association to be Recorded that (i) identifies the two Units connected by the Unit Connection; (ii) gives notice that those Units are the subject of an approved Unit Connection pursuant to this Declaration; (iii) gives notice that those Units may not be conveyed apart from one another until the Board approves a Unit Disconnection (as defined below in Section 10.4(a)) regarding those Units; and (iv) specifies any conditions imposed by the Board pursuant to Section 10.3(b). From and after the Recording of the statement, the Units described in it may not be conveyed apart from one another and any attempt to do so is void and of no force or effect until the Board approves a Unit Disconnection regarding those Units. The Owner requesting a Unit Connection 61444817 AKHAM 06/29/061032 AM 38 200617775 46 OF 76 will pay all costs and expenses incurred by the Board or the Association in connection with the Unit Connection. 10.4 Unit Disconnection. (a) Subject to the provisions of this Section 10.4, the Board may disconnect Units connected pursuant to a Unit Connection (a "Unit Disconnection") if (i) the Owner of the connected Units makes an application requesting that the connected Units be disconnected and satisfies any conditions imposed by the Board regarding the proposed Unit Disconnection; or (ii) the Owner of the connected Units fails to satisfy the conditions imposed by the Board pursuant to Section 103(b). An application made pursuant to clause (i) above will be signed by the Owner; identify the Units to be disconnected; specify, in such detail as required by the Board, all demolition or construction necessary to replace the wall dividing the Units to be disconnected that existed between the Units before the creation of the Shared Area; and include any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Disconnection if all of the following conditions are satisfied: (i) sufficient evidence is presented to the Board that the proposed Unit Disconnection will comply with all applicable laws (including, without limitation, zoning and building codes); (ii) sufficient evidence is presented to the Board either that the proposed Unit Disconnection will not violate the terms of any Security for an Obligation encumbering the Unit(s) or that the respective Security Holder(s) has or have approved the proposed Unit Disconnection; (iii) the replacement of the wall at the Shared Area will not impair or adversely affect (A) the structural stability or building systems of the Condominium Project, (B) any Easement or right granted pursuant to this Declaration, or (C) any Common Element other than the wall dividing the Units to be disconnected which is or are to be constructed; and (iv) any conditions imposed by the Board concerning the proposed Unit Disconnection. (c) If the Board approves a Unit Disconnection, it will concurrently redesignate the Shared Area of the connected Units from a Limited Common Element to a General Common Element and cause a statement executed by the president or another authorized officer of the Association to be Recorded that (i) identifies the Units to be disconnected by the Unit Disconnection; (ii) gives notice that those Units are no longer the subject of a Unit Connection (and, therefore, may thereafter be conveyed separately); and (iii) specifies any conditions imposed by the Board pursuant to Section 10.4(b) that must be satisfied before the Unit Connection is effective. Within the time period specified by the Board (which time period will not exceed 60 days from the date of Board approval of a Unit Disconnection), the Owner of the Units to be disconnected will replace at its cost and expense the wall that existed between the Units before the creation of the Shared Area. The Owner will pay all costs and expenses incurred by the Board or the Association relating to the Unit Disconnection. 61444!.17 AMAM 66/29/0610,32 AM 39 200617775 47 OF 76 10.5 Construction Any Owner(s) performing any construction or demolition work relating to a Permitted Unit Alteration, a Boundary Relocation, a Unit Connection or a Unit Disconnection (any of which is referred to in this Section 10.5 as an "Alteration ") will comply with the following additional provisions: (a) such Owner(s) will obtain all necessary permits and governmental authorizations for the Alteration; (b) such Owner(s) will comply with the Rules when constructing the Alteration; (c) the Alteration and the construction of it will comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants, including, without limitation, the GCP Building Code Modification; (d) prior to commencing any construction, such Owner(s) will provide the Board with evidence sufficient to demonstrate that the insurance required to be maintained by such Owner(s) pursuant to Section 11.2 is in full force and effect and that the contractor performing the work maintains worker's compensation insurance in the amount required by law and contractor's liability insurance with the limits the Board reasonably requires; (e) such Owner(s) will cause the Alteration to be constructed and completed diligently, in a good and workmanlike manner, and free and clear of all mechanics' and materialmen's liens and other claims or liens; (f) during the construction process, such Owner(s) will, to the extent consistent with good construction practice, keep the area affected in a safe, neat and clean condition; (g) such Owner(s) will minimize any impact from the construction process on other Units or Common Elements; (h) such Owner(s) will perform the Alteration work, or cause the work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on the Condominium Project; (i) such Owner(s) will reimburse the Association for all costs incurred by the Association in connection with the Alteration, such as the increase in costs of trash removal due to the performance of the Alteration work; and 0) such Owner(s) will pay or cause to be paid all costs of design and construction of the Alteration. 61444SA7 AMIANS 06:9/7610:32 AM 40 200617775 48 OF 76 10.6 Alteration of Common Elements. (a) Except to the extent permitted in connection with an approved Boundary Relocation, Unit Connection or Unit Disconnection, and except as otherwise provided in Section 5.2, no Owner or Owner's Permittee may construct anything upon, remove anything from, or alter any of the Common Elements, or paint, decorate or landscape any portion of the Common Elements. Notwithstanding the preceding sentence, in addition to the permitted Alterations described in the preceding sentence, an Owner may make an alteration to a Limited Common Element allocated to the Owner's Unit upon the prior written approval of the Association, which approval may be granted or withheld in the sole and absolute discretion of the Association. If the Association, in its reasonable discretion pursuant to the preceding sentence, permits an Owner to make an alteration to a Limited Common Element allocated to the Owner's Unit, the Owner shall perform such work according to the standards prescribed for an Alteration in Section 10.5 and subject to any other conditions the Association, in its reasonable discretion, may impose. In any event, no Owner or Owner's Permittee may do anything which impairs or negatively affects (i) the structural stability or building systems of the Condominium Project; (ii) any Easement or right granted pursuant to this Declaration; or (iii) any Common Element. (b) The Association may construct an alteration or improvement to a Common Element (a "Common Alteration ") if (i) the Common Alteration does not permanently impair the structural stability or building systems of or lessen the support of any portion of the Condominium Project (provided, however, that any impairment will not be deemed permanent if it is susceptible of being cured and will be cured by the proposed Common Alteration); (ii) the Common Alteration does not have a materially adverse effect, either during construction or upon completion, upon the use of any Unit or Limited Common Element for its permitted purposes (unless the Owner of the affected Unit consents in writing to the Common Alteration); and (iii) the cost of the Common Alteration constitutes a Common Expense and a budget that includes such cost is ratified by the Owners pursuant to Section 6.3, or the cost of the Common Alteration constitutes a Voluntary Capital Expense and a Special Assessment is approved pursuant to Section 9.2(e). The Association will comply with the provisions of Section 10.5 (except Section 10.5(i)) in constructing any Common Alteration, as if the Association were an Owner. 10.7 Alterations by Declarant Nothing in this Article 10 restricts or prohibits Declarant from making any alteration or improvement that Declarant has reserved the right to make pursuant to Section 2.9(b) or 2.9(c). The provisions of this Article 10 do not apply to any alteration or improvement made by Declarant pursuant to Section 2.9(b) or 2.9(c). ARTICLE 11 INSURANCE 11.1 Association's Insurance The Association has the following responsibilities with respect to insurance and, except as otherwise expressly provided in this Declaration, the cost of all 614448.11 AM."S U&QWD6 M32 AM 41 200617775 49 OF 76 insurance maintained by the Association under this Section 11.1 will be included in Common Expenses. (a) Property Insurance The Association will obtain and maintain property insurance in amounts, against risks, and containing provisions as the Board reasonably determines from time to time. At a minimum, the Association's insurance will insure against all risks of direct physical loss for 100% of the full replacement cost (at the time the insurance is purchased and at the renewal date) of (1) the Common Elements and all fixtures, improvements and alterations situated on or constituting a part of the Common Elements; and (2) any personal property of the Association situated in the Common Elements or used in the operation or maintenance of the Common Elements. The Association's insurance may exclude land, excavations, foundations and other items normally excluded from property policies and may provide for a deductible in an amount not to exceed a reasonable and prudent amount as determined by the Board. The Association's property insurance will be maintained in the name of the Association, for the use and benefit of all Owners, who shall be named as additional insureds, and Security Holders, who may be named as additional insureds, as their interests may appear. To the extent available such property insurance also will (i) contain no provisions by which the insurer may impose a so- called "co- insurance" penalty; (ii) permit a waiver of claims by the Association, and provide for a waiver of subrogation rights by the insurer as to claims, against each Owner and the members of the Owner's household; (iii) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner carries; (iv) provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect(s) not to restore the damage in accordance with the provisions of this Declaration or the Act; (v) provide that no act or omission by any Owner, unless acting within the scope of the Owner's authority on behalf of the Association, voids the policy or is a condition to recovery under the policy; (vi) provide that it may not be canceled, nor may coverage be reduced, without 30 days prior notice to the Association and all additional insureds named in the policy; and (vii) include so- called "inflation guard," "building ordinance or law" "steam boiler and machinery coverage" endorsements. If, as a result of any improvements or alterations made to or concerning a Unit by its Owner, the premium for the Association's property insurance policy is increased to an amount exceeding what the premium would have been if the Owner had not made the improvements or alterations, the Board may assess the amount of the increase in premium against the Owner's Condominium as a Reimbursable Expense pursuant to Section 9.2(c). (b) Liability Insurance The Association will obtain and maintain Comprehensive Liability Insurance for bodily injury and property damage for the benefit of the Association and its officers, directors, agents and employees in amounts and with coverage as determined from time to time by the Board. All Owners shall be named as additional insureds for claims and liabilities arising in connection with the ownership, use or management of the Common Elements. Such liability insurance will have a combined single occurrence limit of not less than $5,000,000 and, to the extent available on reasonable terms, will (i) be on a commercial general liability form; (ii) contain a "severability of interest" or "cross - liability" endorsement which precludes the insurer from denying the claim of any named or additional insured due to the 614448.17 "KHANS 0629106 10:72 AM 42 200617775 50 OF 76 negligent acts, errors or omissions of any other named or additional insured; (iii) contain a waiver of subrogation by the insurer as to claims against the Association, its directors, officers, employees and agents, Owners and members of their households, and Declarant; (iv) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner may carry; (v) provide that no act or omission by any Owner, unless acting within the scope of such Owner's authority on behalf of the Association, voids the policy or is a condition to recovery under the policy; (vi) insure all of the named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation, use, ownership or maintenance of the Common Elements; and (vii) provide that it may not be canceled, nor may coverage be reduced, without 45 days' prior notice to the Association and all additional insureds named in the policy. The liability insurance required to be maintained under this Section I I.1(b) will not include coverage for any liability arising out of the operation, use, ownership or maintenance of any Unit. (c) Worker's Compensation and Employer's Liability The Association will obtain and maintain worker's compensation and employer's liability insurance as determined from time to time by the Board. At a minimum, the Association will maintain such insurance in amounts and with coverages required by applicable law. (d) Automobile Insurance If the Association operates owned, hired or non -owned vehicles, the Association will obtain and maintain comprehensive automobile liability insurance at a limit of liability of not less than $500,000 for combined bodily injury and property damage. (e) Directors' and Officers' Insurance The Association will obtain and maintain directors' and officers' liability coverage in the amount it determines from time to time. (f) Fidelity Insurance The Association will obtain and maintain fidelity insurance covering losses resulting from dishonest or fraudulent acts committed by the Association's directors, officers, managing agents, trustees, employees or volunteers who manage the funds collected and held for the benefit of the Association. The policy will name the Association as the insured, (or obligee) include a provision requiring at least 30 days' written notice to the Association before any cancellation of, or material modification in, the policy, and provide coverage in an amount equal to at least three months' General Assessments against all Units, based on the General Assessments most recently approved by the Board. If the Association engages a managing agent that handles funds of the Association, the managing agent will also maintain fidelity insurance satisfying the foregoing requirements of this Section 11.1(f) and the Act and provide evidence of the coverage to the Board. (g) Other Insurance The Association may obtain and maintain other insurance as the Board, from time to time, deems appropriate to protect the Association or the Owners. (h) Licensed Insurers All policies of insurance required to be maintained by the Association will be placed with insurers licensed in the State of Colorado. The carrier shall be required to provide to the Board at the inception of the policies and on each anniversary date, a summary that includes a description of the type of policy, the coverage and limits of coverage, 61"44.17 AKRANS OW29M6 10,32 AM 43 200617775 51 OF 76 the amount of annual premium and the policy renewal dates. If obtainable without additional expense, the licensed insurance broker or agent shall certify that the policy complies with and satisfies the requirements of the section. 11.2 Owners' Insurance Each Owner has the following responsibilities with respect to insurance: (a) Property Insurance Each Owner will maintain at its expense (or will cause its Permittee to maintain at its expense) property insurance upon the Owner's Unit and all personal property and fixtures within the Owner's Unit or in any Limited Common Element allocated to the Owner's Unit, in such amounts, against such risks, and containing such provisions as the Owner may reasonably determine from time to time. Such property insurance will (i) permit a waiver of claims by the Owner, and provide for a waiver of subrogation rights by the insurer as to claims, against the Association, its directors, officers, employees and agents, the other Owners and the members of such Owners' household; (ii) be written as a primary policy, not contributing with and not supplemental to any coverage that the Association carries; and (iii) provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect not to restore the damage in accordance with the provisions of this Declaration or the Act. All insurance carried under this Section 11.2(a) will provide that it may not be canceled, nor may coverage be reduced, without 30 days' prior notice to the Association and, notwithstanding that each Owner may select the amount and type of such insurance, for purposes of the waiver of claims set forth in Section 11.4, each Owner is deemed to have elected to obtain such insurance on a 100% replacement cost basis. (b) Liability Insurance Each Owner will maintain at its expense bodily injury and property damage liability insurance for the benefit of the Owner and any additional insured it names, in amounts and with coverage as arc from time to time customarily maintained by prudent owners of similar property; provided that such liability insurance will (i) have a combined single occurrence limit of not less than $500,000; (ii) be written as a primary policy, not contributing with and supplemental to any coverage that the Association or another Owner carves; (iii) insure all of the named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation, use, ownership or maintenance of the Owner's Unit; and (iv) contain a waiver of subrogation by the insurer as to claims against the Association, its directors, officers, employees and agents, owners and members of their households, and Declarant. (c) Other Insurance Each Owner may obtain additional insurance, at its own expense, affording personal property, condominium assessment, loss of rents, personal liability and any other coverage obtainable, to the extent and in the amount the Owner deems necessary to protect its interests. Any such insurance will contain waivers pursuant to Section 11.4 and will provide that it is without contribution as against the insurance maintained by the Association. 614448.17 AMANS 06/2916 10:72 AM 44 200617775 52 OF 76 (d) Assignment of Proceeds If a casualty loss is sustained and there is a reduction in the amount of proceeds that would otherwise be payable under any policy of insurance carried by the Association due to the existence of any insurance carried by an Owner or Permittee, that Owner or the Owner of the Permittee's Unit is liable to the Association to the extent of the reduction and will pay the amount of the reduction to the Association upon demand; such Owner also hereby assigns the proceeds of its insurance, to the extent of such reduction, to the Association. 11.3 Certificates of Insurance, Notices of Unavailability Each Owner will provide to the Association at the closing of the purchase of its Unit and no less than 10 days subsequent to expiration of any coverage, certificate(s) of insurance evidencing the insurance required to be carried under Sections 11.2(a) and 11.2(b). The Association will provide each Owner certificates of insurance evidencing the insurance required to be carried by the Association under Sections 11.1(a) and 11.1(b) and naming each Owner as an additional insured under such policies. If the insurance described in Sections 11.1(a) and 11.1(b) is not reasonably available, or if any policy of such insurance is canceled or not renewed and the Association does not obtain a replacement policy for it, the Association promptly will give notice of the fact to all Owners. 11.4 Waiver of Claims The Association will make no claim against any Owner or the members of the Owner's household, for any loss, damage, injury or liability, no Owner will make any claim against the Association, its directors, officers, employees or agents, or any other Owner or member of such Owner's household for any property loss or damage to property, and all such claims are hereby waived, to the extent that the loss, damage, injury or liability is or would be covered by any insurance policy that is required under this Declaration (a) to be maintained by or for the benefit of the waiving Person (assuming in the case of property insurance policies that such insurance policy is maintained on a 100% replacement cost basis), and (b) to provide for a waiver of subrogation rights by the insurer. For purposes of this Section 11.4, the deductible or self - insured retention amount under any property insurance policy required to be, or in fact, maintained by a waiving Person is deemed to be covered by the policy so that, in addition to waiving claims for amounts in excess of the deductible or self - insured retention (up to the covered limits, or deemed covered limits, of the policy), the waiving Person waives all claims for amounts within the deductible or self-insured retention. 11.5 Proceeds Except as provided in Section 11.2(d), the Association has no claim to and each Owner may receive all proceeds of any insurance policy maintained by such Owner. The Board is solely responsible for adjustment of any losses under insurance policies maintained by the Association and is hereby irrevocably appointed the agent of all Owners, Security Holders and other Persons having an interest in the Condominium Project for purposes of adjusting all claims arising under insurance policies maintained by the Association and executing and delivering releases when claims are paid. The Association shall receive all proceeds of any insurance policy maintained by the Association, except other insured parties under liability insurance policies will be entitled to proceeds arising out of their insured losses. The Association will hold any proceeds of any property insurance it maintains in trust for the for the 61""a 17 AKHA S 06CM6 1032 aM 45 200617775 53 OF 76 Owners and Security Holders. The Board will disburse the proceeds of any property insurance relating to damage to any Unit or Common Element in accordance with Section 12.2. ARTICLE 12 CASUALTY 12.1 Restoration Decision If any Unit or Common Element is damaged or destroyed by fire or other casualty (a "Casualty"), the provisions of this Article 12 apply. Promptly after an Casualty occurs, the Board will obtain at least two bids from licensed contractors for the full and lawful repair and restoration of all damaged Units and Common Elements. Upon receiving the bids and after sufficient discussions with the adjuster for the Association's insurer, the Board will notify the Owners of the amounts of the bids, the probable amount of insurance proceeds and other funds (such as funds in the Reserve Account) that are available for restoration, and whether, based on that information, the Board believes a Restoration Deficit will result if the Owners elect to fully restore all damaged Units and Common Elements. In the notice, the Board will also call a meeting of the Owners to vote on the question of whether to fully restore all damaged Units and Common Elements. The Association will fully restore the damaged Units and Common Elements to their condition prior to the Casualty and as required by law, and the Board will promptly enter into construction contracts and proceed with the restoration work, unless at the meeting: (a) The Condominium Project is terminated pursuant to Article 14; or (b) At least 67% of all Owners, including the Owner of any Unit whose boundaries will be changed or the use or enjoyment of which (including its allocated Limited Common Elements) will be prevented or materially impaired as a result of not fully restoring all damaged Units and Common Elements, vote (i) not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project; (ii) to approve plans and specifications for a limited restoration that will restore the damaged area to a condition compatible with the remainder of the Condominium Project and that may include, without limitation, demolition, restoration or alteration of all or part of any damaged Unit or Common Element; and (iii) to adopt, if applicable, an amendment to this Declaration (including the Map) to reflect the conversion of all or part of one or more damaged Unit(s) to Common Elements or of all or part of one or more damaged Common Element(s) to one or more Unit(s) and the corresponding reallocation of the Common Allocations allocated to the Units pursuant to this Declaration (which reallocation will be based on the same formula set forth in this Declaration for determining the Common Allocations). If the Condominium Project is terminated, the Association will perform limited restoration of the Units and Common Elements as necessary to return them to a safe, lawful and saleable condition. If the Owners vote not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project, the Association will perform the limited restoration and Record the amendment to this Declaration, if any, approved by the requisite number of Owners pursuant to Section 12.1(b). If, however, the Owners elect to fully restore all damaged 614148/7 AKHANS 06/29/061032 AM 46 200617775 54 OF 76 Units and Common Elements, the Board will assess a Special Assessment pursuant to Section 9.2(d) to the extent necessary to cover any Restoration Deficit. 12.2 Disposition of Insurance Proceeds All proceeds of property insurance received by or disbursed to the Association in connection with a Casualty will be applied first to the full or limited restoration of the damaged Units and Common Elements, as provided in Section 12.1, and then, if any insurance proceeds remain after the full or limited restoration, the excess proceeds will be paid to the Owners, subject to the rights of their Security Holders, as follows: (a) if the Owners elect not to fully restore all damaged Units and Common Elements and to terminate the Condominium Project pursuant to Article 14, then each Owner will be paid its Unit's Termination Allocation of the excess proceeds pursuant to Section 14.3; (b) if the Owners elect not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project, then any of such excess proceeds attributable to any damaged Units that are not restored or to any Common Elements that are not restored and were necessary for the use and enjoyment of any Units or Limited Common Elements that are not fully restored will be paid to the Owners of these Units or the Owners of the Units to which those Limited Common Elements are allocated to the extent of the insurance coverage allocated to those Units or Common Elements, and each Owner will be paid its Unit's Common Allocation of the remainder of the excess proceeds, if any; or (c) if the Owners elect to fully restore all damaged Units and Common Elements, then each Owner will be paid its Unit's Common Allocation of the excess proceeds. 12.3 Manner of Restoration The restoration of any Unit or Common Element under this Article 12 is subject to the following requirements: (a) Plans Except in the case of a limited restoration in accordance with Section 12.1(b), the restoration will be completed in accordance with the as -built plans and specifications of the Unit or Common Element immediately prior to the damage. (b) Requirements The Association will: (i) obtain all necessary permits and governmental authorizations for the restoration; (ii) comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants; (iii) perform the restoration in a diligent, good and workmanlike manner, free and clear of all mechanics' and materialmen's liens and other claims; (iv) during the construction process, to the extent required by good construction practices, keep the area affected thereby in a safe, neat and clean condition; 61"U. 17 uwAVS OW291 670:32" 47 200617775 55 OF 76 (v) minimize any impact from the construction process on other Units or Common Elements or other portions of the Condominium Project; and (vi) perform any restoration or construction work, or cause such work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on the Condominium Project. (c) Coordination by Association The Association has full authority and responsibility to coordinate the manner of completion and scheduling of any restoration under this Article 12 to ensure the completion of the restoration in an efficient manner. Each Owner will cooperate and cause its contractors and agents to cooperate in the Association's coordination of any restoration. As used in this Article 12, a "restoration" will include any repair, replacement, restoration, reconstruction, construction or demolition required as a result of any damage or destruction. 12.4 No Abatement Each Unit will continue to be subject to Assessments following any damage to or destruction of any portion of the Condominium Project, without abatement or modification as a result of the damage or destruction. ARTICLE 13 CONDEMNATION 13.1 Taking of Condominiums If all or a part of any Unit or the use of, but not title to, any Limited Common Element allocated to the Unit, is taken by the exercise of the power of eminent domain or is conveyed in lieu of such exercise (collectively, "Taking "), the Owner of the Unit is solely responsible for negotiating with the condemning authority concerning the award for the Taking and may receive the award after the liens of all Security Holders on the affected Unit or portion of it are satisfied or otherwise discharged. If only part of a Unit is acquired by a Taking, the Owner of the Unit is responsible for restoring the Unit as necessary to return the Unit to a safe and lawful condition that does not adversely affect the use or enjoyment of the other Units or Common Elements or detract from the general character or appearance of the Condominium Project. The plans and specifications for the restoration are subject to the Board's prior approval. The restoration will be completed in accordance with the approved plans and specifications and the provisions of Section 12.3(b), as if the Owner of the Unit to be restored were the Association. If a condemning authority acquires by a Taking all or a part of one or more Units in such a manner that such Unit(s) is or are no longer subject to this Declaration, then the Association will consider and pass, pursuant to Article 15, an amendment to this Declaration revising the Common Allocation of each of the remaining Units, and, if necessary, the allocation of any Limited Common Element previously allocated to the Unit(s) that is or are no longer subject to this Declaration. 13.2 Taking of Common Elements A "Common Element Taking" means any Taking by which a condemning authority acquires title to any Common Element. The Board is solely responsible for negotiating, and may negotiate with the condemning authority on behalf of all 614438.17 AMANS 06n9l0610:32AM 48 200617775 56 OF 76 Owners concerning, the amount of the award for any Common Element Taking, and the Board's acceptance of an award is binding on all Owners. If a Common Element Taking occurs, the Association is responsible for restoring the remaining Common Elements as necessary to return them to a safe and lawful condition that does not adversely affect the use or enjoyment of the Units or other Common Elements or detract from the general character or appearance of the Condominium Project. If the net award (i.e., net of costs of collection) received by the Association from any Common Element Taking exceeds the amount actually incurred by it in connection with any required restoration of the Common Elements, the Association will pay or credit each Owner with its Unit's Termination Allocation of the excess condemnation award, as if the award resulted from a sale of the Condominium Project pursuant to Section 14.2; provided, however, that the valuation date used to determine the fair market value of each Unit pursuant to Section 14.3 for purposes of determining the Termination Allocations will be the date immediately preceding the earlier of the date that title or the date that possession is transferred to the condemning authority in connection with the Common Element Taking. If the net amount of the award so received is insufficient to effect such restoration, the Board may assess a Special Assessment to cover the Restoration Deficit in accordance with Section 9.2(d). ARTICLE 14 TERMINATION 14.1 Termination Agreement The Condominium Project may be terminated only pursuant to a written agreement to terminate executed and acknowledged (or ratified and acknowledged in writing) by the Owners of Units to which 67% of the votes in the Association are allocated (a "Termination Agreement "). A Termination Agreement is effective when (a) the requisite number of Owners have executed and acknowledged it or a ratification of it, and (b) the Termination Agreement and all ratifications, if any, are Recorded. A Termination Agreement will state a date after which it is automatically void unless it is effective by that date. A Termination Agreement will also state that, when it becomes effective, the Condominium Project is deemed terminated and the Association will sell the Condominium Project, including all Units and Common Elements, on behalf of all Owners, upon terms and conditions of sale approved by the Board, provided that those terms will be at least as favorable as the minimum terms set forth in the Termination Agreement. 14.2 Sale of Condominium Project When a Termination Agreement becomes effective, the Condominium Project is deemed terminated, the Association will sell the entire Condominium Project (Le., all Units and all Common Elements) for the benefit of the Owners, and the resulting sales proceeds will be allocated in accordance with Section 14.3. Upon approval of a Termination Agreement, (a) each Owner (including dissenting Owners) is deemed to grant the Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to sell the Condominium Project for the benefit of the Owners, and (b) accordingly, the Association has full and complete authority, right and power to make, execute and deliver any contract, deed or other instrument necessary and appropriate to accomplish that purpose. Notwithstanding the termination of the Condominium Project, the Association (and its officers and the Board) will continue to exist and hold office, respectively, 614448.17 AMANS 0629/06 10 AM 49 200617775 57 OF 76 with all of its and their powers specified in this Declaration and the Bylaws (including, without limitation, the power to impose Assessments) until the Condominium Project is sold and all proceeds (i.e., sales proceeds and, if applicable, insurance proceeds or condemnation proceeds) are distributed. Unless otherwise specified in the Termination Agreement or otherwise precluded by law, until a sale of the Condominium Project is concluded, each Owner has an exclusive right to occupy its former Unit and remains liable for all Assessments and other obligations imposed on the Owner pursuant to this Declaration. 14.3 Proceeds The Association will pay to each Owner its Unit's Termination Allocation of the net proceeds of the sale of the Condominium Project following termination of the Condominium Project (together with any insurance proceeds or condemnation proceeds). However, no payment will be made to an Owner until all liens on its Condominium are paid out of the Owner's share of the proceeds, in the order of priority of such liens. A Unit's "Termination Allocation" means the percentage obtained by dividing the fair market value of the Condominium of which the Units is a part by the total fair market values of all of the Condominiums. The valuation date used in determining the fair market value of each Condominium is the date immediately prior to the date the Termination Agreement becomes effective (or, if the termination is attributable to a Casualty where the Owners elect to terminate the Condominium Project pursuant to Section 12.1(a), the valuation date is the date immediately prior to the date on which the casualty occurred). The fair market value of each Condominium as of the appropriate valuation date will be determined by one or more independent appraisers selected by the Board. The Association will distribute to the Owners the values determined by the independent appraisers. Those values are final and binding on all Owners for purposes of establishing the Termination Allocations unless within 30 days after distribution they are disapproved in writing by the Owners of Units to which at least 25% of the votes in the Association are allocated. ARTICLE 15 AMENDMENT 15.1 Required Votes. (a) Declarant, without the vote or consent of the Board or the Owners, may amend this Declaration or the Map to correct clerical, typographical or technical errors. (b) Declarant, without the vote or consent of the Board or the Owners, may amend the Declaration to comply with the requirements, standards or guidelines of recognized secondary mortgage markets, the U.S. Department of Housing and Urban Development, the Federal Housing Administration, the Veteran's Administration, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association or the Federal National Mortgage Association. (c) Amendments to this Declaration contemplated by Sections 10.2 and 13.1 may be made by the Board on behalf of the Association and do not require the approval of the Owners. 614448.17 AKHANS 06MI0610:72AM 50 200617775 58 OF 76 Amendments to this Declaration contemplated by Sections 2.9(a), 2.9(c), and 2.9(g) may be made by Declarant and do not require the approval of the Owners. (d) Except as otherwise expressly permitted under this Declaration and the Act, any amendment to this Declaration that increases the Special Declarant Rights, increases the maximum number of Units, or changes the boundaries of any Unit or the allocated interests of any Unit, requires the vote or agreement of the Owners of Units to which at least 67% of the votes in the Association are allocated, including 67% of the votes allocated to Units not owned by Declarant. (e) Except as otherwise expressly permitted under the Act, any amendment to this Declaration that changes the uses to which any Unit is restricted requires the vote or agreement of the Owners of Units to which at least 67% of the votes in the Association are allocated. (f) Any amendment to this Declaration that changes a specific clause or provision prescribing a certain percentage of affirmative votes or written consents for action to be taken under that clause or provision, requires the affirmative vote or written consent of those Owners of Units to which at least that percentage (as prescribed in that clause or provision) of the votes in the Association are allocated. (g) Any amendment to this Declaration made during the Declarant Control Period affecting a right that Declarant may exercise during that period or any amendment to this Declaration made during the Declarant Development Period affecting a right that Declarant may exercise during that period requires the written approval of Declarant in each case. (h) Except as provided in Sections 15.1(a) through Section 15.1(g), this Declaration (including the Map) may be amended by the affirmative vote or written consent of the Owners of Units to which more than 50% of the votes in the Association are allocated. 15.2 Amending Documents Except for any amendment that by the terms of this Declaration may be and is duly executed, acknowledged and Recorded by Declarant or by or on behalf of the Board, an amendment to this Declaration is effective only when all of the following events occur: (a) Approved Writing The amendment is reduced to a writing that is approved (by affirmative vote or written consent) by the Owners of Units to which at least the applicable required percentage of votes in the Association are allocated. (b) Certificate by Association A written certificate, executed and acknowledged by the president or any other authorized officer of the Association, is attached to the written amendment which states that the amendment was approved by the applicable required percentage of Owners pursuant to Section 15.1. (c) Recording The approved written amendment described in Section 15.2(a) and the certificate described in Section 15.2(b) are Recorded. 61444.17 AKHANS 0629!06 1032 AM 51 200617775 59 OF 76 (d) Presumption of Validity After an amendment to this Declaration is Recorded, a presumption exists that all votes and approvals regarding the amendment were duly obtained and satisfy the requirements of this Declaration. The presumption may be rebutted by an action commenced within one year from the date the amendment is Recorded; in the absence of an action commenced within the one -year period, the presumption is deemed conclusive. ARTICLE 16 OWNER'S ACKNOWLEDGMENTS AND WAIVERS 16.1 Owner's Acknowledgments (a) Mountain Activities The Condominium Project is located adjacent to skiing facilities and recreational areas (the "Mountain Recreational Areas "). The Mountain Recreational Areas are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances from activities relating to the construction, operation, use and maintenance of the Mountain Recreational Areas (the "Mountain Activities "). The Mountain Activities include, without limitation: (i) movement and operation of passenger vehicles (including, without limitation, buses, vans and other vehicles transporting passengers over adjacent streets and over, around and through the Mountain Recreational Areas), commercial vehicles, and construction vehicles and equipment; (ii) activities relating to the construction, operation and maintenance of roads, trails, ski trails, skiways and other facilities relating to the Mountain Recreational Areas (including, without limitation, tree cutting and clearing, grading and earth moving and other construction activities, construction, operation and maintenance of access roads, snow - making equipment, chairlifts, gondolas, busses or other transportation systems, operation of vehicles and equipment relating to trash removal, snow removal, snow grooming, and over -the -snow or over - the - terrain transportation purposes, and operation of safety and supervision vehicles); (iii) activities relating to the use of the Mountain Recreational Areas (including, without limitation, skiing, snow- boarding, ski -patrol activities, and other over -the -snow activities, hiking, horseback riding, bicycling and other recreational activities); (iv) ski racing and organized events and competitions relating to the activities described in clause (iii) above; (v) concerts, fireworks displays, and other performances and special events; (vi) restaurants, clubs, restrooms and other public use facilities; (vii) public access to adjacent U.S. Forest Service lands; (viii) public parking facilities and the traffic related thereto; (ix) public recreational use of the Recreation Path; (x) public pedestrian use of the Emergency Access Easement; (xi) emergency use of the Emergency Access Easement; and (xii) other activities permitted by law. The Mountain Activities may occur during daytime and nighttime. (b) Construction Activities The Condominium Project is located in an area that is subject to or near ongoing construction activities relating to the development of adjacent properties and the Mountain Recreational Areas (the "Construction Activities "). The Construction Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Construction Activities may include, without limitation: (i) construction traffic (including, without limitation, construction vehicles, equipment and vehicles used or owned by Declarant, adjacent landowners, and the employees, agents and 614448.17 AKHANS 06 1 29106 1032 AM 52 200617775 60 OF 76 contractors of either of them; and (ii) construction activities (including, without limitation, grading, excavation, clearing, site work and construction of improvements) relating to the Condominium Project, nearby properties, or the Mountain Recreational Areas. (c) Commercial Activities A variety of commercial activities are and will be conducted nearby and adjacent to the Condominium Project (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) operation of full- service hotel(s) and health spa(s) with associated swimming pool(s) and other outdoor recreational facilities; (ii) meetings, conferences, banquets and other group events; (iii) sales and rentals of clothing, skis, ski- related equipment, other over -the -snow equipment, bicycles, and other recreational equipment; (iv) sales of tickets for chairlifts, gondolas, other transportation systems, and other activities and events conducted on the Mountain Recreational Areas; (v) indoor and outdoor restaurant and bar operations (including, without limitation, the sale of food and alcoholic and non - alcoholic beverages for consumption on and immediately adjacent to the Property and at other locations) and preparation of hot and cold food (through the use of barbecue grills, fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities on and immediately adjacent to the Property; (vi) sales of services relating to skiing, other over - the -snow activities, and other recreational activities (including, without limitation, tuning, waxing, repairing, mounting of bindings on, renting, storing and transporting skis, snowboards and similar equipment, ski schools and other forms of individual and group lessons, tours and excursions); (vii) public use of the Property for access to the Mountain Recreational Areas, vehicle passenger drop -off and pick -up, locker room, changing room, rest room and lounge purposes in designated areas, and short-term clothing and equipment storage; (viii) parking activities (including, without limitation, activities relating to valet parking or parking relating to adjacent properties); (ix) the installation, operation and maintenance of illuminated and non - illuminated signage; (x) concerts and other outdoor and indoor entertainment, performances and special events; (xi) operation of one or more treatment facilities by Eagle Valley Water and Sanitation District; and (xii) any other uses or activities permitted by law. The Commercial Activities may occur during daytime and nighttime. (d) Waiver and Release Each Owner, by taking title to a Unit, acknowledges that the Mountain Activities, Construction Activities and Commercial Activities, and the impacts and disturbances generated by them, may occur in and around the Condominium Project. No Owner may assert or claim any violation of this Declaration based on the existence or occurrence of the Mountain Activities, Construction Activities and Commercial Activities, or impacts and disturbances generated by them. Each Owner, by taking title to a Unit, forever waives and releases any actions or claims the Owner and its successors and assigns may have against Declarant, the operator(s) of the Mountain Recreation Areas, and their successors and assigns which in any way arise out of the impacts and disturbances generated from the Mountain Activities, Construction Activities or Commercial Activities except any such activities, impacts or disturbances that are, or result from, in whole or in part, a violation of applicable law or the gross negligence or willful misconduct of the operators of the Mountain Recreation Area or their successors or assigns. 614"S.17 AMANS 0629'0610'.32 AM 53 200617775 61 OF 76 16.2 Lift Tickets and Other Fees By taking title to a Unit, each Owner acknowledges that no right is created or arises from ownership of a Unit or membership in the Association, either (a) to use the Mountain Recreational Areas (including, without limitation, the Vail Mountain ski area), or (b) to any waiver or discount of the prices charged for lift tickets or other fees charged to users of the Mountain Recreational Areas. Any right that any Owner acquires to use the Mountain Recreational Areas may be created or arise, if at all, only through a separate agreement with or license granted by the owners or operators of the Mountain Recreational Areas and is not derived in any way through ownership of a Unit or membership in the Association. 16.3 Disclaimer Declarant makes no representations, covenants or warranties to any Owner concerning, the nature, scope, schedule or continuation of the Commercial Activities or activities operated or conducted in or relating to the Mountain Recreational Areas (including, without limitation, the Vail ski area). By taking title to a Unit, each Owner acknowledges that (a) the activities may be discontinued from time to time or permanently after the date of this Declaration; (b) the activities may not be operated or conducted during the same hours, days or months as any schedule in effect or contemplated on the date of this Declaration; (c) the activities may be conducted during more hours (during both daytime and nighttime), days, and months than any schedule in effect or contemplated on the date of this Declaration; and (d) more activities may be operated or conducted in the Mountain Recreational Areas than occur or are contemplated on the date of this Declaration. 16.4 No View Easement Notwithstanding anything contained in this Declaration to the contrary, each Owner, by taking title to a Unit, acknowledges and agrees that there is no easement or other right, express or implied, for the benefit of any Owner or its Unit for light, view or air included in or created by this Declaration or as a result of ownership of the Unit. 16.5 Geologically Sensitive Area Each Owner, by taking title to a Unit, acknowledges and agrees that its Unit and the Project are located in a geologically sensitive area that may be subject to rock slides. 16.6 Securi1y. NEITHER THE ASSOCIATION, DECLARANT, OR ITS AFFILIATES SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN THE CONDOMINIUM PROJECT, AND NEITHER THE ASSOCIATION, NOR DECLARANT OR ITS AFFILIATES, SHALL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY, INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN, OR ACTS OF THIRD PARTIES. ALL OWNERS, TENANTS, GUESTS, AND INVITEES OF ANY OWNER, AS APPLICABLE, ACKNOWLEDGE THAT THE ASSOCIATION, ITS BOARD OF DIRECTORS, DECLARANT, ITS AFFILIATES, AND COMMITTEES ESTABLISHED BY ANY OF THE FOREGOING ENTITIES, ARE NOT INSURERS AND THAT EACH OWNER, TENANT, GUEST, AND INVITEE ASSUMES ALL RISK OF LOSS OR DAMAGE TO PERSONS, TO UNITS, AND TO THE CONTENTS OF UNITS, AND FURTHER ACKNOWLEDGE THAT DECLARANT, ITS AFFILIATES, BOARD OF DIRECTORS, AND COMMITTEES HAVE MADE NO REPRESENTATIONS OR WARRANTIES, NOR HAS 614418.17 AMANS 06/29/0610:32 AM 54 200617775 62 OF 76 ANY OWNER, TENANT, GUEST, OR INVITEE RELIED UPON ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELATIVE TO ANY SECURITY MEASURES RECOMMENDED OR UNDERTAKEN. 16.7 Inspection by Others; Waiver of Post Inspection Liability It is hereby expressly understood and agreed by Declarant and by any Owner upon taking title to a Unit that Declarant relies upon governmental inspectors and other qualified subcontractors and tradesmen to inspect the construction of the Units and the Common Elements in order to verify compliance with construction plans and with any and all building code requirements applicable to residential construction. Declarant and each Owner further expressly understand and agree that, with respect to the Units and the Common Elements, upon compliance with the inspections required by the local building department and the issuance of a certificate of occupancy by the responsible governmental agency, Declarant shall be deemed to have used its best efforts to construct such Units and Common Elements in compliance with the construction plans and all applicable building code requirements. EACH OWNER, BY TAKING TITLE TO A UNIT, HEREBY KNOWINGLY AND WILLINGLY WAIVES AS AGAINST DECLARANT AND ITS AFFILIATES ANY AND ALL DEMANDS, CLAIMS, ACTIONS AND CAUSES OF ACTION, AND ALL LIABILITY, LOSSES, DAMAGES, COSTS OR EXPENSES THAT HAVE BEEN OR MAY BE INCURRED IN ASSOCIATION THEREWITH, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXEMPLARY DAMAGES, WHICH ARISE FROM OR ARE RELATED TO ANY NONCOMPLIANCE OF THE UNITS OR THE COMMON ELEMENTS WITH CONSTRUCTION PLANS OR BUILDING CODE REQUIREMENTS, WHICH NONCOMPLIANCE IS DISCOVERED AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR, RESPECTIVELY, SUCH UNITS OR COMMON ELEMENTS; AND ANY SUCH NONCOMPLIANCE SHALL BE DEEMED UNINTENTIONAL WITH RESPECT TO DECLARANT. EACH OWNER HEREBY ACCEPTS, AND ASSUMES THE RISK OF ANY AND ALL DAMAGE OR DEFECTS OF OR TO EACH OF THE UNITS AND THE COMMON ELEMENTS, THE DISCOVERY OF WHICH IS MADE AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR, RESPECTIVELY, SUCH UNITS OR SUCH COMMON ELEMENTS, EXCEPT TO THE EXTENT THAT SUCH OWNER MAY HAVE A CLAIM THEREFOR AGAINST ANY PARTY OTHER THAN DECLARANT OR ITS AFFILIATES. 16.8 Drainage and Soils Condition (a) Acknowledgment THE SOILS WITHIN COLORADO CONSIST OF BOTH EXPANSIVE SOILS AND LOW- DENSITY SOILS WHICH MAY ADVERSELY AFFECT THE INTEGRITY OF A UNIT OR A COMMON ELEMENT IF SUCH UNIT OR COMMON ELEMENT IS NOT PROPERLY MAINTAINED. EXPANSIVE SOILS CONTAIN CLAY MINERALS WHICH HAVE THE CHARACTERISTIC OF CHANGING VOLUME WITH THE ADDITION OR SUBTRACTION OF MOISTURE, THEREBY RESULTING IN SWELLING AND /OR SHRINKING SOILS. THE ADDITION OF MOISTURE TO 614"8.17 AKHANS O&IW 6 10.32 AM 55 200617775 63 OF 76 LOW - DENSITY SOILS CAUSES A RE- ALIGNMENT OF SOIL GRAINS, THEREBY RESULTING IN CONSOLIDATION AND /OR COLLAPSE OF THE SOILS. (b) Waiver of Liability of Declarant BY TAKING TITLE TO A UNIT, EACH OWNER ACKNOWLEDGES AND AGREES THAT SUCH OWNER HAS WAIVED AND SHALL BE DEEMED TO HAVE WAIVED THE RIGHT TO ANY AWARD OF DAMAGES AGAINST DECLARANT, ITS MANAGERS, MEMBERS, EMPLOYEES OR AGENTS FOR ANY LOSS OR DAMAGE TO ANY PORTION OF THE UNIT OR THE COMMON ELEMENTS CAUSED BY, RESULTING FROM OR IN ANY WAY CONNECTED WITH SOIL CONDITIONS ON OR UNDER ANY COMMON ELEMENTS, INCLUDING SPECIFICALLY THE PRESENCE OF EXPANSIVE SOILS AND RADON GAS. ARTICLE 17 CONVEYANCING AND ENCUMBRANCING 17.1 Units Any conveyance of a Unit includes an undivided interest in the Common Elements allocated to the Unit under this Declaration, regardless of whether the undivided interest is specifically described in the conveyance. A description of any Unit that sets forth (a) the identifying number of the Unit, (b) the name of the Condominium Project, (c) the date of recording and the recording data of this Declaration in the Records, and (d) the county in which the Condominium Project is located is, if included in an otherwise proper instrument, sufficient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit but also the entire Condominium. A Person who becomes an Owner will promptly notify the Association of its ownership of a Unit. An Owner may encumber its Unit as it sees fit, subject to the provisions of this Declaration. Any conveyance, encumbrance, judicial sale or other transfer, voluntary or involuntary, of an individual interest in the Common Elements will be void unless the Unit to which that interest is allocated is also transferred. 17.2 Common Elements Except as otherwise provided in Article 14 with respect to the termination of the Condominium Project, the Common Elements or portions of them may be conveyed or subjected to a lien or security interest by the Association in accordance with Section 312 of the Act, with the written approval of Owners of Units to which are allocated 67% of the votes in the Association, including 67% of the votes allocated to Units not owned by Declarant. The conveyance or encumbrance does not affect the priority or validity of pre - existing encumbrances. Any net proceeds of the sale of a Common Element pursuant to this Section 17.2 will be distributed to the Owners in accordance with Article 13, as if the proceeds are an award paid as a result of the condemnation of the Common Element. 17.3 Transferee Liability (a) General If any Unit is voluntarily or involuntarily transferred to any Person, the transferee of the Unit (the "Transferee') is liable for all Assessments or Assessment installments against the Unit beginning as of the time of transfer; provided that the Transferee's interest in the Unit is subject to the Association's lien for any unpaid Assessments as of the date of the transfer pursuant to this Declaration. 614448.11 MHANS 06n9" 10'32 AM 56 200617775 64 OF 76 (b) First Mortgage Foreclosure Any First Mortgage is subject to the Association's lien, and any First Mortgagee acquiring title to a Condominium through foreclosure of a First Mortgage is liable, for any unpaid Assessments (i) which are delinquent at the time the First Mortgage is Recorded, or (ii) which become due after the First Mortgage is Recorded to the extent of an amount equal to Assessments based on a budget adopted by the Board and ratified by the Owners pursuant to Section 6.3 that would have become due during the six -month period immediately before the Association or any Person holding a lien senior to any part of the Association's lien commences an action or a nonjudicial foreclosure either to enforce or extinguish the Iien. (c) Reallocation Without releasing the transferor from any liability for any unpaid Assessments, any unpaid portion of an Assessment which is not a lien by operation of Section 17.3(b) is part of the Common Expenses and collectible from all Owners liable for Common Expenses, including a Transferee or a First Mortgagee acquiring title to a Unit through foreclosure of a First Mortgage. 17.4 Estoppel Certificates Within 14 days after receiving a written request from any Owner, Security Holder or a designee of either of them, delivered personally or by certified mail, first -class postage prepaid, return receipt requested, to the Association's registered agent, the Association will furnish to the requesting party, by personal delivery or by certified mail, first -class postage prepaid, return receipt requested, an estoppel certificate executed by an officer of the Association and addressed to the requesting party, stating any then unpaid Assessments due from the requesting Owner or the Owner of the Unit encumbered by the requesting Security Holder's Security for an Obligation, or stating that there are no unpaid Assessments due from such Owner, as the case may be. An estoppel certificate furnished by the Association p ursuan t to this Section 17.4 is binding on the Association, the Board and every Owner. Such Owner's Unit shall not be subject to a lien for any unpaid Assessments against the Unit to the extent that (a) the lien arises before the date of the certificate and the amount of the lien exceeds any unpaid amounts stated in the certificate, or (b) if the Association does not furnish an estoppel certificate pursuant to this Section 17.4, the unpaid Assessments are due as of the date of the request. The Association may charge the Owner of any Unit for which such an estoppel certificate is furnished, and the Owner will pay, a reasonable fee for the preparation of the estoppel certificate in an amount determined by the Board from time to time. ARTICLE 18 GENERAL PROVISIONS 18.1 The Act: Severability The Condominium Project and this Declaration will not be subject to the provisions of any amendment to or replacement of the Act which becomes effective after the date of Recording of this Declaration, unless the provisions of the amendment or replacement are expressly made binding upon existing condominiums. However, the Association may elect to subject the Condominium Project to any amendment or replacement by the affirmative vote of all Owners who would be required to approve an amendment to this Declaration pursuant to Section 15.1 concerning the subject matter contained in the amendment to or replacement of the 614448.17 AKHANS 0629/06 1032 AM 57 200617775 65 OF 76 Act. If any of the terms, conditions, provisions, sections or clauses of this Declaration conflict with any provision of the Act, the provisions of the Act control unless the Act permits this Declaration to override the Act, in which event this Declaration controls. The invalidity of any covenant, restriction, condition, limitation or provision of this Declaration or the application of any of them to any person or circumstance will not impair or affect in any manner the validity, enforceability or effect of the rest of this Declaration, or the application of any covenant, restriction, condition, limitation or provision to any other person or circumstances. 18.2 Interpretation of Declaration The provisions of this Declaration will be liberally construed to effect its purpose of creating a uniform plan for the ownership and operation of a first -class Condominium Project. Whenever appropriate, singular terms may be read as plural, plural terms may be read as singular, and the neuter gender may be read as the feminine or masculine gender. The titles, headings and captions used throughout this Declaration are for convenience only and may not be used to construe this Declaration or any part of it. 18.3 Notices Except for notices concerning meetings of the Association or the Board, which will be given in the manner provided in the Bylaws, any notices required or permitted under this Declaration or the Bylaws to be given to any Owner, the Association, the Board or any Security Holder will be sent by certified mail, first -class postage prepaid, return receipt requested, to the intended recipient at, in the case of notices to an Owner, the address of such Owner at its Unit; in the case of notices to the Association or the Board, the address of the Association's registered agent; or in the case of notices to a Security Holder, the address most recently given to the Association by notice from such Person. All notices are deemed given and received three business days after mailed as provided in the previous sentence. Any Owner or Security Holder may change its address for purposes of notice by notice to the Association in accordance with this Section 18.3. The Association or the Board may change its address for purposes of notice by notice to all Owners in accordance with this Section 18.3. Any such change of address is effective five days after the required notice is given. 18.4 Partition The Common Elements are not subject to partition. Any purported conveyance, encumbrance, judicial sale or other voluntary or involuntary transfer of an undivided interest in the Common Elements made separately from the Unit to which that interest is allocated is void. Nothing in this Section 18.4 prevents the sale or encumbrance of all or a portion of the Common Elements in accordance with Section 17.2. 18.5 Assignment of Special Declarant Rights Declarant may assign any or all of the Special Declarant Rights in accordance with Section 304 of the Act. 18.6 Taxation of Units Upon Recording this Declaration, Declarant will deliver a copy of it to the assessor of Eagle County in accordance with Section 105(2) of the Act. Each Unit, together with its Common Allocation of the Common Elements, constitutes a separate parcel for purposes of real estate assessment and taxation. The Common Elements will be assessed against each Unit in accordance with the Unit's Common Allocation and may not be separately assessed or taxed. 611448.17 A IMN6 06/29/0610:32 AM 58 200617775 66 OF 76 IN WITNESS WHEREOF, Declarant has executed this Declaration. DECLARANT: GORE CREEK PLACE, LLC, a Colorado limited liability company B [ ove: ture & Form: Dep STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing Declaration was acl before me this a4k day of �liWl e , 200(a, by ,Ja cj-. k t to rN as Se,-.;" Vi c e Pr u, i ck& of Vail Resorts Development Company, a Colorado corporation, in its capacity as Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Ll - I I - 0 -'4 Notary Public V C • 0 P U 0V TE OF 61"48.17 AKHAN5 06/29/0610:12 AM 59 200617775 67 OF 76 VAIL RESORTS DEVELOPMENT COMPANY, a Colorado - corporation, as Managing Member JOINDER OF LIENOR The undersigned, the beneficiary under that certain deed of trust dated July 19, 2005, and recorded July 20, 2005, at Reception No. 923307 in the office of the Clerk and Recorder for Eagle County, Colorado, as the same may be amended or supplemented from time to time (the "Deed of Trust "), which Deed of Trust encumbers the Property and Additional Land, hereby consents to and approves this Condominium Declaration for Gore Creek Place and the Map, and does hereby agree that the lien of the Deed of Trust is and shall be subordinate and inferior to the easements, covenants, conditions, restrictions and other terms established or disclosed by this Declaration and the Map, whether pertaining to the Property or Additional Land, none of which shall be extinguished, limited or affected to any extent by any foreclosure of the Deed of Trust; provided, however, that the lien of the Deed of Trust, as a lien recorded prior to the recordation of this Declaration and the Map, and pursuant to C.R.S. § 38- 33.3- 316(2)(a)(I), has and shall continue to have priority over the lien for Assessments, including, without limitation, rights of foreclosure associated therewith, established in favor of the Association under this Declaration. (Initially capitalized terms used but not defined in this Joinder shall have the meanings therefor set forth in the other terms of this Declaration.) U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent By: µ/Z� Name: M A G{ 1 F41 r ," Title: V.'( Q- rvc. STATE OF COLORADO ) ) ss COUNTY OF L ) �f The foregoing instrument was acknowledged before me this day of �1� , 2006, by }Yt�e -t12 fu Can -urtiZ 1;1= e,e P� r e�(i of U.S. BaA National Association, as Administrative Agent. Witness my hand and official seal. My commission expires: � - A a G c1 JOANN SUAZO NOTARY PUBLIC STATE OF COLORADO i A f tI �� Notary P,tzblic 614448.17 AKHANS 06/29/06 10:12 AM 60 200617775 68 OF 76 EXHIBIT A THE PROPERTY F GAL. IASCRI PTI ON A PARCEL. OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS REC ORDED Iv1ARCH 10, 2005 Al' RECEPTION NO. 908760, IN THE OFFICE OF TI IE C'LERK AND RECORDER. COUNTY OF EAGLE, STATE- OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOLTTHI=AST CORNER OF SAID LOT 3, WHENCE'I1iE EASTERLY LINT: OF SAID LOT 3 BEARS N 02'26'32" W A DISTANCE OF 130.77 FEET FORMING THE BASIS 01' HEARING OF THIS DESCRIP "FION: TI IENCE CONTINUING ALONG SAID SOUTH LINE OF LOT3 TILL? FOLLOWING THREE (3) COURSES: 1) S 83 W A DISTANCE OF 30.00 FEET. 21 S 76 °4.1'19" W A DISTANCE OF 135.64 FEET; 31 S 66 °54'19" W A DISTANCE OF 229.77 FF,ET; 111PNCE DI:PARTINU SAID SOUTH LINE OF LOT 3 N 20'42'23" W A DISTANCE OF 130.29 FEET TO A POINT' ON'lliE NORTH LINE OF SAID I.0T 3; THENCE ALONG SAID NORTH LINE OF I.O'T 3 THE FOLLOWING NINIi (9) COURSES: I ) N 69'4249" E A DISTANCE OF 46.42 FEET; 2) N 20'171 I .W A DISTANCE OF 4.79 FEET: 3) N 69'42'4'Y' E A DISTANCE OF 59.18 FEET: 4) S 10 17'11" E A DISTANCE OF 4.79 FEET: 5) N 69'42'40" E A DISTANCE OF 187.65 FEET; 6) N 82'4924" T: A DISTANCE OF 59.29 FEET: 7) N 39° 10'12' E A DISTANCE OF 18.52 FEET; 8) N 02'44'06" W A DISTANCE OF 4.88 FEET, 9) N 68'30'09" F. A DISTANCE OF 65.38 FEET TO A POINT ON THE FAST LINE OF SAID LOT 3: TFR;NC'E ALONG SAID EAST LINE OF LOT 3 THE FOLLOWING TWO (2) COURSES: 1) S 21'30'33" F A DISTANCE OF 20.54 FEET: 2) S 02'26'32" L A DISTANCE OF 130,17 FELT TO'Ili£ TRUP POINT OF BEGINNlNNG SAID PARCEL. CONTAINING 1115 ACRES MORF OR LESS. .I J448 If A -1 200617775 69 OF 76 EXHIBIT B ADDITIONAL LAND IXG XL DESCRIPTION A PARCEL Of LAND LOCATED IN I.O'T 3. WC.S"T DAY SUBDIVISION" AS RECORDFI) MARCI 110,2005 AT RECEPTION NO. 908760.1N THE OFFICE OF Tl Ili CLERK AND RECORDER. COUNTY OF LADLE. STATE OF COlARADO. BEING MORI: PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT" 111E NORTHWEST CORNER OF SAID LOT 3, WHENCE M IE WESTERLY LINT: OF SAID LOT 3 BEARS S 15 °50'27" E A DISTANCE OF 122.80 FEET FORMING THE BASIS OF BEARING OF TI HS DESCRIPTION: THENCE A1.ONG'ITII: NORTHERLY LINE OF SAID LOT' 3 THE FOLLOWING THREE (T) COURSES: 1) N 7.1'1 Y56' I: A DISTANCE OF 198.65 FEET; 2) S20'171 1. E A DISTANCE OF 6.35 FEET; 3) N 69°42'39" E A DISTANCE OF 212.51 FELT: 11 IENCE DEPARTING SAID NORTHERLY LINE OF LOT 3 S 20 °42 E A DISTANCE OF 130.29 FEET TO A POINT ALONG THE SOUTI IERLY LINE OF SAID LOT 3; "I "IIENCE AI.ONG "111L' SAID SOUTHERLY LINE OF LO "I 3 TI IE FOLLOWING FOUR (4) COURSES: I) S 66'54'19" W A OIS'TANC']i OF 52.32 FEET; 2) S I5 °4641" E A DIS "FANCE OF 3.15 FEET: 3) S 74 W A DISTANCE OF 280.00 FEET; 4) S 77'29'1(Y" W A DISTANCE OF 89.72 FEET TO THE SOUTHWEST CORNER OF SAID LOT" 3: 'I 'I IL'NCE ALONG TI IE SAID WESTERLY LINE OF LOT 3'ITiE FOLLOWING TWO (2) COURSES: 1) N 31'40'14" W A UIS "I "ANC'E OF 1.44 FEET; 21 N I S'50'27" LV .k DIS I'ANCE OF 122.S0 FEET TO THE TRUE PO1N'1' 01' 13EG1NNING SAID PARCEL CONTAINING 1.236 ACRES MORE OR LESS. "r LIM 200617775 70 OF 76 EXHIBIT C COMMON ALLOCATIONS 614448.17 AKHANS 06✓ M610:32 AM C -1 200617775 71 OF 76 MEASURED AREA Bldg. Unit Garage Main Upper Total Common Allocation 4 9 1,125 1,259 1,321 3,705 12.10% 4 10 1,612 1,850 832 4,294 14.02% 3 11 1,600 1,848 837 4,285 13.99% 3 12 1,600 1,848 828 4,276 13.96% 2 13 1,123 1,232 886 3,241 10.58% 2 14 1,142 1,252 882 3,276 10.70% 1 15 1,129 1,248 887 3,264 10.66% 1 16 1,609 1,837 841 4,287 14.00% TOTAL: 30,628 100% 614448.17 AKHANS 06✓ M610:32 AM C -1 200617775 71 OF 76 EXHIBIT D OTHER RECORDED EASEMENTS AND LICENSES AFFECTING THE PROPERTY 1. Right of proprietor of a vein or lode to extract and remove his ore therefrom should the same be found to penetrate or intersect the premises as reserved in United States Patent recorded May 24, 1904, in Book 48 at Page 503 and in United States Patent recorded September 4, 1923 in Book 93 at Page 98. 2. Right of Way for ditches or canals constructed by the authority of the United States as reserved in United States Patent recorded May 24, 1904, in Book 48 at Page 503, September 4, 1923 in Book 93 at Page 98 and July 13, 1939 in Book 123 at Page 617. 3. Terms, conditions and provisions of Trench, Conduit and Vault Agreement recorded October 1, 2004, at Reception No. 893080. 4. Terms, conditions and provisions of Trench, Conduit and Vault Agreement recorded November 4, 2004, at Reception No. 896693. 5. Easements, conditions, covenants, restrictions, reservations and notes on the plat of West Day Subdivision recorded March 10, 2005, Reception No. 908760. 6. Terms, conditions and provisions of Gore Creek Place Development Agreement recorded March 10, 2005 at Reception No. 908751. 7. Terms, conditions and provisions of Gore Creek Protective Covenants recorded March 10, 2005 at Reception No. 908753. 8. Terms, conditions and provisions of Grant of Easement — Bike Path recorded March 10, 2005, at Reception No. 908759. 9. Terms, conditions and provisions of Cooperative and Easement Agreement recorded June 24, 2005 at Reception No. 920513. 10. Terms, conditions and provisions of Agreement Regarding Density Allocation recorded June 24, 2005 at Reception No. 920515. 11. Terms, conditions and provisions of Agreement Permitting Encroachment recorded July 20, 2005 at Reception No. 923304. 12. Terms, conditions and provisions of Tunnel Easement Agreement recorded Tu- N 5 .2006 at Reception No. � 00 lio i 7 7 log 13. Terms, conditions and provisions of Construction Staging and Support Easement Agreement recorded '7'u 14 $ , 2006 at Reception No. a 00 4v 17 7 10 9 614449.17 AKHANS 06/29/0610:)2 AM D - 1 200617775 72 OF 76 14. Terms, conditions and provisions of Agreement Regarding Density Allocation recorded � ` - , 2006 at Reception No. a00 t 17'7 W . 15. Terms and provisions of Chairlift Easements Agreement recorded C, 5 2006 at Reception No. .20o 1, 1 7 7 7/ . 16. Terms, conditions and provisions of Public Pedestrian Easement and Emergency Access Easement recorded 7 w l 4 S , 2006 at Reception No. a Uo to ! 7 7 17. Terms, conditions and provisions of Private Pedestrian Access Easements recorded u 1 , 2006 at Reception No. 100 6 1777 , and , 2006 Reception No. .1 0 D (o 17'77' 18. Terms, conditions and provisions of Condominium Declaration for Gore Creek Place recorded 7 ,4. /4 2006 at Reception No. �2 1 1,0 ( '7'7 7S . 19. Terms, conditions and provisions of Condominium Map — Gore Creek Place Phase I recorded _ - T j 2006 at Reception No. a0 D to I7'77 b • 614446.17 AMANS ON29ft 10:32 AM D-2 200617775 73 OF 76 EXHIBIT E ARBITRATION RULES Claimant shall submit a Claim to arbitration under these Arbitration Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant's submission of the Claim to arbitration ( "Arbitration Notice "). 1. Any arbitration conducted under these Rules and in connection with any Claim arising out of or relating to the interpretation, application, or enforcement of the Declaration, or relating to the design or construction of the Common Elements, shall conform with and be subject to the rules and procedures adopted and routinely applied by Construction Arbitration Services, Inc. ( "CAS "). 2. The Parties shall select a panel of arbitrators (the "Panel ") as follows ( "Party Appointed Arbitrators "): all of the Claimants shall agree upon one Party Appointed Arbitrator, and all the Respondents shall agree upon one Party Appointed Arbitrator. The Party Appointed Arbitrators shall, by agreement, select one Additional arbitrator ( "Additional "). 3. If the Panel is not selected under Rule 1 within 45 days from the date of the Arbitration Notice, any party may notify the nearest chapter of The Community Associations Institute, for any dispute arising under the Declaration, the Bylaw, or the Rules, or CAS for any dispute relating to the design or construction of improvements on the Common Elements, which shall appoint one Additional ( "Appointed Additional ") and shall notify the Appointed Additional and all Parties in writing of such appointment. The Appointed Additional shall thereafter be the sole arbitrator and any Party Appointed Arbitrators or their designees shall have no further duties involving the arbitration proceedings. 4. No Person may serve as an Additional in any arbitration in which that Person has any financial or personal interest in the result of the arbitration. Any Person designated as a Additional or Appointed Additional shall immediately disclose in writing to all Parties any circumstance likely to affect impartiality, including any bias or financial or personal interest in the outcome of the arbitration ( "Bias Disclosure "). If any Party objects to the service of any Additional or Appointed Additional after receipt of that Additional's Bias Disclosure, such Additional or Appointed Additional shall be replaced in the same manner in which that Additional or Appointed Additional was selected. 5. The Appointed Additional or Additional, as the case may be ( "Arbitrator ") shall fix the date, time and place for the hearing. The place of the hearing shall be at a place mutually agreed to by the parties. In fixing the date of the hearing, or in continuing a hearing, the Arbitrator shall take into consideration the amount of time reasonably required to determine Claimant's damages accurately. 6. Any Party may be represented by an attorney or other authorized representative throughout the arbitration proceedings. In the event the Respondent fails to 614448.17 AKNANS 06/39.!0610: 32 AM E - 1 200617775 74 OF 76 participate in the arbitration proceeding, the Arbitrator may not enter an Award by default, but shall hear Claimant's case and decide accordingly. 7. All Persons who, in the judgment of the Arbitrator, have a direct interest in the arbitration are entitled to attend hearings. The Arbitrator shall determine any relevant legal issues, including whether all indispensable parties are Bound Parties or whether the claim is barred by the statute of limitations. 8. The hearing shall be conducted in whatever manner will, in the Arbitrator's judgment, most fairly and expeditiously permit the full presentation of the evidence and arguments of the Parties. The Arbitrator may issue such orders as it deems necessary to safeguard rights of the Parties in the dispute without prejudice to the rights of the Parties or the final determination of the dispute. 9. Notwithstanding the foregoing, multiple party disputes or claims not consolidated or administered as a class action pursuant to the following sentence will be subject to, and will be arbitrated individually. Only with the written request of all parties involved, but not otherwise, the Arbitrator may: (i) consolidate in a single arbitration proceeding any multiple party claims that are substantially identical, and (ii) arbitrate multiple claims as a class action in accordance with the rules and procedures adopted by CAS. 10. If the Arbitrator decides that it has insufficient expertise to determine a relevant issue raised during arbitration, the Arbitrator may retain the services of an independent expert who will assist the Arbitrator in making the necessary determination. The scope of such professional's assistance shall be determined by the Arbitrator in the Arbitrator's discretion. Such independent professional must not have any bias or financial or personal interest in the outcome of the arbitration, and shall immediately notify the Parties of any such bias or interest by delivering a Bias Disclosure to the Parties. If any Party objects to the service of any professional after receipt of a Bias Disclosure, such professional shall be replaced by another independent licensed professional selected by the Arbitrator. 11. No formal discovery shall be conducted in the absence of order of the Arbitrator or express written agreement among all the Parties. The only evidence to be presented at the hearing shall be that which is disclosed to all Parties at least 30 days prior to the hearing; provided, however, no Party shall deliberately withhold or refuse to disclose any evidence which is relevant and material to the Claim, and is not otherwise privileged. The Parties may offer such evidence as is relevant and material to the Claim, and shall produce such additional evidence as the Arbitrator may deem necessary to an understanding and determination of the Claim. The Arbitrator shall be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence shall not be necessary. The Arbitrator shall be authorized, but not required, to administer oaths to witnesses. 12. The Arbitrator shall declare the hearings closed when satisfied the record is complete. 61"49.17 AKHANS 06/29!06 10 :32 AM E -2 200617775 75 OF 76 13. There will be no post hearing briefs. 14. The Award shall be rendered immediately following the close of the hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise agreed by the Parties. The Award shall be in writing, shall be signed by the Arbitrator and acknowledged before a notary public. If the Arbitrator believes an opinion is necessary, it shall be in summary form. 15. Except with respect to awards of attorneys' fee and expenses only to the extent specifically provided under Section 123 of the Act, no party shall be entitled to receive any award of damages in connection with the arbitration of a Dispute other than such party's actual damages. All parties to an arbitration conducted under these Rules shall be deemed to have waived their right to receive any damages other than actual damages, including, without limitation, special damages, consequential damages, and punitive or exemplary damages. Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address communicated to the Arbitrator at the hearing. 614448.17 AKHANS 0629/06 10:72 AM E -3 200617775 76 OF 76 G -142 1/7 r yy S i �5 i t yr � l � a , 3e i Ir _y l 1 5 a f 3i Y O Q 0 o ° � U Q Q �wF,VU ��wNw M O w O O U fY ErU� V � � O E~ a I i ` r I <p. 1 �yys q� e�rq:agq ° 5 gr Y Ara �F� e" 9qS -�e�a 9 6�� pgi A: Iektog a: lei 1�g 9 3 a e Eli g $ Hi P kq 83Ye t1 5 '� l g '# 1 . 3€ @c" : qA s :� % f ➢ g " i °3 %� �$ l �•% �gsy %su�� 5 °pg a " ¢A 9 ' as "�F- f9qq £k kY @ �za � °aA �p & � 7' �� f� 5p°p '.� 2 @"' g� 3§ �Y �� �.�'• :n 5�1� �Y's % � eq�� k 6 r� r� r a -C r �� g e rk r r r � dr•' qq:Y � E a�% l it a9b gs §k E �e gu 4 . g3 E p3q e� Pq aq zga 3"aA x�a ed ' 2e. -a '' i 3 11 1. I c g' ely $3 �� 4• I k E k �Ek� N�Q 1 V'Y 4JJ6Q6j 4 G-142 2/7 r-4 's, S, co) q 1-4 cn vow C 11 4 14 Iq C-) C.) 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III• ":'.. � o44 "'w� 1 1 11 I 2W[ W[ R i 191 I'I r �� o 14 I I g l � Fri 1e ➢3v0 L IL 3 r _ v �I V I;1 Ti - �1v p , I I 11 0 111 Q B1a�i II G -142 4/7 w �}s w e �na.Se i� •. o iz o Z \ 4 CZ I e U'43�.4 G-142 5/7 I oil J .Tu I \( s \ w �\ ) Iz � % . §� ^� > 2 -�', [ � \� / I oil J .Tu I G-142 6/7 � �\ � ��\ \ � \ � , m ■ \� Z 5 ININI WEWMEMM-z � ƒ i } Lq 14 � r14 cx. �� �\ Ar- m ■ \� Z 5 ININI WEWMEMM-z � ƒ i } G-142 7/7 1 VOW M I 0 % *ff z� ,1. .� ~� \ J . � » , . � \ . \� � � \ �a� �`�� �. 2 LQ I » j � ) � \ H I \ z �\ 4 4 4 1 4 44 . } |� M I 0 % *ff z� ,1. .� ~� \ J . � » , . � \ . \� � � \ �a� �`�� �. 2 LQ I » j � ) � \ H I TEAK J EA GLE CSIIMON 70N CO 200635129 TEAK SII10N REC: S26.ee DOC- g'S6 =11PM 1 2 122/2006 SUPPLEMENTAL CONDOMINIUM DECLARATION FOR GORE CREEK PLACE GJ i THIS SUPPLEMENTAL CONDOMINIUM DECLARATI N FOR GORE CREEK j,� -tc PLACE (this "Supplemental Declaration ") is made as of Decemberj�, 2006, by GORE CREEK PLACE, LLC, a Colorado limited liability company ( "GCP "). RECITALS A. GCP is the "Declarant" under the Condominium Declaration for Gore Creek Place, recorded in the real property records of Eagle County, Colorado on July 5, 2006, at Reception No. 200617775, as amended or supplemented from time to time (the "Declaration"). All capitalized terms used in this Supplemental Declaration will have the meanings assigned to them in the Declaration, unless otherwise provided herein. B. Pursuant to Section 2.9(a) of the Declaration, Declarant reserved certain Development Rights for the Declarant Development Period. The Declarant Development Period is still in effect. C. The Development Rights include the right to add all or any portion of the Additional Land to the Property and the right to construct and create additional Units and Common Elements. The Development Rights apply to all portions of the Property. D. Pursuant to Declarant's Development Rights, Declarant now desires to annex all of the Additional Land into the Property. E. Pursuant to Declarant's Development Rights, Declarant has constructed new Buildings on the Additional Land commonly known as `Buildings 5, 6 7 and 8" (the "New Buildings ") and now desires to create Units and Common Elements in relation to the New Buildings and Additional Land. F. In connection with and immediately following the recording of this Supplemental Declaration in the Records, Declarant is simultaneously causing a Supplemental Map, entitled "Gore Creek Place — Phase II" (the "Phase II Supplemental Map "), which reflects the annexation of the Additional Land into the Property and creation of new Units in the New Buildings, and related Common Elements, to be recorded in the Records. DECLARATION 1. Annexation of Additional Land Pursuant to Section 2.9(a) of the Declaration, all of the Additional Land, as described in Exhibit B to the Declaration, is hereby annexed into the Property. The Additional Land is hereby a part of the Property and subject to the provisions of the Declaration. 2. The Tunnel The term "Tunnel" as used in the Declaration is hereby amended to mean the underground tunnel which contains, among other things, a drive aisle, parking sp 705918.2 ACHS11 ` I 200635129 1 OF 5 v and mechanical rooms, located on the Property, including the Additional Land. That portion of the Tunnel located on the Additional Land is depicted on the Supplemental Map. 3. Creation of Units and Common Elements The New Buildings (hereby designated as Buildings 5, 6, 7 and 8) are each hereby divided into two Units, to be known as follows (the "New Units "): Building 5: Unit 8 and Unit 7 Building 6: Unit 6 and Unit 5 Building 7: Unit 4 and Unit 3 Building 8: Unit 2 and Unit 1 Common Elements are also hereby established as depicted on the Phase 11 Supplemental Map. The New Buildings are hereby a part of the Property and subject to the provisions of the Declaration. The boundaries of the New Units are described in the Declaration and graphically depicted on the Phase It Supplemental Map. The Common Elements within the Additional Land, including Buildings 5, 6, 7 and 8, comprise all improvements and areas therein other than the New Units. 4. Common Allocation Pursuant to the definition of "Common Allocation" in Section 1.1 of the Declaration, the Common Allocation for each Unit, including the New Units, is hereby recalculated by dividing the Measured Area of the Unit by the total Measured Area of all the Units, including the New Units, as set forth on Exhibit C attached hereto and incorporated herein by this reference. Exhibit C to the Declaration is hereby deleted in its entirety and in its place the attached Exhibit C is deemed inserted in the Declaration (as supplemented hereby). 5. Exceptions to Title The Additional Land and other applicable portions of the Property are subject to those easements and licenses set forth on Exhibit D -1 attached hereto and incorporated herein by this reference, and also any easements and licenses referenced on or established by the Phase II Supplemental Map, as well as those referenced on or established by the Map and Exhibit D to the Declaration. 6. Development Rights Pursuant to Section 2.9(a) of the Declaration, Declarant's Development Rights with respect to all portions of the Property, including the Additional Land, remain in full force and effect. 7. Effect Except as expressly provided in this Supplemental Declaration, the Declaration remains unchanged and in full force and effect. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. 703916.2 RCF(SH 2 200635129 2 OF 5 IN WITNESS THEREOF, Declarant has executed this Supplemental Declaration as of the date first written above. STATE OF COLORADO ) } ss: COUNTY OF EAGLE } DECLARANT: GORE CREEK PLACE, LLC, by Vail Resorts Development Company, its Managing Member The foregoing Supplemental Declaration for Gore Creek Place was acknowledged before me this /8•� day of � (7r. 2006, by Jct L as — S.4 , u6y �iiP_ (a'�erSi] : of Vail Resorts Development Company, a Colorado corporation, Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: KATHRYN M. CAMPBELL NOTORY PUBLIC STATE OF COLORADO MY e atMnialon Expinn olr27rjW I/A A Not Publi ApprovcJ a!I t rm• esor all ` rt L Nautc: 19JUEaTLNetL Untr /,Z; 70UG 7057182 RUISH 200635129 3 OF 5 EXHIBIT C COMMON ALLOCATIONS 705916.2 ILMSH C -1 200635129 4 OF 5 MEASURED AREA Bldg. Unit Garage Level Main Level Upper Level Total Common Allocations 8 1 1133 1259 887 3280 5.37% 8 2 1620 1850 830 4301 7.05% 7 3 1130 1259 976 3364 5.51% 7 4 1132 1260 979 3370 5.52% 6 5 1606 1851 830 4287 7.02% 6 6 1606 1851 830 4287 7.02% 5 7 1119 1243 884 3247 5.32% 5 8 1604 1851 828 4282 7.01% 4 9 1,125 1,259 1,321 3,705 6.07% 4 10 1,612 1,850 832 4,294 7.03% 3 11 1,600 1,848 837 4,285 7.02% 3 12 1,600 1,848 828 4,276 7.00% 2 13 1,123 1,232 886 3,241 5.31% 2 14 1,142 1,252 882 3,276 5.37% 1 15 1,129 1,248 887 3,264 5.35% 1 16 1,609 1,837 841 4,287 7.02% TOTAL: 61,046 100.00% 705916.2 ILMSH C -1 200635129 4 OF 5 EXHIBIT D -1 OTHER RECORDED EASEMENTS AND LICENSES AFFECTING THE PROPERTY 1. Terms, conditions and provisions of Trench, Conduit and Vault Agreement recorded October 1, 2004, at Reception No. 893080. 2. Terms, conditions and provisions of Trench, Conduit and Vault Agreement recorded November 4, 2004, at Reception No. 896693. 3. Terms, conditions and provisions of Cooperation and Easement Agreement recorded June 24, 2005 at Reception No. 920513. 4. Terms, conditions and provisions of Holy Cross Energy Easement recorded August 23, 2006 at Reception No. 200623084. 5. Terms, conditions and provisions of Sewer Main Easement recorded 2006 at Reception No. "— :��� 1 , 6. Terms, conditions and provisions of Encroachment Agreement recorded 2006 at Reception No. aU ' 7059163 RMSH D1 -1 200635129 5 OF 5 4,3 0 5 -0, 5 FATaar.- 1106 —........... nom.. — THE UNITED STATES OF AMERICA, TO •u to Rh." *gee >i• "n .6.43 "=% O RVAT33101 Homestead Certificate //No. S �1_....... APPLICATION ./ U. lClgllg, There ha{ deposited In else General Lend O/Jloe of fire United .States a Certifleate of the Registerof the Land Office at..&)jjLj %t II..tL.l (1�. (.'cs!' ale << n whereby it appears that, pursuant to the Act of Congress approved 20th May, 1502, "TO SECURE HOMESTEADS TO ACTUAL SETTLI'RS ON / TB'E PUBLIC DOMAIN," and the acts supplemental thersto, the okdm of.... ------- - -. P - (_O "r:F�. Y}r 1 .f C e "1.41 . _.... .......... has been established and duty consummated, in conformity (J .... . 1 ) � r f ,C to law, fPr the0..c.c�.�srt1 t' ,� A Ifrlf y�att�lt Cll cLl •r - �t 2.1 C.k-\d I�fl ,�ri" %VlI -r •v.1, tr7�- rI•� / ;1< -trll Lry ,(1 z �!•F.r crust s.[„Ci [.t it_06 L�i y.t xJ , :t1,141i / /ll/i..l..r., C ' , UVilGl4ro�t��f u_[ `GU �t(l1 I�,rr /_ {a,•l� lie ;.i✓ a,.rt�r;;� .� < /[,•.lr/.•e // /serfs according to the OJJlcial Plat of the Survey of as said Land, returned to tits General Land Office by site Surveyor General: New i �T , That there is, therefors, granted by the U N I T E D 8 T A T R B unto the sail � It l i: .......... ------ ................ ................._..... ...................tlte tract of bend above deaortbed: 0 To Have and to Hol the said tract of Land, with the appurlenanoes t� freof; unto the said . . ..... ......... .... . .. ......... ........ and to...._N!.L.. and fissigna forever; aufyeal to any nested and accrued water rights for mining, agricultural, manufacturing or other purposes. find rights to ditches and reservoirs used to connection with such water rights, as may be reeognixM and acknowledged by the local customs, laws and dodsions of Courts, and also subject to the right of this proprietor of a vein or dodo to extract and remove his ore therefY•om, should the same be found to penetrate or intersect tits pregtisre hsrsby granted, as p rovtded by � �•, /fair r,, tt : 1...(. x" w. ml(.i(tti,,,r•!'u,.nt:t ('S.rµhueYr.Gffr lr.. L4�.i!• �!/„ lLl.., l: ,./ �u l �• IR Z'aallMOD7 Whmol, I, � ! FCt 1a1:<.' c- �'� - >r / -------- - - - - -- PfElut Il the Oalld 8111Q Of Awn, have caused these letters to be made pratent, and the Seal of the General Land Offlce to be hereunto affixed. 6twp under my hand, at the City of Washington, day of- to the year of our Lord ona thnusnnd sight hu.4drod and.C�.1l.7..:.�.1.� LL!:__ - -... , and o Ow Independence of tits United Stales the one hundrad an "i L !/Lr r Ire, i - C� w' BY TAR PRESIDBXT: �' ! , n.. �BY �1:.(_��a.�j�R..ZC.n•.!.cf.�f T:t�: "I • ...Seorstary. r !/ . Recorder of the General Land Office. Recorded, V'al. -' --- - - ---. Page- .�.�. �....••---.... bYled for Reoord the_..._2 ! - - ------ -- -- -- --day of P.6 u. A. IJ. 1 Oh; at?).' ... - o'clookt y M. 4 I T p - OF AMF_ CA- Lj EADD SYFA zi, tc. J' _ * cOnjr � j them pt swn w 64uvdo rOOS . 1 , rmrM o f M 20. LSP.- "To Amu- nets aLppkmcnts[ therew. the cW= Ot to and t!w r-3 ca in ecxt- fe w wWbhed and duly consummated - 41w kmiw to L 03*"" ,'AM A I z - Z hV th Zury of the said Land. returned to the I;F%MILL N L&D I VFTAk —'c-r-( wig Plot of the Survey 92 -Ac.�Slcff - -armeffing to the of t.q. the trae of t-Md ajrlve r=tpd by the v Un NM Mwer Ye. That there is. therdare. h th 3ppurtenances thered. "to t6 i 4rpwa3ed: Te Hess Asa a F-Mb the surd u2d of Lmd,. wit weer rights for mining. aoicUlltural. manu- baim =d mgrs d w i& j W M= .!_f u le " gob a to any vested and accrued be W'Gami P.- _ and liots to used in and resermirs c Md aawddgea by the load ewman, bxs, and deci iooa of Courts: asd�&tv is Mret..vJ from the dA grant E—_ j j" - at cook emstracted by the N gbority of the lChited States. ls -President of the United State- of 1 ' --AL imaiies hoc ammi these l etlen to be =a& PAUNIL sad tb► Sed of ti- C--vvl rte? to be t -%c - -aL I .-- .. � 2PICL'A. - . , j gLjkheCjLycFWaAh*kwthe-A�-1 �- ..... -dw OE ... i theme hundred oi4sePmdasatltoseedaesTtodtedaod .AGt r.- - -- ---Mdaftbe of the United States th I t -SEAL -- 4 W.- 5r • , - /wm d- wa.- xwru.w ra�em....0. n.n n,.e....0 a�wo..n w., uw,..w Denver 021219 THE UNITED STATES OF AMERICA. To all to Whom these Presents shall come, GREETING: WIIEREAS, A Certificate of the Register of the Irnd Office ut... ..Denier ,_ ....has been .ed in the General Laud Office, whereby it appears that, pursuant to the Act of Congress of May 20, 1802, "To Socure mesteads to Actual Settlers on the Public Domain," and the acts supplemental thereto, the claim of. .......................... _..__...... Caroline Bottolfson .. . ....... .................... - -.. _...-.. °--....---...................-° ......... ... ................ ................. ............ .. .............................. ------..............._..-....-......--------- Lot one and the northeast quarter s been established and duly consummated, in conformity to law, for the ...........° ... . ........... ... _... ....... ._.... .... .._......_.... .._.....-- -... of the southwest quarter of Section aix in Township five south of Range eighty west of the Sixth Principal tleridian, Colorado, containing sixty -five acres and seventy -eight hundredths of an acre, ac to the Official Plat of the Survey of the said LandwUm. calabo GENERAL LAND OFrIcE:h7thx9arcx aY­0 nvvtd:r Now Know Ye, That there is, therefore, granted by the UNITED STATES unto the said claimant ..the tract of Land above described; To HAVE AND To H OLD the said tract of Land, with the appurtenances thereof, Into the said claimant .... and to the heirs and assigns of the said claimant._ forever; subject to any vested and accrued water rights for mining, agricultural, manu- facturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts; and there is reserved from the lands hereby granted, a right of way thereon for ditches or canals constructed by the authority of the United States. This patent is issued in lieu of Patent 140. 790568, dated January 17, 1921, which has been canceled, because of an error in the description. In Testimony Whereof, I,.... prank, l -.14 ,. D ,_ . ................... .... „- .-- .................. PRESIDE= OF THE UNITED STATES of AMERICA, have caused these letters to be made Patent, and the Seal of the General Land Office to be hereunto affixed. sLit���lin ton Given under my hand, Rae m s, �Ie ......Ttf.EN2Xr Ifi! lttip...--_.da y of. ------- ---------------- ...._..in the year of our Lord one thousand nine hundred and.. THi RTY-NINS ._ .. and of the Independence of the United States the one hundl'Cd and SIXTY -Tii IR D BY THE PRESIDENT: .. F rertkl In D. Roosevelt B A11ce H. Grove,Ass1 sta n.t SECnETARY. .................. I ...... _ ..........., ... - .............. ....... _ _ 9.Cli nton .. Fq O Acting RECO RDER OF TIIE GENEIIAL LAND OFFICE. 9� 1ANV RECOI tDED: Patent NUInbCT 1103415 Filed for Record the. . 13th day of... 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A o 6rA III ti 3 "i: 3 3xy A a a �r R � o FO ?l8 I S i o -- ------- - - a Lj OFO h 8 y gg biF r4 12 F f oci ;t Rcr.0 I $ cn 00 LO -..WE � I §R � 95 'i. - Ili ANAM d i 6 6 2 CC I11 5 C - - - - - - - - - - - - - O - E, IN IIIIg I I VIII II Co 23 I qIH ICI II IIfI a 89 30 9 8 4 0 3 :42P TRENCH, CONDUIT, AND VAULT AGREEMENT This agreement is made and entered into this 2 6"" day of Q a4 ACS I 20Uy between VAMHC, INC., a Colorado corporation, whose mailing address IV 137 Benchmark Road, Avon, Colorado 81628, hereinafter called "Owner, and Holy Cross Energy, a Colorado corporation whose mailing address is P. 0. Box 2150, Glenwood Springs, Colorado 81602, hereafter called "Holy Cross ". WHEREAS, Holy Cross has been requested by Owner to provide underground electric facilities, hereinafter called "Facilities ", to serve a project known as Lionshead - Gore Creek Place, hereinafter called "Project"; and, WHEREAS, Owner is required to provide all excavation, conduit and vault Installation, backfill, compaction and cleanup needed to construct said requested Facilities; and, WHEREAS, Owner owns real property described as follows: A Parcel of land situated in Section 7, Township 5 South, Range 80 West of the 6'" P.M., more particularly described as Parcel 2 recorded by Reception No. 780248 In the Eagle County Clerk and Recorder's Office, Eagle, Colorado, hereinafter called "Prnperty, , which Property is the real property where the Project is being developed; and, WHEREAS, installation of Facilities to serve the Project may require trenching or other excavation on certain real property adjacent to the Project described as follows: A Portion of Tract B, Vail / Lionshead, Third Filing, according to the Final Plat thereof, situated in Sections 6 and 7, Township 5 South, Range 80 West of the 6 P.M., recorded by Reception No. 117682, said Portion being more particularly described and conveyed to the Town of Vail in Book 389, at Page 502, all In the Eagle County Clerk and Recorder's Office, Eagle, Colorado, hereinafter called "Adjacent Land". NOW, THEREFORE, Owner and Holy Cross agree as follows: 1. Owner shall provide all excavation, conduit and vault installation, backfill, compaction and cleanup necessary for installation of Facilities to serve the Project. Such excavation shall be located as shown on the construction plans approved by Hoy Cross, and performed in accordance with Holy Cross Vault Installation Specifications, Construction Specifications and Inspector requirements. Any deviation from the approved construction plans will not be made unless approved by Holy Cross in advance. All Facilities Installed hereunder shall be inspected during construction by Holy Cross and shall meet all Holy Cross requirements prior to acceptance of such Facilities by Holy Cross. a. Prior to commencement of any work hereunder, Holy Cross shall furnish to Owner its Vault Installation Specifications and Construction Specifications and such specifications are made a part hereof by reference. b. All Facilities installed within the Property and Adjacent Land shall be within dedicated or conveyed and recorded utility easements. c. The top of all conduits installed hereunder shall be located a minimum of 48" below the final grade of the ground surface. d. A twelve -inch (12 ") minimum separation will be maintained between conduits Installed for the Facilities and all other new or existing underground utilities. Wherever possible, this separation will be horizontal. The Facilities conduit separation from plastic gas lines shall be greater than this minimum wherever practicable. e. Holy Cross will supply the necessary conduit and vaults for installation by the Owner upon completion of contractual arrangements. Owner assumes responsibility for all material lost or damaged after such material has been issued to and signed for by Owner or by an agent of Owner. Alternatively, Owner may provide its own conduit and vaults meeting Holy Cross specifications for use on the Project and convey such provided material to Holy Cross with an acceptable Bill of Sale. After installation by the Owner and acceptance by Holy Cross, Holy Cross shall continue as the owner of the conduit, vaults and related structures and facilities. f. If conduit and /or vault installation provided by Owner for the Project are found to be unusable or Improperly constructed, Irrespective of whether such discovery Is made during or after installation, Owner will be responsible for correcting said problems at Its expense as specified by Holy Cross and Owner shall reimburse Holy Cross for all additional costs resulting from conduit and /or vault installation being unusable or improperly constructed. 2. Despite the fact that Holy Cross reserves the right to specify acceptable work performed hereunder, Owner shall perform work hereunder as an independent contractor, including, but not limited to, the hiring and firing of its own employees, providing its own tools and equipment, payment of all wages, taxes, insurance, employee withholdings, and fees connected with its work on the Project. 3. Owner shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder. Owner shall repair all damage caused during excavation promptly and at its expense. No excavation will be undertaken within five (5) feet of existing underground electric facilities except under the on site supervision of a qualified Holy Cross employee. 4. Owner shall Indemnify, save, and hold harmless Holy Cross, Its employees and agents, against any and all loss, liability, claims, expense, suits, causes of action, or judgments for damages to property or injury or death to persons that may arise out of work performed hereunder, or because of a breach of any of the promises, covenants and agreements herein made by the Owner. Owner shall promptly defend Holy Cross whenever legal proceedings of any kind are brought against it arising out of work performed hereunder. In the event Owner shall fail to promptly defend Holy Cross, it shall be liable to Holy Cross, and shall reimburse it, for all costs, expenses and attorney fees incurred in defending any such legal proceeding. Owner agrees to satisfy, pay, and discharge any and all judgments and fines rendered against Holy Cross arising out of any such proceedings. Owner also agrees to promptly satisfy and pay any monetary settlements of disputes that arise hereunder, provided Owner has been given the opportunity to join in such settlement agreements. The above indemnification clause shall not apply to state and local governments or local service districts. In lieu thereof, whenever Owner is a government or district it shall procure and maintain in effect at least 51,000,000 of public liability Insurance covering the acts, damages and expenses described in the above indemnification clause. Upon Holy Cross' request, such a Owner shall furnish a Certificate of Insurance verifying the existence of such insurance coverage. S. Owner shall repair, at its expense, any excavation settlement and damage to asphalt paving or other surface Improvements caused by such settlement resulting from work performed hereunder within the Property and Adjacent Land for a period of two (2) years beginning on the date backfill and cleanup are completed. 6. Owner, at its expense, shall stop the growth of thistles and /or other noxious weeds in all areas disturbed by excavation performed hereunder for a period of two (2) years beginning on the date backfill and cleanup are completed. 7. In the event Owner shall not promptly complete all of the obligations hereinabove agreed to be performed by Owner, Holy Cross may give written notice by registered or certified mail demanding Owner to complete the work and obligations undertaken by Owner herein, and If such Is not completed within 30 days after receipt of such notice by Owner, Holy Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, all costs of completion shall be chargeable to and collectible from Owner. W /0#04- 19000:52- 42:Lionshead - Gore Creek Place 8 -23 -04 st.rU\­\+mold Page 1 of 2 Revised 7.7.04 HOLY CROSS ENERGY P.O. BOX 2150 GLENWOOD SPRINGS, CO 81602 IaIIIIIiIIII�IHIIIIIpI�IIIIIIIIINIIIIp� ® 893 08 4 3:42P 3. As set forth in paragraph I above, Owner covenants that the trench, and all Facilities within the trench installed hereunder shall be located within dedicated or conveyed and recorded utility easements and at the proper depth below Finished grade. It shall be the obligation of Owner to properly locate and construct the Facilities within the easement Should It ever be discovered that such Facilities have not been properly located within dedicated or conveyed and recorded utility easements• or at the proper depth, it shall be the obligation of Owner to provide new easements for the actual location of the Facilities, or to relocate the Facilities within the easement, all of which shall be at the sole cost and expense of Owner. 3. It shall be Owner's responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice• switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) Inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of Improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-opening sides and backs of said transformers and switchgear. Owner hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said corrections will be made at the sole cost and expense of Owner. 0. Owner covenants that it is the owner of the above described Property and that said Property is free and clear of encumbrances and liens of any character, except those held by the following: The promises, agreements and representations made by Owner herein shall be covenants that run with the Property and shall be binding upon the successors In Interest, and assigns, of the Property. The individual signing this Trench, Conduit and Vault Agreement hereby represents that he /she has full power and authority to sign, execute• and deliver this Instrument. Holy C e s Energy, a Colorado corporation VAMHC, INC., a Colora4p corporati on , By: BY' dc ar Brinkley, Geri Manager - Regulated ry es Title: I e re �{ STATE OF Pi b ra d 1 ss. COUNTY OF -e- before d —{— Q. Ufn U S / // 201 r The forse�going i strum�p[ was kngQw�ledged me this by /� A f � (� /C Q YI hr y of as r • ;r�r0( FN of VAMHC, INC., a Co of rado corporation. PY ARH WITNESS my hand and ae'AT' "" •• ; O� My commission expi Public — �!� 7 val -•.,' L1� .: 'mac ,• Address: ` STATE OF D_ � ) COU NTY OF L� The foregoing instrument was acknowledged before me this a? t day of A"19 R � 20J21 by Richard D. Brinkley, General Manager - Regulated Services of Holy Cross Energy, a CCblorado corporation. WITNESS my hand and official seal. pN $ 7 0,r �';N ' � `% �• 0(9 ett crime I n Public to t� My commission expires. +, �. Notary , �Tiv i� Public • p,� __ Address: Q.vi LUtlO� n se Co�016 0 OOL� W /0#04- 19000:52.42:Lionshead - Gore Creek Place 8.23 -04 varna\­\mold Page 2 of 2 Revised 7 - - 04 Trench, Conduit and Vault Agreement Holy Cross Energy IllllIIINIIIIIllsilllllillllIllll IBIIIIII(III 896 f 2 :35P I Taak J Slaonton Eagio, 00 23 R 11.00 D 0.00 TRENCH, CONDUIT, AND VAULT AGREEMENT This agreement is made and entered into this A I day of a u li ![.0 20 Q between THE VAIL CORPORATION, Colorado corporation, d /b /a/VAIL ASS TES, INC., whose mailing address is P. O. Box 959, Avon, Colorado 81620.0959, hereinafter called "Owner", and Holy Cross Energy, a Colorado corporation whose mailing address is P. 0. Box 2150, Glenwood Springs, Colorado 81602, hereafter called *Holy Cross ". WHEREAS, Holy Cross has been requested by Owner to provide underground electric facilities, hereinafter called "Facilities ", to serve a project known as Llonshead - Gore Creek Place, hereinafter called'ProjecY; and, WHEREAS. Owner is required to provide all excavation, conduit and vault installation, backfill, compaction and cleanup needed to construct said requested Facilities; and, WHEREAS, Owner owns real property described as follows: Lots A and B, Morcus Subdivision, according to the Final Plat thereof, situated in Section 7, Township 5 South, Range 80 West of the 6" P.M., more particularly described in Book 255, at Page 70, and Book 625, at Page 653, all in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado, hereinafter called "Property", which Property is the real property where the Project is being developed; and, WHEREAS, installation of Facilities to serve the Project may require trenching or other excavation on certain real property adjacent to the Project described as follows: A Portion of Tract B, Vail /Uonshead, Third Filing, according to the Final Plat thereof, situated In Sections 6 and 7, Township 5 South, Range 80 West of the 6° P.M., recorded by reception No. 117682, said Portion being more particularly described and conveyed to the Town of Vail in Book 389, at Page 502, in the records of the Eagle County Clerk and Recorder's Office, Eagle, Colorado, hereinafter called 'Adjacent Land'. NOW, THEREFORE, Owner and Holy Cross agree as follows: 1 Owner shall provide all excavation, conduit and vault installation, backfill, compaction and cleanup necessary for Installation of Facilities to serve the Project. Such excavation shall be located as shown on the construction plans approved by Holy Cross, and performed in accordance with Holy Cross Vault installation Specifications, Construction Specifications and inspector requirements. Any deviation from the approved construction plans will not be made unless approved by Holy Cross in advance. All Facilities installed hereunder shall be inspected during construction by Holy Cross and shall meet all Holy Cross requirements prior to acceptance of such Facilities by Holy Cross. a. Prior to commencement of any work hereunder, Holy Cross shall furnish to Owner its Vault Installation Specifications and Construction Specifications and such specifications are made a part hereof by reference. b. All Facilities installed within the Property and Adjacent Land shall be within dedicated or conveyed and recorded utility easements. c. The top of all conduits Installed hereunder shall be located a minimum of 48' below the final grade of the ground surface. d. A twelve -inch (12 ") minimum separation will be maintained between conduits installed for the Facilities and all other new or existing underground utilities. Wherever possible, this separation will be horizontal. The Facilities conduit separation from plastic gas lines shall be greater than this minimum wherever practicable. e. Holy Cross will supply the necessary conduit and vaults for installation by the Owner upon completion of contractual arrangements. Owner assumes responsibility for all material lost or damaged after such material has been issued to and signed for by Owner or by an agent of Owner. Alternatively, Owner may provide its own conduit and vaults meeting Hoy Cross specifications for use on the Project and convey such provided material to Holy Cross with an acceptable Bill of Sale. After installation by the Owner and acceptance by Holy Cross, Holy Cross shall continue as the owner of the conduit, vaults and related structures and facilities. f. If conduit and /or vault installation provided by Owner for the Project are found to be unusable or improperly constructed, irrespective of whether such discovery is made during or after installation, Owner will be responsible for correcting said problems at Its expense as specified by Holy Cross and Owner shall reimburse Holy Cross for all additional costs resulting from conduit and /or vault installation being unusable or improperly constructed. 2. Despite the fact that Holy Cross reserves the right to specify acceptable work performed hereunder, Owner shall perform work hereunder as an independent contractor, including, but not limited to, the hiring and firing of its own employees, providing its own tools and equipment, payment of all wages, taxes, insurance, employee withholdings, and fees connected with its work on the Project. 3. Owner shall obtain all necessary digging permits and utility locations prior to excavation for work performed hereunder. Owner shall repair all damage caused during excavation promptly and at its expense. No excavation will be undertaken within five (5) feet of existing underground electric facilities except under the on site supervision of a qualified Holy Cross employee. 4. Owner shall indemnify, save, and hold harmless Holy Cross, Its employees and agents, against any and all loss, liability, claims, expense, suits, causes of action, or judgments for damages to property or Injury or death to persons that may arise out of work performed hereunder, or because of a breach of any of the promises, covenants and agreements herein made by the Owner. Owner shall promptly defend Holy Cross whenever legal proceedings of any kind are brought against it arising out of work performed hereunder. In the event Owner shall fail to promptly defend Holy Cross, it shall be liable to Holy Cross, and shall reimburse it, for all costs, expenses and attorney fees incurred in defending any such legal proceeding. Owner agrees to satisfy, pay, and discharge any and all judgments and fires rendered against Holy Cross arising out of any such proceedings. Owner also agrees to promptly satisfy and pay any monetary settlements of disputes that arise hereunder, provided Owner has been given the opportunity to join in such settlement agreements. The above indemnification clause shall not apply to state and local governments or local service districts. In lieu thereof, whenever Owner is a government or district it shall procure and maintain in effect at least 51,000,000 of public liability insurance covering the acts, damages and expenses described in the above indemnification clause. Upon Holy Cross' request, such a Owner shall furnish a Certificate of Insurance verifying the existence of such Insurance coverage. Owner shall repair, at its expense, any excavation settlement and damage to asphalt paving or other surface improvements caused by such settlement resulting from work performed hereunder within the Property and Adjacent Land for a period of two (2) years beginning on the date backfill and cleanup are completed. Owner, at its expense, shall stop the growth of thistles and /or other noxious weeds in all areas disturbed by excavation performed hereunder for a period of two (2) years beginning on the date backfill and cleanup are completed. In the event Owner shall not promptly complete all of the obligations hereinabove agreed to be performed by Owner, Holy Cross may give written notice by registered or certified mail demanding Owner to complete the work and obligations undertaken by Owner herein, and if such is not completed within 30 days after receipt of such notice by Owner, Holy Cross may complete the work and obligations hereof. If Holy Cross shall be required to complete the work, all costs of completion shall be chargeable to and collectible from Owner. W /0#04. 19000:52- 42:Lionshead - Gore Creek Place 8 -23 -04 Page 1 of 2 Revised 7 -7 -04 PLEASE RETURN TO: HOLY CROSS ENERGY P.O. BOX 2150 GLENWOOD SPRINGS, CO 81602 IIWII Ilili II�II III IIIIN IIII VIII III II II IIII III 896693 :35P Teak J Simonton Eaol.. 00 23 R 11.00 0 0.00 8. As set forth in paragraph 1 above, Owner covenants that the trench, and all Facilities within the trench installed hereunder shall be located within dedicated or conveyed and recorded utility easements and at the proper depth below finished grade. It shall be the obligation of Owner to properly locate and construct the Facilities within the easement. Should It ever be discovered that such Facilities have not been properly located within dedicated or conveyed and recorded utility easements, or at the proper depth, It shall be the obligation of Owner to provide new easements for the actual location of the Facilities, or to relocate the Facilities within the easement, all of which shall be at the sole cost and expense of Owner. 9. It shall be Owner's responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on the Property are accessible by Holy Cross boom trucks and other necessary equipment and personnel at all times. The use of such access by Holy Cross shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) Inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed in the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non - opening sides and backs of said transformers and switchgear. Owner hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations that may occur as soon as notified by Holy Cross. Said corrections will be made at the sole cost and expense of Owner. 10. Owner covenants that it is the owner of the above described Property and that said Property is free and clear of encumbrances and liens of any character, except those held by the following: The promises, agreements and representations made by Owner herein shall be covenants that run with the Property and shall be binding upon the successors in Interest, and assigns, of the Property. The individual signing this Trench, Conduit and Vault Agreement hereby represents that he /she has full power and authority to sign, execute, and deliver this instrument. Holy Cross Energy, a Colorado corporation THE VAIL CORRORAT a-corpuptTbfl- d /b /a/VAIL ASS ktES, IN By: By R har D. Brinkley, Ge eral Manager - Regul ed Services Title: Sr V tC e STATE OF l�Q tb (�6 COUNTY OF ) ss. t A�1 The Vegoir�Instrucy w 1 acknowled by /V[ 2 t 1 a lJ . K , 2 Gi I�, THE VAIL CORPORATION_ a Colnradn rnn WITNESS my hand and o My commission expires: STATE OF before me this � &d ay of (�[ q /� f� 20 d 2 as r• .c tt5% of Jon. d/b /a/ VAIL ASSOCIATES, INC. •., �iiiff't -W a ubllc� / ri Address: Ua.( �(f (p S0 ss. COUNTY OF n The foregoing Instrument was acknowledged before me this day of i t u l ce�ry FtPJt� ZOQ by Richard D. Brinkley, General Manager - Regulated Services of Hoy Cross Energy, a Colorado corporation. WITNESS my hand and official seal. My commission expires: 8 7 O 5 W /0#04- 19000:52- 42:Lionshead - Gore Gee d...... f Trench, Conduit and Vault Agreement Holy Cross Energy �r1• �C9 -arm C>��s dam,,,, Notary Public Address: Oa :u rt' r o S NI Lo MriA O \m 1d Page 2 of 2 Revised 7 -7 -04 11111111111111111 1111111111111111111111111111111 Pa ®$ 0510:34 Teak J Simonton Eagle, CO 23 R 86.00 D 0.00 GORE CREEK PLACE DEVELOPMENT AGREEMENT }_ THIS GORE CREEK PLACE DEVE PMENT AGREEMENT (this "Agreement ") is made effective as of the -&- day of , 2004, by and between the TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado (the "Town "), VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado (the "Authority"), and THE VAIL CORPORATION, DB /A VAIL ASSOCIATES, INC., a Colorado corporation ( "Vail Associates "). RECITALS A. Vail Associates is the owner of certain real property in the Town, which is legally described on Exhibit A attached hereto (the "Property "). The Town's Design Review Board and other Town agencies have approved design and development plans as set forth or referenced on Exhibit B attached hereto (the "Gore Creek Design Approvals ") for the development of a residential duplex project, consisting of 16 residential units, to be located on the Property, and commonly referred to herein as the "Gore Creek Project ". Vail Associates is presently in the process of securing from the Town the remaining requisite approvals, including building permits, for construction of the Gore Creek Project. B. The Property is encumbered with certain covenants and other restrictions on title that are inconsistent with the Gore Creek Project as proposed by Vail Associates and as approved by the Town in the Gore Creek Design Approvals. C. Pursuant to the Lionshead Reinvestment Agreement, the Authority has initiated a condemnation action to acquire the Property for the purpose of removing the covenants and other restrictions on title that are inconsistent with the Gore Creek Project as proposed by Vail Associates and as approved by the Town in the Gore Creek Design Approvals. Also, pursuant to the Lionshead Reinvestment Agreement, completion of the condemnation process is contingent upon the Town and Vail Associates entering into this Agreement. Initially capitalized terms used but defined herein shall have the meanings ascribed thereto under the Lionshead Reinvestment Agreement. NOW, THEREFORE, in consideration of the above premises and the mutual covenants and agreements set forth herein, the parties agree as follows: Requirements of Vail Associates Prior to Closing (a) Within seven (7) days of the execution of this Agreement, Vail Associates will enter into leases for 95 units within Timber Ridge for a period of two (2) years, commencing November 1, 2004. The lease rate will be $1,075 per unit per month, with the Vail Associates related leases being allocated 165 parking spaces in the aggregate (and 75 of these spaces being regarded as "excess" parking that Vail Associates may apply to use for any business purposes). When this lease relationship is entered into, it will count toward satisfaction of Vail Associates' and its affiliates' Lionshead employee housing requirements, as the same M U R \59599.01 \486461.3 may be applicable during the term of the Vail Associates Lease, and Vail Associates' existing lease(s) in Timber Ridge for 52 units will be terminated. (b) Vail Associates will apply for and obtain all necessary land use and design approvals from the Town and will obtain all necessary building permits for the construction of the Gore Creek Project. (c) Vail Associates will obtain easement grants and vacations and other grants, approvals or dispositions from the holders of affected property interests that are necessary for proceeding with the construction of the Gore Creek Project. (d) Vail Associates will secure adequate financing, in the sole discretion of Vail Associates, as is necessary for the construction of the Gore Creek Project. (e) Vail Associates, at its sole and exclusive discretion, may elect to waive any or all of the requirements in this Section 1 and proceed with the Closing so long as it satisfies all of the Obligations of Vail Associates at Closing as specified in Section 3 below. 2. The Authority's Requirements Prior to Closing (a) Within fifteen (15) days of the execution of this Agreement, the Authority, with the consent and stipulation of Vail Associates, will apply for a Rule and Order from the District Court in Civil Action No. 2004CV446 (the "Eminent Domain Proceeding ") conveying unencumbered fee title in the Property to the Authority. The Rule and Order must be entered prior to Closing. Closma (a) Upon the satisfaction of the requirements in Sections 1 and 2 above, or the waiver by Vail Associates of any or all of the requirements in Section 1 above, then the Authority, the Town, and Vail Associates will proceed to conduct a closing (the "Closing ") on a mutually agreeable date not more than ten (10) days after completion of the Eminent Domain Proceeding by the District Court's entry of the final rule and order therein. The Closing will be conducted through the Title Company, at its Vail, Colorado office. The Title Company will furnish all requisite closing and escrow services for the completion of the Closing, and all required Closing deliveries will be made by depositing the same with the Title Company. At Closing, the following will occur, each being a condition precedent to the others and all being considered as occurring simultaneously: (b) Authority Obligations at Closing The Authority will duly execute, acknowledge and deliver a special warranty deed (the "Deed ") conveying the applicable Property to Vail Associates, subject only to the Remaining Exceptions for the applicable Property, real property taxes and assessments, and new restrictive covenants attached to the Lionshead Reinvestment Agreement as Exhibit D -2 for the Gore Creek Property (collectively the "Permitted Exceptions "). MUR159599.01 \486461.3 2 (c) Town's Obligations at Closing (i) The Town will vacate or abandon any pre- existing utility easements in its favor that have locations conflicting with the approved development of the Gore Creek Project and the corresponding configurations of water, sanitary sewer, storm drainage and "dry" utilities. In furtherance of the development of the Gore Creek Project, the Town will grant, across and upon any pertinent easement or property ownership interests held by the Town, and/or accept new corresponding public or quasi- public easements for the affected utilities and other services as configured for the development of the Gore Creek Project, subject to the Town's approval of those configurations as they may affect Town property interests. (ii) The Town will also vacate the existing public right -of -way for Red Sandstone Road within the "Holy Cross" site owned by Vail Associates which is presently operated as an employee parking area which is legally described in Exhibit C attached hereto. The vacation will be subject to continuing non - exclusive access rights in favor of the Colorado Department of Transportation ( "CDOT ") as necessary to furnish CDOT ingress and egress to and from its adjacent property in the I -70 right -of -way . (d) Vail Associates' Obligations at Closing (i) For a period of sixty (60) days after the making of this Agreement and the Closing herein, the Town and Vail Associates will enter into negotiations to establish a mutually acceptable financial structure involving Vail Associates' participation which will facilitate the redevelopment of the Town's Timber Ridge apartment project ( "Timber Ridge ") for employee housing, provided that no obligation will arise to undertake any such financial structure unless and until the parties mutually agree upon the governing terms in writing. (ii) Vail Associates will quitclaim to the Town any right, title and interest, if any, in and to that certain land at the Town's public works facility which is currently used as a snow dump and its surrounding perimeter, identified herein in Exhibit D, and to waive any outstanding or disputed amounts for past rent due on such property. (iii) Vail Associates will execute and deliver a recordable modification to the Right of Entry, which is part of a deed dated May 15, 1980, and recorded May 15, 1980, at Book 302, Page 854. The recordable modification shall expressly expands the permitted uses under the Right of Entry to include a conference center and associated uses. 4. Vail Associates' Obligations Prior to the Issuance of Certificates of Occupancy for the Project (a) The Gore Creek Design Approvals, including the conditions of approval constituting a part thereof, establish certain requirements for constructing and completing a pedestrian path, landscaping, and certain other site improvements within and constituting part of the Gore Creek Project (the "Gore Creek Site Improvements "). Vail Associates will not be entitled to receive from the Town a certificate of occupancy, either temporary or permanent, for any units within the Gore Creek Project until either (i) the Gore Creek Site Improvements have been substantially completed to the satisfaction of the Town of MUR\59599.01 \486461.3 Vail Chief Building Official, or (ii) at the discretion of the Town of Vail Chief Building Official applied in accordance with the Town's generally prevailing rules and practices, Vail Associates has fiumished or caused to be furnished to the Town with security for the remaining uncompleted Gore Creek Site Improvements in the form of a performance and payment bond for the work, or alternatively in the form of a letter of credit, or other financial medium reasonably acceptable to the Town, in a dollar amount equal to one hundred twenty -five percent (125 %) of the estimated out -of- pocket, variable construction costs for completing the applicable Gore Creek Site Improvements. In the event Vail Associates fails to complete or cause the completion of the Gore Creek Site Improvements in a timely manner in accordance with the applicable security requirements, then the Town at its election may undertake the completion of the remaining Gore Creek Site Improvements, and resort to the security furnished to recover the resulting construction costs and expenses incurred by the Town. Any security previously provided or the remainder thereof (as applicable) will be returned to Vail Associates upon the completion of the obligations for the Gore Creek Site Improvements. This Agreement satisfies all requirements under the Town Code of the Town of Vail (the "Town Code ") for the provision of security or making of agreements with respect to the Gore Creek Site Improvements. Notwithstanding any provisions to the contrary in the Town Code or other Town rules and regulations, the Gore Creek Site Improvements and the express provisions of this Agreement constitute the full scope of any and all public or other improvements, dedications or exactions that may be required of Vail Associates in relation to the undertaking of the Gore Creek Project, and no further public or other improvements, dedications or exactions or other development conditions may be required of Vail Associates in connection with the Gore Creek Project (any requirements under the Town Code or other rules or regulations to the contrary are hereby waived). (b) Vail Associates has submitted to the Town and the Town has accepted a traffic study to evaluate the project trip generations produced by the Gore Creek Project. As a condition to the issuance of any certificates of occupancy for the Gore Creek Project, Vail Associates will be required to pay and/or provide in -kind consideration for a traffic impact fee to the Town in an amount equal to $5,000 multiplied by the number of trip generations attributable to the Gore Creek Project during the peak hour period, as established by the accepted traffic study which fee may be satisfied by payments and/or credits in accordance with the Town's current prevailing standards and policies, consistently applied, that are generally employed for development projects in the Town. Any portion of the traffic impact fee paid in cash will be applied by the Town, in reasonable consultation with Vail Associates, to traffic and road system improvements at the intersection of West Forest Road with Frontage Road, or to any other transportation project that may be approved by Vail Associates in writing. 5. Liability of Successors The provisions hereof touch and concern and run with the ownership of the Property. However, any successor owner to Vail Associates with respect to any portion of the Property or Gore Creek Project will not have any personal liability for any of Vail Associates' obligations hereunder, except to the extent such successor succeeds to Vail Associates' position as the owner /developer of any residential unit in the Gore Creek Project before it is initially completed (as evidenced by the issuance of any temporary or permanent certificate of occupancy therefor). This Agreement shall cease to act as any limitation or encumbrance upon any residential unit within the Gore Creek Project when such unit has been thus initially completed. The Town agrees to cooperate reasonably and diligently in furnishing recordable releases and terminations of this Agreement, or for discrete portions of the MUR\59599.0 1 \486461.3 4 requirements hereunder, as and when the relevant requirements have been satisfied. Subject to the foregoing provisions, (i) this Agreement shall be binding upon and inure to the benefit of Vail Associates and its successors and assigns, and (ii) references herein to "Vail Associates" shall be construed to include its successors and assigns from time to time. 6. Notices; Business Days Any notice required or permitted under the terms of this Agreement shall be in writing, may be given by the parties hereto or such parties' respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended recipient, by whatever means; (ii) three (3) business days after the same is deposited in the United States mails, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national or international reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing party). Any notice under clause (i), (ii) or (iii) above shall be delivered or mailed, as the case may be, to the appropriate address set forth below: If to Vail Associates: c/o Vail Resorts Development Company Post Office Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Jack Hunn, Vice President of Design and Construction Fax No.: (970) 845 -2555 Phone: (970) 845 -2359 with a copy to: c/o Vail Resorts Development Company Legal Department Post Office Box 959 137 Benchmark Road Avon, Colorado 81620 Attention: Kursten Canada, Esq. Fax No.: (970) 845 -2555 If to Town: Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Attention: Town Manager Fax No.: (970) 479 -2157 MU R1595 99.011486461.3 with a copy to: Town of Vail 75 S. Frontage Road Vail, Colorado 81657 Attention: Town Attorney Fax No.: (970) 479 -2157 Either party may change its addresses and/or fax numbers for notices pursuant to a written notice which is given in accordance with the terms hereof. As used herein, the term "business day" shall mean any day other than a Saturday, a Sunday, or a legal holiday for which U.S. mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 7. Severability In the event any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future laws, the legality, validity and enforceability of the remaining provisions in this Agreement shall not be affected thereby, and in lieu of the affected provision there shall be deemed added to this Agreement a substitute provision that is legal, valid and enforceable and that is as similar as possible in content to the affected provision. It is generally intended by the parties that this Agreement and its separate provisions be enforceable to the fullest extent permitted by law. 8. Exhibits All Exhibits to this Agreement which are referenced by the provisions hereof as being attached hereto are deemed incorporated herein by this reference and made a part hereof. 9. Entire Agreement This Agreement and the other contracts or agreements specifically referred to herein represent the entire agreement between the parties hereto with respect to the subject matter hereof, and all prior or extrinsic agreements, understandings or negotiations shall be deemed merged herein. 10. Estoppel Certificate. At any time and from time to time (but upon not less than ten (10) days' prior notice by Vail Associates), the Town shall execute, acknowledge and deliver to Vail Associates and its designees an estoppel certificate in writing certifying that this Agreement is unmodified and in full force and effect (or if there have been modifications, that this Agreement is in full force and effect as so modified, and stating the modifications); that Vail Associates is not in default of any obligations, conditions or requirements hereunder, except as otherwise specified in the response; and such other matters and information related to this Agreement as may be reasonably requested. Failure of the Town to furnish its response within the requisite 10 -day period shall be conclusive upon the Town that the matters requested for disclosure are in the status most favorable to Vail Associates, as determined by Vail Associates. 11. Rules of Construction The headings which appear in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the paragraphs in which they appear. Each party hereto acknowledges that it has had full and fair opportunity to review, make comment upon, and negotiate the terms and provisions of this MUR\59599.01 \486461.3 6 Agreement, and if there arise any ambiguities in the provisions hereof or any other circumstances which necessitate judicial interpretation of such provisions, the parties mutually agree that the provisions shall not be construed against the drafting party, and waive any rule of law which would otherwise require interpretation or construction against the interests of the drafting party. References herein to the singular shall include the plural, and to the plural shall include the singular, and any reference to any one gender shall be deemed to include and be applicable to all genders. The titles of the paragraphs in this Agreement are for convenience of reference only and are not intended in any way to define, limit or prescribe the scope or intent of this Agreement. 12. Town Council Approval This Agreement shall not become effective until the Town Council's adoption and approval of this Agreement by resolution. As part of that resolution, the Town Council will designate and authorize the Town Manager to execute and deliver this Agreement on behalf of the Town. The effective date of this Agreement shall be the date upon which this Agreement has been executed and delivered by Vail Associates and so executed as set forth above by the Town Manager. 13. Waivers and Amendments No provision of this Agreement may be waived to any extent unless and except to the extent the waiver is specifically set forth in a written instrument executed by the party to be bound thereby. No modification or amendment to this Agreement shall have any force or effect unless embodied in an amendatory or other agreement executed by Vail Associates and the Town, with the Town's execution to be authorized by Town Council ordinance or resolution, as applicable. However, if, on behalf of the Town, the Town Manager, after consultation with the Director of Community Development, determines that any proposed amendment or modification constitutes a minor change, then the Town Manager shall have the unilateral power and authority to execute and deliver such amendment or modification on behalf of the Town and to bind the Town thereby. In any event the Town Manager will have the unilateral power and authority to furnish any estoppel certificates, approvals, confirmations of whole or partial termination, or other documents or communications contemplated by the provisions of this Agreement. 14. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 15. Additional Assurances The parties agree to reasonably cooperate to execute any additional documents and to take any additional action as may be reasonably necessary to carry out the purposes of this Agreement. 16. No Third Partv Benefici . Except for the corporate affiliates of Vail Associates, who are expressly intended to be third -party beneficiaries of Vail Associates' rights hereunder, no third party is intended to or shall be a beneficiary of this Agreement, nor shall any such third party have any rights to enforce this Agreement in any respect. Vail Associates' "corporate affiliates" will include any entity which by direct or indirect majority ownership interests is controlled by, controls, or is under common control with Vail Associates. Other corporate affiliates of Vail Associates may have ownership interests in the Property and/or the Core Site, and references herein to "Vail Associates" shall be deemed to include any such corporate affiliate with an ownership interest. MUR \59599.0 1A86461.3 7 17. Counterparts This Agreement may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. 18. Recording This Agreement shall be recorded in the real property records for Eagle County, Colorado. 19. No Joint Venture or Partnership No form of joint venture or partnership exists between the Town and Vail Associates, and nothing contained in this Agreement shall be construed as making the Town and Vail Associates joint venturers or partners. 20. Attorneys' Fees In the event any legal proceeding arises out of the subject matter of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and the presiding court will be bound to make this award). [Balance of page intentionally left blank] M UR\59599.01 \486461.3 IN WITNESS WHEREOF, the Town and the Authority and Vail Associates have made this Gore Creek Place Development Agreement as of the day, month and year first above written. TOWN: TOWN OF VAIL, a municipal corporation duly D. SFEAAL organized and existing by virtue of the laws of the State of Colorado B Name: e.- Title: Town Manager ATTEST: .'�i elei onaldson, Town Clerk STATE OF COLORADO ) ss: COUNTY OF •F� The forego in instrum nt wasc owledged before me this ` day of 200 , by as Town Manager of the Town of Vail, a mun cipal corporation d organized and existing by virtue of the laws of the State of Colorado. Witness my hand and official seal. My commission expires: N "ic MUM I [Signature blocks continue on following page] MUR \59599.01 \486461.3 VAIL ASSOCIATES: STATE OF COLORADO THE VAIL CORPORATION DB /A VAIL ASSOCIATES, INC., a Colorado corporation By: Name: Title: £s ss: COUNTY OF � ) The foregoing instrument was acknowledged before me this � day of N D V 200 , by M U.-f H cA, as Se_ji V i Le Pre, i 6fii� The Vail Corporation d/b /a Vail Associates, Inc., a Colorado corporation. Witness my hand and official seal. P Dl xia6 y commission ex fires: — i M ~ D�] CA-- Notary Public [Signature blocks continue on following pagel MUR159599.01\486461.3 1 VAIL REINVESTMENT AUTHORITY Title: ff STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The fore going i trument w�a befo as re me thisda o 2004 by o Vail Reinvestment Authority a body duly organized and existing as an urban renewal authority under the laws of the State of Colorado. Witness my hand and official seal. My commission expires: i Py6lic MUR \59599.0 114 8 64 6 1.3 11 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY A PARCEL OF LAND BEING A PART OF LOTS B AND D, MORCUS SUBDIVISION, AS RECORDED ON MAY 11, 1977 AT RECEPTION NO. 151373, AND A PART OF PARCEL 3, LIONSHEAD PENTHOUSES AS RECORDED ON JANUARY 27, 2003 AT RECEPTION NO. 821386, AND A PART OF A PARCEL DESCRIBED IN INSTRUMENT RECORDED ON DECEMBER 18, 2001, AT RECEPTION NO. 780248, EAGLE COUNTY, COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A FOUND No. 5 REBAR WITH ALUMINUM CAP, L.S. No. 2183 ON THE EASTERLY BOUNDARY OF LOT 8, BLOCK 1, VAIL/LIONSHEAD THIRD FILING RECORDED AT RECEPTION No. 117682 WHENCE THE NORTHWEST CORNER OF SECTION 7, TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN, BEARS S 85 °48'35" W A DISTANCE OF 1368.58 FEET BASED UPON STATE PLANE COORDINATES WITH A ROTATION OF +00 FROM PLATTED SAID VAIL / LIONSHEAD THIRD FILING, SAID LINE FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION. THENCE S 18 W A DISTANCE OF 541.47 FEET TO A POINT ON THE SOUTHEAST BOUNDARY OF SAID PARCEL 3 LIONSHEAD PENTHOUSES, SAID POINT BEING THE TRUE POINT OF BEGINNING THENCE ALONG THE SOUTH BOUNDARY OF SAID PARCEL 3 LIONSHEAD PENTHOUSES THE FOLLOWING (3) THREE COURSES: 1) S 83 °59'19" W A DISTANCE OF 30.00 FEET; 2) S 76 W A DISTANCE OF 135.64 FEET; 3) S 66 W A DISTANCE OF 72.29 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL 3 LIONSHEAD PENTHOUSES, THENCE ALONG THE SOUTH BOUNDARY OF SAID PARCEL DESCRIBED AT RECEPTION NO. 780248 THE FOLLOWING (3) THREE COURSES: 1) S 66 °54'19" W A DISTANCE OF 210.00 FEET; 2) S 15 °46'41" E A DISTANCE OF 3.15 FEET; 3) S 74 °12'56" W A DISTANCE OF 26.69 FEET TO THE EAST BOUNDARY LINE OF SAID LOT B, MORCUS SUBDIVISION, THENCE ALONG THE SOUTH BOUNDARY OF SAID LOT B THE FOLLOWING (3) THREE COURSES: 1) S 74 °12'56" W A DISTANCE OF 253.31 FEET; 2) S 77 W A DISTANCE OF 89.72 FEET TO THE MOST SOUTHWESTERLY CORNER OF SAID LOT B; 3) N 31'40'14" W A DISTANCE OF 1.44 FEET TO A POINT ALONG THE EAST RIGHT - OF -WAY LINE OF FOREST ROAD; THENCE ALONG THE EAST LINE OF SAID RIGHT - OF -WAY N 15 0 50'27" W A DISTANCE OF 122.80 FEET; THENCE DEPARTING SAID RIGHT -OF -WAY N 74 E A DISTANCE OF 167.69 FEET; THENCE S 20'17'I 1" E A DISTANCE OF 8.78 FEET; THENCE N 69 °42'49" E A DISTANCE OF 253.77 FEET; THENCE N 20 " W A DISTANCE OF 4.79 FEET; THENCE N 69 °42'49" E A DISTANCE OF 57.33 FEET; THENCE S 20 °17'11" E A DISTANCE OF 4.79 FEET; THENCE MUR \59599.01 \486461.3 A -1 N 69 0 4249" E A DISTANCE OF 225.52 FEET; THENCE N 82 0 49'24" E A DISTANCE OF 59.29 FEET; THENCE N 39 °10' 12" E A DISTANCE OF 18.52 FEET; THENCE N 02 0 44'06" W A DISTANCE OF 4.88 FEET; THENCE N 68 °30'09" E A DISTANCE OF 65.38 FEET TO A POINT ALONG THE EAST BOUNDARY LINE OF SAID PARCEL 3 LIONSHEAD PENTHOUSES; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL 3 LIONSHEAD PENTHOUSES THE FOLLOWING (2) TWO COURSES: 1) S 21 °30'33" E A DISTANCE OF 20.54 FEET; 2) THENCE S 02 °26'32" E A DISTANCE OF 130.76 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO THIS LEGAL DESCRIPTION HAS BEEN CREATED BY BRENT BIGGS, PLS No. 27598, ON BEHALF OF PEAK LAND SURVEYING, INC., 1000 LIONS RIDGE LOOP, VAIL, CO 81657. MUR \59599.01 \486461.3 A -2 EXHIBIT B DESIGN DEVELOPMENT PLANS FOR GORE CREEK PLACE Design development plans for the Gore Creek Project prepared by 42/40 Architecture Inc., and approved by the Design Review Board of the Town of Vail on July 21, 2004. MUR\59599.01 \486461.3 B -1 EXHIBIT C The Holy Cross site is legally described as Tracts A and B, South Frontage Road Subdivision, according to the plat recorded November 6, 2000, Reception No. 74324, County of Eagle, State of Colorado. The portion of Red Sandstone Road (established by instrument recorded at Book 127, Page 565) to be vacated is that which has contiguity with either Tract and which intersects with South Frontage Road on the south and I -70 right -of -way parcels on the north. 634954.1 RCFI SH 1115104 3:44 PM � �" � � F o � � 1F���li�� ►� 3i ' ° t� �F aj ,s MR� b oil! kno y� �� o Mil � O � � i ��'����� �'•��'1 �� ei �O d m x ° o t "a•w'"�w fa w m95 4 99 i + F Ok 8¢ A t EXI*INT D LEGAL DESCRIPTION THAT PART OF THE NORTH 1/2 OF SECTION 8, TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN, EAGLE COUNTY, COLORADO, LYING NORTH OF INTERSTATE HIGHWAY NO. 70, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 8, THENCE SOUTH 89 DEGREES 46 MINUTES 27 SECONDS WEST 2651.87 FEET ALONG THE NORTHERLY LINE OF SAID SECTION 8 TO THE NORTH 114 CORNER OF SAID SECTION 8; THENCE SOUTH 89 DEGREES 46 MINUTES 27 SECONDS WEST 903.90 FEET ALONG THE NORTHERLY LINE OF SAID SECTION 8 TO THE NORTHERLY RIGHT OF WAY LINE OF INTERSTATE HIGHWAY NO. 70; THENCE THE FOLLOWING FOUR COURSES ALONG SAID NORTHERLY RIGHT OF WAY LINE: 1) SOUTH 73 DEGREES 46 MINUTES 15 SECONDS EAST 789.30 FEET 2) SOUTH 78 DEGREES 49 MINUTES 16 SECONDS EAST 567.90 FEET 3) SOUTH 75 DEGREES 28 MINUTES 18 SECONDS EAST 942.40 FEET 4) 1327.90 FEET ALONG THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 5580.00 FEET, A CENTRAL ANGLE OF 13 DEGREES 38 MINUTES 04 SECONDS, AND A CHORD WHICH BEARS NORTH 89 DEGREES 36 MINUTES 34 SECONDS EAST 1324.70 FEET, TO THE EASTERLY LINE OF SAID SECTION 8; THEN NORTH 00 DEGREES 23 MINUTES 03 SECONDS EAST 572.10 FEET, ALONG SAID EASTERLY LINE, TO THE POINT OF BEGINNING. 1111111111 �IINII����11I 9087 0:349 l7 ask J Simonton Eagle, CO 314 R 41 0 00 GORE CREEK PROTECTIVE COVENANTS THESE GORE CREK PROTECTIVE COVENANTS (these "Covenants') are made as of the Cyl day of IkACLYCAIn , 2005, by VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado (the "Authority"). RECITALS A. By an exercise of its condemnation powers in Case No.2004CV446 before the District Court in Eagle County, Colorado, the Authority has acquired fee title to certain real property constituting part of the area in the Town of Vail, County of Eagle, State of Colorado, commonly known as Lionshead, which real property is legally described on Exhibit A attached hereto and incorporated herein by this reference and is physically proximate to Gore Creek (such acquired real property being sometimes referred to hereinafter collectively as the "Gore Creek Property"). B. Pursuant to such condemnation, the Authority has acquired the Gore Creek Property free and clear of certain covenants that previously encumbered the Gore Creek Property, or portions thereof, namely (i) the Protective Covenants for Vail Village, Second Filing, as originally recorded in the real property records for Eagle County, Colorado (the "Records ") on January 9, 1963, at Book 174, Page 431, and as amended by instrument recorded in the Records on August 27, 1964, at Book 183, Page 239; and (ii) the Protective Covenants for Vail/Lionshead, Third Filing, as originally recorded in the Records on October 15, 1971, at Book 221, Page 991, and as amended by instrument recorded in the Records on August 12, 1977, at Book 258, Page 453 (collectively the "Original Covenants "). The Original Covenants established certain restrictions regulating the use of the Gore Creek Property, or portions thereof. C. The Authority has determined to make and record these Covenants in order to establish appropriate limitations regulating the use of the Gore Creek Property in place of the extinguished provisions of the Original Covenants, with these Covenants to be for the benefit of owners within Vail Village, Second Filing, and Vail/Lionshead, Third Filing (as hereinafter defined for purposes of these Covenants), and their respective grantees, successors and assigns (such owners being hereinafter referred to in the singular and collectively as the " Benefitted Owner(s)," and their respective properties which give them the status of Benefitted Owners being sometimes referred to hereinafter in the singular or collectively as the " Benefitted Property(ies) "). These Covenants are made in furtherance of establishing and maintaining the character and value of real estate in the Lionshead area. NOW, THEREFORE, in consideration of the premises, the Authority, for itself and its grantees, successors and assigns in and to the Gore Creek Property, does hereby impose, establish, publish, acknowledge, declare and agree with, to and for the benefit of the Benefitted Owners, that the Authority owns and holds the Gore Creek Property subject to the following restrictions, covenants and conditions, all of which shall be deemed to run with the land and to inure to the benefit of the Benefitted Owners and be binding upon the Authority as the owner of the Gore Creek Property, and its grantees, successors and assigns. 6247223 RCFISH 1. LAND USE. The Gore Creek Property shall be used and enjoyed only for residential dwelling structures and uses, whether single - family, multi - family, or duplex or other form of two- family, and other uses, functions, improvements and facilities ancillary, incidental or related such residential structures and uses, including, without limitation, vehicular parking areas and uses, pedestrian access trails, ways and uses, recreational uses, facilities and amenities, and loading/delivery areas and uses. 2. SIGNS. No signs, billboards, poster boards or advertising structure of any kind shall be erected or maintained on any portion of the Gore Creek Property for any purpose whatsoever, except in accordance with the prevailing laws, rules and regulations from time to time of the Town of Vail (the "Town"). 3. WATER AND SEWAGE. Each structure designed for occupancy or use by human beings shall connect with the water and sewerage facilities of the Vail Water and Sanitation District. No private well shall be used as a source of water for human consumption or irrigation in the Gore Creek Property, nor shall any facility other than those provided by the Town or any applicable special district or other governmental authority be used for the disposal of sewage (the foregoing being subject, however, to any contrary laws, rules or regulations of the Town prevailing from time to time). Mechanical garbage disposal facilities shall be provided in each kitchen or food preparing area. 4. TRASH AND GARBAGE. No trash, ashes or other refuse may be thrown or dumped on any land within the Gore Creek Property. The burning of refuse out of doors shall not be permitted in the Gore Creek Property. No incinerator or other device for the burning of refuse indoors shall be constructed, installed or used by any person. Each property owner within the Gore Creek Property shall provide suitable receptacles for the collection of refuse. Such receptacles shall be screened from public view and protected from disturbance. 5. LIVESTOCK. No animals, livestock, horses, or poultry of any kind except dogs, cats and other household pets shall be kept, raised or bred in the Gore Creek Property. 6. TREES. No trees shall be cut, trimmed or removed in the Gore Creek Property, except as permitted under the laws, rules and regulations of the Town prevailing from time to time. 7. LANDSCAPING AND GARDENING. All surface areas disturbed by construction shall be returned promptly to their natural condition and replanted in native grasses, except where such areas are covered by the subject improvements being constructed or are to be improved by the construction or installation of gardens, lawns, exterior living areas or other landscaping or improvements undertaken in accordance with the laws, rules and regulations of the Town prevailing from time to time. 8. AREA REQUIREMENTS. No enclosed building structure designed for human use or habitation shall be constructed unless the aggregate floor area, exclusive of open porches, basements, carports and garages, shall be in excess of 900 square feet. 624722.5 RCHSH 2 9. TRADE NAMES. No word, name, symbol, or combination thereof shall be used to identify for commercial purposes a house, structure, business or service in the Gore Creek Property except in accordance with the laws, rules and regulations of the Town prevailing from time to time. 10. TEMPORARY STRUCTURES. No temporary structure, excavation, basement, trailer or tent shall be permitted in the Gore Creek Property, except as may be necessary during construction, or as may be permitted under the laws, rules and regulations of the Town as prevailing from time to time for outdoor entertainment or other functions or events. 11. CONTINUITY OF CONSTRUCTION. All structures commenced in the Gore Creek Property shall be prosecuted diligently to completion. 12. NUISANCE. No noxious or offensive activity shall be carried on nor shall anything be done or permitted which shall constitute a public nuisance in the Gore Creek Property. 13. EFFECT AND DURATION OF COVENANTS. The conditions, restrictions, stipulations, agreements and covenants contained herein shall be for the benefit of each Benefitted Property, and its Benefitted Owner, and shall be binding upon the Gore Creek Property, and its owners and successors in interest, and shall continue in full force and effect until January 1, 2049. 14. AMENDMENT. (a) The conditions, restrictions, stipulations, agreements and covenants contained herein (collectively "Covenant Provisions'), as the same inure to the Benefitted Owners within Vail Village, Second Filing, may be waived, abandoned, terminated, amended or supplemented, in whole or in part (and whether addressing new or pre - existing subject matter), upon and only upon securing the written consent of the owners of 75% of the privately owned surface land area included within the boundaries of Vail Village, Second Filing, as the same may then be shown by the plat on file in the Records. Each Benefitted Owner within Vail Village, Second Filing, will be bound by any waiver, abandonment, termination, amendment or supplement of the Covenant Provisions instituted in accordance with the foregoing consent requirements. (b) The Covenant Provisions, as the same inure to the benefit of the Benefitted Owners within Vail/Lionshead, Third Filing, may be waived, abandoned, terminated, amended or supplemented, in whole or in part (and whether addressing new or pre - existing subject matter), upon and only upon securing the written consent of the owners of 66 2/3% of the surface land area (whether publicly or privately owned) within the boundaries of Vail/Lionshead, Third Filing, as the same may be then shown by the plat on file in the Records. Each Benefitted Owner within Vail/Lionshead, Third Filing, will be bound by any waiver, abandonment, termination, amendment or supplement of the Covenant Provisions instituted in accordance with the foregoing consent requirements. 624722.5 ROUR HOTEL OWNER: DIAMONDROCK VA1L OWNER, LLC, a Delawarr,limited liability company Title: STATE OF I Ql N ( ) COUNTY OF Th The� fo�goin instrument was acknowled me this day of June, 2005, by O�JIC W • i5Y gem- as lt�cLI of DIAMONDROCK VAIL OWNER, LLC, a Delaware limited liability company. Witness my tl�tt�rldi6g1� My commig *e -11 rz ;o�; ; rg s 4j ••. • �'' Nq�iy Pub ' ' ����h!llmltgt� r � Anne F. awwuanaan NOTARY PUBLIC MW490m«y County, Maryland * COMml8*111 IWM On. 2, 200 SIGNATURE PAGE -2 IN WITNESS WHEREOF, Vail and Hotel Owner have entered into this Agreement as of the date first above written. VAIL: THE VAIL CORPORATION, a Colorado corporation By: Name: Title: S11 STATE ss. COUNTY OF �,E ) The foreg ing instrument was acknowledged before me this � of June, 2005, by A�k i� ti ►^AS s --P of THE VAIL CORPORATION, a Colorado corporation. Witness my hand and official seal. My commission expires: pTAR S� [Hotel Owner's Signature Page Follows] f 9 � MyCoaagwlon EVWs 9117rM SIGNATURE PAGE — 1 " Completed " shall mean (i) with respect to the West Day Redevelopment, the date that TCOs are available for all components of the West Day Redevelopment, and (ii) with respect to the Gore Creek Development, the date on which TCOs are available for all of the townhomes constructed on Gore Creek Place. [signature page follows] -20- 5454\120\907418.19 limitation, specific performance. All such remedies, including those set forth in this Agreement, shall be cumulative. Notwithstanding the foregoing, under no circumstances shall Hotel Owner be entitled to terminate the Easements and Hotel Owner's sole remedy in the event of a breach of any obligations hereunder shall be damages, specific performance and/or a declaratory judgment. Each party waives the right to special, indirect, consequential and punitive damages, including lost profits. 1. Attorney Fees The substantially prevailing party in any action brought to enforce or interpret this Agreement shall be awarded and receive its costs and reasonable attorney's fees (including those of in -house counsel), including for any appellate review. M. Authority to Execute Each person executing this Agreement represents and warrants that it is duly authorized to execute this Agreement by the party on whose behalf it is so executing. n. Recordation This Agreement shall be recorded in the real property records of Eagle County, Colorado. Notwithstanding the foregoing, in the event this Agreement is terminated and either party desires to record an instrument evidencing such termination, the parties shall prepare, execute and record, at the shared expense of both parties, any reasonable instrument necessary to release this Agreement of record. o. Disclaimer of Joint Venture This Easement Agreement is not intended to create a joint venture, partnership or agency relationship between Vail and Hotel Owner, and such joint venture, partnership, or agency relationship is specifically hereby disclaimed. p. Construction The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. q. Venue and Jurisdiction Any disputes arising out of this Agreement shall be submitted to a court of competent jurisdiction located in Denver, Colorado. r. Survival All terms, covenants, releases, and indemnities which are intended to survive termination or expiration of this Agreement or any easement granted hereunder shall survive such termination or expiration. Under no circumstances, however, shall any of the easements granted to Vail or Hotel Owner pursuant to this Agreement survive any such termination or expiration. S. Indemnifications Vail's indemnification obligations under this Agreement (and the indemnity obligations of any Vail Construction Successor under this Agreement) shall expire one (1) year after the last of the two Immediately Adjacent Projects is Completed (the " Total Completion Date "); provided that any action filed against Vail or any Vail Construction Successor prior to the expiration of such one -year anniversary of the Total Completion Date may be prosecuted to completion. The indemnification obligations of all other Easement Users under this Agreement shall expire upon the expiration of the applicable statute of limitations related to the claim underlying such indemnity. For purposes of this Section 5(s) -19- 5454 \120\907418.19 If to Hotel Owner to: DiamondRock Vail Owner, LLC c/o DiamondRock Hospitality Company 6903 Rockledge Drive, Suite 800 Bethesda, Maryland 20817 Attention: Michael Schecter, General Counsel Telephone: (301) 380 -6012 Telecopy: (301) 380 -6850 with a copy to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019 Attention: Steven D. Klein, Esq. Telephone: (212) 728 -8000 Telecopy: (212) 728 -8111 If to Vail to: The Vail Corporation c/o Vail Resorts, Inc. 137 Benchmark Road Avon, Colorado 81620 Attention: General Counsel Telephone: 970 - 845 -2927 Telecopy: 970 -845 -2928 with a copy to: Brownstein Hyatt & Farber, P.C. 41017' Street, 22n Floor Denver Colorado 80202 Attention: Gary M. Reiff Telephone: 303-223-1114 Telecopy: 303 - 223 -0914 A Notice shall be effective on the earlier of (a) actual receipt or (b) hand delivery or the following Business Day after sent by overnight courier for next Business Day delivery as the case may be. Either party may at any time change the address for Notices to such party by giving a Notice as aforesaid. k. Default: Remedies If any party hereto breaches any provision of this Agreement and fails to cure such breach within 30 days after written notice thereof (or such additional time as is reasonable under the circumstances), the non - breaching party shall be entitled to any and all remedies, legal or equitable, which may be available including, without -18- 5454 \120 \90741 8.19 executed and delivered by Vail in connection with this Agreement (the " Vail Guaranty ") shall survive any such transfer. In such event, the Vail Guaranty shall guaranty the indemnity obligations of each Vail Construction Successor to the extent set forth herein (the " Guaranteed Successor Obligations "). C. Counterparts This Agreement may be executed in a number of identical counterparts. if so executed, each of such counterparts is to be deemed an original for all purposes and all such counterparts shall collectively constitute one Agreement. d. Successors and Assigns This Agreement shall be binding on and inure to the benefit of each Party's respective successors and assigns. e. Section Headings The Section headings herein are inserted only for convenience and reference and shall in no way define, limit, or prescribe the scope or intent of any provisions of this Agreement. £ Entire Agreement This Agreement, together with the exhibits attached hereto, contains the entire agreement of the Parties hereto with respect to the subject matter hereof and no prior written or oral agreement shall have any force or effect or be binding upon the Parties hereto. g. No Rights in Public Except as expressly stated herein, nothing contained herein is intended to dedicate, grant, or reserve to the general public or the public at large or for any public purpose whatsoever, or to permit any member of the general public to acquire any right, by adverse possession, prescription, grant, dedication or otherwise, to possess, use or occupy either the Vail Properties or the Hotel Property, or any portion thereof, said grant, dedication, reservation, or prescriptive rights being expressly denied. h. Severabilitv If any portion of this Agreement is declared by any court of competent jurisdiction to be void or unenforceable, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect. In addition, in lieu of such void or unenforceable provision, there shall automatically be added as part of this Agreement a provision similar in terms to such illegal, invalid or unenforceable provision so that the resulting reformed provision is legal, valid and enforceable. i. Governing Law This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Colorado (without giving effect to Colorado's principles of conflicts of law). j. Notices Except as otherwise provided in this Agreement, all notices, demands, requests, consents, approvals and other communications (any of the same a " Notice, " herein collectively called " Notices ") required or permitted to be given hereunder, or which are to be given with respect to this Agreement, shall be in writing and shall be hand delivered, sent by nationally recognized overnight courier, transmitted by facsimile (with hard copy confirmation by overnight courier; provided, that, receipt of a hard copy confirmation by overnight courier shall not be required for notice to be effective), addressed to the party to be so notified as follows: -17- 5454\1 20 \907416.19 Any amendment or modification of this Agreement (including any termination as referenced above) may be effectuated only by the mutual execution by the applicable persons of a written instrument recorded in the real property records of Eagle County, Colorado (which instrument must include a consent thereto executed by the holder of any mortgage or deed of trust then encumbering any part of the Hotel Property or the Vail Property encumbered by this Agreement and benefited or burdened by the applicable easement). Any provision hereof may be waived only to the extent set forth in a written instrument executed by the Party against whom enforcement of the claimed waiver is sought. General Provisions a. Easements to Run with Land This Agreement, including the Easements, and all other covenants, agreements, rights and obligations created hereby, shall run with the Hotel Property, and shall be binding on and inure to the benefit of all persons having or acquiring fee title to the Hotel Property, all upon the terms, provisions and conditions set forth herein. The Vail Easements (with the exception of the Telephone Conduit Easement) shall run with the Vail Properties, and shall be binding on and inure to the benefit of all persons having or acquiring fee title to the Vail Properties, all upon the terms, provisions and conditions set forth herein. Parties acquiring fee title to the West Day Lot or Gore Creek Place or any portion thereof shall be deemed to have assumed the obligations arising hereunder only to the extent the same (i) relate to the portion of the Vail Properties acquired by such parties, (ii) arise and accrue from and after the date of such party's acquisition, and (iii) arise from such parties use of any of the Easements granted hereunder, notwithstanding the foregoing to the contrary, Hotel Owner agrees that under no circumstances shall the purchaser of a condominium unit on the West Day Lot or a townhome on Gore Creek Place be liable under any provision of this Agreement other than Section 3(d) to the extent set forth therein. The Telephone Conduit Easement shall be an easement in gross, personal to Vail and shall not run with the Vail Properties. The Other Easements shall run with the Vail Spa Condominium, the West Day Lot, and Gore Creek Place to the extent that the Other Easements benefit such properties under Section 3(b). and shall inure to the benefit of all persons having or acquiring fee title to the Vail Spa Condominium, the West Day Lot, and Gore Creek Place, all upon the terms, provisions and conditions set forth herein. Hotel Owner recognizes and agrees that Vail may transfer its interest in some or all of the Vail Properties to either affiliates or third parties. Vail shall have the right, but not the obligation, to designate by written recorded document the transfer of an Easement as set forth in the preceding sentence. Hotel Owner agrees that any and all subsequent owners of each of the Vail Properties shall have the right to enforce the provisions of this Agreement, regardless of whether such owner holds an interest in any of the other Vail Properties. b. Vail's Obligation on Sale of the Vail Pro erties. In the event of any sale or other transfer of any Vail Property, Vail shall be entirely freed and relieved of all agreements and obligations of Vail hereunder accruing or to be performed after the date of such sale or transfer, and, subject to Section 5(a), any transferee shall acquire such Vail Property subject to all obligations accruing hereunder from and after the date of such sale or transfer. Notwithstanding the foregoing, if Vail transfers substantially all of either the West Day Lot or Gore Creek Place prior to Completion (as defined in Section 5(s) below) of the applicable Immediately Adjacent Project (the transferee of such Immediately Adjacent Project referred to herein as a " Vail Construction Successor "), then, notwithstanding such transfer, the guaranty -16- 54541120 \907418.19 reasonable judgment), (iii) under no circumstances shall Vail be required to implement Construction Mitigation Measures on more than 10 days in any calendar year (it being agreed that any request to implement Construction Mitigation Measures during any portion of a day shall count as one full calendar day, regardless of the period of time within such day as the Construction Mitigation Measures are implemented), and (iv) under no circumstances shall Vail have any liability whatsoever to Hotel Owner if, notwithstanding Vail's use of commercially reasonable efforts to implement Construction Measures, Hotel Owner suffers Losses of any kind (except for those Losses expressly covered under the indemnity set forth in Section 31c )(i) as limited by the provisions of Section= (viii) Agreement to Cause the Association to Grant Parallel Easements. Hotel Owner controls (or will control) three of the five seats on the board of managers of The Mark -Lodge Condominium Association, Inc., a Colorado nonprofit corporation (the " Association "). The Association governs The Mark/Lodge, a condominium established under the laws of the Stale of Colorado on March 21, 1974, and referenced in the Declaration. The Telephone Conduit Easement and the Pedestrian Easement cross portions of the General Common Elements created pursuant to the Declaration and associated condominium map (the " GCE "). Within 10 days after a written request from Vail, Hotel Owner agrees to cause the managers of the Association under Hotel Owner's control to vote to cause the Association to execute an easement agreement granting the Telephone Conduit Easement and the Pedestrian Easement over, on, under, through and across the GCE. Such separate easement agreement shall contain the same terms and conditions of this Agreement which are applicable to the Telephone Conduit Easement and the Pedestrian Easement. (ix) Tennis Court. Hotel Owner hereby endorses the concept of constructing a tennis court (the " Tennis Court ") on the roof of the Grand Ballroom as depicted on Exhibit N if Vail elects, in Vail's sole discretion, to proceed with construction of the same. Hotel Owner recognizes and agrees that Vail shall have no obligation to construct the Tennis Court. To the extent that the Tennis Court is constructed, Hotel Owner agrees to reasonably cooperate with Vail in good faith to establish an easement (but does not hereby grant any such easement) for the construction and maintenance of the Tennis Court. The parties acknowledge that any agreement granting such easement will address Hotel Owner's concerns regarding structural support, noise remediation, affording access, potential impact on roof warranties, insurance during construction and logistics during construction. All such cooperation and efforts (and any construction performed in connection therewith) shall be at Vail's sole cost and expense. Notwithstanding the foregoing, the Tennis Court will not be required if Vail enters into and records an amendment to that certain Recreation Easement Agreement recorded in the real property records of Eagle County, Colorado in Book 276 at Page 609 (the " Easement "), which amendment, in Vail's reasonable discretion, eliminates the need for the Tennis Court Easement (the " Easement Amendment "). Hotel Owner, for itself and its successors and assigns, hereby consents to the recordation of the Easement Amendment against the Hotel Property at any time, as long as the same is in substantially the same form previously provided to Hotel Owner. 4. Term: Amendment The term of this Agreement, and the easements and other benefits and burdens under the provisions hereof, are perpetual, except as otherwise expressly provided herein and subject to any subsequent mutual determination to terminate this Agreement by the persons then owning the properties which the applicable easement benefits and burdens. -15- 5454 \120\907418.19 shall be governed by the foregoing procedure. Once approved, Hotel Improvement Plans need not be re- submitted to Hotel Owner unless such Hotel Improvement Plans are altered in a manner that may have a material and adverse effect on the Hotel Property and/or operation thereof. The Other Development Plans and Timeline and Schedule shall be provided to Hotel Owner solely for information purposes and Hotel Owner shall have no right to review or object to the same; provided, however, that Vail agrees that (A) it shall conduct construction activities during those hours prescribed by the Town, and (B) it will reasonably consider the comments of Hotel Owner in connection therewith; provided, however, that Vail shall have no obligation to make any changes to such Other Development Plans or Timeline and Schedule based on the Hotel Owner's comments. Other than the Hotel Improvement Plans, Hotel Owner shall not be permitted to review and approve any other plans or specifications related to the Vail Construction Projects, and the sole approval required in connection therewith shall be such approval, if any, as is required from the Town. Vail and Hotel Owner agree that (i) this Section 3(f)(v) shall not apply to any plans related to the New Parking Facility (as defined in the Parking Easement Agreement) and the same shall be governed exclusively by the applicable provisions of the Parking Easement Agreement, and (ii) this Section 3(f)(v) shall apply to the West Day Tie -Back Plans only to the extent set forth in Section 3(a)(iii) and shall not apply to the Gore Creek Tie -Back Plans. (vi) General Coordination and Exchange of Information. Vail agrees to keep Hotel Owner generally apprised as to the status and progress of each of the Vail Construction Projects. In connection with the foregoing, during the period of active construction by Vail's Responsible Parties of the West Day Lot Redevelopment and the Gore Creek Development, Vail will conduct (and Hotel Owner, or a designee thereof, will be permitted to attend) on a substantially weekly basis Owner /Architect/Contractor meetings (the " Immediately Adjacent Projects "). At such meetings, Vail covenants to facilitate the mutual exchange of information and input between Vail and Hotel Owner with respect to the Immediately Adjacent Projects. Although Vail will reasonably consider the concerns of Hotel Owner in connection with the Immediately Adjacent Projects, Vail shall have no obligation to take any action in response to such concerns, and under no circumstances shall Vail have any liability whatsoever to Hotel Owner as a result of Vail's failure to take any action in response to such concerns or otherwise under this Section 3(f)(vi) (vii) Special Hotel Events. Vail agrees that, if Hotel Owner gives Vail significant advance notice (in any event, not less than 30 days), of a significant event or block of guests anticipated to be at the Hotel over a specific period of time (the " Special Hotel Event "), then, to the extent that the performance of construction activities in conjunction with the Immediately Adjacent Projects is reasonably expected to have a material adverse effect on the Special Hotel Event, Vail shall use commercially reasonable efforts to alter the location and type of construction (but under no circumstances cease such construction activity in its entirety) on the portion of the Immediately Adjacent Project that is likely to have such material adverse effect during the period of time that the Special Hotel Event is to occur (the " Construction Mitigation Measures "). Notwithstanding the foregoing, Hotel Owner agrees that (i) Hotel Owner's right to give notice of Special Events pursuant to this Section 3(f)(vii) will be used, if at all, infrequently, (ii) Vail will have no obligation to undertake Construction Mitigation Measures if such Measures would significantly delay (as determined by Vail in its reasonable judgment) the Timeline and Schedule or cause Vail to incur significant additional costs (as determined by Vail in its -14- 5454\1 20 \907418.19 Before, during, or after the West Day Lot Redevelopment, Vail shall have the right, at Vail's expense, to alter the elevation of the North/South Road in order to decrease the grade of the road. As a result, Hotel Owner, for itself and its successors and assigns, hereby agrees that Vail shall be permitted, at Vail's expense, to alter the manner in which the Phase III building meets the grade of the North/South Road, subject to the prior approval of the Hotel Owner (which approval shall not be unreasonably withheld, conditioned or delayed). (ii) Lionshead Circle. Hotel Owner, for itself and its successors and assigns, hereby agrees that, during performance of the Vail Construction Projects, Vail may, subject to any requirements of applicable laws and the Town of Vail, modify Lionshead Circle in front of the Hotel to function as a one -way street and narrow such street to a single lane. Vail agrees to provide Hotel Owner with plans associated with alteration of the traffic flow on Lionshead Circle within an reasonable period of time in advance thereof, and to reasonably consider the comments of Hotel Owner in connection therewith; provided, however, that Vail shall have no obligation to make any changes to such plans based on the Hotel Owner's comments. (iii) Host Marriott Letter Agreement. Hotel Owner, for itself and its successors and assigns, hereby agrees that it shall fully comply with the provisions of that certain letter agreement by and between Host Marriott Corporation and the Vail Spa Condominium Association, dated April 18, 2001 and attached hereto as Exhibit M . (iv) Disturbance of Certain Facilities, Hotel Owner, for itself and its successors and assigns, hereby agrees that certain landscaping and irrigation facilities on the Hotel Property will be disturbed during construction of the Gore Creek Development. Vail agrees that, upon the earlier to occur of (A) completion of the Gore Creek Development and (B) June 30, 2007, it will, at Vail's expense, restore such landscaping and irrigation facilities to the same condition which existed prior to commencement of the Gore Creek Development. (v) Construction Plans, Timeline and Schedule. Except for the plans and specifications for the Transformers and the Pedestrian Easement Improvements, Vail agrees that, as soon as practical after the same are available, Vail will provide to Hotel Owner copies of plans for any improvements to be constructed by Vail on the Hotel Property (the " Hotel Improvements Plans "), summary-type plans (including site plans, elevations, floor plans, and representative sections) related to those portions of the West Day Lot Development and the Gore Creek Development that are reasonably likely to directly and materially impact the Hotel Property (the " Other Development Plans "), and a timeline and construction schedule for the West Day Lot Development and the Gore Creek Development (the " Timeline and Schedule "), Hotel Owner shall have 30 days after receipt of the Hotel Improvement Plans (the " Response Deadline ") to reasonably approve the contents thereof. If Hotel Owner fails to provide written notice (the " Response ") withholding Hotel Owner's consent to the Hotel Improvement Plans on or before the Response Deadline, Hotel Owner shall be deemed to have approved the applicable Hotel Improvement Plans. Any Response withholding Hotel Owner's consent must be accompanied by (x) the specific reasons Hotel Owner is withholding its consent, and (y) to the extent Hotel Owner has devised one, a feasible alternative to the component of the Hotel Improvement Plans to which Hotel Owner is objecting, including reasonable detail concerning the same. Each set of Hotel Improvement Plans (or revisions thereto in response to a Response) -13- 5454\ 120 \907418.19 (x) Vail agrees to indemnify, protect, hold harmless and, in the Hotel Owner Indemnitees' reasonable discretion, defend (with counsel reasonably acceptable to the Hotel Owner Indemnitees) the Hotel Owner Indemnitees against and in respect of any and all Losses that may be imposed on, incurred by, or asserted against the Hotel Owner Indemnitees by any other party or parties (including, without limitation, a governmental entity) arising out of, in connection with, or relating to the presence of any Hazardous Materials on the Hotel Property caused or permitted by Vail's Responsible Parties. d. Covenants in Utilizing the Permanent Maintenance Easements Each user of the Transformer Maintenance Easement (each, an " Easement User "), as a condition to use of such Transformer Maintenance Easement, shall be deemed to have agreed to each of the indemnities and covenants set forth in Section NO (as if applicable to such Easement User) in conjunction with such Easements Users exercise of such Transformer Maintenance Easement and use of the Hotel Property in connection therewith. Vail shall have no liability with respect to any Losses arising from an Easement User's use of any Easement, unless such Easement User otherwise constitutes one of Vail's Responsible Parties. e. Relocation of Vail Easements and Temnorary Interference with Other Easements Hotel Owner may, at its sole cost and expense, temporarily or permanently relocate any of the Vail Easements (other than the Tie -Back Easements and the Tennis Court Easement) upon at least 60 days prior notice to Vail, as long as (i) the relocated locations are reasonably comparable to the original easement locations and do not materially and adversely affect Vail or the beneficiaries of such easements, and (ii) the relocation is conducted in a manner to minimize disruption and the failure to provide the services for which the easements were granted. Upon such relocation, this Agreement shall be amended to identify the new easement location. Hotel Owner also shall have the right, during periods of construction, maintenance and repair on the Hotel Property, to temporarily restrict access to the areas of the Hotel Property covered by the Other Easements (except the View Impediment Easement) for a reasonable period of time, as long as Hotel Owner provides reasonable alternatives to such easements during any period of unavailability. Other Agreements (i) Construction Access Road. Hotel Owner, for itself and its successors and assigns, hereby agrees that, notwithstanding the fact that the West Day Subdivision Final Plat, recorded March 10, 2005 at Reception No. 908760, County of Eagle, State of Colorado, provides that the area adjacent to Phase HI of the Hotel and depicted on Exhibit L shall be a "shared access way" (the " North /South Drive "), such North/South Drive may be utilized exclusively by Vail at all times during the West Day Lot Redevelopment for construction traffic and shall not, during such time, be utilized at all by the Hotel. In addition, Hotel Owner, for itself and its successors and assigns, and Vail hereby agree that, during such time as the North/South Drive is being utilized by Vail for construction traffic (i) at Vail's expense, the North/South Road will be fenced in to prevent people from entering the Hotel on the west side of Phase 111, and (ii) at Vail's expense, the exit from the western-most stair tower of Phase III will be re- routed (subject to requirements of applicable Laws), and shall be restored by Vail, at Vail's expense, to its original location upon the earlier to occur of (A) the New Facility Completion Date (as defined in the Parking Easement Agreement), and (B) January 1, 2011. -12- 5454 \12019074 i 8.19 (v) Vail shall not cause, or permit to be caused by any of Vail's Responsible Parties, any Hazardous Materials (defined below) to be transported to, or dumped, spilled, released, permanently stored, or deposited on, over or beneath the Hotel Property or any other lands owned by Hotel Owner (except as may be customary and permitted under applicable law). " Hazardous Materials means substances, materials or waste the generation, handling, storage, treatment or disposal of which is regulated by any local, state or federal government authority or laws, as a "hazardous waste," "hazardous material," "hazardous substance," "pollutant" or "contaminant" and including, without limitation, those designated as a "hazardous substance" under Section 311 or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Secs. 1321, 1317), defined as a "hazardous waste" under Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. Sec. 6903), or defined as a "hazardous substance" under Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. Sec. 9601), and, including, without limitation, petroleum products and byproducts, PCBs and asbestos. (vi) Vail shall, and shall cause Vail's Responsible Parties to, comply with (A) all applicable federal, state and local laws, rules, regulations, orders, and ordinances (collectively, " Laws "), and (B) all encumbrances of record against the Hotel Property as of the date of this Agreement (the " Property Encumbrances "), in connection with its use of the Hotel Property as permitted hereunder. Vail shall obtain all permits and approvals required by applicable governmental or quasi - governmental entities in connection with Vail's Responsible Parties' use of the Hotel Property as permitted hereunder. (vii) The Hotel Property may be used and occupied by Vail's Responsible Parties only for the express purposes permitted under the Vail Easements and for no other purposes whatsoever. (viii) In no event shall the Hotel Property be used by Vail's Responsible Parties for any purpose that would constitute waste, or violate any provision of the Property Encumbrances or any Laws. (ix) In connection with Vail's Responsible Parties' use of Vail Easements, Vail shall maintain (a) casualty insurance and comprehensive general liability insurance with coverages of not less than $2,000,000 for injury or death to any one person and $4,000,000 for injury or death to more than one person and $2,000,000 with respect to property damage, by water or otherwise, and (b) worker's compensation insurance for all of their respective employees in accordance with the laws of Colorado. Vail shall deliver proof of the insurance coverage required pursuant to this Agreement to Hotel Owner prior to entry onto the Hotel Property. Each insurance policy shall specifically include, without limitation, the following: (i) a provision whereby Hotel Owner shall be named as an additional insured; and (ii) a provision whereby the policy limits and coverage with respect to Hotel Owner may not be terminated or amended except after 30 days' prior written notice to Hotel Owner. Also, during the period of active construction by Vail's Responsible Parties of the West Day Lot Redevelopment and the Gore Creek Development, Vail also will carry excess liability coverage in an amount which has been certified to Hotel Owner prior to the date hereof (the " Vail Excess _Coverage Policy Hotel Owner recognizing and agreeing that such excess coverage will apply to multiple construction projects being conducted by Vail. 5454\120\907418.19 -11- thereof as set forth below. If Vail does not respond within such I0-day period, Vail responds to such notice in the negative, or Hotel Owner otherwise reasonably determines that the damage constitutes an Emergency (as defined in the Hotel Management Agreement relating to the Hotel), Hotel Owner may remedy (or cause to be remedied) such damage and then invoice (with reasonable supporting documentation) Vail for the cost thereof. Vail shall pay any such invoice within 30 days after receipt, with such amount thereafter bearing interest payable to Hotel Owner at the lesser of 12% per annum or the maximum amount allowed pursuant to applicable law. Vail shall have the right to dispute whether Vail is responsible for the damage referred to above. Notwithstanding the foregoing, Hotel Owner reserves the right to cause necessary work to be performed during the pendency of any such dispute; provided, however, that responsibility for the cost of such work shall be determined by litigation to the extent that the Parties are unable to resolve the dispute. (iii) Vail's Responsible Parties shall enter onto the Hotel Property and utilize the Vail Easements granted hereunder at their own risk and they further ASSUME ALL RISKS related to the same. Hotel Owner shall have no liability to Vail's Responsible Parties, for any Losses related to or arising from entry onto the Hotel Property and use of the Vail Easements (except to the extent caused by the gross negligence or willful misconduct of Hotel Owner), and Hotel Owner is hereby irrevocably and forever released from the same. (iv) In all actions undertaken on property belonging to Hotel Owner (and /or any property over which Hotel Owner has an exclusive easement) by any of Vail's Responsible Parties, all work shall be completed in a good and workmanlike manner, free of all liens (including mechanic's liens) and encumbrances on the Hotel Property. If any mechanic's lien, at any time, is filed against the Hotel Property as a result of work performed thereon by or at the request of Vail or any of Vail's Responsible Parties, then Vail will cause such lien to be discharged of record (or post a statutory bond in lieu thereof) no later than 30 days after Vail receives written notice of the filing of such lien. If Vail fails to pay any charge for which a mechanics' lien has been filed (or post a statutory bond in lieu thereof) within such 30 -day period, Hotel Owner may, at its option, pay such charge and related costs and interest, and the amount so paid, together with reasonable attorneys' fees incurred in connection with such lien, will be immediately due from Vail to Hotel Owner. Notwithstanding the foregoing, Vail may contest, by appropriate proceedings prosecuted diligently and in good faith, the legality or applicability of, any such lien, provided that and for so long as Vail's aforesaid contest (i) does not subject the Hotel Owner (or Hotel Owner's affiliates) to imprisonment or to prosecution for a crime, (ii) does not subject to suspension or cancellation the certificate of occupancy for any structure or improvement on the Hotel Property, and (iii) operates to suspend collection or enforcement as the case may be, of the contested lien and such contest is maintained and prosecuted continuously and with diligence or the lien is bonded. Vail shall give Hotel Owner prior notice of any such contest. Vail shall keep the Hotel Owner advised as to the status of any such proceedings. Notwithstanding the foregoing, Vail promptly shall pay any contested lien, and payment thereof shall not be deferred, if, at any time the Hotel Property or any portion thereof shall be, in the Hotel Owner's reasonable judgment, in imminent danger of being forfeited or lost or the Hotel Owner is likely to be subject to civil or criminal damages as a result thereof. If such action or proceeding is terminated or discontinued adversely to Vail, Vail shall deliver to the Hotel Party reasonable evidence of Vail's payment and discharge of such contested lien. -10- 5454\120 \907418. 19 (i) Vail shall indemnify, protect, hold harmless and, in Hotel Owner's reasonable discretion, defend (with counsel acceptable to Hotel Owner in Hotel Owner's reasonable discretion) Hotel Owner, and its members, managers, directors, officers, owners, partners, shareholders, employees, agents, attorneys and affiliates and their successors and assigns (collectively with Hotel Owner, the " Hotel Owner Indemnitees ") from (A) any Actual Losses caused by personal injury or property damage to the extent caused by the acts or omissions of Vail, its employees, directors, managers, officers, agents, contractors, subcontractors, and /or agents (collectively and together with Vail, " Vail's Responsible Parties ") in exercising the Vail Easements on the Hotel Property or performing or otherwise in connection with the Immediately Adjacent Projects, (B) any Actual Losses caused by a breach of this Agreement by any of Vail's Responsible Parties (but not any other party), or (C) subject to the limitations of the last sentence of this Section 3(c)M any Actual Losses and Lost Hotel Profits caused by a Gross Negligence Event or willful misconduct by Vail's Responsible Parties in connection with the Immediately Adjacent Projects. Neither the indemnity set forth in this Section 3(c)(i) nor 3(c)(x) shall cover any Losses arising from the Vail Square Development; provided, however, that nothing in this Agreement shall be deemed to be a release by Hotel Owner of any independent tort claim for personal injury, property damage, and Hazardous Materials contamination, if any, that Hotel Owner may have against Vail for Actual Losses that Hotel Owner sustains as a proximate result of Vail's Responsible Parties' construction activities related to the Vail Square Development. For purposes of this Agreement, " Gross Negligence Event shall mean activities by Vail's Responsible Parties that rise to the level of gross negligence under Colorado law. The Parties acknowledge that the Vail Construction Projects will have a significant impact on the operations of the Hotel, and, therefore, a Gross Negligence Event under no circumstances shall include the mere performance of the major construction activities (including the dust, construction traffic, noise and vibration generated thereby) that the Parties anticipate will occur in connection with the Vail Construction Projects. For purposes of this Agreement, " Lost Hotel Profits shall mean and include only those decreased operating profits of the Hotel that the Hotel Owner can demonstrate resulted directly and exclusively from a Gross Negligence Event, and shall not include any other indirect or consequential damages, including, without limitation, any diminution in property value or any damages arising from sale or refinancing of the Hotel. Hotel Owner agrees to use all commercially reasonable efforts to minimize the effect of a Gross Negligence Event on the operating profits of the Hotel. In order for Hotel Owner to make a claim under this Section 3(c)(i) for Lost Hotel Profits related to a Gross Negligence Event, Hotel Owner must first give Vail written notice that it believes that certain activities of Vail's Responsible Parties constitute a Gross Negligence Event and Vail's Responsible Parties shall have a reasonable period of time to cure such Gross Negligence Event, but in any event not less than 10 days. (ii) Hotel Owner shall give Vail notice of any damage to any elements of the Hotel Property caused by Vail's Responsible Parties, including, but not limited to, any utilities, structures and other improvements situate therein or thereon. Within 10 days, Vail shall determine whether it seeks to remedy such damage (or cause such damage to be remedied) at its sole cost and expense. If Vail so elects to remedy such damage, it shall do so diligently and continuously, in a good and workmanlike manner, and in accordance with applicable laws and reasonable rules and regulations that Hotel Owner may designate. If Hotel Owner determines that Vail is not complying with the immediately preceding sentence, then Hotel Owner shall have the right to remedy or cause the remedy of such damage and invoice Vail for the cost 5454\120\907418.19 b. Other Easement Grants Hotel Owner by these presents does hereby declare, establish and create the following easements and interests (collectively, the " Other Easements ", and together with the Vail Easements, the " Easements "): (i) Vail Spa Access Easement. A permanent, non - exclusive easement for the benefit of the owners, residents and guests of the Vail Spa Condominium (which Vail Spa Condominium is identified on Exhibit H attached hereto), the West Day Lot, and Gore Creek Place, over and across the area depicted on Exhibit I for purposes of pedestrian and bicycle access, ingress and egress to and from the bike path located along Gore Creek to the south of Gore Creek Place. (ii) Pedestrian Easement. A permanent, non - exclusive easement for the benefit of Vail and the owners, residents and guests of the West Day Lot, Gore Creek Place, and the general public, over and across the location depicted on Exhibit J for purposes of pedestrian access, ingress and egress to and from Lionshead Place street (the " Pedestrian Easement "). Hotel Owner has pre - approved the plans for construction of such easement attached hereto on Exhibit J (the " Pedestrian Easement Improvements ") as long as the construction materials used in connection therewith are substantially similar to those used on the currently existing pedestrian pathway. At such time as the Pedestrian Easement Improvements are completed, Vail will cooperate with Hotel Owner (at no cost to Vail) to attempt, to the extent possible, to have the pedestrian easement that presently exists between the Hotel pool and the adjacent "Antlers" property vacated or terminated. (iii) View Impediment Easement. A permanent easement to impede, alter and obstruct the view from the Hotel to, through and beyond Gore Creek Place and the West Day Lot (the " View Impediment Easement which easement shall be for the benefit of Gore Creek Place and West Day Lot. (iv) Electrical Transformer Easement. A permanent, non- exclusive easement (the " Transformer Maintenance Easement ") for the benefit of Gore Creek Place and West Day Lot, on, over, under, through and across the area depicted on Exhibit K attached hereto for purposes of maintaining, repairing and replacing the Transformers. Hotel Owner, for itself and its successors and assigns, hereby agrees that, no later than 10 business days after written request from Vail, or the owner of either Gore Creek Place or West Day Lot, or written request from Holy Cross Electric Association, Inc. ( " Holy Cross "), Hotel Owner will execute and record an easement on Holy Cross's customary form (and substantially similar in form and substance to the Holy Cross utility easement(s) which presently encumber the Hotel Property) which grants to Holy Cross easements which are equivalent to the Transformer Installation Easement and the Transformer Maintenance Easement. Upon agreement to the specific location of an Easement that has not been specified in this Agreement, either party may request that this Agreement be amended to reflect such specific location. C. Covenants by Vail in Utilizing the Vail Easements -8- 5454 \120\907418.19 Vail and Hotel Owner agree again to work in good faith to revise the West Day Tie -Back Plans such that both Vail's engineer and Hotel Owner's engineer agree that the installation of the West Day Tie -Backs pursuant to the West Day Tie -Back Plans is not reasonably likely to cause a Life /Safety Concern with respect to the occupants of the Hotel (with any remaining issues re- submitted to the Independent Engineer for resolution, the Parties agreeing that the process will be repeated until the West Day Tie -Back Plans are revised such that both Vail's engineer and Hotel Owner's engineer agree that the installation of the West Day Tie -Backs pursuant to such West Day Tie -Back Plans is not reasonably likely to cause a Life/Safety Concern with respect to the occupants of the Hotel). In the event that the Independent Engineer concludes that the installation of the West Day Tie -Backs pursuant to the West Day Tie -Back Plans is not reasonably likely to cause a Life /Safety Concern with respect to the occupants of the Hotel, then, subject to the provisions of Section 3(a)(iii)(3), Vail shall be permitted to proceed with installation of the West Day Tie - Backs. (3) In the event that Hotel Owner's engineer raises a Structural Concern which does not constitute a Life/Safety Concern (in which case the provisions above shall control until the Life /Safety Concern is resolved), and Vail and Hotel Owner are unable to resolve such Structural Concern, then Vail shall be permitted to proceed with installation of the West Day Tie -Backs notwithstanding Hotel Owner's Structural Concern as long as, before commencing installation of the West Day Tie - Backs, Vail provides a certificate of insurance evidencing no less than $10,000,000 of property damage insurance (the " Tie -Back Damage Insurance ") (which insurance may constitute a portion of the Vail Excess Coverage Policy (defined below)) naming Hotel Owner as an additional insured in the event of damage to the Hotel as a result of the installation and use of the West Day Tie -Backs by Vail's Responsible Parties (the " Tie -Back Damage In the event that any Tie -Back Damage occurs, then Hotel Owner shall give Vail written notice of such Tie -Back Damage, and Vail shall have the right to repair such Tie -Back Damage in accordance with the procedures set forth in Section 3(c)(i) in the event that Vail fails to repair such Tie -Back Damage and Hotel Owner proceeds to repair the same in accordance with the self -help remedy provided under Section 3(c)(i) then Hotel Owner shall deliver the invoice related to the cost of such repairs (together with reasonable supporting documentation) to Vail and Vail will submit a claim under the Tie -Back Damage Insurance, but in any event Vail shall cause Hotel Owner to be reimbursed for such costs within 60 days of receipt of such invoice. (4) Prior to installation of the West Day Tie - Backs, Vail's Responsible Parties shall have the right to enter into the Hotel to document the condition thereof in and around the area where the West Day Tie -Backs will be installed. (iv) Telephone Conduit Easement. A permanent, non - exclusive easement for the benefit of Vail and its Permittees on, over, under, through and across the area depicted on Exhibit G attached hereto for purposes of installing, maintaining, repairing and replacing telecommunications equipment and facilities and related underground conduit (the " Telephone Conduit Easement "); provided, however, that any independent, third -party roof contractor engaged by Vail or its Permittees in connection with maintaining, repairing or replacing such telecommunications equipment and facilities shall be subject to the prior approval of the Hotel Owner (which approval shall not be unreasonably withheld, conditioned or delayed). 5454 \120 \907418.19 -7- the footprint of the Hotel Property for purposes of shoring in connection with construction of the Gore Creek Development (the " Gore Creek Tie -Back Easement ") and the West Day Lot Redevelopment (the " West Day Tie -Back Easement ", and together with the Gore Creek Tie - Back Easement, referred to herein as the " Tie -Back Easements "). The Gore Creek Tie -Back Easement shall terminate on the earlier to occur of (A) such time as the Gore Creek Development is completed and (B) January 1, 2011; provided, however, that Hotel Owner recognizes and agrees that the tie -back cables installed pursuant to the Gore Creek Tie -Back Easement (the " Gore -Creek Tie Backs ") will be abandoned (and not removed) under the Hotel and Vail shall have no obligation to remove the same upon expiration of the Gore Creek Tie -Back Easement (or at any time thereafter). The West Day Tie -Back Easement shall terminate on the earlier to occur of (A) such time as the West Day Redevelopment is completed and (B) January 1, 2011; provided, however, that Hotel Owner recognizes and agrees that the tie -back cables installed pursuant to the West Day Tie -Back Easement (the " West Day Tie - Backs ") will be abandoned (and not removed) under the Hotel and Vail shall have no obligation to remove the same upon expiration of the West Day Tie -Back Easement (or at any time thereafter). The following provisions also shall apply with respect to the Tie -Back Easements: (1) Hotel acknowledges and agrees that the Gore Creek Tie - Backs already have been installed and are presently being utilized in connection with construction related to the Gore Creek Development. Hotel Owner confirms the acceptability of the general location of the West Day Tie -Back Easement in the area designated as the "tie -back zone" on Exhibit F -2 ; provided, that Vail shall submit specific plans and specifications relating to its proposed construction and use of the West Day Tie -Backs promptly upon completion of such plans (the " West Day Tie -Back Plans "). Vail agrees to cause the structural engineer who prepared both the West Day Tie -Back Plans and the plans related to the Gore Creek Tie -Backs (the " Gore Creek Tie -Back Plans ") to issue a letter to Hotel Owner confirming that Hotel Owner may rely on such plans. Hotel Owner's review and approval of the West Day Tie -Back Plans shall be governed by Section 3f&v) provided, however, that Hotel Owner shall have only 15 days, rather than 30, to review and object to the West Day Tie -Back Plans, and may only object to the West Day Tie -Back Plans to the extent that Hotel Owner provides a written certification from a licensed structural engineer (who has experience designing or reviewing similar shoring techniques) that the installation of the West Day Tie -Backs pursuant to the West Day Tie -Back Plans is reasonably likely to either (x) have an adverse effect on the structural integrity of the Hotel (a " Structural Concern "), or (y) cause a life /safety concern with respect to the occupants of the Hole] (a " Life/Safety Concern "). (2) If Hotel Owner provides such a certification, then Hotel Owner and Vail agree to work in good faith to attempt to resolve the concerns raised by Hotel Owner's structural engineer. In the event that Vail and Hotel Owner are unable to resolve a Life /Safety Concern, then Vail's engineer and Hotel Owner's engineer shall mutually select an independent licensed structural engineer (who has significant experience designing or reviewing similar shoring techniques) (the " Independent Engineer ") to review the West Day Tie -Back Plans and make an independent determination as to whether the installation of the West Day Tie - Backs pursuant to the West Day Tie -Back Plans is reasonably likely to cause a Life/Safety Concern with respect to the occupants of the Hotel. If the Independent Engineer concludes that the installation of the West Day Tie -Backs pursuant to the West Day Tie -Back Plans is reasonably likely to cause a Life/Safety Concern with respect to the occupants of the Hotel, then -6- 5454 \120 \907418.19 indemnities set forth in Section 3(c)(i) and 3(c )(x) " Actual Losses shall mean actual and direct damages flowing from the actions of Vail's Responsible Parties, and shall in no event include any claim for business interruption, lost profits, diminished revenue, increase in cost of operations, loss of goodwill, diminished property value, or other indirect or consequential damages (including, without limitation, credits, refunds, vouchers, or other amounts given or incurred by Hotel Owner to its guests or other third parties); provided, however, that Seller shall be responsible for Lost Hotel Profits (defined below) to the extent set forth in Section 3(c)(i) For purposes of this Agreement, the " Vail Parties shall mean Vail, and its members, managers, directors, officers, owners, partners, shareholders, employees, agents, and affiliates, and their respective successors and assigns. For purposes of this Agreement, " Permittees shall include Vail's agents, employees, contractors, subcontractors, licensees, guests, invitees, successors and assigns. 3. Easements a. Construction - Related Easement Grants Hotel Owner by these presents does hereby declare, establish and create for the benefit of Vail the following easements and interests (collectively, the " Vail Easements "): (i) Temporary Construction Easements. A temporary, non - exclusive construction easement for the benefit of Vail and its Permittees through, on or in those portions of the Hotel Property, including, without limitation, private drives, roads and sidewalks, as may exist from time to time, as may be reasonably necessary to accommodate the Immediately Adjacent Projects; provided, however, said temporary construction easements shall be in locations that do not materially and adversely interfere with or impede the operation of the Hotel; provided, further, however, the locations of such easements shall be subject to the prior approval of the Owner (which approval shall not be unreasonably withheld, conditioned or delayed). The foregoing easement shall terminate on the earlier to occur of (A) the completion of all of the Vail Construction Projects and (B) January 1, 2011. (ii) Electrical Transformer Easement. A temporary, non - exclusive easement (the " Transformer Installation Easement ") for the benefit of Vail and its Permitees, on, over, under, through and across the area depicted on Exhibit E attached hereto for purposes of installing two electrical transformers (one servicing Gore Creek Place and the other servicing West Day Lot) and related underground conduit (the " Transformers "). Vail shall be responsible for reasonably screening the Transformers at its cost after installation; it is anticipated that such screening will consist of landscaping installed on the north, south and east sides of the Transformers. The Transformer Installation Easement shall terminate on the earlier to occur of (A) the completion of installation of the Transformers, and (B) January 1, 2011. Hotel Owner agrees that it shall reasonably consider a request by Vail to change the location of the transformers, but Hotel Owner shall have no obligation to approve such change unless it reasonably concludes that such alternative location will improve the view of such Transformers from the Hotel and will not otherwise adversely affect the operation of the Hotel. (iii) Tie -Back Easements. A temporary, non - exclusive easement for the benefit of Vail and its Permittees over and across the area depicted on Exhibit F -1 and FF = 2 attached hereto for purposes of installing and maintaining tie -backs approximately 30 feet under .5. 5454\120\907418.19 defined in the Covenant and Easement Agreement) parking garage; provided, however, that Hotel Owner's obligations under this Section 2(d) to provide such parking spaces shall (i) be conditioned on Hotel Owner receiving exclusive use and reasonable access at all times to one parking space on the surface lot adjacent to the Existing Parking Facility (as defined in the Parking Easement Agreement) for each parking space in the Marriott Vail Mountain Resort Garage that Hotel Owner makes available pursuant to this Section 2(d) (for as long as such space is made available by Hotel Owner), and (ii) shall terminate and be of no further force or effect on December 15, 2005. Further, subject to Vail's obligation to reimburse Hotel Owner for Consulting Costs under Section 2(a). Hotel Owner agrees to reasonably cooperate with Vail in order for Vail to otherwise comply with its obligations under the Covenant and Easement Agreement. e. Disclaimer Except to the extent provided to the contrary in the Parking Easement Agreement, Vail makes no representations or warranties regarding the types or locations of improvements that will be constructed as part of the Vail Construction Projects, the timing of commencement and completion of the Vail Construction Projects or whether or not Vail or its affiliates or assignees will proceed with the Vail Construction Projects at all. Except to the extent provided to the contrary in the Parking Easement Agreement, Vail makes no representations, covenants or warranties to Hotel Owner concerning the nature, scope, amenities, schedule or continuation of activities relating to the Vail Property, the Vail Construction Projects, or the area commonly known as Lionshead. Notwithstanding the foregoing, Vail does covenant that, once a portion of the Vail Construction Projects is commenced, Vail shall use commercially reasonable efforts to diligently prosecute to completion such portion of the Vail Construction Projects, subject to force majeure and commercially reasonable delays. f. Release Hotel Owner acknowledges that the Vail Construction Projects, and the impacts and disturbances generated by them, will occur adjacent to, around and near the Hotel. Except for Vail's obligation to reimburse Hotel Owner for Consulting Costs under Section 2(a) and except as expressly set forth below with respect to Vail's indemnity obligations under Section 3(c)(i) and NOW Vail shall not be responsible for reimbursing Hotel Owner (or Hotel Owner's successors or assigns) for any costs, expenses or other Losses (defined below) incurred in performing Hotel Owner's obligations under this Agreement, nor shall Vail be responsible under any circumstances for reimbursing Hotel Owner for any costs, expenses or other Losses (including, without limitation, credits, refunds, vouchers, or other amounts given or incurred by Hotel Owner to its guests or other third parties) incurred by Hotel Owner as a result of the existence or performance of the Vail Construction Projects, the Easements granted hereby, or Hotel Owner's performance hereunder. Except as expressly set forth below with respect to Vail's indemnity obligations under Section NOM and NOW, Hotel Owner, on behalf of itself, and its guests, invitees, affiliates, successors and assigns, hereby forever and irrevocably waives its right to assert against the Vail Parties (defined below) any claims, damages, losses, costs, liabilities, and expenses (including reasonable attorneys' fees and court costs) (collectively, " Losses "), arising from or related to the construction, existence or performance of the Vail Construction Projects or impacts and disturbances generated by them (during construction or upon completion). The foregoing release shall include, but not be limited to, any claims for nuisance or similar claims associated with the impact of the Vail Construction Projects on the use, operation, and enjoyment of the Hotel. Notwithstanding the foregoing to the contrary, Vail will be liable for Actual Losses (defined below) sustained by Hotel Owner as a result of the -4- 5454 \120 \907418.19 b. Construction Im acts. Hotel Owner acknowledges and agrees that the Vail Construction Projects are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Vail Construction Projects may include, without limitation: (i) construction traffic (including, without limitation, construction vehicles and equipment), (ii) construction noise and vibration, (iii) impairment of views associated with an active construction site, (iv) alteration of pedestrian flow to and from the Hotel (including, without limitation, alteration of access from the Hotel to access the ski mountain), and (e) other construction activities necessary to complete the Vail Construction Projects, including, without limitation, grading, excavation, clearing, site work and construction of improvements. Hotel Owner agrees to permit the manager of the hotel under the hotel management agreement for the Hotel (the " Hotel Management Agreement ") to notify prospective guests of (i) the existence of the Immediately Adjacent Construction Projects (defined below), and (ii) the fact that, pursuant to the Parking Easement Agreement, guests will be required to use valet parking (and notifying such guests of the cost thereof) during the Interim Period (as defined in the Parking Easement Agreement). C. Specific Impacts Without limiting the generality of the foregoing, Hotel Owner recognizes and agrees that: (i) The West Day Lot Redevelopment located to the west of the Hotel will require, among other things, (A) the demolition of the existing parking structure (subject to the terms of the Parking Easement Agreement), (B) the Hotel to locate tie -backs on the west end of Lot l (west end of the Phase III building of the Hotel), and (C) construction to occur adjacent to the Hotel; (ii) The Gore Creek Development located to the south of the Hotel will require, among other things, (A) that construction will occur adjacent to the Hotel, and (B) additional utility and other easements (specified in Section 3 below) on the Hotel Property; and (iii) The Vail Square Development will require, among other things, (A) that the road to the east of the Hotel will have heavy construction traffic, (B) pedestrian flow from the Hotel to the gondola will be affected (it is anticipated that pedestrians will need to be routed through Concert Hall Plaza or use the Town of Vail (the " Town ") bus to access the Lionshead skier drop -off), and (C) there will be some noise and visual impacts on the Hotel. d. Substitute Parking Obligation Hotel Owner acknowledges that Vail is a party to that certain Covenant and Easement Agreement dated April 1, 2005, by and among Vail, Lion Square North Condominium Association, Inc., Lion Square Condominium Association, Inc., and Lion Square Phase 11/111 Condominium Association, Inc. (the " Covenant and Easement Agreement "). Hotel Owner agrees that it previously has been provided a copy of the Covenant and Easement Agreement and that Hotel Owner will comply with those provisions of the Covenant and Easement Agreement which are applicable to the Hotel Property (the " Covenant and Easement Agreement Obligations Without limiting the generality of the foregoing, Hotel Owner agrees that it will provide up to 30 spaces in the garage located under the Phase I (eastern -most) building of the Hotel (the " Marriott Vail Mountain Resort Garage ") to the extent necessary to comply with the obligation under Section 2(b) of the Covenant and Easement Agreement to provide an equal number of parking spaces during the closure of the LSL (as 5454\120\907418.19 -3- NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Vail and Hotel Owner agree as follows: AGREEMENT: 1. Acknowledgment of Vail Construction Proiects Hotel Owner acknowledges and agrees that Vail, or its affiliates, will be undertaking the following construction and development activities around the Hotel Property: a. Subject to the Parking Easement Agreement, demolition of the existing parking structure on the West Day Lot, and construction of a new six -story condominium building and a three -story, below -grade parking structure (the " West Day Lot Redevelopment "); b. Construction of approximately 16 townhomes on Gore Creek Place (the " Gore Creek Development "); C. Demolition of the existing Gondola Building, Sunbird Building, and other structures and facilities located on Vail's property at the base of the Lionshead Gondola, and, following such demolition, construction of approximately 70 condominiums (with 50 lock -offs) and a 36 -room RockResort hotel with retail on the first and second floors, a town square and winter ice rink, thereon (the " Vail Square Development ", and together with the West Day Lot Redevelopment, and Gore Creek Development, the " Vail Construction Proiects "). 2. Agreements Reeardine Vail Construction Proiects a. General Cooneration Hotel Owner agrees to reasonably cooperate with Vail in connection with the Vail Construction Projects. Hotel Owner agrees that it will not take any action to oppose, impair or delay in any manner any of the Vail Construction Projects (Vail acknowledging that Hotel Owner's utilization of the rights granted pursuant to the Parking Easement Agreement shall not violate this sentence). Hotel Owner agrees to provide at any public hearings, at no cost to Hotel Owner, its support of the Vail Construction Projects, to the extent reasonably requested by Vail. Hotel Owner further agrees not to object to or remonstrate against the Vail Construction Projects; provided, however, that the foregoing covenant shall not apply if Vail is in breach of this Agreement, Hotel Owner has provided written notice of such breach, and Vail has failed to cure such breach after a reasonable period of time. Notwithstanding the foregoing, Vail acknowledges that, in the course of exercising its rights under this Agreement to review and analyze certain plans and specifications related to the Vail Construction Projects, Hotel Owner will incur certain third -party consulting costs, including engineers, architects, and other consultants (the " Consulting Costs "). Vail agrees that it shall reimburse Hotel Owner for such Consulting Costs subject to the following: (i) Vail shall have no obligation to reimburse Hotel Owner more than $25,000 for all consultants during the term of this Agreement, (ii) Vail shall have no obligation to reimburse Hotel Owner for attorney's fees (regardless of amount), and (iii) Vail shall reimburse Hotel Owner for such Consulting Costs within 30 days after receipt of a written invoice therefor (accompanied by reasonable supporting documentation). -2- 5454 \120 \907418.19 1 Illlfi INIf Illllil III f ill if llll Pa Page: I o 3 AFTER RECORDING, RETURN TO: 1illlli lif IIII! (Ili iIN 0624/2005 04 Teak J Simonton Eagle, CO 174 321 R 256.00 0 0.00 BROWNSTEFN HYATT & FARBER, P.C. 410 17 STREET, 22 FLOOR DENVER, CO 80202 -4437 ATTN: JOSHUA J. WIDOFF, ESQ. COOPERATION AND EASEMENT AGREEMENT THIS COOPERATION AND EASEMENT AGREEMENT (this " Agreement ") is entered into as of the Ml — day of June, 2005, by and between THE VAIL CORPORATION, a Colorado corporation, having an office at 137 Benchmark Road, Avon, Colorado 81620 ( "Vail "), and DiamondRock Vail Owner, LLC, a Delaware limited liability company, having an office at c/o DiamondRock Hospitality Company, 6903 Rockledge Drive, Suite 800, Bethesda, Maryland 20817 ( " Hotel Owner ") (Vail and Hotel Owner are collectively referred to herein as the " Parties "). RECITALS: A. Vail or an affiliate is the owner of that certain parcel of real property located in the County of Eagle, State of Colorado, more fully described on Exhibit A attached hereto and incorporated herein by this reference (the " West Day Lot "). B. Vail or an affiliate is the owner of that certain parcel of real property located in the County of Eagle, State of Colorado, more fully described on Exhibit B attached hereto and incorporated herein by this reference ( " Gore Creek Place "). C. Vail or an affiliate is the owner of that certain parcel of real property located in the County of Eagle, State of Colorado, more fully described on Exhibit C attached hereto and incorporated herein by this reference (the " Lionshead Gondola Property and, together with the West Day Lot and Gore Creek Place, the " Vail Properties "). D. Hotel Owner is the owner of that certain parcel of real property located in the . County of Eagle, State of Colorado, more fully described on Exhibit D attached hereto and incorporated herein by this reference (the " Hotel Property ") on which Hotel Owner operates a hotel known as the Vail Marriott Mountain Resort and Spa (the " Hotel "). E. Vail, or any of its affiliates or assignees, proposes to perform certain Vail Construction Projects (defined below) and associated development activities, and, in connection therewith, desires the cooperation of and certain easements from Hotel Owner. F. Simultaneously herewith, Vail and Hotel Owner are entering into a Parking Easement Agreement (the " Parking Easement Agreement "). G. The Parties desire, by this Agreement, to evidence their agreement regarding the Vail Construction Projects and the other matters set forth herein on the terms and conditions set forth below. 5454 \120 \907418.19 S J 000goa e EXHIBIT "A" LEGAL DESCRIPTION A RECREATION PATH EASEMENT LOCATED IN LOT B MORCUS SUBDIVISION, AS RECORDED ON MAY 11, 1977 AT RECEPTION No. 151373, EAGLE COUNTY, COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT A FOUND No. 5 REBAR WITH ALUMINUM CAP, L.S. No. 2183 ON THE EASTERLY BOUNDARY OF LOT 8, BLOCK 1, VAEULIONSHEAD THIRD FILING RECORDED AT RECEPTION No. 1 17682 WHENCE THE NORTHWEST CORNER OF SECTION 7 TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE SD(TH PRINCIPAL MERIDIAN BEARS S 85 °48'35" W A DISTANCE OF 1368.58 FEET BASED UPON STATE PLANE COORDINATES WITH A ROTATION OF +00'30'19" FROM PLATTED SAID VAILUONSHEAD THIRD FILING,SAID LINE FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION. THENCE S51 °35'00 "W A DISTANCE OF 1216.47 FEET TO A POINT ON THE WEST CORNER OF SAID LOT B MORCUS SUBDIVISION THENCE ALONG THE SOUTH LINE OF SAID LOT B, MORCUS SUBDIVISION THE FOLLOWING (2) TWO COURSES: 1) N 77 E A DISTANCE OF 89.72 FEET; 2) THENCE N 74 E A DISTANCE OF 119.69 FEET TO THE TRUE POINT OF BEGINNING: \THENCE DEPARTING SAID SOUTH LINE OF SAID LOT B, MORCUS SUBDIVISION 79.59 FEET ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A,CENTRAL ANGLE OF 25 °43'33 ", A RADIUS OF 177.25 FEET AND A CHORD WHICH BEARS N 74'12'56'* E, A DISTANCE OF 78.92 FEET TO A POINT ON THE SOUTH LINE OF SAID LOT B, MORCUS SUBDIVISION; THENCE S 74'12'56"W A DISTANCE OF 78.92 FEET TO THE TRUE POINT OF BEGINNING. COUNTY OF EAGLE; STATE OF COLORADO. THIS LEGAL DESCRIPTION HAD BEEN CREATED BY BRENT BIGGS PLS No. 27598, ON BEHALF OF PEAK LAND SURVEYING, INC. 1000 LIONS RIDGE LOOP VAIL, CO 81657 PM 100- 1199\1146\DOCS\Lot 3 -Path Encroachment -I co.doc 1 \\ ANTLERS CONDOMINIUMS I t II LOT 7 \\ (BOOK 226, PAGE 820) 1 BLOCK 1 \ ANTLERS CONDOMINIUM I (VAIL/UONSHEAD, THIRD \\ ASSOCIATION A FILING) I MARK LODGE \ I I (BOOK 276, PAGE 606) ♦ \\ I I r '- I I -. L18 -- w 2 z 6,. �-� ` o z J O `' o 0 S , jt ' 2 9'S1E y 5.22 109.4 Z O < IF - c 12 0. g v; _-- o Q Ja€ naN 3 < 5 0 �# z ^ �z� o oonvn <0 6 d m O N Z p N m v b N ? Q V > N > 11 6� ,-. go VVV o" 8 a 63 2 \\ u S 3g09 uw X m < \ \ _ m LL.I W o NQ O J N O m 10 d z t5q 8 Z WW 0: Z D" a x G J 6 \ N �j ° m V 00 > N a rn m 11 11 tl N 2+ - 1 2 00 3 °a JJW p mo `11 N2 �p8' <O x h U 0 ff WC � Q 0 F J a V a v > 1 o 1 w a. o a z _ 1 _ _ ° o N n Q ^ o a^o < 'o m ^ I 3 d U \ 'o i I tli O z o Ly I y W r � v k6 v r SI 5x7'02£ - 399 60' o I a � N 01 / z O O F n v1 a Sm 0 O <m� -- J >I l J L) j IR S ° 6 h M< F4 r N 1 u g ,. ,by1 N •p d `: =m z0 D II m J u z o - \2 m y o 5 w m m o m J � M 3W UW P g . - 1O N1550' FOREST ROAD H, IH -- m (50' R.O.w.) �•1 - T �.. .. i , - +cp p,.,:�1- oo,r�l -q n -- 1 1 .rr.p •:.rll \` --:u' s SEAL 4 4ta�Oft{* C' ATTEST: rel onaldson, Town Clerk STATE OF COLORADO COUNTY OF EAGLE ss: GRANTEE TOWN OF VAIL, a municipal corporation, duly organized and existing under and by virtue of the laws of the State of Colorado B y S ey B. Zemler, Town Manager The foregoing instrument was acknowledged before me this I day of 200)0, - by Stanley B. Zemler as Town Manager of The Town of Vail, a municipal corporation, duly organized and existing under and by virtue of the laws of the State of Colorado. Witness my hand and official seal. MARY ANN GRAHAM -BEST, Notary Public commission expires:. My Commission Expires Octobe 28, 2006 H of Col 75S. Frontage Road Vail, CO 81657 O � ARY ANN N ublic GRAHAWBEST CRY _V 636917.2 RCASH IN W SS WHEREOF, Grantor and Grantee have executed this Grant of Easement as of the. T �day of ,3984. _ ; Cl� fVl�.rC,� GRANTOR THE VAIL CORPORATION, a Colorado corporation, d/b /a Vail Associates, Inc. By: Name: p. Title: MVP STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was ackn L edged before me this day of 200 ' by D. 2 as Sr. V.ce ireS )'d t,Lt of The Vail Corporation, a Colorado corporation, d/b /a Vail Associates, Inc. Witness my hand and official seal, My commission expires: ��F�RY...aRN O,IJ N8TA9y :0 NotaryPubl' [Grantee's signature block follows on next page] Approve to Form LN+�n sky� 636917,2 KCFISH Page; I of 5 Teak J Simonton Eagle, Co 173 R 26. D S. GRANT OF EASEMENT (Bike Path) THE VAIL CORPORATION, a Colorado corporation, d/b /a Vail Associates, Inc. ( "Grantor), for good and valuable consideration, in hand paid or received, hereby grants and conveys to TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of Colorado ( "Grantee "), whose street address is 75 South Frontage Road West, Vail, Colorado 81657, as a public dedication, a public easement (the "Easement ") upon, across, over and under that certain real property described in Exhibit A attached hereto and incorporated herein by this reference (the "Servient Estate ") for the construction, installation, modification, maintenance, use and enjoyment of a portion of a recreation/bicycle path (the "Path ") that lies within the Servient Estate. The Easement shall be for the benefit of the Grantee and its contractors, agents, invitees, and designees (including members of the public using the Path from time to time). The Grantee covenants and agrees to undertake and bear all maintenance and repairs of the Path as necessary to keep the Path in good condition and repair, and to bear and discharge any obligations or liabilities that may arise in connection with such maintenance and repairs, or the use and enjoyment of the Path pursuant to the Easement. The parties acknowledge that in connection with the development of the site owned by Grantor which is adjacent to the Servient Estate and which is commonly referred to as "Gore Creek Place," Grantor may reconstruct and relocate the Path so that it falls entirely out of the Servient Estate and wholly within portions of Tract B, Vail/Lionshead, Third Filing, according to the recorded plat thereof, which are owned by the Grantee. If and when that relocation is completed, the Easement shall terminate and be of no further force or effect, and the Grantee shall join in the execution and recordation of any instrument that Grantor (or its successors) may reasonably request to evidence such termination (and notwithstanding any other beneficiaries of the Easement hereunder, Grantee shall retain the unilateral power and authority to make such instruments). The covenants and obligations of the Grantee hereunder shall inure to the benefit of Grantor and its successors in interest in and to the Servient Estate. The Easement shall be non - exclusive, and Grantor shall have the right to use the Servient Estate for any uses and purposes that are not inconsistent with the use and enjoyment of the Easement. No building structure may be located within the Servient Estate. This instrument shall be governed by and construed in accordance with the laws of the State of Colorado. This instrument may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. The Easement granted hereunder shall become effective upon the due and valid execution and delivery of this instrument by both Grantor and Grantee and this instrument's recordation in the real property records for Eagle County, Colorado. 636917.3 RCFISH THENCE N 02 0 44'06" W A DISTANCE OF 4.88 FEET; THENCE N 68 0 30'09" E A DISTANCE OF 65.38 FEET TO A POINT ALONG THE EAST BOUNDARY LINE OF SAID PARCEL 3 LIONSHEAD PENTHOUSES; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL 3 LIONSHEAD PENTHOUSES THE FOLLOWING (2) TWO COURSES: 1) S 21 °30'33" E A DISTANCE OF 20.54 FEET; 2) THENCE S 02 0 26'32" E A DISTANCE OF 130.76 FEET TO THE TRUE POINT OF BEGINNING COUNTY OF EAGLE, STATE OF COLORADO. THIS LEGAL DESCRIPTION HAS BEEN CREATED BY BRENT BIGGS, PLS No. 27598, ON BEHALF OF PEAK LAND SURVEYING, INC., 1000 LIONS RIDGE LOOP, VAIL, CO 81657. 624n2.5 RCMR A -2 EX HOIT A Legal Description of Gore Creek Property A PARCEL OF LAND BEING A PART OF LOTS B AND D MORCUS SUBDIVISION, AS RECORDED ON MAY 11, 1977 AT RECEPTION NO. 151373, AND A PART OF PARCEL 3, LIONSHEAD PENTHOUSES AS RECORDED ON JANUARY 27, 2003 AT RECEPTION NO. 821386, AND A PART OF A PARCEL DESCRIBED IN INSTRUMENT RECORDED ON DECEMBER 18, 2001 AT RECEPTION NO. 780248, EAGLE COUNTY, COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A FOUND No. 5 REBAR WITH ALUMINUM CAP, L.S. No. 2183 ON THE EASTERLY BOUNDARY OF LOT 8, BLOCK 1, VAIULIONSHEAD THIRD FILING RECORDED AT RECEPTION No. 117682 WHENCE THE NORTHWEST CORNER OF SECTION 7, TOWNSHIP 5 SOUTH, RANGE 80 WEST OF THE 6TH PRINCIPAL MERIDIAN BEARS S 85 0 48'35" W A DISTANCE OF 1368.58 FEET BASED UPON STATE PLANE COORDINATES WITH A ROTATION OF +00 0 30'19" FROM PLATTED SAID VAIULIONSHEAD THIRD FILING, SAID LINE FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION; THENCE S 18 °54' 12" W A DISTANCE OF 541.47 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL 3 LIONSHEAD PENTHOUSES, SAID POINT BEING THE TRUE POINT OF BEGINNING. THENCE ALONG THE SOUTH BOUNDARY OF SAID PARCEL 3 LIONSHEAD PENTHOUSES THE FOLLOWING (3) THREE COURSES: 1) S 83 W A DISTANCE OF 30.00 FEET; 2) S 76-44 W A DISTANCE OF 135.64 FEET; 3) S 66 °54'19" W A DISTANCE OF 72.29 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL 3 LIONSHEAD PENTHOUSES; THENCE ALONG THE SOUTH BOUNDARY OF SAID PARCEL DESCRIBED AT RECEPTION NO. 790248 THE FOLLOWING (3) THREE COURSES: 1) S 66-54'19" W A DISTANCE OF 210.00 FEET; 2) S 15 °46'41" E A DISTANCE OF 3.15 FEET; 3) S 74 W A DISTANCE OF 26.69 FEET TO THE EAST BOUNDARY LINE OF SAID LOT B, MORCUS SUBDIVISION; THENCE ALONG THE SOUTH BOUNDARY OF SAID LOT B THE FOLLOWING (3) THREE COURSES: 1) S 74 0 12'56" W A DISTANCE OF 253.31 FEET; 2) S 77 W A DISTANCE OF 89.72 FEET TO THE MOST SOUTHWESTERLY CORNER OF SAID LOT B 3) N 31'40'14" W A DISTANCE OF 1.44 FEET TO A POINT ALONG THE EAST RIGHT -OF -WAY LINE OF FOREST ROAD; THENCE ALONG THE EAST LINE OF SAID RIGHT -OF -WAY N 15 °50'27" W A DISTANCE OF 122.80 FEET; THENCE DEPARTING SAID RIGHT -OF -WAY N 74 0 12'56" E A DISTANCE OF 198.65 FEET; THENCE S 20° 17'11 " E A DISTANCE OF 6.35 FEET; THENCE N 69 0 42'49" E A DISTANCE OF 258.93 FEET; THENCE N 20 °17'11" W A DISTANCE OF 4.79 FEET; THENCE N 69 0 42'49" E A DISTANCE OF 59.18 FEET; THENCE S 20 1 T 11" E A DISTANCE OF 4.79 FEET; THENCE N 69 0 42 1 49" E A DISTANCE OF 187.65 FEET; THENCE N 82 0 49'24" E A DISTANCE OF 59.29 FEET; THENCE N 39 1012" E A DISTANCE OF 18.52 FEET; 624722.5 RLMH A-1 IN WITNESS WHEREOF, Vail Reinvestment Authority has made these Gore Creek Protective Covenants as of the day, month and year first above written. �A.L . STATE OF COLORADO ) VAIL REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado By: Name: Title: ss. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2005, by Stanley B. Zemler, as Executive Director of Vail Reinv6stment Authority, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. Witness my hand and official seal. M Commission e MARY ANN GRAHAM -BEST, Notary Public Y P ,2006 fes C01 0 �, 75 S. Frontage Road Vail, CO 81657 i v�, 7 6e! PfiAcY AS`N � ! r;�ui�ta° ;t No P lic '�� >. 624722.5 RUM 6 within the plat of Vail Village, Second Filing recorded in the Records on January 9, 1963, . at Reception No. 96928, as re- recorded and/or amended by plat recorded in the Records on March 25, 1963, at Reception No. 97199; and (ii) Vail/Lionshead, Third Filing shall mean and encompass all the properties included within the plat of Vail/Lionshead, Third Filing recorded in the Records on October 15, 1971, at Book 221, Page 992. All references in these Covenants to the plats of those properties shall mean the applicable plat referenced in this paragraph 17. 18. DEFINITION OF OWNER. As used in this instrument, the phrases "real property owner" or `owner of real property" or similar references shall mean any natural person, partnership, corporation, association or other entity or relationship, including any governmental entity, which shall own an estate in its own right or as a co- tenant or otherwise in fee simple, or a leasehold interest or estate for years for a term of not less than forty -nine (49) years in any portion of the lands included within any Benefitted Properties. Such phrases shall not include within their meaning the holder or owner of any lien or security interest in lands or improvements thereon within the subject Benefitted Properties, nor any person claiming an easement or right -of -way for utility, transportation or other purpose through, over or across any such lands. However, in the case of any land or property incorporated into a condominium community, the "owner" thereof shall mean, for purposes of paragraph 14 above, the board of directors (however denominated) of the governing condominium association, acting in accordance with the board's generally prevailing rules and procedures for taking such action 19. APPLICATION OF LAWS. All references in these Covenants to laws, rules and regulations of the Town prevailing from time to time, or similar references, shall mean the same as they are applied and enforced by the Town from time to time within legally permissible bounds of discretion. [Balance of page intentionally left blank] 15. ENFORCEMENT. (a) If any person shall violate or threaten to violate any of the Covenant Provisions, The Vail Corporation, d/b /a Vail Associates, Inc. or its successors or assigns ( "Vail Associates, Inc. "), the Town, or any of the applicable Benefitted Owners may, but without obligation to do so, enforce the provisions of this instrument by instituting such proceedings at law or in equity as may be appropriate to enforce the applicable Covenant Provisions, including a demand for injunctive relief to prevent or remedy the threatened or existing violation of the applicable Covenant Provisions, and for damages. (b) Each owner within the Gore Creek Property hereby appoints the Town Clerk of the Town as its agent to receive any notice provided for herein and to accept service of process in any court proceeding brought to enforce the applicable Covenant Provisions. Any notice required under this paragraph 15 shall be written and shall specify the violation or threatened violation objected to, the property subject to the violation and shall demand compliance with the applicable Covenant Provisions within fifteen (15) days after the giving of such notice. If after reasonable efforts the person giving the notice shall be unable to deliver the same personally to the person to whom it is directed and shall be unable to obtain a return receipt showing delivery of notice to the person to whom it is directed, then the required notice shall be deemed sufficiently given if posted upon the property described in the notice and mailed to the last known address of the person to whom the notice is directed and if also mailed or delivered to the Town Clerk of the Town as agent of the property owner. Personal service of process may be obtained, but only for the enforcement of the applicable Covenant Provisions, by service of process upon the Town Clerk of the Town as agent for the owner to be served, as defendant, if after reasonable diligence such defendant cannot be found within the State of Colorado and personal service cannot be otherwise obtained under the Colorado Rules of Civil Procedure. (c) Vail Associates, Inc., the Town, or any Benefitted Owner bringing a proceeding under paragraph 15(a) to enforce any of the applicable Covenant Provisions shall be entitled to judgment for the actual costs and expenses, including reasonable attorneys' fees, incurred by such person in the prosecution of such proceeding in addition to any other relief granted by the court. (d) No assent or acquiescence, expressed or implied, to any violation or threatened violation of any of the provisions of this instrument shall be deemed or taken to be a waiver of any succeeding or other violation or threatened violation of the applicable Covenant Provisions. 16. SEVERABILITY. Invalidation of any one of the provisions of this instrument by judgment or court order or decree shall in no way affect any of the other provisions, which shall remain in full force and effect. 17. SCOPE OF BENEFIT TED PROPERTIES. For purposes of these Covenants, (i) Vail Village, Second Filing shall mean and encompass all the properties included 624M.6 RCFISH 4 EXHIBIT A DESCRIPTION OF THE WEST DAY LOT LOT 2, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. EXHIBIT "A" - PAGE 1 5454 \120 \907418.19 EXHIBIT B DESCRIPTION OF GORE CREEK PLACE LOT 3, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. EXHIBIT "B" - PAGE 1 5454 \120 \907418.19 EXHIBIT C DESCRIPTION OF THE LIONSHEAD GONDOLA PROPERTY LOT 1, LIONSHEAD SIXTH FILING, ACCORDING TO THE PLAT TO BE RECORDED IN THE EAGLE COUNTY, COLORADO REAL PROPERTY RECORDS. EXHIBIT °C° - PAGE 1 54541120\907418.19 EXHIBIT D DESCRIPTION OF THE HOTEL PROPERTY PARCEL A: LOT 1, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL B: CONDOMINIUM LODGE UNIT, THE MARK/LODGE IN ACCORDANCE WITH THE AMENDED DECLARATION OF CONDOMINIUM FOR THE MARK/LODGE RECORDED OCTOBER 17, 1978 IN BOOK 276 AT PAGE 606 AND MARCH 22, 1979 IN BOOK 283 AT PAGE 344 AND THE CONDOMINIUM MAP FOR THE MARK/LODGE RECORDED MARCH 27, 1974 IN BOOK 233 AT PAGE 930 AND THE AMENDED PLAT OF THE SITE PLAN FOR THE MARK/LODGE RECORDED OCTOBER l7, 1978 IN BOOK 276 AT PAGE 607, COUNTY OF EAGLE, STATE OF COLORADO. EXHIBIT "D" - PAGE 1 5454\1 20 \907418.19 EXHIBIT E DEPICTION OF THE TRANSFORMER INSTALLATION EASEMENT AREA [attached] EXHIBIT "E" - PAGE 1 5454 \120 \907418.19 L __--..- ------- Ir EXHIBIT F -I DEPICTION OF THE GORE CREEK TIE -BACK EASEMENT AREA [attached] EXHIBIT °F -1" - PAGE 1 5454 \120\907418.19 �j\ lLf ►- ENROL{ 71! Sts- N. -O[l1 lw l9W lK�fO[ OAS! Itt6- IU -itlC �lil ay i ot.w ooltlmoa .1� /2.2y1 I V ala oorw�oo i ° ` 0 tl 7uno )WW win tiro gin L i "Yia x"w 'ONI 'SNOB SNIJO tx Rj i 5 1 r IS �[ z � s� �i� � ar t jllll�' i l.ie:ee'r! a. R- �'' t ' •�' ire .� (! OT 1 � 1 e O n Sig I g 5.1. I 3 >c Z i a 0 LLJ , an c "0 p Oa Q LL 3 N &n UYO o ¢oaoo�rn LLP WO T $ S V W U oo d d v Z Er 1 i �V1�at �: •' .J O r^ B ill G Or^ V N 1 ^ N C) a _a . 0 i 1 � 1 e O n Sig I g 5.1. I am- 6r6 —ot xA utt- f"- "fi He JMO -lU-M Wi tiff-M -M ru ,�!.•' Otani OOriIDIOx'MOn� Rtaa omovow 'NDL4UJf� N 1.t at om i1 D913NN Y71 3'191D IMF/ I1V1949"a m �>M= 3— 'ONI 'SNOS 9 SNIODOO I V , w, _ V , O 1 S f ' r u s' t t r , l �r t t J lria -tu-fm Vu ttN -tal -= -M R toll Ook%D - w ' 7'Ut1p 30M ►Ma Raw 9 I y SNOS V SNIODO x r t o a ►- v JH N � WS u ��II! 11111f �ll�f fl , v t � E F 3 3. bM r i Ii1 M! a i E II _vl ur► N ts-vu h1 asis- o"-pl! ' e2l onw aOr 7J Ovaa iLv3 tC EXHIBIT F -2 DEPICTION OF THE WEST DAY TIE -BACK EASEMENT AREA [attached] EXHIBIT "F -2" - PAGE 1 5454 \120 \907418.19 �� � <<�� � EXHIBIT G DEPICTION OF THE TELEPHONE CONDUIT EASEMENT AREA [attached] EXHIBIT "G" - PAGE 1 5454 \120 \907418.19 - � � wrALL w -x► 2 r ATO r ELECMC VAULT eai�ur = ems IV 07NM P1T<Ilan (T) Ou3TMG M PHONE i / CONGUIS. ldTNt AMOOAt I IxrNG S1 OWESr nKq / 264-TA vAuL IN FLOW CON - f . Y- , / „MSTALL COT fv' LOW 0 FOR IAJ Mw _.�-.. S � �'1 - • ''r.' � ..�' -•^ � t om t -- t � MOiOY�/�OGAILI.. �� � 1 - -I J ^'' - ! `' CAW INDICH ..: t � rPOFalm wl rNdc 0 ` � ♦� � wroun I i ' fti 1 1 p(S+m_ )PiVIw caaAn .•.. ANTLER'S y 11 ■ r to IM r for "°'�'�~ �• N UPI; C `O'tiC�, MULL 14 1 6MA0[p CCfi�TQYQ�. 11�� -� POLLI % /, ' - � - - OI • '��MILAy I OTrI[PS � , 1 •,', //� •�•y. // oft`:♦ ..�� .. ,` f 11 ♦• 1/ .A r MARR�07 ADDITIONAL VR PHONE CONDUIT PLAN ALL PERTINENT GENERAL I TCO ISSUE INED THE ' North CREEK PLACE PLANS (SHEETC(MPlI55UE 78) AND TECHNlCA NICAL SPECIFICATIONS APPLY AND ARE HEREBY INCORPORATED INTO THIS PLAN. COORDINATE WORK ON THIS PLAN WTnH 0 X W GORECREEK PLAaCONTRACTOR (RA NELSON). ENGINEERMIG INC C Sak: !" = 30 SHEET I OF 3 .. w A' . r --I. ' EXHIBIT H DEPICTION OF THE VAIL CONDOMINIUM SPA PARCEL IN LOT 1, BLOCK 2, VAIL /LIONSHEAD THIRD FILING; A PORTION OF LOT 1, BLOCK 2, VAIL/LIONSHEAD, THIRD FILING, A SUBDIVISION IN THE TOWN OF VAIL, COUNTY OF EAGLE, STATE OF COLORADO DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY POINT OF SAID LOT l AND ON THE SOUTHERLY RIGHT -OF -WAY OF INTERSTATE HIGHWAY NO. 70; THENCE ALONG SAID RIGHT OF WAY ON THE FOLLOWING FOUR COURSES: (1) N 19° 35' 27" E A DISTANCE OF 73.6 FEET; (2) N 25° 51'44" E A DISTANCE OF 178.1 FEET; (3) N 53° 50' 10" E A DISTANCE OF 176.8 FEET; (4) A DISTANCE OF 206.43 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, SAID CURVE HAVING A RADIUS OF 3650, A CENTRAL ANGLE OF 3° 14'25" AND A CHORD BEARING W 62 29'50" E A DISTANCE OF 206.4 FEET; THENCE S 23 2' 46" E A DISTANCE OF 307.88 FEET TO THE SOUTHERLY BOUNDARY OF SAID LOT 1; THENCE A DISTANCE OF 223.40 FEET ALONG THE ARC OF A CURVE TO THE LEFT SAID CURVE HAVING A RADIUS OF 289 FEET, A CENTRAL ANGLE OF 44° 17'24" AND A CHORD BEARING S 66 30'31 " W A DISTANCE OF 217.88 FEET TO A POINT OF REVERSE CURVATURE; THENCE A DISTANCE OF 360.59 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, SAID CURVE HAVING A RADIUS OF 342 FEET, A CENTRAL ANGLE OF 60° 24' 36" AND A CHORD BEARING S 74 W A DISTANCE OF 314.12 FEET TO A POINT OF COMPOUND CURVATURE; THENCE A DISTANCE OF 41.37 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, SAID CURVE HAVING A RADIUS OF 25 FEET, A CENTRAL ANGLE OF 94° 48'51 " AND A CHORD BEARING N 27 49'00" W A DISTANCE OF 36.81 FEET TO THE POINT OF BEGINNING. EXHIBIT "H" - PAGE 1 5454 \120\907418.19 EXHIBIT I DEPICTION OF THE VAIL SPA ACCESS EASEMENT AREA [attached] EXHIBIT "I" - PAGE I 545411201907418.19 x s �M R a C E a EXHIBIT J DEPICTION OF THE PEDESTRIAN EASEMENT [attached] EXHIBIT "J" — PAGE 1 5454\120\907418.19 e g ° � � w • l K� t , � � y •T• 6 � `� ft W o IL ri Osg sv e con jE O O IL r " sf,aw.,aKUny ' OMyWMy00[MOI� EXHIBIT K DEPICTION OF THE TRANSFORMER MAINTENANCE EASEMENT AREA [attached] EXHIBIT "K" - PAGE 1 5454\120\907418.19 Ur mat zlrlzo N aa S� s7mW %W bwae BOODOM E ta L .J 0 ta -------------- sm Ur mat zlrlzo N aa S� s7mW %W bwae BOODOM EXHIBIT L DEPICTION OF THE CONSTRUCTION ACCESS ROAD [attached] EXHIBIT "L" - PAGE 1 5454U 201907418.19 WEST L J EXHIBIT L S OJROLF (50' R. 0. W.) 1 � vp 1 LOT 3 i+•hev�rc� oi�sn�v�arnArl e� � y ACCESS WAY (aREAIM BY tws h.A (9iAOm AwAA5 P. ,wrz P fLAV w (NIMPS v M. MOW) ry�rvs� J7 "M ~I 4 1 fWVATE UUM EAU NMI Am 1 SAM' awOAGE [ASnaon ! (COCAIM BY 7M PLAI) l 1 1 1 1 1 1 I " r tAVAMW JZW"PZ.s/cwJ /vecer" Br T" Aurl Mr lrvr vecXr" .&r roc EXHIBIT M HOST MARRIOTT LETTER [attached] EXHIBIT "M" — Pace 1 54541120\907418.19 GIU)Isuww & H ARRINO A "073t 9as0lrAL OOAP0tt&72Qd ArsorurM AT LOLW VIEW r.�rtoo mritn tr00 mcow resits mrtrm,00LOSU►>so $ow$ -4 o$ 721arb0rrt NNW $9040000 Ttgac0►rt1 om ae$-aa$$ Z -XA3L (lilbarlt 7. iVleNela! 303 - tr9-3722 APO 1$. 2001 Ms. Kama Erlich Hoed Matriou Cmpomdm 10400 Fwnw mw (toad Betheada, MD 20217 Re: Application for Marriott Hotel lteeoasMwflon - Vail, Colorado - Agzeement with Vail Spa Condominiums Associaion Dcw Kama: 7U letter is !mended to fornml W the agree=$= betwom Vail Spa Condomiwium Association (-Vail Spa's and Host Marriott I p C' C's that was dise.ttssed between tree $ad Henry prate, Marricti's arthitect is V4 and eas8mted by yom 1) HMC agrees to accept as a condition of appmv$1 to its application eoonesaing $� lnol�ed woes for alterations to the Vat, M wAott hotel pending b fm the Vail Denigo oncerE tw ( "DRB') the inclusion of a provision that there will be no Eq. poke, E+SR peman% win$, telecommtntication facmdes (towers or antwnrats) or any *am Stmctta,es or atwm!om of any mad a=ched to any part of the two sew urset dements on the Phase 111 roof. irrespective of whether wwh attschmets s are temporary or permane>» is ram m; subject however, to the proyhlom that W4 with necessary apps, bdw*g pis. Shall be pexn i tad HMC further $ AMP $s a condition of approval to its application 10 On DRB the bdud m of its addidooal provision that these shall be no exterior lighting 4 or an *C twd strvotmm 2) HMC's obligation to comply witb Pangrapb 1 above tW be subject to an oodea, ordinances, Hiles, and regulations (tealeral, $tau and local) governing MwrkU's hotel at VW, is to event that say condition contained herda oontl'gs with may erode, ordinance. We or mpW= (federal, state or local) HMC 9*n cotaply with the code, ordimnoe, rak or retwo* at and SU& compliance Shall not be deemed a breech of this agent =tat, or file casu ions referred to heaeiL Ma. Karen l rIM Apd! 11, 2001 Page 2 3) WhNn three days after the date upon which the coadhim s of spprovai to HMC's application Tor the exterior alteration of the bmel conteamplated by this left agreement am givsa Snel approval. Vail Spa agrees to witldrawib cbedulod for bd m the Vail P 'lam. a_ - -- - hcarm6 � g and FAVimurleate) Cot>onmisaion on Apn723, 2001 regarding the hiue -°robs Mial *M% Ww" s under the Vail Town Code, Section 12 -7b-7. Vail Spa further agrees to naive any sad all tights of appeal it may have ooncumng the pm ft Mariiou application upon ib Anal approval. subjax to the condidom as contcmpiatad by rids Iona agteanesd. Vay v* yam. G MSHAW a HARRwq A Professional Corparsdoo Gibett F. McNeish 7 be *= sa forth above are agreed to by the Mull Spa Condominitaa Association and Hoyt Marriott Corporation on this l l* day of Apn7, 2001. HOST MARRIOT CORPORATION V AIL SPA CONDOM Mft4 ASSOCIATION . by: c asC / by: Albert Haasar, (testes] Manager oauurra...�.N fM7'i L IMiL 7F71 Apa7 18. 2003 pede 2. rr%pw- .%% - �... -... -- .l.. -- - 3 Within theca days niter du detc upon wdcb the catadiBM of apprwai 1o '1C'f applicatitm fa 119 a lector ahwsdm o[ the hood coowmplated by dtis IdW aPgssoettt as ShU foal approval. Vd Spy &Fm to withdtsw its appeal erledoW for bm tibtt m doYdUbmal y .nd I:nvhoamental Comm£ssiea on Ap g 23.2MI rq Wb# tha Isnro oyatbsra<idd COW brPM vader ft Vail Town Code. Swckm IZ -7h-9. Van Sp SAW areas m vtd" mw and an Twft of appeal it July haven concaAiu0 the pea ft D7laeriott appliwdetd eipon its And spprtr+al. ee1�t m the cun6dow as casurapbud by d& Isla arm" Vay V* youm owsxAARWO. A hohnisoei Carporatioa e 60 0 - 5 0 441 elrb Tm tams set Ea& above an mpted to by the Vdl Spa Cond mink m A=cdW=aodHW Maoioa CwpoQanoo as this 18 dap of Ap t, 2001. . LOST MARMOT CORPORATION br. VAIL *A CU C ODMM ASSOCIAMON . a ? a lJ4� by: Abbett BMW Onne w M104M • r� EXHIBIT N DEPICTION OF THE TENNIS COURT [attached] EXHIBIT "N° - PAGE 1 5454 \120\907418.19 VGrsts•ace :DLV%d ztsw o2'w va VOLM •y^s w+os w.n to si yosaa 9ajoae9uv-+x.1~s.e (ynoo sluuel} sesiy iusogov pue uDpongsu03 woos dupeary uei)unoW lien UOWBW g E 3 d $ b z �:• Ir ► us , ll��l�l j���� 1 1 111111111111111111111111111111111111 920515 AFTER RECORDING RETURN TO: T. ak J .monto page: 1 of 10 06/ 24 , � E ' °la �� 23 R 31,00 2003 04.32E D 0.00 BROWNSTEIN HYATT & FARBER, P.C. 410 17 STREET, 22 " FLOOR DENVER, CO 80202 -4437 JOSHUA J. W (DOFF, ESQ. AGREEMENT REGARDING DENSITY ALLOCATION THIS AGREEMEWEGARDING DENSITY ALLOCATION (this " Agreement ") is entered into as of the day of June, 2005, by and between THE VAIL CORPORATION, a Colorado corporation, having an office at c/o Vail Resorts, Inc., 137 Benchmark Road, Avon, Colorado 81620 ( "Vail "), and DIAMONDROCK VAIL OWNER, LLC, a Delaware limited liability company, having an office at c/o DiamondRock Hospitality Company, 10400 Fernwood Road, Suite 300, Bethesda, Maryland 20817 ( " Hotel Owner ") (Vail and Hotel Owner collectively referred to herein as the " Parties "). RECITALS: A. Vail is the owner of that certain parcel of real property located in the County of Eagle, State of Colorado, more fully described on Exhibit A attached hereto and incorporated herein by this reference (the " Vail Property "), which consists of the parcel described on Exhibit AA = I (the " West Day Lot ") and the parcel described on Exhibit A -2 (the " Gore Creek Lot "). B. Hotel Owner is the owner of that certain parcel of real property located in the County of Eagle, State of Colorado, more fully described on Exhibit B attached hereto and incorporated herein by this reference (the " _Hotel Property ", and together with the Vail Property, the " Total Property "), on which Hotel Owner operates a hotel known as the Vail Marriott Mountain Resort and Spa (the " Hotel . I'). C. A substantial portion of the Total Property was included in that certain plat recorded March 10, 2005 at Reception No. 908760, County of Eagle, State of Colorado the "Plat "). D. The Plat contains a note #12 (the " Plat Note ") which specifies that "[fJor purposes of zoning, Lots 1, 2 and 3 created by this subdivision are to be treated as one development site. Development standards shall be based upon the improvements and land area of the combined area of Lots 1, 2 and 3." E. The Hotel presently has a total of 17 dwelling units plus 318 accommodation units (the " Existing Hotel Density "). F. The Parties desire to enter into this Agreement in order to establish that notwithstanding the Plat Note, Hotel Owner will not further develop the Hotel Property in a way that will increase the Existing Hotel Density, and that all of the remaining density presently available for development on the Total Property (the " Remaining Available Density "), together with the density presently being utilized by Vail on the Vail Property (the " Existing Vail Density"), shall be allocated to and used exclusively by the Vail Property. 5454 \120\910115.8 j G AGREEMENT: NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Vail and Hotel Owner agree as follows: a. Agreement to Restrict Future Development of Hotel Property Hotel Owner, for itself and its successors and assigns, does hereby irrevocably and forever covenant and agree that (a) the Hotel Property will not be further developed in a way that will increase the Existing Hotel Density, and (b) Hotel Owner will not convert any existing accommodation units in the Hotel to dwelling units. Notwithstanding the foregoing, Vail may elect at any time, in Vail's sole discretion, to permit Hotel Owner to convert existing accommodation units in the Hotel to dwelling units. Nothing in this Agreement shall be deemed to (i) require Hotel Owner to reduce the Existing Hotel Density in the event that a down - zoning of the density permitted on the Total Property occurs (it being agreed that, in such scenario, this Agreement shall not control, and the Parties will be governed by the density requirements imposed by the Town of Vail), (ii) prohibit Hotel Owner from rebuilding the Hotel Property to the Existing Hotel Density in the event of a casualty affecting the Hotel (subject to any independent limitations imposed by the Town of Vail), or (iii) restrict Hotel Owner from performing the "Obligations" which it has assumed from Seller pursuant to that certain Limited Assignment and Assumption of Settlement Agreement Obligations entered into contemporaneously herewith by and between VAMHC, Inc., a Colorado corporation, and Hotel Owner. 2. Allocation of Remaining Available Densi . Hotel Owner and Vail hereby irrevocably and forever covenant and agree that all of the Remaining Available Density, together with the Existing Vail Density, shall be allocated to and used exclusively by the Vail Property. Vail shall be permitted to allocate the Remaining Available Density (and to re- allocate the Existing Vail Density) between the West Day Lot and the Gore Creek Lot in any way that it determines at any time, and from time to time, in Vail's sole discretion and without consent from Hotel Owner. 3. General Provisions a. Covenants to Run with Land This Agreement, and the covenants, agreements, rights and obligations created hereby, shall run with the Vail Property and the Hotel Property, and shall be binding on and inure to the benefit of all persons having or acquiring fee title to the Vail Property and the Hotel Property, all upon the terms, provisions and conditions set forth herein. b. Count2Marts This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes and all such counterparts shall collectively constitute one Agreement. C. Successors and Assigns Except as restricted above, this Agreement shall be binding on Vail's and Hotel Owner's respective successors and assigns. 5454%120\910115.8 d. Section Headings The Section headings herein are inserted only for convenience and reference and shall in no way define, limit, or prescribe the scope or intent of any provisions of this Agreement. C. Entire Agreement This Agreement, together with the exhibits attached hereto, contains the entire agreement of the parties hereto with respect to the subject matter hereof and no prior written or oral agreement shall have any force or effect or be binding upon the parties. hereto. _ f. Severability If any portion of this Agreement is declared by any court of competent jurisdiction to be void or unenforceable, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect. In addition, in lieu of such void or unenforceable provision, there shall automatically be added as part of this Agreement a provision similar in terms to such illegal, invalid or unenforceable provision so that the resulting reformed provision is legal, valid and enforceable. g. Governing Law This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Colorado (without giving effect to Colorado's principles of conflicts of law). h. Default; Remedies If any party hereto breaches any provision of this Agreement, the non - breaching party may pursue any and all remedies, legal or equitable, which may be available including, without limitation, specific performance and damages. All such remedies, including those set forth in this Agreement, shall be cumulative. i. Waivers No provision of this Agreement shall be deemed waived except by a writing executed by the party against whom the waiver is sought to be enforced. No waiver of any provision of this Agreement shall be deemed a continuing waiver of such provision or deemed a waiver of any other provision of this Agreement. j. Attorney Fees The substantially prevailing party in any action brought to enforce or interpret this Agreement shall be awarded and receive its costs and reasonable attorney's fees (including those of in -house counsel), including for any appellate review. k. Authority to Execute Each person executing this Agreement represents and warrants that it is duly authorized to execute this Agreement by the party on whose behalf it is so executing. 1. Recordation Either party may record this Agreement against the Vail Property and the Hotel Property in the appropriate jurisdiction. M. Disclaimer of Joint Venture This Agreement is not intended to create a joint venture, partnership or agency relationship between Vail and Hotel Owner, and such joint venture, partnership, or agency relationship is specifically hereby disclaimed. -3- 5454 \120\910115.8 n. Construction The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. [signature page follows] 5454\120\910115.8 IN WITNESS WHEREOF, Vail and Hotel Owner have entered into this Agreement as of the date first above written. VAIL: THE VAIL CORPORATION, a Colorado corporation lJ c��Iri ,r. Title: 4 SN) STATE OF " � COUNTY OF ss. _��g_ The foregoing instrument was acknowledged before me this _� day of June, 2005, by as $J� of THE VAIL CORPORATION, a Colorado corporation. Witness my hand and official sea]. My commission expires: ota Pub [Hotel Owner's Signature Page Follows] TAR N�A ' 11 8 L ` C,. : * o O F CO 4Y Coaa MiM E*= 9/17/2001 SIGNATURE PAGE — 1 HOTEL OWNER: DIAMONDROCK VAIL OWNER, LLC, a Delaware [wed li #ility company By: STATE OF M! � ) ss. COUNTY OF the f rer instrument was aclmow� fo 10 day of Jane, 2005, by 1� of J I A DIAMONDROCK VAIL OWNER, LLC, a Delaware limited liability company. Witness my hand and My commission 15% P r N Pu is Ana F NOTARY PUBLIC WOMWy � u X 2001 SIGNATURE PAGE -2 EXHIBIT "A" THE VAIL PROPERTY LOTS 2 AND 3, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. 5454U 20 \9101 15.8 EXHIBIT °A" - PAGE 1 EXHIBIT "A -1" THE WEST DAY LOT LOT 2, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. 5454 \1201910115.8 EXHIBIT "A -1° - PAGE 1 EXHIBIT "A -2" THE GORE CREEK LOT LOT 3, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. 5454 \120\910115.8 EXHIBIT "A -2" - PAGE 1 EXHIBIT "B" PARCEL A: THE HOTEL PROPERTY LOT 1, WEST DAY SUBDIVISION, ACCORDING TO THE PLAT RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL B: CONDOMINIUM LODGE UNIT, THE MARK/LODGE IN ACCORDANCE WITH THE AMENDED DECLARATION OF CONDOMINIUM FOR THE MARK/LODGE RECORDED OCTOBER 17, 1978 IN BOOK 276 AT PAGE 606 AND MARCH 22, 1979 IN BOOK 283 AT PAGE 344 AND THE CONDOMINIUM MAP FOR THE MARK/LODGE RECORDED MARCH 27, 1974 IN BOOK 233 AT PAGE 930 AND THE AMENDED PLAT OF THE SITE PLAN FOR THE MARK/LODGE RECORDED OCTOBER 17, 1978 IN BOOK 276 AT PAGE 607, COUNTY OF EAGLE, STATE OF COLORADO. EXHIBIT "B"- PAGE 1 5454 \120\9101 15.8 EAGLE COUNTY, CD 200920432 TEAK J SIMONTON 12= 47 =25PM REC. 09/ 16/2009 REC: 522 1.00 DOC: 5 1111ii CLARIFICATION OF AND AMENDMENT TO q I 2 AGREEMENT REGARDING DENSITY ALLOCATION This Clarification of and Amendment to Agreement Regarding Density Allocation (this " Amendment ") is made as of a, 175 2009 by and between RCR VAIL, LLC, a Colorado limited liability com ny, having an office at c/o Vail Resorts Development Company, P.O. Box 959, Avon, Colorado 81620 ( " RCR Vail ") and DIAMONDROCK VAIL OWNER, LLC, a Delaware limited liability company, having an office at c/o DiamondRock Hospitality Company 6903 Rockledge Drive, Suite 800, Bethesda, Maryland 20817 (" Hotel Owner "). RECITALS A.. The Vail Corporation ( " Vail Corp ") and Hotel Owner entered into that certain Agreement Regarding Density Allocation as recorded in the Office of the Eagle County, Colorado, Clerk and Recorder ( the " Records ") on June 24, 2005 at Reception No. 920515 (the " First Agreement ") . Pursuant to the First Agreement, Vail Corp and Hotel Owner agreed, in part, that Hotel Owner would not further develop the Hotel Property (as that term is defined in the First Agreement and below) in a way that will increase the Existing Hotel Density (as that term is defined in the First Agreement and below) and that the remaining available density shall be allocated to and used by the West Day Lot and Gore Creek Lot (as those terms are defined below). B. Gore Creek Place, LLC ( " Gore Creek Place "), as then- current owner of Lot 3, West Day Subdivision (the " Gore Creek Lo t "), according to the final plat of West Day Subdivision recorded in the Records on March 10, 2005 at Reception No. 908760 (the " Plat "), and Vail Corp, as then - current owner of the Lot 2, West Day Subdivision (the " West Day Lot ") according to the Plat, entered into that certain Agreement Regarding Density Allocation recorded on July 5, 2006 at Reception No. 200617770 in the Records (the " Second Agreement ") . Pursuant to the Second Agreement, Vail Corp and Gore Creek Place agreed, in part, that the Gore Creek Lot shall contain not more than sixteen (16) residential dwelling units (the " Gore Creek Density ") and that all remaining densities net of the Existing Hotel Density and the Gore Creek Density shall be allocated to and may be used and enjoyed exclusively in conjunction with the West Day Lot. C. RCR Vail is successor in interest to Vail Corp in the ownership of the West Day Lot. D. RCR Vail and Hotel Owner desire to enter into this Amendment (i) to clarify the calculation of the Existing Hotel Density and (ii) to increase the dwelling units permitted on the Hotel Property (as that term is defined in the First Agreement and below) according to the terms and provisions hereof . Atter recording please return to Gerry Arnold P O Box 959 — VC S87 Avon, Colorado 81620 200920432 1 of 4 AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, RCR Vail and Hotel Owner agree as follows: Section 1. Clarification of Existing Hotel Density. 1. Definitions. The following terms and definitions are contained in the First Agreement: a. " Hotel Property means Lot 1, West Day Subdivision, according to the Plat, and that certain Condominium Lodge Unit (the " Lodge Unit "), The Mark/Lodge in accordance with the Amended Declaration of Condominium for The Mark/Lodge recorded October 17, 1978 in Book 276 at Page 606 and March 22, 1979 in Book 283 at Page 344 and the Condominium Map for the Mark/Lodge recorded March 27, 1974 in Book 233 at Page 930 and the Amended Plat of the Site Plan for the Mark/Lodge recorded October 17, 1978 in Book 276 at Page 607, County of Eagle, State of Colorado (the " Mark Lodge ") . b. " Hotel " means that certain hotel [building] known as the Vail Marriott Mountain Resort and Spa. C. " Existing Hotel Density means a total of 17 dwelling units plus 318 accommodation units. 2. Clarification of Existing Hotel Density. a. The Mark Lodge is a separate and distinct legal parcel which is visually apart of the Hotel [building]. b. Hotel Owner and Vail hereby (i) acknowledge and agree that 14 of the 17 dwelling units of the Existing Hotel Density as set forth in the First Agreement are attributable to 14 condominium units contained in the Mark Lodge, and (ii) confirm that the Hotel Property does contain 318 accommodation units attributable to the accommodation units contained in Lot 1 and the Lodge Unit combined. Thus, the actual density on the Hotel Property is 3 dwelling units and 318 accommodation units (the "Actual Hotel Property Density "). Section 2: Amended Actual Hotel Property Density and Amended Existing Hotel Density. RCR Vail and Hotel Owner hereby agree that the Actual Hotel Property Density shall be and hereby is increased by four (4) dwelling units, the result of which is that the Actual Hotel Property Density shall be and hereby is seven (7) dwelling units and 318 accommodation units. The Existing Hotel Density (pursuant to the First Agreement) is hereby amended to be 21 dwelling units and 318 accommodation units. 200920432 2 of 4 Section 3: No Other Changes Except as provided herein, no other changes are made to the First Agreement. IN WITNESS WHEREOF, RCR Vail and Hotel Owner have entered into this Agreement as of the day and year first above written. RCR VAIL: RCR VAIL, LLC, a Colorado limited liability company By: Vail Resorts Development Company As Managing Me By: 6 .4 Name: Keith Fernandez Title: President and COO — VRDC STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The f regoing instrument was acknowledged before me this _L?� of 2009, by Ftrij A& &&Jefagdffo • f Vail Reso Development Company, Managing Member of RCR VAIL, LLC, a Colorado limited liability company. Wit My (SEAL) [Hotel Owner signature on following page.] Approved as to Form: Legal Department Name: G V ARN Signature Date: 200920432 3 of 4 DIAMONDROCK VAIL OWNER, LLC, a Delaware limited liability c any By: Name: <!t c c f Title: STATE OF MANIA" ) ss. COUNTY OF M @ 0"N ) A ,, �� The foregoing instrument was acknowledged -Wore me this I ' day of ll W , 2009, by M1r�•�� SO e as of the D ONDROCK VAIL OWNER, LLC, a Delaware limited liability company. Witness my hand and official seal. My commission expires: (d- - a — � y, � \ \ p%%j 1111 nNIII ` \ 'i I Notary Pu c SEAL ExP` % ) y 12 �'.'' 11111111 111\ 200920432 4 of 4 IONIIII�I�II II III fill IIIIII�fI1I�I pao* 923304 :17 23 R 36.00 D 0.90 AGREEMENT PERMITTING ENCROACHMENT S AGREEME Valmad TTING ENCROACHMENT (this "Agreement ") is made as of the day of 2005, by and between ANTLERS CONDOMINIUM ASSOCIATION, INC 0 nonprof it corporation ( "Anders "), and THE VAIL CORPORATION, a Colorado corporation doing business as Vail Associates, Inc. ("VAr'). RECITALS: A. VAI is the owner of certain property described as Lot 3, West Day Subdivision, according to the plat recorded on March 10, 2005 at Reception No. 908760 (the "VAI Property). B. Antlers is comprised of and represents the owners of certain real property located in Eagle County, Colorado according to and established and governed by the Condominium Map Antlers Condominiums recorded December 19, 1972 in Book 226 at Page 820 and as defined in the Amended And Restated Condominium Declaration recorded on April 3, 2000 at Reception No. 726242, and as further described in the First Supplemental Map recorded on June 27, 2000 at Reception No. 733040 and First Supplemental Declaration recorded on June 27, 2000 at Reception No. 733041 and Supplemental Map recorded on December 18, 2001 at Reception No. 780247 and Supplemental Declaration recorded on December 18, 2001 at Reception No. 780246, County Of Eagle, State Of Colorado (the "Anders Property "). C. Antlers owns certain improvements which may include, but not be limited to, a retaining wall currently located on the VAI Property as generally depicted but not legally described on Exhibit A attached hereto and made a part hereof by reference (the "Antlers Improvements "). D. VAI is willing to permit the Antlers Improvements to encroach upon the VAI Property in consideration of the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the Recitals, the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. VAI hereby grants its consent to the encroachment of the Antlers Improvements, subject to the terms and provisions of this Agreement. 2. The encroachment rights granted by this Agreement and the terms and conditions contained in this Agreement shall inure to the benefit of and be binding on the parties and their respective successors and assigns. 3. At all times during the term of this Agreement, Anders shall carry and maintain, in full force and effect, at its sole cost and expense, a policy of comprehensive general liability insurance m an occurrence format in an amount of $1,000,000 per occurrence, including coverages for contractual liability, personal injury, broad from property damage, independent contractors and JAG= Creek PLcAEas =taU,,&� WaVnawch.dm Gerry Arnold Vail Resorts P.O. Box 959 - I/C 87 -= Avon, CO 81620 Ucla�� premises operations with insurance companies reasonably satisfactory to VAI (the "Insurance"). The Insurance shall provide that no cancellation, reduction in amount or material change in coverage shall be effective except upon thirty (30) days prior written notice to VAI. VAI shall be named as an additional named insured, and Antlers agrees to provide VAI with a certificate of insurance evidencing the Insurance upon execution of this Agreement and yearly thereafter upon request by VAL 4. Antlers agrees to indemnify, defend and hold harmless VAL and its subsidiaries and affiliates, agents, officers, directors, servants and employees of and from any and all liability, claims, liens, demands, actions and causes of action whatsoever arising out of or related to any loss, cost, damage or injury, including death, of any person or damage to property of any kind resulting in connection with the Antlers Improvements or this Agreement, including, without limitation, those caused by Anteers's operations or the misconduct or negligent acts, errors or omissions of Antlers while engaged in any activity on the VAI Property. 5. Antlers shall not cause, suffer or permit any mechanics', materiahnen's or other liens to attach to or be recorded against the VAI Property in connection with the Antlers Improvements. Antlers shall indemnify and hold VAI harmless from any loss, cost or liability arising out of or incurred in connection with any such liens. 6. Antlers specifically acknowledges and agrees that VAI shall not be liable or responsible for any damage or loss whatsoever to the Antlers Improvements caused by or arising from VAI's use of the VAI Property or from the use of any entity allowed by VAI to use the VAI Property, provided, however, that neither VAI nor any such other entity is negligent in connection with such use. Any such loss shall be borne by Antlers at Antlers's sole cost and expense. 7. VAI specifically retains all its right, title and interest in and to the VAI Property including the right to exercise full use of the VAI Property; provided, however, that VAI shall use reasonable efforts to not disturb the Antlers Improvements. In the event that VAI s use of the VAI Property disturbs the Antlers Improvements, VAI shall not be responsible for any costs of the replacement of the Antlers Improvements except as set forth in Paragraph 6 above. 8. (a) This Agreement (and any attached exhibit) contains the entire agreement and understanding of the parties with respect to the entire subject matter hereof, and there are no representations, inducements, promises or agreements, oral or otherwise, not embodied herein. Any and all prior discussions, agreements, proposals, negotiations and representations relating hereto are merged herein. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. (b) If any clause or provision of this Agreement shall be held to be invalid in whole or in part, then the remaining clauses and provisions, or portions there shall nevertheless be and remain in full force and effect. (c) No amendment, alteration, modification of or in addition to this Agreement shall be valid or binding unless expressed in writing and signed by the parties to be bound thereby. (d) If any ply hereto shall bring any suit or action against another for relief, declaratory or otherwise, arising out of this Agreement, the prevailing party shall have and recover against the other party, in addition to all court costs and disbursements, such sum as the Court may adjudge to be reasonable attomeys' fees. (e) This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado. (f) Any and all warranties, provisions, rights and obligations ofthe parties herein described and agreed to be performed subsequent to the termination of this Agreement shall survive the termination of this Agreement. (g) Time is of the essence with respect to the performance of each of the covenants and agreements herein set forth. [SIGNATURE PAGES ATTACHED HERETO] IN WITNESS WHEREOF, the parties hereto have executed this Agreement to become effective as of the date first written above. ANTLERS CONDO ASSOCIATION, INC., a Colorado r t on By: Name: /& tl cwt. r (� ; Title: STATE OF COLORADO ) ) SS. COUNTY OF EAGLE ) The foregoing instrument was aclmov Iedged before me this �_ day of 2005, by �n, � ��V as of ANTLERS CONDOMINIUM ASSOCIATION, INC., a Colorado nonpro co oration. My commission expires: [SEAL] 10M M-akil.1 r __ _ . VAL THE VAIL CORPORATION, a Colorado corporation doing business as VVa By. Name: Title: STATE OF %o wP�l ) SS: COUNTY OF leAAf- 1 The foregoing instrument was acknowledged before me this l4 + day of �_, 2005, by -JAQYMA a ftltHr as SV4 of THEVAIL CORPORATION, a Colorado corporation doing business as Vail Associates, Inc. My commission expires: F` 2-o08 [SEAL P. LOBO Notary Public j •. OF CO� tw+rr. "� C . om.= ran. Ku cv+en sy�r one JAG— Q kP1—\E .UA.dmW.1W.--6.d. EXHIBIT A (Attached) \ M L I _ ' Q Z F N W _ —r� �' a o � W N 1 1� N ` I O + W 1 O N 1 1 1 J Q U 1 1 � i 'l Q L T � y 1 — 10' UTILITY 't- a EASEMENT, I•.1 • � 1 � v 53lEXY YId o4'OS»0 t00Ltlb0' 0/ O 'M�}d�',]1P'✓.gIwM1�T100L0AOl�d J COUNTY 200617768 za Pgs: 15 02 :44:36PM 07/05/2006 REC: 576.00 WC= S TUNNEL EASEMENT AGREEMENT THIS TUu EL EASEMENT AGREEMENT (this "Agreement ") is made and entered into as of the day of Utr_ #, .e , 200_&, by and between GORE CREEK PLACE, LLC, a Colorado limited liability company ("GCP"), as owner of the `Burdened Property" (as defined below) (the "Burdened Owner"), and GORE CREEK PLACE, LLC, a Colorado limited liability company, as owner of the "Benefited Property" (as defined below) (the `Benefited Owner "). RECITALS A. The Burdened Owner is the owner of that real property legally described on the attached Exhibit A (the "Burdened Property "). The Burdened Property is currently being developed. B. The Benefited Owner is the owner of the real property legally described on the attached I✓xNbit B (the `Benefited Property "). The Benefited Property is immediately adjacent to and to the east of the Burdened Property. The Benefited Owner is currently constructing a residential project which will contain four buildings with a total of eight residential units (the "Project "). GCP intends to submit the Project to a condominium declaration (the "Declaration "), sell each residential condominium created by the Declaration to individual owners and form a property owners association to manage the Project (the "Association "), the members of which will be the owners of condominiums under the Declaration (each, a "Member "). C. GCP has constructed an underground tunnel (the "Tunnel ") on the Burdened Property and the Benefited Property. Although located on both the Burdened Property and the Benefited Property, the Tunnel is a single structural unit and is designed to function as such. The Tunnel is depicted on the attached Exhibit C . D. The Tunnel contains a drive aisle, individual parking spaces and parking spaces that are enclosed and attached to residential units in the Project, and provides vehicular access from Forest Road to each residential unit in the Project, In order for the Benefited Owner to gain access to the residential condominiums within the Project through the Tunnel, the Benefited Owner must enter the Tunnel from Forest Road and pass through the drive aisle in the portion of the Tunnel located on the Burdened Property. GCP intends that the portion ofthe Tunnel located on the Benefited Property will be common element under the Declaration and as such, the Association will be responsible for its management_ E. The Tunnel is also designed to provide vehicular access to the Burdened Property both during and after development. The Burdened Owner intends to enclose portions of the parking spaces located in the portion of the Tunnel on the Burdened Property and connect any improvements located on the Burdened Property to the Tunnel in the same manner as the Tunnel is or will be connected to the improvement on the Benefited Property. F. The parties now desire to enter into this Agreement to set forth the terms and conditions upon which the Benefited Owner may use portions of the Tunnel located on the Burdened Property. Aft_r mcarding „4+ rcwn t o: Gerry Arnold amtob P.O. Box 959 —VC 87 Avon, CO B 1620 200617768 1 OF 15 AGREEMENT NOW, THEREFORE, in consideration for the mutual promises contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Easement The Benefited Owner has a perpetual non - exclusive easement (the "Tunnel Easement") over the drive aisle within that portion of the Tunnel and the entryway to the Tunnel located on the Burdened Property as described on the attached Exhibit D (the "Easement Area "). The Benefited Owner may use the Easement Area for vehicular and pedestrian ingress and egress between Forest Road and the portion of the Tunnel located on the Benefited Property. 2. Maintenance and Repair, Share of Maintenance Costs The Burdened Owner will maintain, repair and otherwise keep in good condition the Easement Area, including, without limitation, the garage door and access control system located at the entrance of the Tunnel. If and to the extent required from time to time by the Burdened Owner, the Benefited Owner will pay its share of all costs, expenses, and liabilities of every kind or nature incurred by the Burdened Owner in connection with its maintenance and repair obligations under this Section 2 (the "Maintenance Costs "). The Benefited Owner's share of Maintenance Costs is a percentage equal to a fraction, the numerator of which is the number of parking spaces, whether enclosed or not, located within that portion of the Tunnel situated on the Benefited Property, and the denominator of which is the total number of parking spaces, whether enclosed or not, located in the entire Tunnel. As of the date of this Agreement, there are 26 parking spaces located in the portion of the Tunnel situated on the Benefited Property and a total of 50 parking spaces located within the entire Tunnel. Therefore, the Benefited Owner's share of Maintenance Costs currently equals 52 %. The parties acknowledge and agree that if the number of parking spaces located within the Tunnel changes, the Benefited Owner's share of Maintenance Costs will be adjusted in accordance with the above formula. 3. Annual Budget; Payment of Facility Expenses If the Burdened Owner requires the Benefited Owner to share in the Maintenance Costs pursuant to Section 2, the provisions of this Section 3 shall apply. The Burdened Owner will prepare a budget for the anticipated Maintenance Costs for each calendar year or partial calendar year. Based on such budget, the Burdened Owner will give the Benefited Owner notice of the amount of Benefited Owner's share of Maintenance Costs for such calendar year, together with a copy of the budget. The Benefited Owner will pay to the Burdened Owner its share of budgeted Maintenance Costs, in advance, on or before the first day of each calendar year. However, if no annual budget has been prepared by the Burdened Owner prior to such date, then the Benefited Owner will pay its share of Maintenance Costs based on the budget for the previous calendar year. If, during a calendar year, the Burdened Owner incurs any unbudgeted Maintenance Costs, or determines that the Benefited Owner should share in a Maintenance Cost, despite not having required it previously, the Burdened Owner will give the Benefited Owner written notice of such Maintenance Costs. The Benefited Owner must pay its share of such Maintenance Costs within 30 days after receipt of such notice. The Burdened Owner may require that the Benefited Owner pay its share of any such Maintenance Costs before the subject services or materials are procured or provided. Any 6171196 2 200617768 2 OF 15 payments due from the Benefited Owner not paid when due will accrue interest at a rate equal to the lesser of 21% per annum or the maximum rate permitted by applicable law. 4. Reconciliation As soon as reasonably possible after the end of each calendar year in which the Benefited Owner has made payment to the Burdened Owner for Maintenance Costs, the Burdened Owner will provide the Benefited Owner with an accounting of the actual Maintenance Costs incurred during such calendar year. To the extent that the Benefited Owner has paid more than its share of such actual Maintenance Costs, the Burdened Owner may either refund the overpayment to the Benefited Owner or credit such overpayment against the Benefited Owner's obligation for Maintenance Costs for the following calendar year. If the Benefited Owner has underpaid its share of actual Maintenance Costs in a calendar year, the Benefited Owner will pay to the Burdened Owner the amount of such underpayment immediately upon receipt of written notice of such underpayment from the Burdened Owner. The Benefited Owner may not exempt itself from liability for Maintenance Costs by non -use of the Easement Area. The obligation to pay Maintenance Costs is a separate and independent covenant on the part of the Benefited Owner. No diminution or abatement of the Benefited Owner's obligation to pay Maintenance Costs or set -off from the same may be claimed or allowed for any alleged failure of the Burdened Owner to take some action or perform any aspect of its obligations under this Agreement, or for inconvenience or discomfort arising from the sam e. 5. Taxes and Insurance Notwithstanding anything contained in this Agreement to the contrary, the Burdened Owner is solely responsible for all real property taxes attributable to the Easement Area. The Benefited Owner will at all times maintain policies of liability and property insurance insuring the Easement Area and naming the Burdened Owner as an additional insured party. The Burdened Owner will at all times maintain policies of liability and property insurance insuring the Easement Area and naming the Benefited Owner as an additional insured party. The Burdened Owner's costs relating to taxes and insurance may not be included in the Maintenance Costs. 6. Covenant for Structural Support The parties hereby covenant and agree that they will maintain the portion of the Tunnel located on their respective property as necessary to provide lateral support to the remaining portion of the Tunnel and as necessary to maintain the structural integrity of the entire Tunnel. 7. Indemnification The Benefited Owner will indemnify, defend and hold the Burdened Owner harmless from and against any and all claims, actions, causes of action, liability, loss, damage, cost or expense, including, but not limited to, attorneys' fees, incurred as a result of (a) the use of the Easement Area by the Benefited Owner or any of the Benefited Owner's tenants, agents, employees, customers, contractors, licensees, guests or invitees (its "Permittees "), including any and all personal injury or property damage caused by the Benefited Owner's or its Permittees' actions or failures to act within the Easement Area; and (b) any breach of the covenants contained in Section 6 by the Benefited Owner. The Burdened Owner will indemnify, defend and hold the Benefited Owner harmless from and against any and all claims, actions, causes of action, liability, loss, damage, cost or expense, including, but not limited to, attorneys' fees, incurred as a result of (a) the use of the Easement Area by the Burdened Owner or any of its Permittees, including any and all personal injury or property damage caused by the 6171396 200617768 3 OF 15 Burdened Owner's or its Permittees' actions or failures to act within the Easement Area; and (b) any breach of the covenants contained in Section 6 by the Burdened Owner. 8. Transfer to the Association The covenants and rights contained in this Agreement do not run with the land except as provided in Section 9 below and may not be assigned by the Benefited Owner except as provided in this Section 8. Upon the later of the formation of the Association or the recording of the Declaration, the Benefited Owner shall automatically and without any further action required be deemed to have assigned its rights under this Agreement to the Association for the benefit of the Members and to have delegated its duties under this Agreement to the Association. Upon request of the Burdened Owner, the Association will execute such documents as necessary to evidence such assignment and assumption. 9. Covenants Run With Burdened Parcel The covenants and rights contained in this Agreement are intended to run with and burden the Burdened Parcel and will inure to and be for the benefit of the Benefited Owner and its successors and assigns so long as (a) the Benefited Owner owns the Benefited Property or the Association has assumed the Benefited Owner's obligations under this Agreement pursuant to Section 8 above and continues to be obligated to perform such duties; and (b) this Agreement has not been terminated pursuant to Section 10 below. 10. Default and Remedies In the event that either party fails to perform any of its duties under this Agreement, the non - defaulting party may exercise any and all remedies available at law and in equity, including, without limitation, damages, specific performance and injunctive relief. In addition, in the event the Benefited Owner defaults in the performance of any of its obligations under this Agreement or otherwise breaches this Agreement, and the Benefited Owner fails to cure such breach within 10 days after receiving written notice from the Burdened Owner, the Burdened Owner may immediately terminate this Agreement. 11. Attorneys' Fees In the event that either the Benefited Owner or the Burdened Owner is required to commence any action or proceeding against the other in order to enforce the provisions of this Agreement, the prevailing party in any such action will be entitled to recover, in addition to any amounts or relief otherwise awarded, all reasonable costs incurred in connection with such action, including reasonable attorneys' fees. 12. No Merger of Interests GCP's rights and interests under this Agreement as the Benefited Owner are separate and distinct from its rights and interests under this Agreement as the Burdened Owner. The fact that all interests in the Benefited Property and the Burdened Property, including the Tunnel Easement, are, as of the date of this Agreement, vested in GCP will not cause a merger of those interests or any extinguishment of this Agreement. It is intended that no such merger occur and this Agreement remain in full force and effect from and after the date hereof. 13. Miscellaneous. (a) Notices Any notice required pursuant to or given in connection with this Agreement will be in writing and will be deemed given (a) upon delivery when .1 - 11191, 4 200617768 4 OF 15 personally delivered and accepted; (b) upon receipt by the party to be notified when sent via (i) facsimile, or (ii) national courier services, such as Federal Express, and when confirmation of delivery is available and used with such service; or (e) three business days after being deposited with the United States Postal Service, postage prepaid, for first class delivery. Notice to be given pursuant to this Agreement will be delivered to the following addresses: If to the Burdened Owner: Gore Creek Place, LLC c/o Vail Resorts Development Company Attention: Assistant General Counsel 137 Benchmark Road Avon, Colorado 81620 Facsimile: (970) 845 -2445 If to the Benefit Owner: Gore Creek Place, LLC c/o Vail Resorts Development Company Attention: Assistant General Counsel 137 Benchmark Road Avon, Colorado 81620 Facsimile: (970) 845 -2445 Any party may change its address or facsimile number for notice purposes by giving notice of such change to the other party in the manner provided for above. (b) Amendment Any amendment or modification of this Amendment may be effectuated only by a written instrument signed by the Benefited Owner and the Burdened Owner and recorded in the real property records of Eagle County, Colorado. (c) Severability In the event that any one or more of the provisions of this Agreement is for any reason held to be invalid or unenforceable, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect and be binding upon the parties to this Agreement. (d) Headings The paragraph headings that appear in this Agreement are for the purposes of convenience of reference only and are not in any sense to be constructed as modifying the substance of the paragraphs in which they appear. (e) Governing Law This Agreement will be governed by and constructed in accordance with the laws of the State of Colorado. Signatures on Following Page 611139 6 200617768 5 OF 15 IN WITNESS WHEREOF, the Burdened Owner and the Benefited Owner have made this Agreement as of the day, month and year first above written. ANnvd • to M'a= LOA 1 Nave. CE Alt si sir rn " BURDENED OWNER GORE CREEK PLACE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorad�r4ion, as Managing Member COUNTY OF EAGLE ) ) ss: STATE OF COLORADO ) The fore oing instrument was acknowledged before met day f TLt�✓! e , 200 0�, by _ c c , r , r �— as St. �/ir n re ld ss a ,� Vail Resorts Development Company, a Colorado corporation, in its capacity as the managing member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand an official seal. My commission expires: V FRy AR Notary Public No `N0Tg CFO •• .......: RQO f' 6171196 6 200617768 6 OF 15 " BENEFITED OWNER ApprwvW a to FKae Lend W"rawat Nstae: (' YARN Sip�trrr. rb GORE CREEK PLACE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorack Tcorporition, as Managing Member a,.. COUNTY OF EAGLE } } ss: STATE OF COLORADO } The foregoing instrument was acknowledged before me this � - of d c( 2 , 200 , by �a e K 4& „ , as r. l% c. o 4of Vail Resorts Development Company, a Colorado corporation, in its capacity as the managing member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand an official seal. My commission expires: 3 ? p ... ...... ' *pTARy . PU L C �Q COQ 6171 )Q 200617766 7 OF 15 EXHIBIT A BURDENED PROPERTY A PARC I'f. OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS RECORDED MA RCH 10.2005 AT RECEPTION NO. 908760, IN THE OFFICE OF fl IE CLERK AND RECORb6R. COUNTY OF FAGLE. STA fE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING Al 118E NORTHWEST CORNER OF SAID LOT 3, WHENCE THE WESTERLY LfNE OF SAID LOT 3 BEARS S Ii`UM" f A DISTANCC OF 122.301`1 ING THE DASIS OF DEARING OF THIS DESCRIPTION; 'ITIE.NC'E AI.ONG THE NORTHERLY LINE OF SAID LOT 3 'FHE FOI.LOIVING THREE: (3) COURSES: 1) N 74" 12'56' E A DISTANCE OF (98.65 FF,E'F; 2) S 20'17'1 I" E A DISTANCE-' OF 6.35 FEET; 9 N 69 °42'49• E A DISTANCE OF 211.51 FEET; 7 I IF?N(E DEPARF(N6 SAID NORTHERLY LINE. OF I.UT 3 S 20 E A DISTANCE OF 130.29 FEET 10 A POINT ALONG'FHF. SOUTHERLY LINE OF SAID LOT 3: THE NCF. ALONG THE: SAID SOU FICERLY LINEOF LO1' 3 THE FOLLOWING FOUR (4) COMM 1) S 66 °51'19" %t' A DISTANCE• OF 52.52 FEET; 2) S l5''46' 4 1" E A DISTANCE OF 3.15 FEET; 3) S ?- 1 W A DISTANCE OF 280.00 FEF.'f: 4) S 77' 29'10" W A DISTANCE OF 89.72 FEET TO THE SOLri HWES "F CORNER OF SAID LOT 3; 1 ALONG THE SAID WESTERLY LINE OF LOT 3 THE FOLLOWING TWO (2) ('OURSES: 1) N 31" +0'14" W A DISTANCE OF I.•I4 FEE'I; 2) N IS` 50'27" W A DLCTANC'E OF 122.80 FEET f0 THE T$I(t POINT Ol- BEGINNIN SAID PARCEL C'ONTAIMNG 1.2.36 ACRES MORE Oft LESS 4l111Y 0 A -1 200617768 8 OF 15 EXHIBIT B BENEFITED PROPERTY A PARCEL OF LAND LOCATED IN LOT 3, %VEST DAY SUBDIVISION, AS RECOI DhD MARCH 10. 2005 Al RECEPTION NO. 908760. IN 111 OFFICI3 OF THG CLERK AND RECORDER, COUNTY OF 13AGLE. MATE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOIITH EAST CORNER OF SAID LOT 3, WIIENC'E THE EASTERLY LINE Of $AIL) LOT 3 BEARS N 02'26'32" W A DISTANCE OF 130.77 FEET FORMING THE HAS)$ OF Bf --ARING OF TIIIS DESCRIPTION: THENCE CON] INUING ALONG SAID SUUT}I LINF: OF LI>I' 3 T}fl' }OLLOWfNG THREE 13) COURSES: 1) S R3`59'I �" w' A DISTANCE Of 30.00 FEE %'; 21 S 76'44'19" W A DISTANCE OF 135.64 FEET; )) S 66 °34'19" WA DISTANCE OF 229.77 FG }T: THENCE DEPARTING SAID SOIII'H LINE OF LOT 3 N 20`42'23" N A DISTANCE OF 130.29 FFJ•:T*10 A POINT ON 711E NORTTI LINE OF SAID LO'f 3: TI9 NCE ALONG SAID NORTH LINE Of LOI 3'1111; FOLLOWING NINE (9) COURSES; 1) N69'42'49" E A DIST. %NCEOF46.42 FEF.'f; 2) N 10'17'1 1" w A DISTANCE OF 4.79 FEET; 3) N 69 °72'19" E A DISTANCE OF 59.18 FEET; 4) S 20'17 E A OISTANCFOF4.79FF,ET: 5) N 69'42'4 E A DISTANCE OF 187.65 FEET; 6) N 82'49'24" EA DISTANCE OF 59.29 FELT; 7) N 39'10'12" G A msTANCE OF 18.52 FEf:F. 8) N 02'44'06' W A DISTANCE OF 4.88 FEET; 9) N 68'30'09' (; A DISTANCE OF 65.38 FEE►' TO A POINT ON 173E Iv %Sl LINE OF SAID LO "f ;; Il7EN('E ALON() SAID EAST I.LNI-. 01; LOT 3 111E FOLLOWING l - WO I2) COURSES: I) S 21 "30;3" I; A DISTANCE OF 20..4 FEG ); 21 S 02 °26'32" l A INSTANCE OF 130,71 Fl ?ET•fO THE j 2jJj�PQJ f UI' B E 'I NG- SAID PARCEL C'UNTAINING 1.215 ACRES MORE OR LESS. 01717 6 B -1 200617768 9 OF 15 EXHIBIT C TUNNEL b1709 6 (See Attached Depiction) C -1 200617768 10 OF 15 ANTLERS | CONDOM INIUMS 0 & L15 Q �~ � § \ } B O ) §( X0 0 S � m V t § Oq» 2§/ J � \ ! §§ o f u \ )\ m \ \ !L _ ( k} ) � � � q n \ � � �\ D G # 0 \ Li � \ B � / Si go � 200617768 11 OF 15 ( =](}(j{ �)2/ n @� §� 200617768 11 OF 15 EXHIBIT D EASEMENT AREA W7139 e (See Attached Depiction and Legal Description) 200617768 12 OF 15 P PR P5E d•5 a 1 P PN CL I i x a a a vi � -7 O JU =Oi„ OWE% ci p Ix 4 c °'•` � a w \ \\ Q 0 C+ F _ �j W c a N d OD ZZ Z } \ po- ;� d 0 C In Wit Y / J m [v voS Y. Z w Y N 5 » 'AS nY W g4 J�"3� � z I � _� �• ea . 27 u �.cvw� • N1S te''vs AD E �Rf-Sj R0 to 200617768 13 OF 15 LEGAL DESCRI rTI ON AN EASEMENT LOCATED IN LOT 3. WE'.S F DAY SUBDIVISION. A(;C'ORDING TO 171E PLAT 'I'H F.REOF REC'ORDE'D MAR(A 1 10, 2005, AF RECEIYFIOU NO. 908760 IN - 1 - 111z OFFICE OF TI IE CLERK AND RECORDER, COUNTY OF EAG1.2 ,S "FA'1'1; OF COLOKADO, 131:ING MORF PARTICULARLY DESCRIBGU AS A THREE- DIMENSIONAL. AREA BOUNDED BY UPPER AND LOWER SUKI'AC'L-S WI LOSE. PERIMETERS ARI; DrSCRIBED BELOW, AND ROUNDEL I ON ITS SIDES UY VFIYIIC'AL SUI {FAC'T'S CONNE(.TINGTIIE PERIMi:TERS OF THOSE UPPER AND LOWER SURFACES: f}A SIS OF DFA - W i ' MR 1101 LOWER AND UPPFR SURFACE DOUNDARIPS COMMENCING AT THE. SOUTHERLY ANG1.r POINT ON 1'HE WF.S'FERLY LINE. OF SAID LOT 3, WHFNCI3 THE WFSI'L'RI Y LINL; OF SAID LOT 3 BEARS N 15 °50'27" W A DISTANC'F OF 122.80 FEF.1 FORMING 111E BASIS OF BLEARING; AND NGS STATION SPRADDLE WITH AN ELEVATION OF 8287.8 (NAVD) BONG THE BASIS OF ELEVATION FOR THIS DECRIIIHON; LOWER SURFACE BOUNDARY: THENCE CONTINUING ALONG SAID WI.ST LINE OF LOT 3, N 15`50'27' W A DISTANCE OF 84.97 FEET TO A POINT AT AN ELEVATION OF 8108.9 FEET, SAID POINI BEING 1 I1E TaUE voI Q' i :QjN l�Cj FOR THL; LOWER SURFACE BOUNDARY,1'HENCE CON FINUING ALONG SAID WEST LINE LO "L 3..N I5 "5027" W A DISTANCE OF 24,00 FEETTO A POINT AT AN Iil- EVATION OF 8109.8 FELT; TH13NC E DFPARTIN'G SAID WEST LINE (IF SAID LOl 3 FHE 1`01.1.04-ING SEVEN*M& N (17) COURSES: 1 i THENCE N 74° 12'59" F A DKI'ANCr OF 29.06 FEET TO A POINT AT AN FI.I;VATION OF 8108.6 FEET. 2) THENCE N 74' 12'59" E A DISTANCE. OF 6.81 FEET TO A POINT AT AN E• LEVA 1'R)N OF 8108.2 FL:EI ; 3) 111 ENCE N 7.1 E- A DISTANCE OF 10.83 FEE F TO A POINT AT AN ELEVATION OF 8107.6 FEI: F; 4) THP.NCI, N 7 4 °12'59" E A D15FANcF.OF 46.75 FEET 1'O A POINT AI' AN FLBVA'F1ON OF 8107.1 F'EFT; 5) I N 74 °12'59' E A DISTANCE OF 46.54 FEE'FTO A POINT AT AN ELEVATION OF 6106.4 FEET; 6) TIII:NC'E N 69`42'51' F; A DISTANCE OF 45.11 FEET TO A POINT AT AN ELEVATION OF 8106.0 FEET; 7) THENCE N 69 °42 E A DISTANCE OF 20.54 FEET TO A POINT AT AN ELEVATION OF 8105.2 FEET: 8) THENCE N 69`42'51" E A DISTANCE OF 206.43 1'EF.TFO A POINT AT AN ELEVATION OF 9103.1 FEEL': 9) THENCE S 20 °42'23" E A DISTANCE OF 24.00 FEET TO A POFNF AT AN EV EV ATION OF 8103.1 FEEL'; 10) THENCE S 69 °42'51" WA DISTANCE OF 206.61 FEETTO A POINT AE AN ELEVATION OF 8105.2 FEET; 11) THENCE S 69'42'51" WA DISTANCE OF 20.54 FEET TO ,A POINT A "FAN ELEVATION OF 810(..0 FEET: 12) THENCE S 69 °42'51' W A DISTANCE 01:46.06 FEET TO A POINT AT AN ELEVATION OF 9106.4 FEET; 13) FHF.NCE S 74`12'5c;" WA DISTANCE OF47.48 FLET rO A POIN'FAT AN ELEVATION OF 8107.1 FEFT; 14) TIIFNCE S 74 "12'59" WA DISTANCE OF46.75 FEETTO A POINT AT AN E FION OF 8107.6 FEET: 15) THENCE S 74 1 1219" WA DISTANCE OF 10.83 F1iETTO A POINTAFAN ELEVATIONOF 8 108 2 FEEL: 200617768 14 OF 15 16) THENCE S 74'12'59" W A DISTANCE OF 6.81 FFL'TTO A POINT AT AN ELEVATION OF 8108.6 FISL'F; 17) TI IENCE S 74'12'59"W A DISTANCE OF 29.03 PFET TO A POINT AT AN ELEVATION OF 81U8.81'I:E'1' "1'O'IFIEZU_L P OIN'FOF 13FGINN FOR 1 HE I.OWEI( SL'RI ;ACT FIOUNDARY SAID PARCEL CONTAINING 0.228 ACRES MORE OR LESS. LIpPF:R .C 4� BOi3�1�)A__RY: THENCE CON "IlNU ALONG SAID W};SI' LINE OF SAID LOT 1. N 15'50'27^ W A DISTANCE. OF 84.97 F'EE'T TO A POINT AT AN ELEVATION OF 8119.3 FEE'). SAID POIN I' HEFN(. T11E T RUE PUINT O 1IF-G INNING FOR '171E UPPF.k SURFACE BOUNDARY;'I111:NCE CONFINUF 0 ALONG SAID WEST LINE I_U"F 3.N 15'5027" W A DISTANCF: OF 24.00 FFE'F I'D A POINT AT AN ELEVATION OF 8119.3 FEETT; TIIENCE DEPAR I'ING SAID W EST LINE OF SAID LOT 3 THE FOLLOW ING Sf;VENTEEN (17) COURSES: I ) TI II`NCE N 74 L'• A DISTANCE OF 29.06 FELT TO A POINT A 1' AN ELI-.VA I "]ON OF 8119.1 FEET. 2) THENCE N 74'12'5 F. A DISTANCE OF 6.81 FEET TO A POINT A"1' AN ELEVATION OF 8118.7 FLET: 1) THENCE N 74'12'59 1: A DISTANCE OF 10.83 FEGI' TO A POINT AT AN ELEVATION OF 8118.1 F'EEI': 4) 'F) IENC F N 74'12'59- EA DISTANCE OF 46.73 FL•'ET TO A PUINT A'1' AN FLEVAT)ON OF 9117.6 FEET"; 5) THENCE N 74'12'59" E A DISTANCE OF 46.34 FEET TO A POINT AT AN LLEVATION OF 81 16.9 FEET'; 6) THENCE N 69''12'51' E A DISTANCE OF 45.11 FEETTO A POINT AT AN ELEVATION OF 8116.5 FEET; 7) THENC'L• N 69'42'51' E A DISTANCE OF 20.54 FEET 1'0 A POINT A'F AN ELEVATION OF 8115.7 FEET; 8) T)IENCE N 69'42 E A DIST'ANC'E OF 206.43 FEET TO A POINT AT AN ELEVATION OF 8113.6 FEET; 9) 1 HENCE S 20' 2'23` C A DISTANCE OF 24.00 FFETTO A POINT AT AN ELEVATION OF 81 13.6 FEET; 10) "DIENCE• S 69'42'51' W A DISTANCE OF 206.61 FEET TO A POINT AT AN ELEVATIOV OF 8115.7 FEET: 11) *1'11FNC'E• S 6942'51^ W A DISTANCE OF 20.54 FEE I'TT0 A POIN'l A I AN ELEVATION, OF 8116.5 FEET: 12► "F)IIiNC'E S (,9°42'51' W A DISTANCE OF 4606 FEET TO A POINT AT AN ELEVATION OF 8I 16.9 FEET: 13► THENCE S 74' 12'59" W A DISTANCE OF 47.43 FEET TO A POINT AT AN ELEVATION or- 8 117.6 FE FT. 14) THENCE S 74'12'34" W A DISTANCE OF 46.75 FFET I U A POINT ATAN ELEVATION OF 8118.1 FEET: 15) THENCE S 74'12'59" W A DISTANCE OF 10.83 FEET TO A POINT ATAN ELEVATION OF 8118.7 FEET: 16) 'FNENCE S 74'12 W A DISTANCE OF 6.81 FEET TO A POINT AT AN ELEVATION OF 8119.1 FEE']'; 17) THF.NC E S 74'12'59" W A D1ST"ANCE OF 29.01 FEET TO A PUINT ATAN ELEVATION OF HI 19.3 FEET T 170 THE TRUE POINT OF BEGINNING FOR THE UPPER SURFACE. BUUNDARY SAID PARCEL CONTAINING 0.228 ACRES MORE OR LESS. 200617768 15 OF 15 EAGLE COUNTY, CC 200617769 TEAK J SIMONTON 174 Pgs: 14 02:44:37PM e?re5r2ees REC: 471.00 DOC: S 1 I CONSTRUCTION STAGING AND SUPPORT EASEMENT AGREEMENT THIS CONSTRUCTION STAGING AND SUPPORT ASEMENT AGREEMENT (this "Agreement") is made and entered to as of the Adday of J" e , 2006, / by THE VAIL CORPORATION, a Colorado corporation doing business as Vail Associates, Inc. t i' ( "West Day Lot Owner "), and GORE CREEK PLACE:, LLC, a Colorado limited liability company (`Gore Creek Owner "). RECITALS A. West Day Lot Owner owns the real property legally described on the attached Exhibit A (the "West Day Lot "). Gore Creek Owner owns the real property legally described on the attached Exhibit B (the "Gore Creek Property "). The West Day Lot is immediately to the north of the Gore Creek Property. B. Gore Creek Owner is developing a duplex -style development on the Gore Creek Property, which will include an underground tunnel and parking facilities (the "Gore Creek Improvements "). The Gore Creek Improvements will abut the property line forming the boundary between the West Day Lot and the Gore Creek Property. C. West Day Lot Owner intends to develop a multi -story residential condominium building on the West Day Lot, which will include a subterranean parking facility (the "West Day Lot Improvements "). The West Day Lot Improvements will likely abut the property line forming the boundary between the Gore Creek Property and the West Day Lot. D. West Day Lot Owner and Gore Creek Owner now desire to enter into this Agreement in order to establish certain easements benefiting and burdening the West Day Lot and the Gore Creek Property as further described below. AGREEMENT NOW, THEREFORE, Vail declares as follows: Temporary Construction Easements (a) The West Day Lot Owner hereby grants to the Gore Creek Owner a non - exclusive temporary construction easement (the "West Day Lot Construction Easement ") over that portion of the West Day Lot generally depicted on the attached Exhibit C (the "West Day Lot Construction Easement Area - ) for construction staging, parking of construction related vehicles, and other similar purposes related to the construction of the Gore Creek Improvements. (b) The Gore Creek Owner hereby grants to the West Day Lot Owner a temporary construction easement (the "Gore Creek Property Construction Easement') on, over, under, across and through that portion of the Gore Creek Property generally depicted on the attached Exhibit D (the "Gore Creek Property Construction Easement Area ") for construction staging, excavation shoring as further described in Section 2, use 642265 5 "HANS 06116106 1 4 PM Geer Arnold P.O. Box 959 -1AC 87 Avoq CO 81620 200617769 1 OF 14 of airspace by construction cranes, parking of construction related vehicles, installation of temporary fencing enclosing the Gore Creek Property Construction Easement Area and other similar purposes related to the construction of the West Day Lot Improvements. (c) The term of the easements in this Section I shall commence on the date of this Agreement and shall, with respect to the West Day Lot Construction Easement, terminate upon the earlier of the commencement of the construction of the West Day Lot Improvements as evidenced by the issuance of a grading permit, or the final completion of the Gore Creek Improvements, as evidenced by the issuance of a final certificate of occupancy for all of the Gore Creek Improvements. The Gore Creek Property Construction Easement shall terminate upon the final completion of the West Day Lot Improvements, as evidenced by the issuance of final certificate of occupancy for all of the West Day Lot Improvements. (d) Upon the termination of the West Day Lot Construction Easement and to the extent required by the West Day Lot Owner, Gore Creek Owner will cause the West Day Lot Construction Easement Area to be restored, as nearly as reasonably possible, to the condition that existed at the time the Gore Creek Owner began its construction staging and related activities on the West Day Lot Construction Easement Area. Upon the termination of the Gore Creek Property Construction Easement, West Day Lot Owner will cause the Gore Creek Property Constriction Easement Area to be restored, as nearly as reasonably possible, to the condition that existed at the time West Day Lot Owner began its construction staging and related activities on the Gore Creek Property Construction Easement Area, provided, however, that West Day Lot Owner will also install landscaping on the Gore Creek Property pursuant to Section 3. Tie -Back Easements (a) The West Day Lot Owner may make excavations on the Gore Creek Property and shoring on the Gore Creek Property supporting the sides of the excavation and providing lateral support for the West Day Lot and the West Day Lot Improvements. If and when the West Day Lot Owner undertakes the excavating, the shoring will be supported by tie -back anchors and/or soil nails (collectively, the "West Day Lot Tie- Backs "). Subject to the requirements of this Agreement, including, without limitation, Section 4, portions of any West Day Lot Tie -Backs will be installed under the surface of the Gore Creek Property; provided, however, that any excavations, shoring, and the West Day Lot Tie -Backs may not disturb in any manner or compromise the integrity of the underground tunnel and utilities that are a part of the Gore Creek Improvements. The Gore Creek Owner hereby grants to the West Day Lot Owner a non - exclusive temporary easement (the "Gore Creek Property Tie -Back Easement') under that portion of the Gore Creek Property generally depicted on the attached Exhibit E (the "Gore Creek Property Tie -Back Easement Area ") for purposes of installing the West Day Lot Tie -Backs and for related excavation, installation, and construction. (b) The term of the Gore Creek Property "Tie -Back Easement shall commence on the date of this Agreement and shall terminate upon the final completion of the West Day Lot Improvements, as evidenced by the issuance of a temporary or permanent 64220 5 AMANS OW10•0b 1 sa P161 200617769 2 OF 14 certificate of occupancy. Prior to the termination of the Gore Creek Property Tie -Back Easement, West Day Lot Owner will abandon in place the West Day Lot Tie -Backs and will have no duty or obligation to remove the same. Effective upon the termination of the Gore Creek Property Tie -Back Easement, West Day Lot Owner disclaims any right, title or interest in or to those portions of the West Day Lot Tie -Backs remaining on the Gore Creek Property and those West Day Lot Tie -Backs will become part of the Gore Creek Property. 3. Landscaping Upon the termination of the Gore Creek Property Construction Easement and completion of the West Day Lot Improvements, West Day Lot Owner will restore and /or install landscaping to the north of the pedestrian pathway forming a part of the Gore Creek Improvements, as well as within the Gore Creek Property Construction Easement Area (collectively, the "Gore Creek Landscaping "). Gore Creek Owner hereby grants an easement to West Day Lot Owner for the purpose of completing the Gore Creek Landscaping. West Day Lot Owner will complete the Gore Creek Landscaping contemporaneously with the installation of landscaping on the West Day Lot in accordance with Town of Vail requirements. 4. Subjacent and Lateral Support Easements The West Day Lot Owner hereby grants to the Gore Creek Owner a non - exclusive, perpetual easement over and across the West Day Lot for subjacent and lateral support of the Gore Creek Property and the Gore Creek Improvements. The Gore Creek Owner hereby grants to the West Day Lot Owner a non - exclusive, perpetual easement over and across the Gore Creek Property for subjacent and lateral support of the West Day Lot and the West Day Lot Improvements. The Gore Creek Owner shall not take or permit any action which would impair the lateral or subjacent support for the West Day Lot or the West Day Lot Improvements. The West Day I.ot Owner shall not take nor permit any action which would impair the lateral or subjacent support for the Gore Creek Property or the Gore Creek Improvements. 5. Compliance with Laws All activities carried on by the Gore Creek Owner on the West Day Lot pursuant to the easement rights granted to the Gore Creek Owner pursuant to this Agreement shall be conducted in accordance with all applicable laws. All activities carried on by the West Day Lot Owner on the Gore Creek Property pursuant to the easement rights granted to the West Day Lot Owner pursuant to this Agreement shall be conducted in accordance with all applicable laws. 6. Indemnification Each party (the "Indemnitor ") hereby agrees to indemnify, defend and hold harmless, the other party (the "Indemnitee ") and the Indemnitee's officers, directors, shareholders, partners, members, agents, employees, successors and assigns ( together with the Indemnitee, the "Indemnified Parties "), from and against any and all claims, actions, causes of action, liability, losses, damages, costs or expenses, including reasonable attorney's fees, and including, without limitation, any and all mechanics' and/or materialmen's liens and claims, which may be imposed upon or incurred by any of the Indemnified Parties, and which arise from or are related to, either directly or indirectly, the Indemnitor's use or occupancy of the lndemnitee's property pursuant to this Agreement or the lndemnitor's failure to comply with the terms and provisions of this Agreement. &Q20 c AKHAHS MM66 1 S4 PM 200617769 3 OF 14 7. Liens The West Day Lot Owner shall keep the Gore Creek Property free from any liens or encumbrances arising out of any work performed, materials f umished or obligations incurred by or on behalf of the West Day Lot Owner. In the event that any such lien is filed against the Gore Creek Property, the West Day Lot Owner shall cause the same to be released within 10 days after demand from the Gore Creek Owner by any means available, including, without limitation, by bonding. The Gore Creek Owner shall keep the West Day Lot free from any liens or encumbrances arising out of any work performed, materials furnished or obligations incurred by or on behalf of the Gore Creek Owner. In the event that any such lien is filed against the West Day Lot, the Gore Creek Owner shall cause the same to be bonded over or released within 10 days after demand from the West Day Property Owner. 8. Headings The captions and headings of any section within this Agreement are not part of and in no manner defined, limit, amplify, change or alter any term, covenant, or condition of this Agreement. 9. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 10. Bindin Effect This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. 11. Recordation This Agreement shall be recorded in the real property records of Eagle County, Colorado. Notwithstanding anything to the contrary, upon the termination of the easements in Sections 1 and 2 above, such easements shall no longer burden the West Day Lot or the Gore Creek Property and the same shall automatically expire without any requirement that any further document or agreement be executed or recorded in the real property records of Eagle County, Colorado. 12. Amendment or Waiver This Agreement may be amended, and any right or interest herein may be waived, only to the extent set forth in a written instrument executed by both parties. 13. Severabilitv In the event that any one or more of the provisions of this Agreement is for any reason held to be invalid or unenforceable, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect and be binding upon the parties to this Agreement. 14. Covenants Run with the Land The covenants and rights contained in this Agreement are intended to run with and burden and benefit both the Gore Creek Property and the West Day Lot and will inure to and be for the benefit of the West Day Lot Owner and the Gore Creek Owner and their respective successors and assigns. IREMAIhDER OF PAGE INTENTIONALLY LEFT BLANK "ZZ05 5 .A"ANJ Wlt 1 W PKI 200617769 4 OF 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above. WEST DAY LOT OWNER: THE VAIL CORPORATION, doing business as Vail Associates, Inc.. a Colorado corporation Approved a to Form: Legal DqmftwW Name: GE YARN" sipavarg Date: / -30 o By: N Tit e res id e. t STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this �Oday of wn e 2006, by � 4 , q a as Sr. O ie e 1jrCAd a,, t of The Vail Corporation, a Colorado corporation, doing business as Vail Associates, Inc. Witness my hand and official seal. My commission expires: /0z 0 3/:2,0 0 r �Y• A RN° • NorA9y .A'-• P UB l l� c 64:.055 AKHANS 06(169015<P!1 Notary Pub [Signatures Continue on Following Page] 200617769 5 OF 14 CORE CREEK OWNER: GORE CREEK PLACE, LLC, a Colorado limited liability company Appmed n to Furor: Leval Department Name: t:E Y AR SiSoatrre Data: By: VAIL RESORTS DEVELOPMENT COMPANY, a Colorado corporation, as Managing Member . . STATE OF COLORADO ) ss: COUNTY OF EAGLE ) 44 The foregoing instrument was acknowledged before me this 2,0 day of —: cEt n 4_ 2006, by _ k- "'h _ as r. Ji _ f & s pdg . fi of Vail Resorts Development Company, a Colorado corporation, in its capacity as Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: !d 0 � ' YA N0 N otary Pu c cp •. 1p 9j ' .............. P ��F GOL 6122555 .AKHANS 01, &ob154%.1 200617769 6 OF 14 EXHIBIT A West Day Lot Legal Description Lot 2, West Day Subdivision, according to the Final Plat thereof recorded in the real property records of Eagle County, Colorado, on March 10, 2005 at Reception No. 908760. 043_655 AA an * Om16 06 I � ;MI A - 1 200617769 7 OF 14 EXHIBIT B Gore Creek Property Legal Description Lot 3, West Day Subdivision, according to the Final Plat thereof recorded in the real property records of Eagle County, Colorado, on March 10, 2005 at Reception No. 908760. W2205 AI.IIANY IN.16AV 1 $4 Pal B-1 200617769 8 OF 14 EXHIBIT C West Day Lot Construction Easement Area (see attached depiction) 61::.55 AMAKS Cri I6Q61 54 MJ C - 1 200617769 9 OF 14 A' v IM& tw. ...................... -At IL ill "W oo 10 mfr Ell a ll o il li p st 1, ww..m "1-.dm I EXHIBIT D Gore Creek Property Construction Easement Area (see attached depiction) W226.1 5 AFNANS OW WW t 54 M1 D -1 200617769 11 OF 14 L L 1 �\ Y' s > f« • Y - ' e 0 T, � i EXHIBIT E Core Creek Property Tie -Back Easement Area (see attached depiction) eA226S S AI:HANS Otr16.bb 1 54 I-M E -' 200617769 13 OF 14 Ni VM EPGLE COUNTY CC 200617770 TERK J SIMONTON 07r0sr2006 23 P95= 9 02:44:38Pn REC= $X6 @ DOC" E AGREEMENT REGARDING DENSITY ALLOCATION THIS AGREEMENT REGARDING DENSITY ALLOCATION (this "Agreement ") is made as of the 30 day of — , T c j , c , 2006, by and between GORE CREEK PLACE, LLC, a Colorado limited liability company ( "GCP "), whose legal address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, Attention: Jack Hunn, Senior Vice President, and THE VAIL CORPORATION, DB /A VAIL ASSOCIATES, INC., a Colorado corporation ( "Vail Associates "), whose legal address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, Attention: Jack Hunn, Senior Vice President. RECITALS: A. GCP is the owner of Lot 3, West Day Subdivision, according to the plat recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado (the "Gore Creek Lot "). Vail Associates is the owner of certain real property contiguous to the Gore Creek Lot and legally described as Lot 2, West Day Subdivision, according to the plat recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado (the "West Day Lot "). The aforesaid subdivision plat of West Day Subdivision is sometimes referred to hereinafter as the "Plat." B. The Plat contains a General Note No. 12 (the "Plat Note ") which specifies that "[f]or purposes of zoning, Lots 1, 2 and 3 created by the subdivision are to be treated as one development site. Development standards shall be based upon the improvements and land area of the combined area of Lots 1, 2 and 3." The Plat Note has the effect of allocating permitted development densities under applicable zoning in the aggregate to said Lot 1 established by the Plat ("Lot 1 "), Lot 2 (i.e., the West Day Lot), and Lot 3 (i.e., the Gore Creek Lot), instead of there being a specific discrete allocation of zoned development densities for each of those Lots. 1 aggregate properties included within the Plat are sometimes referred to herein collectively as the "Subdivision Properties." C. The parties have mutually determined, in accordance with and subject to the terms of this Agreement, to modify the effect of the Plat Note by a private covenant establishing limitations on the zoned development densities that may be used and enjoyed for the Gore Creek Lot, which limitations are intended to and shall inure to the benefit of the ownership of the West Day Lot and safeguard the zoned development densities that may be used in connection therewith. NOW, THEREFORE, in consideration of the above premises, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, GCP and Vail Associates agree as follows: Atka,eco^ainw ok_ rt= m o Gary Arnold P.O. Box 939 — I/C 87 Awn, CO 81620 6857892 RCFIBH 200617770 1 OF 9 1. Density Limitations Encumbering the Gore Creek Lot (a) GCP, for itself and its successors in interest in and to the ownership of the Gore Creek Lot and the "Units" defined below (collectively the "Gore Creek Owners "), does hereby irrevocably and forever covenant and agree that any development of improvements on the Gore Creek Lot may not use any permitted zoned development densities in excess of (i) those zoned development densities, determined by reference to GRFA and site coverage, initially employed by GCP for its residential development of the Gore Creek Lot, which shall contain not more than sixteen (16) residential dwelling units (the "Units "), as those Units and related interests in common elements are conveyed of record by GCP to its immediate purchasers (the "Initial Density"), and (ii) incremental density in an aggregate amount not to exceed 8,000 square feet of GRFA and 800 square feet of site coverage ( "Incremental Density "). These limitations on the use and enjoyment of development densities for the Gore Creek Lot are sometimes referred to hereinafter as the "Density Limitations," and the Initial Density and the Incremental Density are sometimes referred to hereinafter collectively as the "Gore Creek Densities." The development of the Gore Creek Lot undertaken from time to time pursuant to the Gore Creek Densities is sometimes referred to hereinafter as the "Gore Creek Development." As used in this Agreement, the terms "site coverage" and "GRFA," which is an acronym for "gross residential floor area," shall have the meanings given those terms under the presently prevailing provisions of the Vail Town Code, and specifically Sections 12 -2 -2 and 12 -15 -1 et seq therein. (b) Certain plans and specifications which have been and will be adopted and approved by the Town of Vail (the "Town") for the Gore Creek Development and which have been and will be used to develop the Initial Density (the "Initial Development ") are identified on Exhibit A attached hereto and incorporated herein by this reference (the "Plans "), but this reference to the Plans is to serve as an informational tool only, and will not limit the Density Limitations or the rights of GCP's successors to use and enjoy the Initial Density as employed for the Initial Development actually constructed by GCP. As and when the Initial Development is fully completed, GCP, together with and if required to do so by Vail Associates at its election, will record a supplement to this Agreement setting forth the actual measured GRFA and/or site coverage used by the Initial Development (and this obligation of GCP shall remain with and be satisfied directly by GCP, notwithstanding any intervening conveyances by GCP of any Units or other interests in the Initial Development to any of GCP's purchasers). That supplement shall relate back to and have the same priority as this Agreement as recorded. 2. Allocation of Remaining Available Density GCP and Vail Associates hereby irrevocably and forever covenant and agree that all permitted development densities presently or hereafter applicable to the Subdivision Properties, net of (i) the Gore Creek Densities and (ii) those development densities allocated to Lot 1 under the "Lot I Agreement," as hereinafter defined (the "Net Densities "), shall be allocated to and may be used and enjoyed exclusively in conjunction with the West Day Lot. 685789.2 RCFISH 2 200617770 2 OF 9 3. Specific Applications In conjunction with and as part of the Density Limitations, and in relation to the allocation of the Net Densities to the West Day Lot, GCP and Vail Associates specifically agree as follows: (a) Neither the Density Limitations, nor any other provision of this Agreement, shall prohibit the Gore Creek Owners from reconstructing the Gore Creek Development in accordance with the Initial Density in the event of any fire or other casualty affecting the Gore Creek Development (provided that any such reconstruction may be subject to limitations imposed by the Town independently of this Agreement). For purposes of the foregoing, and other purposes under this Agreement, any Incremental Density actually used for new improvements from time to time shall become an addition to and part of the Initial Density and no longer considered part of the Incremental Density (and the Incremental Density shall be reduced accordingly). (b) The Incremental Density shall constitute an allocation generally to the Gore Creek Development, and is not applicable in discrete segments to individual Units. Any allocation and use of the Incremental Density for any particular Unit shall be determined from time to time by the Gore Creek Owners acting collectively; so long as the Gore Creek Development is subject to the authority of an owners' association (the "Gore Creek Association "), the Gore Creek Association, acting through its board of directors (however denominated), will be charged with the rights and responsibilities for allocating portions of the Incremental Density and establishing any terms, conditions or requirements applicable thereto. (c) In the event the Subdivision Properties are ever subjected to a "down - zoning," i. e., a reduction in the aggregate permitted densities, then such reduction shall be applied first to the Incremental Density that remains unused at the time of the Town's adoption of the down - zoning before any application of such reduction to the Net Densities in favor of Vail Associates. (d) The Incremental Density may be employed to expand one or more of the Units, but not to create or establish additional residential dwelling units, the number of which on the Gore Creek Lot may not exceed 16 at any time unless given Vail Associates' prior written consent at its sole election; to this end, and without limitation, no Unit may be further subdivided without Vail Associates' prior written consent. The Gore Creek Development may never contain any residential, accommodation, commercial condominium or other units of any form in excess of the 16 residential Units, unless such excess is given Vail Associates' prior written consent at its sole election. The foregoing limitations shall be controlling over any terms to the contrary in any condominium declaration or other documents governing the ownership, management, operation, use and enjoyment of the Units, the Gore Creek Lot and the Gore Creek Development. 4. Running with the Land; Successors in Interest (a) The Density Limitations shall constitute a real covenant and/or equitable servitude burdening and encumbering the ownership of the Gore Creek Lot, and along 6MIR9.2 RCFISH 200617770 3 OF 9 with the other provisions of this Agreement, shall touch and concern and run with the land as a burden to the ownership of the Gore Creek Lot, and shall be binding upon the Gore Creek Owners and any Gore Creek Association existing from time to time; conversely, the benefits of the Density Limitations, and the allocation to the West Day Lot of the Net Densities, shall run with the ownership of the West Day Lot as an appurtenance thereto and shall inure to the benefit of Vail Associates and its successors in interest in the ownership of the West Day Lot. However, so long as Vail Associates continues to hold any ownership interest in any portion of the West Day Lot, the benefits of the Density Limitations, unless otherwise elected by Vail Associates, may be enforced only by Vail Associates, and will not be enforceable by any other party succeeding to other ownership interests of Vail Associates in the West Day Lot. (For purposes of the foregoing, "Vail Associates" will include any affiliate of Vail Associates that succeeds to any of Vail Associates' ownership interests in the West Day Lot, or any of their respective mortgage lenders that may succeed to such ownership.) Vail Associates shall not have any obligation to enforce the Density Limitations for the benefit of its successors in interest to the ownership of the West Day Lot, the West Day Association (defined below), or any other party. (b) At such time as any planned community under Colorado law is established for the West Day Lot, the benefits of the Density Limitations shall be deemed to constitute a common element inuring to all the owners within that planned community, which common element may be enforced, managed and administered by the owners' association formed pursuant to such planned community (the "West Day Association "), acting through the West Day Association's board of directors, however denominated (but subject, as applicable, to Vail Associates' exclusive enforcement rights under paragraph 4(a) above). (c) The parties mutually acknowledge that development of Lot 1 is already subject to that certain "Agreement Regarding Density Allocation" dated as of June 24, 2005, made between Vail Associates and Diamondrock Vail Owner, LLC, recorded in the real property records for Eagle County, Colorado (the "Records "), on June 24, 2005, at Reception No. 920515 (the "Lot 1 Agreement "), and establishing, for the benefit of the Gore Creek Lot and the West Day Lot, certain development density limitations applicable to the use, enjoyment and development of Lot 1 (the "Lot 1 Density Restrictions "). GCP covenants and agrees that any and all rights under or associated with the Lot 1 Agreement to waive, terminate or modify the Lot 1 Density Restrictions, in whole or in part (and specifically including, without limitation, the granting of permission as contemplated in the Lot 1 Agreement to convert hotel accommodation units to dwelling units) shall be reserved to and vested solely in Vail Associates, and GCP specifically agrees, for itself and the Gore Creek Owners and any Gore Creek Association, that they have and shall have no authority to and shall not make or grant any such waiver, termination or modification (and any purported waiver, termination, or modification by GCP or the Gore Creek Owners or any Gore Creek Association shall at the election of Vail Associates be null and void and of no further force or effect). The rights reserved to Vail Associates under this paragraph 4 shall constitute a supplement to and part of the benefits of the Density Limitations. 685789.2 RUISH 200617770 4 OF 9 5. No Merger, Affiliates (a) Notwithstanding that GCP and Vail Associates are affiliates of one another, and notwithstanding any other commonality of ownership interests subsequently arising, whether direct or indirect, between the Gore Creek Lot and the West Day Lot, such commonality of interests shall not give rise to any merger with those ownership interests of the Density Limitations or the other provisions of this Agreement, or any extinguishment of the Density Limitations or such other provisions, it being the mutual controlling and dominant intent of GCP and Vail Associates that no such merger or extinguishment shall occur, and that the Density Limitations and the other provisions of this Agreement shall remain in full force and effect regardless of any such commonality of interests, and without any limitation or impairment arising by virtue of such commonality of interests. (b) For purposes of this Agreement, an "affiliate" of Vail Associates shall mean any corporation, limited liability company or other entity which by virtue of majority ownership interests, whether held directly or indirectly, is controlled by, controls, or is under common control with Vail Associates. 6. Remedies GCP specifically acknowledges and agrees that any breach or violation by GCP of the Density Limitations or the other provisions of this Agreement may cause Vail Associates irreparable harm that cannot be adequately addressed by the recovery of damages or other remedies at law, and accordingly Vail Associates shall be specifically entitled to injunctive relief, both of a prohibitive or mandatory nature, or other equitable remedies to preclude or prevent any such breach or violation or to cure or remedy such breach or violation after the same has occurred (including, without limitation, relief compelling the removal of any improvements and the vacation or reversal of any governmental development approvals causing such breach or violation). This right of equitable relief in favor of Vail Associates shall be cumulative with and in addition to, and not exclusive of, any other rights and remedies available to the parties at law or equity for any breach or default of the provisions hereof, including, without limitation, recovery of damages, and any and all such remedies may be pursued by the non - defaulting party, either successively or concurrently, as the non - defaulting party may determine; the exercise of any one remedy shall not constitute an election to the bar of any other remedies. 7. No Third -Party Beneficiaries This Agreement is intended to constitute only an undertaking between GCP and Vail Associates, and their respective successors in and to the Gore Creek Lot and West Day Lot as set forth herein, and no other party shall constitute or be construed as a third -party beneficiary of any of the provisions hereof. Without limitation on the generality of the foregoing, the Density Limitations are intended to and shall be only in the nature of a private property interest, and shall not constitute any form of public land use limitation or regulation or be enforceable by the Town or any other public authority. Conversely, the bindingness and enforceability of the Density Limitations will not be limited or impaired, and the Density Limitations may be fully applied and enforced pursuant to this Agreement, in the event that the Density Limitations are ever more restrictive upon the development and use of the Gore Creek Lot than the applicable public land use limitations, or that any governmental authority forgoes enforcement of any such public limitations. 675789.2 RUISH 200617770 5 OF 9 8. Attorneys' Fees In the event any litigation or legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees, and the presiding court or forum shall be bound to make this award. 9. Choice of Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 10. Captions for Convenience All headings and captions used in this Agreement are for convenience and reference only and shall in no way define, limit, or prescribe the scope or intent of any provisions of this Agreement or have any effect in the interpretation thereof. 11. Entire Agreement This Agreement, together with the exhibits attached hereto, constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof, and any prior or extrinsic understanding or agreement pertaining to such subject matter, whether written or oral, is specifically superseded hereby and shall have no force or effect. 12. Amendment and Waivers This Agreement may not be amended or modified except pursuant to a written instrument mutually executed by the parties and recorded in the Records. No right or obligation under this Agreement, or any breach thereof, may be waived except pursuant to a written instrument signed by the party against whom enforcement of such waiver is sought, and then only to the extent specifically set forth therein. 13. Severability If any provision of this Agreement as applied to particular circumstances shall be illegal and unenforceable, such illegality and unenforceability shall not affect the enforceability of any other provisions of this Agreement, or the affected provision as applied to circumstances for which it is enforceable, it being intended that all provisions of this Agreement be valid and enforceable to the fullest extent legally permissible. Any provision suffering from such illegality or unenforceability shall be deemed replaced with a substitute provision which as closely as legally possible reflects the substantive content and intended effect of the illegal or unenforceable provision. 14. Recordation This Agreement shall be recorded in the Records. 15. Counterparts This Agreement may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. [Remainder of page intentionally left blank] 6657892 RCF7SH 200617770 6 OF 9 IN WITNESS WHEREOF, GCP and Vail Associates have made this Agreement Regarding Density Allocation as of the day, month and year first above written. Approved as to Form: URM Department Nape: 4E YARNO 312060ta: Pak. G - 0 GORE CREEK PLACE, LLC, a Colorado limited liability company STATE OF COLORADO ) ss: COUNTY OF q r Q ) The foregoing instrument was acknowledged before me this 6) day of n — Tit t t , 2006, by Ua /J c.k u u, as 5r (J7ee JJresid e. of Vail Resorts Development Company, a Colorado corporation, Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Ca�RR A9�' O tk o rA Notary Pu c �`: �B C FpF -"..... [Vail Associates' signature block appears on next page] COt 6357992 RUISH 7 200617770 7 OF 9 Vail Resorts Development Company, a Colorado corporation, Managing Member F ved as to Farm: Deparuneat : t.ro D b MEW0M--M-W..H0.A STATE OF COLORADO THE VAIL CORPORATION, DB /A VAIL ASSOCIATES, INC., a Colorado corporation By: Nam In 430K L ti Title: r. , -. — ' Fee s ,7 ss: COUNTY OF e ) The foregoing instrument was acknowledged b fore me this _ O day of h -X 2006, by v h m —a r n c S , as r• ) e e s :W of The Vail Corporation, d/b /a Vail Associ tes, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: /d Z A} 1 p 0 '.O N 0 T4,9 :< AGB 'c Notary Publ' 6857692 RCFISH 200617770 8 OF 9 EXHIBIT A Plans Design development drawings entitled "Lionshead Gore Creek Residences" on the cover sheet and index of drawings therefor, approved by the Town's Planning and Environmental Commission on June 28, 2004, and by the Town's Design Review Board on July 7, 2004, and finalized pursuant to those approvals and dated as of July 8, 2004, and building permit plan sets of construction drawings and specifications approved by the Town pursuant thereto from time to time which are employed for initial construction of the Gore Creek Development and the issuance of initial certificates of occupancy therefor. 685789.2 RUISH A -1 200617770 9 OF 9 EAGLE COJNTY, CO 2006 1777 1 TEAK J SIMONTON l c 74 Pge: 15 02= 44:39Pn O�r05/ 2000 RE-. $76.00 DOC: f i cc CHA1RLIFT EASEMENTS AGREEMENT This CHAIRLIFT EASEMENTS AGREEMENT (this "Agreement "), is made as of the 3_ day of M4 k - , 2006, by and between GORE CREEK PLACE, LLC, a Colorado limited liability company ("GCP "), and THE VAIL CORPORATION, d/b /a VAIL ASSOCIATES, INC., a Colorado corporation ( "Vail Associates "). RECFrALS: A. GCP is presently the owner of certain real property in the Town of Vail, County of Eagle, State of Colorado, which it is presently developing as residential townhomes under the project name "Gore Creek Place" (the "Residential Project'), and which at the present time is legally described as Lot 3, West Day Subdivision. according to the plat thereof recorded in the real property records for Eagle County, Colorado (the '`Records ") on March 10, 2005, at Reception No. 908760 (the "Gore Creek Site "). 13. Vail Associates, an affiliate of GCP, is the owner and operator of downhill skiing, recreational and other business concerns and activities conducted on Vail Mountain, adjacent to the Town of Vail, which entail the implementation, use and enjoyment of ski chairlift/gondola facilities for purposes of transporting skiers and other parties to and from Vail Mountain. C. In connection with the conduct of operations on Vail Mountain, GCP has determined to grant Vail Associates certain easements over the Gore Creek Site for purposes of permitting and effectuating the installation, maintenance, use and enjoyment of ski chairlift /gondola facilities that may be located on and/or pass over and through the Gore Creek Site, and the parties have mutually determined to establish certain terms in connection therewith, all in accordance with and subject to the provisions of this Agreement. NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, GCP and Vail Associates hereby covenant and agree as follows: Establishment of Easements (a) GCP hereby grants and conveys to Vail Associates perpetual, irrevocable easements in gross pertaining to certain portions of the Gore Creek Site as set forth below (sometimes hereinafter together the `Easement(s) "): (i) An easement upon, underneath, over, across, through and above that portion of the Gore Creek Site which is legally described on Exhibit A attached hereto (the "Chairlift Easement Area ") for the location, installation, After =ordiagolcan return w: Gary Arnold 63_1841 RCFISH P.O. Box 939 —I/C97 Awn, CO S 1620 200617771 1 OF 15 construction, maintenance, repair, improvement. replacement, operation, use and enjoyment of ski chairlift/gondola facilities and related equipment, appurtenances andunprovements, including, without limitation, cable lines, connections, cross arms supported by towers, lift chairs and /or gondola cars, communication lines, towers, lifting frames and other support structures, and other structures, improvements, equipment and facilities associated with ski chairlift/gondola operations (collectively "Chairlift Facilities "), and for related pedestrian and vehicular access; (ii) An easement to enjoy the airspace above that portion of the Gore Creek Site legally described on Exhibit B attached hereto (the "Airspace basement Area ") as open, unimproved buffer space for the benefit of the Chairlift Facilities and the use thereof (the "Airspace Easement'). (b) The Easements are further supplemented by the provisions of paragraph 1(c) below. The Easements shall be for the use and enjoyment of Vail Associates and its designees, which may include any and all affiliates of Vail Associates, and the employees, agents, contractors and suppliers of any of them, together with skiers and other members of the public and invitees and licensees that, pursuant to licenses arising in connection with Vail Mountain operations, use the Chairlift Facilities as transport for skiing or other purposes (collectively with Vail Associates, the "Permittees "). For the purposes of this Agreement, the "affiliates" of Vail Associates shall mean any corporation or entity which, by virtue of direct or indirect majority ownership interests, is controlled by, controls or is under common control with Vail Associates (and the applicable affiliates shall be third -party beneficiaries of the provisions hereunder that pertain to them). The Chairlift Facilities may include, without limitation, additional improvements installed from time to tilne to implement or adapt to changing or evolving technologies or industry practices for transporting skiers and users of recreational and other goods and services offered by Vail Mountain operations from time to time. (c) The use and enjoyment of the Chairlift Facilities arc subject to regulation by the passenger tramway safety board of the State of Colorado (the "Tramway Board ") established pursuant to C.R.S. § 25 -5 -701, et sect and rules and regulations promulgated thereunder or adopted by the Tramway Board in connection therewith (collectively the "'tramway Laws "). In order to secure compliance with the Tramway Laws, Vail Associates' rights under the Easements shall specifically include, without limitation, the following use limitations running with the ownership of and encumbering the Gore Creek Site (collectively the "Use Limitations "): (i) Pursuant to Section 2.1.1.2.2.1 of the Code of Colorado Regulations. which is a part of the Tramway Laws (the "Encroachment Regulations "), no other building or structure may be constructed or located within the airspace of the Chairlift Facilities (the " Encroachrent Limitation "), which airspace is defined by the Encroachment Regulations as the area bounded by imaginary vertical planes located on each side of and 35 feet from the applicable rope or cable within the Chairlift Facilities, as measured in accordance with 0=94 ) KCHSH PA 200617771 2 OF 15 intended to establish compliance with the Encroachment Limitation; to augment and as pan of the Airspace Easement, GCP specifically covenants and agrees that neither GCP nor any Owners or the Association (as those terms are hereinafter defined), or any parties acting by, through or under them, shall install, construct or locate any buildings, structures, improvements or facilities within the Airspace Easement area (except for "Exempted Improvements" defined below, and except to the extent permitted by Vail Associates, if at all, pursuant to paragraph l(d) below). It is presently anticipated, based on Vail Associates' preliminary plans, that the Restricted Airspace will conform to the Airspace Easement Area; however, in the event the actual Restricted Airspace, based on Chairlift Facilities implemented from time to time, ever varies from the Airspace Easement Area, the Airspace Easement Area shall be deemed expanded (but not reduced) as necessary to correspond with the Restricted Airspace determined pursuant thereto (provided any such expansion will not apply to the Exempted Improvements). As and when the Chairlift Facilities are actually installed within the Chairlift Easement Area, Vail Associates at its election may supplement this Agreement by further written instrument, executed unilaterally by Vail Associates, that sets forth any such expansion of the Restricted Airspace (and Vail Associates will retain the right to record additional supplements thereafter in order to further define, modify or supplement the Restricted Airspace in conjunction with any further modifications or supplements to the Chairlift Facilities). (ii) In addition to complying with the Encroachment Limitation, neither the Association nor any Owner (as those terms are hereinafter defined), nor any party acting by, through or under them, shall cause, permit or suffer any improvements, trees, landscaping, or other possible obstacles (whether in the nature of real or personal property) to be located Nvithin the Gore Creek Site that causes a violation of vertical or other clearance requirements for the Chairlift Facilities (i.e., requirements that any possible obstacles be maintained at specified minimum distances from the Chairlift Facilities) under ANSI B77.1 -1999 as adopted by the Tramway Board from time to time (which standards may be further modified); provided, that the foregoing will not prohibit any Exempted Improvements or their use for their ordinary intended purposes. Furthermore, to the extent other additional use limitations affecting the Chairlift Facilities may hereafter be adopted as part of the Tramway Laws, the future uses within the Gore Creek Site shall conform to those additional use limitations, provided that specific uses within the Gore Creek Site which are pre - existing before notice of such incremental limitation is given to the Owners, including, without limitation, the use of Exempted Improvements for their ordinary intended purposes, will be grandfathered from and will not be subject to those additional use limitations. For purposes of the foregoing, and any other purposes related to this Agreement, notice to the Owners or any of them may be given to the Association pursuant to the notice provisions for the Association under its governing declaration or related documents. .02294 J RfFISH 200617771 3 OF 15 (iii) "Exempted Improvements" means those buildings and structures conveyed by GCP to one of the successor Owners, or any replacements thereof in the same locations, dimensions and configurations. (d) Vail Associates, as the holder of the Easements and at its sole election, may waive, limit or modify the Use Limitations for the benefit of one or more of the Owners (as specified by Vail Associates), in whole or in part, and permanently or for a limited duration, but only pursuant to a written instrument to that effect executed by Vail Associates and recorded in the Records. Any such waiver, limitation or modification shall not impose any liability upon Vail Associates for any loss, damage or liability that may arise therefrom or be associated therewith. In any case where Vail Associates determines to grant any such waiver, limitation or modification, Vail Associates may also pursue and obtain corresponding or related variances, waivers or approvals from the Tramway Board or other applicable parties under the Tramway Laws, and no consent or joinder of any Owner or the Association will be required in connection therewith. 2. Consistent Uses Permitted The Easements shall be non - exclusive, except that they shall be exclusive with respect to the use and enjoyment of chairlift/gondola and related facilities. Subject to the foregoing and the specific limitations under paragraph I above, the successors to GCP in the ownership of the Gore Creek Site or applicable portions thereof, including residential condominium units located thereon (collectively, the "Owners" ), and any owners association established in furtherance of the management and governance of those condominium units and /or the Gore Creek Site (an "Association "), shall have and retain rights to occupy, use and enjoy the Gore Creek Site for any and all purposes that are not inconsistent and do not interfere with the Easements and the use and enjoyment thereof, and the rights and interests afforded to Vail Associates under this Agreement. Without limitation on the foregoing, and in addition to the requirements hereunder for compliance with the Use Limitations, neither the Owners nor the Association shall take or permit any actions which physically interfere with, disturb or damage any Chairlift Facilities or violate or materially interfere with the use and enjoyment of the Easements by Vail Associates and its Permittees. 3. Ordinary Care Vail Associates will be obligated to exercise ordinary care in the use and enjoyment of the Easements (including, without limitation, ordinary care to avoid undue interference with the customary occupancy, use and enjoyment of the Residential Project for its intended purposes), and so long as such ordinary care is exercised, GCP will not have any liability to the Owners or any other parties and will be held harmless for any damage, liability or loss that may be incurred in connection with the use and enjoyment of the Easements_ Vail Associates specifically agrees, however, that to the extent any portion of the Gore Creek Site is damaged or disturbed by any construction, repair or other work activities conducted by or through Vail Associates in conjunction with the Easements, Vail Associates will cause the affected areas to be restored to substantially the same condition in which the same existed before such damage or disturbance (excluding, however, any damaged or disturbed improvements which are removed or affected by any removals pursuant to paragraph 7(b) below or whose presence otherwise constitutes a violation of the obligations of any Owner and/or the Association under paragraph 2 above). Otherwise, to the extent any Permittee exercising any Easement rights is an independent contractor of Vail Associates, Vail Associates' liability for any actions oY n4 7 KFISH 4 200617771 4 OF 15 or omissions of such independent contractor will be in accordance with and subject to generally prevailing rules of law governing vicarious liability for independent contractors. In addition, Vail Associates will specifically be held harmless and will not be liable for any personal injury, property damage, or other loss or injury suffered because of the actions or omissions of licensees and other parties using the Chairlift Facilities from time to time. 4. Easements in PerEetuity As set forth above, the Easements shall continue in effect in perpetuity. Any failure of Vail Associates to exercise any of the Easement rights from time to time shall not be construed as any waiver, relinquishment, abandonment or limitation of the Easements or any of them; the Easements may be relinquished, waived, abandoned or limited in any respect only if and to the extent specifically set forth in a written instrument that is executed by Vail Associates and that is recorded in the Records. Vail Associates may elect to so abandon the Easement, and in connection with any such abandonment may remove and retain as Vail Associates' sole property all or portions of the Chairlift Facilities, and /or abandon all or portions of the Chairlift Facilities in place, as determined by Vail Associates, and without any recourse to or liability of Vail Associates for any Chairlift Facilities not removed (provided that in connection with any removals undertaken, Vail Resorts will be responsible for restorations to the extent provided in paragraph 3 above). Notwithstanding the grant of the Easements hereunder, Vail Associates is under no obligation to GCP, the Owners, the Association or any other party to construct, operate and maintain Chairlift Facilities within the Chairlift Easement Area. Successors in Interest, Assi nment (a) The respective rights, interests and obligations of Vail Associates and the Owners under this Agreement, including the Easement rights in favor of Vail Associates, shall touch and concern and run with the land as a burden and benefit to the ownership of the Gore Creek Site, and shall be binding upon all Owners and the Association. As set forth above, the Easements shall constitute easements in gross in favor of Vail Associates, and shall not constitute or be construed as appurtenances benefiting any specific property. However, Vail Associates' interests in and to the Easements, and other rights and interests of Vail Associates hereunder, may be assigned by Vail Associates to any other party pursuant to a written instrument to that effect executed by Vail Associates and recorded in the Records. Any such assignment will not require any consent of the Owners. Upon the making of any such recorded assignment, the assignee shall become liable for any obligations of Vail Associates under this Agreement that may accrue during the period that the assignee holds its assigned interests, and Vail Associates shall be released from any such obligations accruing from and after the recordation of the pertinent assignment. Multiple successive assignments of Vail Associates' rights and interest hereunder will be pennitted, and the term "Vail Associates" when used herein shall mean, upon the occurrence of any such assignment, the assignee of record then holding Vail Associates' rights and interests hereunder. (b) GCP and each successor Owner will have liability for any breach of the obligations of GCP set forth herein only to the extent the breach occurs during the ownership period and in relation to the ownership interests of such party. If any such breach is attributable to any actions, omissions or property interests of the Association, 692:14 5 RCHSH 200617771 5 OF 15 recourse for such breach shall be limited to the Association; conversely, the Association shall have liability jointly and severally with any Owner to which any such breach is attributable. 6. Modification and Waiver No purported modification of the terms of this Agreement, or purported waiver by Vail Associates or the Owners, as the case may be, of their respective rights and interests hereunder, shall be binding unless and except to the extent specifically set forth in a written instrument executed by the party against whom enforcement of the purported modification or waiver is sought. Any modification or waiver executed by the Association shall be binding upon all of the Owners. Remedies, Attorneys' Fees (a) The rights of Vail Associates or the Owners hereunder may be enforced by any remedies available at law or equity, including, without limitation, the recovery of damages, and injunctive or other equitable relief to prevent the occurrence or continuance of any breach or default hereunder, or to enforce the performance and observance of the terms of this Agreement (including, without limitation, equitable relief preventing the construction or installation or requiring the removal of any buildings, structures, improvements or facilities that cause or would cause a breach of the Use Limitations). Any breach of the Use Limitations or any other provisions hereunder which are part of and/or protect the Easements may cause Vail Associates irreparable harm that cannot be adequately addressed by damages or other remedies available at law, and accordingly injunctive and other equitable relief shall be available to Vail Associates to address any such breach. In no event will available remedies include any termination of the Easements or any portion thereof or interests therein. All remedies shall be cumulative with and in addition to, and non - exclusive of, one another; any and all remedies may be pursued by the non- defaulting party either successively or concurrently; and the exercise of any one remedy shall not be construed as or constitute a bar to the exercise of any other remedy. (b) Without limitation on the other remedies available to Vail Associates as set forth in paragraph 7(a) above, GCP specifically agrees that in the event GCP or any successor Owner or the Association, or any party acting by, through or under them, constructs or locates any buildings, structures, improvements or facilities within the Restricted Airspace that causes a breach of the Encroachment Limitation, then Vail Associates, at its election and without obligation to do so, and without prior notice to the Association or any Owner, may remove and dispose of the offending buildings, structures, improvements or facilities in any manner that Vail Associates deems appropriate. Vail Associates shall not have any liability to the Owners or the Association for any resulting loss or damage to the buildings, structures, improvements and facilities which are the subject of the removal and disposal, or any other affected improvements, facilities or areas within the Residential Project. The Association, jointly and severally with any Owner responsible for the offending buildings, structures, improvements or facilities, shall be obligated to reimburse Vail Associates upon demand from time to time for all costs, expenses and liabilities that Vail Associates may incur in connection with any exercise of this self -help remedy, including attorneys' fees. 0622!43 RC F15N 200617771 6 OF 15 (c) In the event any legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and any presiding court will be bound to make this award). 8. Severability If any term, covenant, condition or provision of this Agreement shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, it being the intent of the parties that this Agreement and each provision hereof shall be enforceable and enforced to the fullest extent permitted by law. 9. Entire Agreement This Agreement and any other contracts or agreements specifically referred to herein represent the entire agreement between the parties hereto with respect to the subject matter hereof, and all prior or extrinsic agreements, understandings or negotiations shall be deemed merged herein. All Exhibits referred to in this Agreement as attached hereto are hereby deemed incorporated into this Agreement by this reference and made a part hereof. 10. Rules of Construction The headings which appear in this Agreement are for purposes of convenience and reference and are not in any sense to be construed as modifying the paragraphs in which they appear. References herein to the singular shall include the plural, and to the plural shall include the singular, and any reference to any one gender shall be deemed to include and be applicable to all genders. 11. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 12. No Merger Notwithstanding that GCP and Vail Associates are affiliates (Le_, there is directly or indirectly certain commonality of ownership interests in GCP and Vail Associates), and notwithstanding any other commonality of interests subsequently arising where one party holds interests, whether direct or indirect, in both [lie Easements and the fee ownership of the applicable portions of the Gore Creek Site, any such commonality of interests shall not give rise to any merger of the Easements or any other provisions hereof with the fee ownership of the applicable portions of the Gore Creek Site, or any extinguishment of the Easements or any such provisions, it being the mutual controlling and dominant intent of GCP and Vail Associates that no such merger or extinguishment shall occur, and that the Easements and other provisions of this Agreement shall remain in full force and effect regardless of any such commonality of interests, and without any limitation or impainnent arising by virtue of such commonality of interests. 13. Counterparts This Agreement may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. 113alance of page intentionally left blank] (92289: RCPISH 200617771 7 OF 15 IN WITNESS WHEREOF, GCP and Vail Associates have made this Chairlift Easements Agreement as of the day, month and year first above written. + � l► al �Pa►+atert Date: STATE OF COLORADO ) )s GORE CREEK PLACE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, Managing Member COUNTY OF �� J ) s. The foregoing instrument was acknowledged before me this o /1 da of � u •1 e _ 2006, by - J j -e w„ n as Sr. 0 c Q OOr es c �� of Vail Resorts Development Company, a Colorado corporation, Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: '(6 / ,2. o d y PI_AS *OTAQ 14TFOF COQ artH i HCHSH '4" Notary Pub [Vail Associates' signature block follows on next page] 200617771 8 OF 15 Apneed = to Erin: lA DepatttrenI Name: 4; YARNOLD signsm": Date STATE OF COLORADO THE VAIL CORPORATION, d/b /a VAIL ASSOCIATES, INC., a Colorado corporation FEW ) ss. COUNTY OF ) The foregoing instrument was acknowledged before r this �d day of _ ct n , 2006, by ��h / -ae r n S e as S l' . (pica t s % of The Vail Corporation, d/b /a Vail Associates, Inc., a Colodo corporation. Witness my hand and official seal. My commission expires: l Z1? 00 d G`�K A RN %O Notary Public A U BL It o 9l�OF COLS 68::84 ) RGFIS[4 7 200617771 9 OF 15 Exhibit A 043:311 p(T151) Chairlift Easement Area (See the attached) A -1 200617771 10 OF 15 LEGA L DESCRIPTION — CI IA IRLIF'F EASEMENT AREA A PARCEL OF LAND LUCA FED IN LOT 3, WEST DAY SUBDIVISION, AS REVORDED MARCII 10. 3005 AT RECEPTION NO. 908760, IN THE OFFICEOF Tiw CLERK AND RECORDER, COUNTY 01' EAGLE, STATE OF COLORADO, 13EING MORE PARTICULARLY DESCRIBL'D AS FOLLOWS: COMMENCING AT THE NORTHWE ' CORNER OF SAIU LOT 3. WI1L'NCE THE WESTT-RLY LINE OF SAID LOT 3 BEARS S 15`50'27" W A DISTANCT3 OF 122.80 FEET' FORMING THE HE BASIS OF BEAR M. OF Tl IIS DESCRIPTION, SAID POINT ALSO BEING TI4C TLtI1E POINT' OF BF(l1NNING TI II'.NCI'. ALONG THE NORTH LINE OF SAID LOT 3 N 74 L•' A DISTANCE OF 20.77 FEET; TT IENCE DEVARTING SAID NORTH LINE OF LOT 3 S 06 °3)'25' E A DISTANCE OF 125.80 iL•ET TO A POINT ON THE SOUTH LINE OF SAID I,O'1' 3; 1 HENCE ALONG SAID SOUTH LINE OF LOT 3 S 77 °29'10' W A DISTANCE OF 0.15 FEET TO THE SOUT1 1WESTERLY ANGLE POINT OF SAID LO'r 3; TI IENUE ALONG THE SAID WEST LINE OF LOT 3 N 31"4014" W A DISTANCE OF 1.44 I'EEr; 1'I IENCE N 15 °5027" W A DISTANCE OF 122.80 FEET TO VI IF MUE PO[N'T OF BEGI NNING. SAID PARCEI. CONTAINING 0.030 ACRES MORE OR LESS BRENT HIGGS PLSa27598 FOR AND ON THE HE BEHALF OF PEAK LAND CONSULTANTS, INC. P: \1100 -1 199 \1146.1\docs \1_egal -Lot 3 Chair Lift Easement.doe 200617771 11 OF 15 LOT 2 1 P.013. -- 0 r 0 13 0 O 1 L S Z � � �u_ 1 0D 0 o lo- , I O N o l r n 1 r L7 I m� z a 56 N- 74-A2' _ 198' 65 LOT 3 2.451 ACRES 0825 0 W 8g'2 s''•2 N' 4•12 56 280 00, TRACT B 1 N31 4'W — 1.44' AD u ` tl gg. f CHAIRUFT EASEMENT AREA I m 200617771 12 OF 15 Exhibit B w2'_W ] RCFISH Airspace Easement Area (Seethe attached) B -1 200617771 13 OF 15 LEGAL DESCRIPTION - AIR SPACE EASEMENT AREA A PARCEL OF LAND L.00ATim IN LOT 3, WEST DAY SUBDIVISION. AS RECORDED MARCH 10. 2005 A1' RECEPTION N0.908760, IN THE OFFICE OFTHE CLERK AND RECORDER, COUNTY OF EACiLIi, S1 ATE OF COLORADO, BITING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTH WES'ECORNER OF SAID I.O'T 3, WHL•:NCE'rHE WESTERLY LINE OF SAID LOT 3 BEAWS S 15'50 W A DISTANCE OF 122.80 FEET FORMING THE BASIS 01 HEARING OF TH]S DESCRIPTION; 'I'I 11:NC1: ALONG THE' NORTI.1 LINE OF SAID LOT 3 N 74'12'56" EA DISTANCE 01 51.661 f; I"]IENCE DEPARTING SAID NORTH LINE Ul' I.OT 3 S 06'35'25" E A DISTANCE: OF 127.57 FEETTO A POINT ON THE SOOTII LINE OF SAID LOT 3; THENCE ALONG SAID SOUTH LINE OF LOT 3 S 77 °29'10" W A DISTANCE OF 30.82 FEET TO A POINT ON 1 }1E 1VFS7' I.INI: OF SAID 1.0`1'3; 'I IIENCE ALONG SAID WEST LINE OF LOT 3 N 31 0 40'14" W A DISTANCE OF 1.44 FEET; THENCE N 11'30'27° W ,N DISTANCE 01: 122.80 FEET TO 111E ' TRUE 1 IN'T OF BECi1NN I N G. SAID PARC'L•'L CONTAINING 0.119 ACRES MORE OR LESS BRENT BIGGS PLSh27598 FOR AND ON THE BEHALF OF PEAK LAND CONSULTANTS. INC. P:11100- 119911 146.1 \docs \Legal -Lot 3 Air Space Easement.doc 200617771 14 OF 15 LOT 2 AI '1 X11jA fL 1 QCA now g Q ro Hl I 100'R 1'I1'1('AL ) .„ 1 U LOT 3 � 2451 ACRES w 0„ I ( H �^ (51 N m O (� v ff1 1 1 U C� „ a _ o N7 q•12 S 6 E O 2ao �� TRACT B r 5�.�•2g'1 r c N31 "W - 1.44' •2g 5 , 1 1 AIRSPACE EASEMENT AREA 200617771 15 OF 15 ERG'_E COUNTY, CO 2606 ���2 TEAK J SSNONTCN ;73 Pge: 20 02:44:40PM e 7 resr 2 66s REC: 5101.00 DOC: S PUBLIC PEDESTRIAN EASEMENT AND EMERGENCY ACCESS EASEMENT GORE CREEK PLACE, LLC ( "GCP "), a Colorado limited liability company, and THE VAIL CORPORATION, d/b /a VAIL ASSOCIATES, INC. ( "Vail Associates "), a Colorado corporation (sometimes hereinafter together "Grantor(s) "), for good and valuable consideration, in hand paid or received, hereby grant and convey to TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado ( "Grantee "), whose street address is 75 South Frontage Road, Vail, Colorado 81657, the following easements (collectively the "Easements ") with respect to the "Servient Estate" detined below: (i) an easement in perpetuity for pedestrian access (the "Pedestrian Access Easement ") over, upon and across an improved pedestrian access way to be constructed within the Servient Estate (the "Access Way "), and (ii) an easement in perpetuity (the "Emergency Access Easement ") for the purpose of surface access across and over the Access Way by ambulances and small fire- protection vehicles in order to accommodate the ordinary performance of their functions in emergency circumstances; provided, however, that any vehicle having a wheel load or gross vehicular weight in excess of 12.000 pounds is specifically prohibited and may not be employed in any use of the Emergency Access Easement. The "Servient Estate" shall be comprised of (i) that certain parcel of real property legally described on Exhibit A -1 attached hereto (the "GCP Easement Parcel "), and located within Lot 3, West Day Subdivision, according to the plat thereof recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado ( "Lot T), which Lot 3 and GCP Easement Parcel are owned by GCP, and (ii) that certain parcel of real property depicted on Exhibit A -2 attached hereto (the "Vail Associates Easement Parcel ") and located within Lot 2, West Day Subdivision, according to the plat thereof recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado ( "Lot 2 "), which Lot 2 and Vail Associates Easement Parcel are owned by Vail Associates. The Easements shall be governed by and subject to the following terms and provisions: 1. Easement Beneficiaries The Pedestrian Access Easement shall be for the use of members of the general public (the "Public "), and accordingly the Pedestrian Access Easement does and shall constitute a public dedication. All members of the Public shall be regarded as invited guests of the Grantee for purposes of C.R.S. § 33 -41 -103; it is mutually intended by the parties that Grantors have the full benefit and protection of the provisions of C.R.S. § 33 -41 -103 in relation to the use and enjoyment of the Pedestrian Access Easement and the Access Way. Grantors specifically agree that no charge shall be levied by Grantors upon and no revenue shall be collected from any member of the Public for any entry into the Servient Estate for the use and enjoyment of the Pedestrian Access Easement. The Emergency Access Easement shall be for the benefit of Grantee and bona fide providers of emergency ambulance and fire protection services. A21 �rdino U Gerry Arnold CA -276 S RUIS1.1 P•O• Box 959 — Vc 97 Awn, CO 81620 200617772 1 OF 20 2. Duration and Nature The Easements shall he in perpetuity. The Pedestrian Access Easement shall, as set forth above, constitute a public dedication to the Grantee for the use of the Public; the Emergency Access Easement shall constitute an easement in gross for the benefit of Grantee and its other beneficiaries designated above, and shall not be transferable (with any purported transfer to render the Emergency Access Easement null and void and of no further force or effect at Grantor's election). The Easements shall only confer rights of pedestrian and emergency access across the surface of the Access Way, and shall specifically exclude any rights to improve, maintain, repair or replace the Access Way or Servient Estate. Maintenance and Repairs; Liabilities (a) Subject to the following provisions, and following Initial Acceptance (as hereinafter defined), GCP at its expense shall be obligated (i) to keep the Access Way in good condition and repair from time to time, subject to ordinary wear and tear that does not materially interfere with the utility and function of the Access Way, and (ii) to provide the heat source for the operation of the snowmelt system and elements to constitute part of and be incorporated into the Access Way (subject to any subsequent modifications to the Access Way that may be approved by Grantee in the exercise of its municipal powers). (b) The parties mutually acknowledge that the portions of the Access Way within the Vail Associates Easement Parcel are or will be constituted by an access path/ramp (the "Temporary Ramp ") which is intended to be temporary and ultimately replaced by an access path/ramp (the "Lot 2 Ramp ") that will constitute part of the site improvements for the pending development of Lot 2 by Vail Associates or its successors. (The Temporary Ramp is generally depicted on Exhibit A -2 attached hereto.) The Lot 2 Ramp is to be integrated into the snowmelt systems of the Lot 2 development and maintained by Vail Associates or its successors, is to connect to the Access Way within the GCP Easement Parcel, and is to be located in substantially the same position as or to the west of the Temporary Ramp; the Lot 2 Ramp may be redeveloped, replaced or modified by Vail Associates from time to time. The Easements shall terminate with respect to the Temporary Ramp and the Vail Associates Easement Parcel at such time as the construction of the Lot 2 Ramp is commenced (and upon demand the Grantee will promptly execute and deliver a recordable written instrument evidencing such termination and made in form and substance reasonably satisfactory to Vail Associates). Prior to the construction of the Lot 2 Ramp, the Temporary Ramp will be and remain integrated within the snowmelt systems of the GCP Project (as hereinafter defined), and GCP will provide and pay the cost of the snowmelt services to the "Temporary Ramp, and otherwise furnish maintenance, repairs and replacements for the same as part of the Access Way; these obligations of GCP will continue in effect unless and until GCP is given notice from Grantee that the construction of the Lot 2 Ramp has commenced (and Grantee agrees to give such notice promptly upon commencement of the construction). If the Lot 2 Ramp is never constructed, such that the notice of the commencement of its construction is never given, GCP's obligations with respect to the Temporary Ramp will be perpetual. In connection with the Temporary Ramp and Lot 2 Ramp, GCP and Vail Associates agree as follows: 6 9:271 t RCH53i 200617772 2 OF 20 (i) For purposes of the following provisions, the "Working Party" shall mean, as applicable, (A) GCP whenever any work of maintenance, repairs or replacements for the Temporary Ramp is conducted within Lot 2 by, through or under GCP ( "GCP Ramp Work "), and (B) Vail Associates whenever work of construction or maintenance, repairs or replacements for the Lot 2 Ramp is conducted, if at all, within Lot 3 by, through or under Vail Associates ( "Vail Associates Ramp Work "). The GCP Ramp Work or Vail Associates Ramp Work, whichever is applicable in the particular context, is sometimes referred to herein as "Ramp Work "; the property of the other party on which the Working Party conducts its Ramp Work is sometimes referred to as the "Burdened Property "; and GCP or Vail Associates, whichever owns the Burdened Property, is sometimes referred to hereinafter as the "Burdened Party." (ii) Vail Associates hereby grants GCP an irrevocable license and right of entry over the Vail Associates Easement Parcel, and areas adjacent thereto within Lot 2 as necessary or appropriate, for purposes of undertaking the GCP Ramp Work from time to time, this license and right of entry being an appurtenance benefiting the ownership of Lot 3 and coupled with an interest. This license and right of entry may be used and enjoyed by GCP and contractors and agents engaged by, through or under GCP. This license and right of entry sliall remain in effect until the Easements terminate with respect to the Temporary Ramp, at which time this license and right of entry shall also terminate automatically and be of no further force or effect. Vail Associates may unilaterally execute and record an instrument evidencing the termination of this license and right of entry, without any joinder in such instrument by GCP, and any such instrument so made and recorded by Vail Associates will be conclusive that the license and right of entry has been terminated and no longer encumbers or affects title to Lot 2 in any respect. In conjunction with the termination of this license and right of entry, and as part of and in the ordinary course of the construction of the Lot 2 Ramp or any replacements or modifications thereof, Vail Associates will take appropriate measures to have the Temporary Ramp disconnected from the snowmelt systems of the GCP Project, remove the Temporary Ramp or components of the Lot 2 Ramp being replaced or removed, and restore the affected areas of Lot 3. (iii) GCP hereby grants Vail Associates an irrevocable license and right of entry over Lot 3, as an appurtenance benefiting the ownership of Lot 2 and coupled with an interest, for purposes of undertaking the Vail Associates Ramp Work from time to time. This license and right of entry may be used and enjoyed by Vail Associates and contractors and agents engaged by, through or under Vail Associates. The term of this license and right of entry shall be in perpetuity. (The licenses and rights of entry granted under this paragraph (iii) and paragraph (ii) above are sometimes referred to herein as the "Work Licenses. ") (iv) The Working Party will not cause, permit or suffer any mechanic's lien claims to be made against the Burdened Property or any portion 617;78 S RCFISM 200617772 3 OF 20 thereof or interest therein that may arise from or in connection with any Ramp Work undertaken by, through or under the Working Party. If any such mechanic's lien claim is recorded, then the Working Party, by payment or bonding, shall secure the record release and discharge of the lien claim within thirty (30) days after its recordation. If the Working Party shall fail to secure that release and discharge in a timely manner (time being of the essence with respect thereto), then the Burdened Party, at its election and without obligation to do so, may secure the release of the lien claim by any means available, including bonding or settlement with the lien claimant, in which case the Working Party shall, within fifteen (15) days after notice of demand from time to time, reimburse the Burdened Party for the Burdened Party's costs and expenses incurred in securing the lien release, including reasonable attorneys' fees. (v) The Working Party shall indemnify and defend and save harmless the Burdened Party and the Burdened Party's employees, agents, contractors, licensees and invitees, including, without limitation, any tenants, occupants, or business or social guests of the Burdened Property (collectively the "Indemnified Parties "), from and against any and all liabilities, losses, damages, claims, liens, demands, actions and causes of action, including, without limitation, those pertaining to any personal injury or dainage to property, which may be imposed upon or suffered or incurred by any of the Indemnified Parties and which arise out of or in connection with any Ramp Work undertaken by, through or under the Working Party, together with all costs and expenses, including reasonable attorneys' fees, that may be incurred by the Indemnified Parties or any of them in connection with any indemnified matter. This indemnity shall not apply, however, to any matter otherwise indemnified to the extent it arises from the negligence or willful misconduct of the Burdened Party or any other Indemnified Party. This indemnity will specifically apply, without limitation, to any mechanic's lien claims for which the Working Party is responsible pursuant to paragraph 3(b)(iv) above, and the obligations of the Working Party under paragraph 3(b)(vi) below. The Indemnified Parties other than the Burdened Party shall be third -party beneficiaries of the foregoing provisions. (vi) Any Working Party will conduct or cause to be conducted any Ramp Work undertaken by, through or under it in a good and workmanlike manner, to the end of avoiding or minimizing any impacts on the Burdened Property or any improvements or facilities therein_ To the extent any such Ramp Work or activities related thereto nonetheless damage, disturb or otherwise adversely affect any areas, improvements or facilities within the Burdened Property, the Working Party will cause those affected areas, improvements or facilities to be restored to substantially the same condition in which they were found prior to the undertaking of the pertinent Ramp Work. (c) Subject to GCP's obligations under paragraphs 3(a) and 3(b) above, Grantee covenants and agrees to bear and discharge any obligations or liabilities that may arise in connection with the use and enjoyment of the Easements or the Access Way pursuant to the Easements. Without limitation on the generality of the foregoing, 691278 s RCFISN 200617772 4 OF 20 Grantee shall be solely responsible to repair and restore any damage to the Access Way, GCP Project or I.ot 2 which is caused by emergency vehicles using the Access Way pursuant to the Emergency Access Easement. Grantee further acknowledges and agrees, on its own behalf and on behalf of the Public and other beneficiaries of the Easements, that Grantee and such beneficiaries assume the risks associated with the use and enjoyment of the Easements and the Access Way, and shall hold each of the Grantors harmless from any claims, liabilities, damages or losses that may be suffered or incurred by Grantee and such beneficiaries in connection with such use and enjoyment, unless occasioned by the actions of the applicable Grantor constituting gross negligence or willful misconduct. 4. Non - Exclusive The Easements and Work Licenses shall be non - exclusive, and each Grantor shall have and retain the right to use the Grantor's property for any uses and purposes that are not inconsistent with the use and enjoyment of the Easements or Work Licenses, including, without limitation, the use of the Servient Estate for access purposes in connection with the GCP Project and Lot 3 or any use of Lot 2, as applicable, and the making of grants to others of access easement rights upon, over and across the applicable portions of the Servient Estate. Without limitation on the foregoing, and pursuant to plans heretofore or hereafter approved by Grantee for the GCP Project, surface driveway and related or ancillary improvements and access tunnel and other subterranean improvements (including, without limitation, building structures and utilities) will or may be constructed, maintained, used and enjoyed within the GCP Easement Parcel in connection with the GCP Project (collectively "Related GCP Project Improvements "); GCP's retained rights will specifically include rights to come upon the GCP Easement Parcel as necessary or appropriate, in the ordinary course of the use and enjoyment of the GCP Project, to conduct maintenance, repairs, replacements or other work associated with the Related GCP Project Improvements, even though damage may result to the Access Way (provided that GCP shall be obligated to reasonably restore any such damage), and also associated with the Access Way itself. In conducting any such work, GCP may temporarily barricade or otherwise preclude access across the affected areas of the Access Way in order to facilitate the work and also protect persons and property. (The Working Party will have corresponding rights in conjunction with any Ramp Work.) Grantors agree that Grantors will not otherwise construct any above - surface improvements within the Servient Estate that would obstruct or materially interfere with the use and enjoyment of the Access Way. The "GCP Project" means the residential townhome project, with related site improvements, which is presently being developed on Lot 3, as that project may be supplemented or modified from time to time. Running with the Land (a) The covenants and obligations of the Grantee and the rights, interests and obligations of the Grantors hereunder shall run with the land and inure to the benefit of and be binding upon Grantors and their respective successors in interest in and to the ownership of the Servient Estate, the GCP Project, I.ot 3 and Lot 2 (and references herein to "Grantors" or either "Grantor," "GCP," "Vail Associates,' the "Working Party" or the "Burdened Party" will include such successors in interest, except to the extent such inclusion is precluded by the other provisions hereof). The obligations hereunder of each Grantor that are owing to the Grantee shall be several, and neither Grantor shall have any 62:78 $ RMSH 200617772 5 OF 20 liability for any breach or default by the other Grantor of any obligations or duties owing to Grantee. (b) Each Grantor and its successors in ownership will have liability for any breach of such party's obligations and duties arising hereunder only to the extent the breach occurs during the ownership period and in relation to the ownership interests of such party. If any such breach is attributable to the actions or omissions of any owners association established for the GCP Project or any development on Lot 2 (an "Association "), or any parties acting by, through or under the Association, the Association shall be liable for such breach, without any recourse by the claimant(s) to the Association's constituent owners /members; if such breach is attributable to the actions or omissions of any owner /member in the applicable Association, or any party acting by, through or under that owner /member, then such owner /member and the applicable Association will be jointly and severally liable for such breach. The fact that Vail Associates and GCP are affiliates shall not in any way limit the obligations that each owes hereunder to the other or the other's Indemnified Parties. Each Association will enjoy and may exercise the rights, benefits and protections inuring hereunder to the ownership of the property which the pertinent Association is formed to govern; without limitation on the foregoing, the rights and interests specifically retained in favor of GCP under paragraph 4 hereof may be exercised through the Association formed for the GCP Project, and will also inure to the benefit of designees of GCP or such Association, including, without limitation, agents and contractors of those parties, and applicable utilities suppliers. In addition, (i) any Association fomrcd to govern Lot 3 or portions thereof will be specifically obligated to discharge GCP's maintenance and other duties under paragraphs 3(a) and 3(b) above, (ii) any Association formed to govern Lot 2 or portions thereof will be specifically obligated to discharge Vail Associates' duties under paragraph 3(b) above, and (iii) the constituent owners/members of those Associations will not be individually liable for those duties. (c) Provisions hereof which relieve constituent owners /members of duties allocated to their Association shall be enforced only so long as the Association discharges those duties. 6. Amendments This instrument may not be terminated, in whole or in part, or amended or modified, nor may any right or breach of any obligation arising hereunder be waived, except pursuant to a written instrument signed by the party against whom enforcement of such termination, amendment, modification or waiver is sought. Notwithstanding the various third -party beneficiaries identified herein, the parties hereto, and their successors, will retain the power and authority to make any such terminations, amendments, modifications or waivers, or to take any actions contemplated by the terms hereof. In addition, and notwithstanding any succession in interest to portions of Lot 3, GCP will retain the right, with the consent of the Town of Vail as the Grantee hereunder (and no other party), to modify the Servient Estate of record with respect to the portions thereof and of Lot 3 still owned at that time by GCP, and any such modification will be binding upon GCP's successors in and to Lot 3 (and for purposes of the foregoing, the term "GCP" does not include any of its successors in and to Lot 3, unless GCP expressly designates of record any such successor to hold this retained modification right). Moreover, any Association shall have the power and authority, on behalf of its constituent 692271 5 RCHSN 200617772 6 OF 20 owners /members, to make any such termination, amendment, modification or waiver, or take any such action, and bind its constituent owners/ members thereby. Remedies, Attorneys' Fees (a) The rights of the parties hereunder may be enforced by any remedies provided for in this instrument or available at law or equity, including, without limitation, the recovery of damages, and injunctive or other equitable relief to prevent the occurrence or continuance of any breach or default hereunder, or to enforce the performance and observance of the terms of this instrument. All remedies shall be cumulative with and in addition to, and non - exclusive of, one another; any and all remedies may be pursued either successively or concurrently; and the exercise of any one remedy shall not be construed as or constitute a bar to the exercise of any other remedy. (b) In the event any legal proceeding arises out of this instrument and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all of the prevailing party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees (and any presiding court will be bound to make this award). 8. Miscellaneous This instrument shall be governed by and construed in accordance with the laws of the State of Colorado. This instrument may be executed in counterparts, each of which shall constitute an original, and which together shall constitute one and the same agreement. The Easements granted hereunder shall become effective upon the due and valid execution and delivery of this instrument by both Grantors and Grantee, this instrument's recordation in the real property records for Eagle County, Colorado, and the completion of the initial construction of the entire Access Way within the Servient Estate, together with Grantee's approval and/or acceptance of such construction (pursuant to its ordinary municipal police powers) as a requisite to the issuance of all certificates of occupancy for the GCP Project upon full build -out ("Initial Acceptance "). [Balance of page intentionally left blank] au::78 5 RUISH 200617772 7 OF 20 IN WITNESS WHEREOF, Grantors and Grantee have exe uted this Public Pedestrian Easement and Emergency Access Easement as of the3 y of , 2006. GRANTORS A ffnnW so w Few Now c,L oMe: GORE CREEK PLACE, LLC, a Colorado limited liability company By: Vail Resorts Deve pment Company, a Colorado rat n, Managing Member STATE OF COLORADO ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this g7114 day of 2006, by _XCL e.�C r4 W W N as S r. V i c.e � of Vail Resorts Development Company, a Colorado corporation, Managing Member of Gore Creek Place, LI,C, a Colorado limited liability company. Witness my hand and official seal. �Q 'i AR �` NOTApy ��'.. M4=fit5 KCHSN commission expires:. -1 d Notary Public [Grantors' signature blocks continue on next page] 200617772 8 OF 20 GRANTORS (cant.) 1AW RIPWOWN p {� Y OMr. s "rATE OF COLORADO ) ss: COUNTY OF EAGLE ) THE VAII. CORPORATION, DB /A VAIL ASSOCIATES, INC., a Colorado corporation The foregoing instrument was acknowledged before me this af day of - 7 yu , n :c , 2006, by Ti A i r,, se,, __ as 5'F'. U & e :WC s 1' 0(4" of The Vail Corporation, d/b /a Vail Associates, Inc., a Colorado corporation. Witness my hand and official seal. A RN�� NpTAJ? 0¢:278 S RCHSH My commission expires:. v go d 0 j_Zf&AA �J JA Notary Publief [Grantee's signature block follows on next page] 9 200617772 9 OF 20 GRANTEE ATTEST: TOWN OF VAIL, a municipal corporation, duly organized and existing under and by virtue of the laws of the State of Colorado I B y�S�Ud ' QQ r, Town M ger ,� _orelei onaldson, Town Clerk STATF.OFCOLORADO 1 ss: COUNTY OF EAGLE ) RAW.,A . 8 UL" txjW �� The foregoing instrument was acknowledged me this =_L6 day of 2006, by as Town M a kof The Town of Vail, a mu 6orado, ipal corporation, duly organized and existing under and by vi e of the laws of the State of Witness my hand and official sea]. My commission expires:. -- :P"' t nr;zn.s RMSH 9 200617772 10 OF 20 EXHIBIT A -1 Legal Description of GCP Easement Parcel (See the attached) 692278 5 RMSM AI -I 200617772 11 OF 20 LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS RECORDED MARCH 10, 2005 AT RECEPTION NO. 909760, IN THE OFFICE OF THE CLERK AND RECORDER, COUNTY OF EAGLE. STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3, WHENCE THE WESTERLY LINE OF SAID LOT 3 BEARS S 15 °50'27' E A DISTANCE' OF 122.80 FEET FORMING THE BASIS OF BEARING OFTHIS DESCRIPTION; THENCE ALONG SAID NORTH LINE OF LOT 3 N 74 °12'56" E A DISTANCE OF 6934 FEET; THENCE DEPARTING SAID NORTH LINE OF LOT l THE FOLLOWING NINE (9) COURSES: 42.99 FEET ALONG A NON - TANGENT CURVE TURNING TO THE LEIrl' HAVING A CENTRAL ANGLE OF 49 °15'59 ", A RADIUS OF 50.00 FEET AND A CHORD WHICH BEARS N 8I °21'24" E A DISTANCE OF 41.68 FEETTO A POINT OF REVERSE CURVATURE; 23.81 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 33 °4703 ", A RADIUS OF 40.47 FEET AND A CHORD WHICH BEARS N 73'3426'E A DISTANCE OF 23.46 FEET; S 89'34'33" E A DISTANCE OF 7.49 FEET TO A POINT OFCURVATURE-. 15.40 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 29 °11'56 ", A RADIUS OF 30.23 FEET AND A CHORD WIIICI I BEARS N 75 °49'29" E A DISTANCE OF 15.24 FEET TO A POINT OF REVERSE CURVATURE: 20.43 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 33 °33'08', A RADIUS OF 34.90 FEET AND A CHORD WHICH BEARS N 78 °00'05" F A DISTANCE OF 20.14 FEET. S 87 °43'43" E A DISTANCE OF 12.57 FEET TO A POINT OF CURVATURE 12.73 FEET ALONG A CURVE: TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 24 °43'39 ", A RADIUS OF 29.50 FEET AND A CHORD WHICH BEARS N 79 °54'27" F, A DISTANCE OF 12.63 FEET; N 67`32'38" E A DISTANCE OF 3.85 FEETTO A POINT OF CURVATURE; 15.02 FEETALONG A CURVE TURNING TO T'HE LEFT HAVING, A CENTRAL ANGLE OF 59 °21'22", A RADIUS OF 14.50 FEET AND A CHORD WHICH BEARS N 37 °51'57" E A DISTANCE OF 14.36 FEETTO A POINT ON THE NOR PH LINE OF SAID LOT 3; THENCE ALONG SAID NORTH 11NE OF LOT 3 N 69°1219" E A DISTANCE OF 21.20 FEE - I'; THENCE DEPARTING SAID NORTH LINE OF LOT 3 THE FOLLOWING FOURTEEN (14) COURSES! I) 25.71 FEET ALONG A NON - TANGENT CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 75 °32'23", A RADIUS OF 19.50 FEET AND A CHORD WHICH BEARS N 89 l5" E A DISTANCE OF 23.89 FEET; 2) N 51 ° 48'24" E A DISTANCE OF 8.75 FEET TO A POINT OF CURVATURE; 3) 19.32 FEET ALONG A CURVE TURNING TO THE R1GI IT HAVING A CENT AL ANGLE OF 18 °07'59', A RADIUS OF 61.04 FEET AND A CHORD WHICH BEARS N 60 °5724" E: A DISTANCE OF 19.24 FEET; 4) N 69 0 56'45" E A DISTANCE OF 40.19 FEET TO A POINT OF CURVATURE; 5) 16.34 FEFT ALONG A CARVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 21 °31'01 ", A RADIUS OF 43.52 FEET AND A CHORD WHICH BEARS N 80'42'15' E A DISTANCE OF 16.25 FEETTO A POINTOF REVERSE CURVATURE. 6) 14.79 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 45'05'14". A RADIUS OF 18.80 FEET AND A Cl IORD WHICH BEARS N 68 °55'08" E A DISTANCE OF 14.41 FEETTO A POINT OF REVERSE CURVATURE; 7) 23.98 FEET ALONG A CL`RVii TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 27 °17'20 ", A RADIUS OF 50.34 FEET AND A CHORD WHICH BEARS N 60 °01'12" E A DISTANCE OF 23.75 FEET; 8) N 71 °37'08" E A DISTANCE. OF 51.81 FEET TO A POINT OF CURVATURE; 9) 17.15 FEEL' ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF I7 °32'39 ", A RADIUS OF 56.00 FEET AND A CHORD WHICH BEARS N 80 °23'28" F A DISTANCE OF 17.08 FEET; 10) N 89'09'47" E A DIST'ANC'E OF 3.19 FEET TO A POINT OF CURVATURE; P:\ 1100- 1 199\ 1 146.3\docs\Legal - Lot 3 Pedestrian Easment.doc 200617772 12 OF 20 11) 14.29 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 31 °49'03', A RADIUS OF 25.74 FEET AND A CHORD WHICH BEARS N 73 °15'16" E A DISTANCE OF 14.11 FEET TO A POINT OF REVERSE CURVATURE; 12) 15.83 FEET ALONG A CURVE TURNING TO THE RIGI IT HAVING A CENTRAI. ANGLE OF 16 °28'18'. A RADIUS OF 55.05 FEET AND A CHORD WHICH BEARS N 65 °34'53" E A DISTANCE OF 15.77 FEET: 13) N 71 °58'22' E A DISTANCE OF 21.06 FEET TO A POINT OF CURVATURE; 14) 17.95 FEET ALONG A CURVE TURNING 'TO THE LEFT HAVING A CENTRAL ANGLE OF 60 °32'42", A RADIUS OF 16.98 FEET AND A CHORD WHICH BEARS N 41 °42'01" E A DISTANCE OF 17.12 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3; THENCE ALONG SAID NORTH LINE OF LOT 3 N 69 C A DISTANCE OF 47.88 FEET: TFIENCF. DEPARITNG SAID NORTH LINE OF LOT 3 THE FOLLOWING ELEVEN (I I) COURSES: 1) S 05 °36'56" E A DISTANCE OF 11.13 FEET; 2) THENCE 13.07 FEET ALONG A NON- TANGENT CURVE TURNING TO THE LETT HAVING A CENTRAL ANGLE OF 31m A RADIUS OF 23.87 FEET AND A CHORD WHICH BEARS N 56 °06'35" E A DISTANCE OF 12.91 FEET TO A POINT OF REVERSE CURVATURE; 3) 24.43 FEET ALONG A CURVE TURNING TO THE RIGI4T HAVING A CENTRAL ANGLE OF 29 °46'47'. A RADIUS OF47.00 FEET AND A CHORD WI-IICII BEARS N 55 °18'37" E A DISTANCE OF 24.15 FEET: 4) N 70 °12'01" E A DISTANCE. OF 43.15 FEET TO A POINT OF CURVATURE; 5) 23.86 FEE'TALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 14 °51'24 ", A RADIUS OF 92.00 FEET AND A CHORD WHICH BEARS N 77 °37'43" E A DISTANCE OF 23.79 FEET; 6) N 85 ° 03'25" E A DISTANCE OF 9.87 FEET TO A POINT OF CURVATURE: 7) 12.45 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 33 °58'17 ", A RADIUS OF 21.00 FEET AND A CHORD WHICH BEARS N 68 °04'16' E A DISTANCE OF 12.27 FEET TO A POINT OF REVERSE CURVATURE; 8) 31.97 FEET ALONG A CURVE TURNING TO THE RIGHT I IAVING A CENTRAL ANGLE OF 30 °31'40 ", A RADIUS OF 60.00 FEET AND A CHORD WHICH BEARS N 66 °20 E A DISTANCE OF 31.59 FEET; 9) N 81 °36'48" E A DISTANCE OF 40.72 FEET' TO A POINT OF CURVATURE; 10) 27.66 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 90 °33'36 ", A RADIUS OF 17.50 FEET AND A CHORD WHICH BEARS N 36 °2(Y00" E A DISTANCE OF 24.87 FEET; 11) N 08 °56'48" W A DISTANCE OF 1.14 FELT TO A POINT ON THE NORTH LINE OF SAID LOT 3; TI IENCE ALONG SAID NORTH LINE. OF LOT 3 N 68°30'09" E A DISTANCE OF 21.28 FEEI' ;'THENCE I)fPARTING SAID NORTH LINE OF LOT 3 THE FOLLOWING FORTVFIVE (45) COURSES: I ) THENCE S 22 E A DISTANCE OF 17.51 FEET TO A POINT OF CURVATURE; 2) THENCE 15.61 FEET ALONG A CURVE TURNING - 1 . 0 THE LEFT HAVING A CENTRAL ANGLE OF 87 °21'29 ", A RADIUS OF 10.24 FEET AND A CHORD WHICH BEARS S 66" I'm" E A DISTANCE OF 14,15 FEET; 3) THENCE S 08 °01'58" E A DISTANCE OF 6.39 FEET; 4) THENCE S 52 °4037" W A DISTANCE OF 12.23 FEET TO A POINT OF CURVATURE; 5) THENCE 14.52 FEET ALONG A CURVE: TURNING TO T11E IUGI IT HAVING A CENTRAL ANGLE OF 49 °42'35 ", A RADIUS OF 16.74 FEET AND A CHORD WHICH BEARS S 77 °31'55" W A DISTANCE OF 14.07 FEET; 6) THENCE N 79 1 - W A DISTANCE OF 3.58 FEET TO A POINT OF CURVATURE; 7) THENCE 15.56 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 27 °51'36 ", A RADIUS OF 32.00 FEET AND A CHORD WHICH BEARS S 86 °4911" W A DISTANCE OF 15.41 FEET TO A POINT OF REVERSE CURVATURE; 8) THENCE 13.26 FEET ALONG A CURVE IURN1NG TO THE- RIG[ IT HAVING A CENTRAL ANGLE. OF 9°26'19 ", A RADIUS OF 8051 FEET AND A CHORD WHICH BEARS S 77 °3712" W A DISTANCE OF 13.25 FLET; 9) "THENCE S 82 °20'21" W A DISTANCE OF 39.55 FEET TO A POINT OF CURVATURE: 10) THENC'F 23.93 FEET ALONG A CURVE TURNING 1'0 THE LEFT HAVING A CENTRAL ANGLE Of 32 °25 ", A RADIUS OF 42.30 FEET ANTI A CHORD WHICI I BEARS S 66 °07'39' W A DISTANCE OF 23.62 FEET TO A POINI'OF REVERSE CURVATURE; P: \1100 - 1199\1 146.3 \docs \Legal- Lot 3 Pedestrian Easment.doc 200617772 13 OF 20 I I) TT-IENCE 20 24 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 35 °0879 ", A RADIUS OF 33.00 FEET AND A CHORD WHICH BEARS S 67°29' 11" W A DISTANCE OF 19.92 FEET; 12) THENCE S 85 "03'25' W A DISTANCE OF 9.87 FEET TO A POINT OF CURVATURE; 13) THENCE 20.74 FEE'r ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 14 °51'24 ", A RADIUS OF 80.00 FEET AND A CHORD WHICH BEARS S 77 °37'43" W A DISTANCE OF 20.69 FEET; 14) THENCE S 70`12'01" W A DISTANCE OF 43.15 FEET TO A POINT OF CURVATURE; 151 - THENCE 18.19 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 29°46'47 ", A RADIUS OF 35.00 FEET AND A CHORD WHICH BEARS S 55° 18'37" W A DISTANCE OF 17.99 FEET TO A POINT OF REVERSE CURVATURE; 16) THENCE 34.02 FEET ALONG A CURVE TURNING "1 "0 THE RIGHT HAVING A CENTRAL ANGLE OF 54'20'19 ", A RADIUS OF 35.87 FEET AND A CHORD WHICH BEARS S 67`35'23" W A DISTANCE OF 32.76 FEET; 17) THENCE N 85 °14'27" W A DISTANCE OF 6.29 FEET TO A POINT OF CURVATURE; 18) THENCE 15.06 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 44 °15'33 ". A RADIUS OF 19.50 FEET AND A CHORD WHICH BEARS S 72 °3747" W A DISTANCE OF 14.69 FEET; 19) THENCE S 50 °3(Y00" W A DISTANCE OF 13.47 FEET TO A POINT' OF CURVATURE: 20) THENCE 17.77 FEE ALONG A CURVE TURNING - TO THE RIGHT HAVING A CENTRAL ANGLE OF 31 °4749 ", A RADIUS OF 32.02 FEET AND A CHORD WHICH BEARS S 66 °23'54" W A DISTANCE OF 17.55 FEET TO A POINT OF REVERSE CURVATURE; 21) THENCE 30.24 FEE`T ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 20°20'26", A RADIUS OF 85.18 FEET AND A CHORD WHICH BEARS S 72 °07'36" W A DISTANCE OF 30.08 FEET TO A POINT OF REVERSE CURVATURE; 22) THENCE 23.41 FEET ALONG A CURVE- TURNING 'TO THE RIGHT HAVING A CENTRAL ANGLE OF 27 °4('28 ". A RADIUS OF 48,47 FEET AND A CHORD WHICH BEARS S 75 1 47 1 36" W A DISTANCE OF 23.18 FEET TO A POINT OF REVERSE CURVATURE; 23) THENCE 13.38 FEET ALONG A CURVE TURNING'ro THE LEFT HAVING A CENTRAL ANGLE OF 18°28'46 ", A RADIUS OF 41.79 FEET AND A CHORD WHICH BEARS S 80 °2328" W A DISTANCE OF 13.42 FEET; 24) 'THENCE S 71 °37'08" W A DISTANCE OF 55.17 FF.E'T TO A POINT OF CURVATURE: 25) THENCE 15.37 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 27 °35'14 ", A RADIUS OF 31.92 FEET AND A CHORD WHICH BEARS S 57 °49'31" W A DISTANCE OF 15.22 FEETTO A POINT OF REVERSE CURVATURE; 26) THENCE 24.37 FEET ALONG A CURVE TURNING TO ITIE RIGFIT HAVING A CENI RA ANGLE OF 49 °4629 ", A RADIUS OF 28.06 FEET AND A CHORD WHICH BEARS S 68 °55'08" W A DISTANCE OF 23.61 FEET TO A POINT Or REVERSE CURVATURE; 27) THENCE 11.87 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 26 °12'16 ". A RADIUS OF 25.96 FEET AND A CHORD WHICH BEARS S 80 °42'15" W A DISTANCE OF 11.77 FEET; 28) THENCE S 69 °56'45" W A DISTANCE OF 39.93 FEET TO A POINT OFCURVATURE; 29) THENCE 15.09 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 17 °38'40 ", A RADIUS OF 49.00 FEET AND A CHORD WHICH BEARS S 61 °07'24" W A DISTANCE OF 15.03 FEET; 30) THENCE S 52 °18'04" W A DISTANCE OF 9.53 FEET'TO A POINT OF CURVATURE; 31) THENCE 18.70 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 33* 28'46 ", A RADIUS OF 32.00 FEET AND A CHORD WHICH BEARS S 69 °02'27" W A DISTANCE OF 18.43 FEET; 32) THENCE S 87 °08'11" W A DISTANCE OF 4.33 FEETTO A POINT OF CURVATURE: 33) THENCE 18.81 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 36 °15'08 ", A RADIUS OF 29.72 FEET AND A CHORD WHICH BEARS S 69 °0(r37" W A DISTANCE OF 18.49 FEET; 34) THENCE S 50 °44'38" W A DISTANCE OF 7.09 FEET TO A POINT OF CURVATURE; 35) THENCE 11.36 FEET ALONG A CURVE TURN INC; TO THE RIGHT HAVING A CENTRAL ANGLE OF 12 °01 ", A RADIUS OF 54.15 FEET AND A CHORD WHICH BEARS S 56 °45'1 I" W A DISTANCE OF 11.34 FEET; 36) 'THENC'E S 67 °3957" W A DISTANCE OF 3.45 FEET TO A POINT OF CURVATURE; 37) 'THENCE 20.22 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 54°22'23 ", A RADIUS OF 21.30 FEET AND A CHORD WHICH BEARS N 85-175 ]" W A DISTANCE OF 19.47 FEET TO A POINT OF REVERSE CURVATURE; PA 1100- 1 199\ 1 146.3\docs\Legal - Lot 3 Pedestrian Easment.doc 200617772 14 OF 20 38) TIIENCE 9.34 FEET ALONG A CURVE TURNING TO I'HE LEFf HAVING A CENTRAL ANGLE OF 30'10'46". A RADIUS OF 17.73 FEET AND A CHORD WHICH BEARS N 73 °12'03" W A DISTANCE OF 9.23 FEET; 39) THENCE N 87 °43'43" W A DISTANCE OF 3.62 FEET TO A POINT OF CURVATURE; 40) THENCE 16.12 FEET ALONG A CURVE TURNING TO THE I.EFr HAVING A CENTRAL ANGLE OF 28°32'25 ". A RADIUS OF-32.36 FEET AND A CHORD WHICH HEARS S 78 °00'05" W A DISTANCE OF 15.95 FEET TO A POINT OF REVERSE CURVAIURE: 41) THENCE 19.14 FEET ALONG A CURVE TURNING 1 RIGHT HAVING A CENTRAL ANGLE OF 24 °26'12', A RADIUS OF 44.87 FEET AND A CHORD WHICII BEARS S 75 "56'59" W A DISTANCE OF 18.99 FEET; 42) THENCE. N 89°34'33" W A DISTANCE OF 7.67 r•EET TO A POINT OF CURVATURE; 43) 7'lll_'NCE 17.22 FEEL' ALONG A CURVE TURNING TO TIIE LEFT HAVING A CENTRAL ANGLE OF 30'51'05",A RADIUS OF 31.97 FEEL' AND A CHORD WfUCH BEARS S 74 °59'55" WA DISTANCE OF 17.01 FEET TO A POINT OF REVERSE CURVATURE; 44) THENCE 42.06 FEETALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE, OF 29'0021 ". A RADIUS OF 83.09 FEET AND A CHORD WHICH BEARS S 74 °04'33' W A DISTANCE OF 41.62 FEET; 45) THENCE S 74 °10'43" W A DISTANCE OF 73.15 FEET TO A Pomr ON THE WEST LINE OF SAID LOT 3; TIIENCE N 15 °50'20" W A DISTANCE OF 13.00 FEFT TO THE TRUE POINT OF BEGINNING SAID PARCEL CONTAINING 0.248 ACRES MORE OR LESS. BRF.IVT' BIGGS PLS427599 FOR AND ON THE BEHALF OF PEAK LAND CONSULTANTS, INC. 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O .0 !%N b it + N Q • 1 YI 4 1 N •,Min I I m �J r r bn � m�PO • IrJ •'N W Mfdl ' „ II fOJ n OO+ NNNNN w U W NNNNN� nI"'nnn�hnn W u W WW W W U O w a Yor TF LU W +JIW W W 200617772 18 OF 20 3W ; ;w �w iw�'w 333 33• W w� wow ww yw333 3'33333333333 Un 2 _ .. �v' P ♦ Ci q O N M - YJf • OOe:N O N ttpp dlO �eOPWOF� �cd3u O. y -1� r _ �• tom O N dl r!!'�, Nbr - -- - -UIM _ '!+ Yfm X r Ro$� �' iY M lde nil N v�i I •' 0 yy V e d N hn O P P , - NIIb ” Y - O n P r PIr � h h=- N Uh •O^ -QYnf r • h W � m Z Z Z Z n Z _ O Z Z Z 2 o) Z Z o N O N - o Z o Z Z VI O Z m Z 2 min Z Z: Z I o Z M W Z m M. vl vk n � ZI V�I 17 � 2 P N 4 inOf�On N P 2 2 ✓• S ' U O h o' m . J ry NJ. Y n O Yin '� Nn v+� ip" i•I dJ j� �' • r Nfin Cl� h vt U n. PVl 1� it7O Z WIN O J III f � n � O v • M - fin 0 P f d+ '� O� _O •� n O- •.• • r � -.N • C •^ .. O! f! P O V n of m II n O •'t OI m O O fl N r �� c O N V, N lfl N vt i W W W W W W W W W W W W W W W W W W 200617772 18 OF 20 EXHIBIT A -2 Depiction of Vail Associates Easement Parcel (Seethe attached) 02271 S RCFISH A2 -1 200617772 19 OF 20 • O )/,,/�� -ttl 3 ( , Pon LM TREE . • � / 0 �sv � � � / o .. 0 .\ w \ • w W O \ e a � U w c J (also Vail Associates Easement Parcel) IoNTINO lloE ND L7 AOOIES83M1Mf000WU%ff 10a.4YV1L Tfq Ujh:g wdlEWNItM Sw dli i. Ow W2 VAIL RESORTS Rwt �w.11 Ya�l b.WOrOtaftwo oft } WCESM STEP LW n..c , N bcftW n- PATH UWSOILM 10.0 Kw. w"WL ft M =w1q.0000 SMDM36ShoL - &Z 0UtE vMT6iM10Wuu1D"0U1lET 1k0 yIM MMA Md0.nsnnlMrlM.aro.MM Sr OMMItgl, aae.rtdpW-vwftd MrML42 9w1W 000MUNiaff u.r m.++a CFU4WL12W3" S.sesraf.m.4 NOUK, laneMF IwMOr WWI5 DUN" Affil .&"L- LANONCAFN LAYOUT & . ,� � MATERIALS W-C BLD GS.5 -8 200617772 20 OF 20 W O L7 VAIL RESORTS DEVELOYAEfr COMPANY A pplow KAWT1HOWERTUN .= W"M .wx a CMWPM ia. mamm wn.. N now" our f.ui�r. rats 16 AOOWM" f IL" � Til -Q KNaf DUN" Affil .&"L- LANONCAFN LAYOUT & . ,� � MATERIALS W-C BLD GS.5 -8 200617772 20 OF 20 EAGLE COUNTY, CO 200617773 TEAK J SIMONTON 173 Pgs: 9 02:44:41PM 07f05f2006 REC: 546.00 DOC: S PRIVATE PEDESTRIAN ACCESS EASEMENT GORE CREEK PLACE, LLC, a Colorado limited liability company ( "Grantor "), for good and valuable consideration, in hand paid or received, hereby grants and conveys to VAIL SPA CONDOMINIUM ASSOCIATION, a Colorado non - profit corporation ( "Grantee "), whose street address is 710 West Lionshead Circle, Vail, Colorado 81657, an easement (the "Easement ") for pedestrian access over, upon and across an improved pedestrian access way (the "Access Way ") to be constructed within that certain real property described on Exhibit A attached hereto and incorporated herein by this reference (the "Servient Estate "). The Easement shall only confer rights of pedestrian access across the surface of the Access Way, and shall specifically exclude any right to improve, maintain, repair, or replace the Access Way or Servient Estate. The Easement shall constitute an easement appurtenant for the benefit of the Grantee and Grantee's constituent members as the governing owners' association for and owners of that certain real property described on Exhibit B attached hereto and incorporated herein by this reference (the "Dominant Estate "), and shall run to the benefit of and may be enjoyed by those owners and their successors in interest in the ownership of the Dominant Estate or any portion thereof, any tenants or other residents or occupants of the Dominant Estate claiming by, through or under any such owners, and the social guests of any of them (collectively, the "Permittees "). The Easement shall be non - exclusive, and Grantor shall have and retain the right to use the Servient Estate for any uses and purposes that are not inconsistent with the use and enjoyment of the Easement, including, without limitation, use of the Servient Estate for access purposes in connection with the Project and Project Site (as both terms are defined below), and grants to others of access easement rights upon, over and across the Servient Estate or portions thereof (including, without limitation, such rights arising under the "Public Easement" and the other Private Pedestrian Access Easement hereinafter referenced). Again without limitation on the generality of the foregoing, surface driveway and related or ancillary improvements and access tunnel and other subterranean improvements (including, without limitation, building structures and utilities) will or may be constructed, maintained, used and enjoyed by or through Grantor within the Servient Estate in connection with the Project (collectively "Related Project Improvements "); Grantor's retained rights will specifically include rights to come upon the Servient Estate as necessary or appropriate, in the ordinary course of the use and enjoyment of the Project, to conduct maintenance, repairs, replacements or other work associated with the Related Project Improvements, even though damage may result to the Access Way (provided that Grantor shall be obligated to reasonably restore any such damage), and also associated with the Access Way itself. In conducting any such work, Grantor may temporarily barricade or otherwise preclude access across the affected areas of the Access Way and/or Servient Estate in order to facilitate the work and also protect persons and property. Grantor agrees that Grantor After recording please tenon to Crory An ld P.O. Box 959 — VC 87 6939792 RCT75H Avon, CO 81620 200617773 1 OF 9 will not otherwise construct or place any above - surface improvements, barriers or obstacles within the Servient Estate that would obstruct or materially interfere with the Grantee's use and enjoyment of the Access Way. The "Project" means the residential townhome project, with related site improvements, which is presently being developed, which subsumes the Servient Estate, and which is legally described as Lot 3, West Day Subdivision, according to the plat thereof recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado (the "Project Site "), as that project may be supplemented or modified from time to time. By their acceptance of the benefits of the Easement grant hereunder, Grantee and the Permittees shall assume the risks associated with the use and enjoyment of the Easement and the Access Way, and shall hold the Grantor harmless for any claims, liabilities, damages or losses that may be suffered or incurred by Grantee or the Permittees in connection with such use and enjoyment, unless occasioned by the Grantor's actions constituting gross negligence or willful misconduct. In that regard, Grantor has and shall have no duty to Grantee or the Permittees to maintain the Access Way in any certain condition, or to provide ice or snow clearance for the Access Way, except as otherwise expressly provided herein. This instrument has been made in conjunction with a "Public Pedestrian Easement and Emergency Access Easement" made of even date herewith between Grantor and the Town of Vail, as the grantee (the "Public Easement "), pursuant to which certain access rights are publicly dedicated over certain portions of the Access Way. The Public Easement shall be regarded as cumulative with and shall not be subject or subordinate to or limited by, and in turn shall not act as any limitation upon, the terms and provisions of this instrument. In addition, this instrument and the Easement have been made on a non - exclusive basis along with another Private Pedestrian Access Easement made by Grantor in favor of The Vail Corporation, d/b /a Vail Associates, Inc., and recorded or to be recorded on or about the date of the recording of this instrument. This instrument, the Easement and the terms hereof shall touch and concern and run with the land as a burden and benefit to the Servient Estate, the Dominant Estate, and the Project and Project Site, as applicable, and shall be binding upon and inure to the owners thereof, their successors in interest from time to time, and any owners' association (including Grantee) formed and existing from time to time that provides governing functions for the applicable property. References herein to "Grantor" will specifically include successors in interest to Grantor's ownership of the Project and Project Site and the "Association" defined below. Grantor and its successors in the ownership to the Servient Estate, or any portion thereof, and the owners from time to time of the Dominant Estate will have liability for any breach of the obligations hereunder of Grantor or Grantee, as applicable, only to the extent the breach occurs during the ownership period and in relation to the ownership interests of such party. If any such breach is attributable to any actions, omissions or property interests of any owners association established for the Project (the "Association "), recourse for such breach will be limited to the Association. The Association will enjoy the benefits and protections inuring to the Grantor hereunder; without limitation on the foregoing, the retained rights and interests of the Grantor hereunder may be exercised through the Association, and will also inure to the benefit of designees of the Grantor 691979 2 RUISH 200617773 2 OF 9 or such Association, which may include, without limitation, any agents and contractors of those parties, and applicable utility suppliers. Any subsequent waiver, amendment or modification of any provision hereof or any termination of this instrument (any of which shall be enforceable only to the extent specifically set forth in writing) that is made by Grantee or the Association will be binding upon its constituent owners. This instrument shall be governed by and construed in accordance with the laws of the State of Colorado. The Easement shall become effective upon the due and valid execution and delivery of this instrument by Grantor, this instrument's recordation in the real property records for Eagle County, Colorado, and the completion of the initial construction of the entire Access Way (which shall not be deemed to occur until such construction is fully accepted and/or approved by the Town of Vail as a requisite to issuing all certificates of occupancy for the Project upon full build -out). [Balance of page intentionally left blank] 6939792 RCRSH 200617773 3 OF 9 1N)/ITNESS WHEREOF, Grantor has made this Private Pedestrian Access Easement as of the 1D' ''day of I u. „ G 1 2006. Approved as to Form Legal Uepartmml Na,ae: (:F RY AR Signs' Date: d — d STATE OF COLORADO COUNTY OF C ss: GRANTOR: GORE CREEK PLACE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, Managing Member By: ame: a c tle: a re s i The foregoing instrumcnt was acknowledged before me this 4 day of T yit e , 2006, by yh as Sr. (J,r- e &ei dam, of Vail Resorts Development Company, a Colorado corporation, Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Jy z o gl2 d d .. f�N lC :�'�10TARY '•: `�Li��F COL U39792 KFISH Notary Pub 200617773 4 OF 9 EXHIBIT A Legal Description of Servient Estate (see the attached) 693979.2 RCFISH A-1 200617773 5 OF 9 LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, TN THE OFFICE OF THE CLERK AND RECORDER, COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHERLY ANGLE POINT ON THE WESTERLY LINE OF SAID LOT 3, WHENCE THE WESTERLY LINE OF SAID LOT 3 BEARS N 15 °50'27" W A DISTANCE OF 122.60 FEET FORMING THE BASIS OF BEARING OF THIS DESCRIPTON: THENCE N 73 °24'42" E A DISTANCE OF 432.25 FEET TO A PO1N'T ON THE SOUTH LINE OF SAID LOT 3, SAID POINT ALSO BEING THE TRUE POINT OF BL'GINNING THENCE DEPARTING SAID SOUTH LINE OF LOT 3 THE FOLLOWING EIGHTEEN (18) COURSES: I) 17.77 FEET ALONG A NON - TANGENT CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 40 °25'22 ", A RADIUS OF 25.19 FEET AND A CHORD WHICH BEARS N 45 °35'07" W A DISTANCE OF 17.41 FEET; 2) N 25 °22'26" W A DISTANCE OF 14.50 FEET TO A POINT OF CURVATURE; 3) 14.01 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 37 °40'34 ", A RADIUS OF 21.30 FEET AND A CHORD WHICH BEARS N 06 °32'09" W A DISTANCE OF 13.76 FEET TO A POINT OF REVERSE CURVATURE; 4) 13.77 FEET ALONG A CURVE TURNING TO THE LEFI' HAVING A CENTRAL ANGLE OF 45" 1745 ", A RADIUS OF 17.42 FEET AND A CHORD WHICH BEARS N 10°20'45" W A DISTANCE OF 13.41 FEET. 5) N 32 A DISTANCE OF 6.37 FEET: 6) N 53 °27'13" E A DISTANCE OF 2.74 FEET; 7) N 36 °32'47" W A DISTANCE OF 11.57 FEET; 8) S 69 °42'13" W A DISTANCE OF 8,47 FEET; 9) N 20 °17'22" W A DISTANCE OF 16.90 FEET; 10) S 60 °15'04" W A DISTANCE OF 2.70 FEET; 1 I) N 20 W A DISTANCE OF 36.08 FEET; 12) N 71 E A DISTANCE OF 26.47 FEET TO A POINT OF CURVATURE; 13) 17.15 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 17 °32'39 ", A RADIUS OF 56.00 FEET AND A CHORD WHICH BEARS N 80 °2326" E A DISTANCE OF 17.08 FEET; 14) N 89°09'47" E• A DISTANCE OF 3.19 FEET 1'0 A POINT OF CURVATURE: 15) 14.29 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL. ANGLE OF 31 °49'03 ", A RADIUS OF 25.74 FEET AND A CHORD WHICH BEARS N 73 °15'16" E A DISTANCE OF 14.11 FEET TO A POINT OF REVERSE CURVATURE; 16) 15.83 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 16 °28'18" A RADIUS OF 55.05 FEET AND A CHORD WHICH BEARS N 65 "34'53" E A DISTANCE OF 15.77 FEET; 17) N 71 °58'22" E A DISTANCE OF 21.06 FEET TO A POINT OF CURVATURE; 18) 17.95 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 60 °32'42 ", A RADIUS OF 16.98 FEET AND A CHORD WHICH BEARS N 41 "42'01" E A DISTANCE OF 17.12 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3; THENCE ALONG SAID NORTH LINE OF LOT 3 N 69°42'49" E A DISTANCE OF 47.8817 L T; THENCE DEPARTING SAID NORTH LINE OF LOT 3 THE FOLLOWING TWENTY -TWO (22) COURSES: S 05 °36'56" E A DISTANCE OF 23.33 FEET TO A POINT OF CURVATURE; 11.72 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF I8 °42'45 ", A RADIUS OF 35.87 FEET AND A CHORD WHICH BEARS S 85 °24' 10" W A DISTANCE OF 11.66 FEET: N 85" 1427" W A DISTANCE OF 6.29 FEET TO A POINT OF CURVATURE; 15.06 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 44'15'33'. A RADIUS OF 19.50 FEET AND A CHORD WHICH BEARS S 72 °37 W A DISTANCE OF 14.69 FEET; S 50 °30'00" W A DISTANCE OF 13.47 FEET TO A POINT OP CURVATURE; P;11 100-1 199\1 146.3\docs\Legal - Vail Spa Pedestrian Easment.doc 200617773 6 OF 9 6) 17.77 FEET ALONG A CURVE TURNING 1'0 THE RIGHT HAVING A CENTRAL ANGLE OF 31 °4749 ", A RADIUS OF 32.02 FEET AND A CHORD WHICH BEARS S 66 °23'54" W A DISTANCE OF 17.55 FEET TO A POINT OF REVERSE. CURVATURE; 7) 30.24 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENT RAI. ANGLE OF 20 °2(Y26 ", A RADIUS OF 85.18 FEET AND A CHORD WHICH BEARS S 72'OT36" W A DISTANCE OF 30.08 FEET TO A POINT OF REVERSE CURVATURE; 8) 23.41 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 27°4(Y28 ", A RADIUS OF 48.47 FEET AND A CHORD W111CH BEARS S 75 °4736" W A DISTANCE OF 23.18 FEET TO A POINT OF REVERSE CURVATURE.; 9) 13.48 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF I8 °28'46 ", A RADIUS OF 41.79 FEET AND A CHORD WHICH BEARS S 80 °23'28" W A DISTANCE OF 13.42 FEET; 10) S 71 °37'08" W A DISTANCE OF 16.06 FEET; 11) S 20 1 " E A DISTANCE OF 22.07 FEET; 12) S 60 W A DISTANCE OF 2.37 FEET; 13) S 20 °25'45" E A DISTANCE OF 11.67 FEET; 14) N 69 E A DISTANCE OF 6.89 FEET; 15) S 36 °32'47" E A DISTANCE OF 16.42 FEET; 16) N 53 E A DISTANCE OF 2.28 FEET; 17) S 32 °59'38" E A DISTANCE OF 6.99 FEET TO A POINT OF CURVATURE; 18) 21.68 FEET ALONG A CURVE TURNING TO THE RIGHT I IAVING A CENTRAL ANGLE OF 45'1 T46 ", A RADIUS OF 27.42 FEET AND A CHORD WHICH BEARS S 1(°20'45" E A DISTANCE OF 21.12 FELT TO A POINT OF REVERSE CURVATURE; 19) 7.43 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 37 °40'34 ", A RADIUS OF 11.30 FEET AND A CHORD WHICH BEARS S 06 °32'09" E A DISTANCE OF 7.30 FEET; 20) S 25 °22'26" E A DISTANCE OF 14.50 FEET TO A POINT OF CURVATURE; 21) 11.88 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 44 "47'11 ". A RADIUS OF 15.19 FEEL' AND A CHORD WHICH BEARS S 47 °46'02" E A DISTANCE OF 11.58 FEET TO A POINT OF CURVATURE; 22) 7.62 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 17 °37'53 ", A RADIUS OF 24.77 FEET AND A CHORD WHICH BEARS S 61'20'4!" E A DISTANCE OF 7.59 FEET TO A POINT ON SAID SOUTH LINE OF SAID LOT 3; T14ENCE ALONG SAID SOUTH LINE OF SAID LOT 3 S 66'54' 19" W A DISTANCE OF 1187 FEET TO THE TRUE POINT OF BEGINNING SAID PARCEL CONTAINING 0.077 ACRES MORE OR LESS. BRENT BIGGS PLS #27598 FOR AND ON THE BEHALF OF PEAK LAND CONSULTANTS, INC. N1100 -1 IM I 146.31docs\Legal -Vail Spa Pedestrian Easment.doc 200617773 7 OF 9 to w Z - o cn w ca H ?� o a p. E- r Fn E23� N o U w 6 W W N Q U) w W C� Q� O J N ° N o U 3 4J� w n u1 w WW O P a f F J� V N �v N oWW��gE,Ct 4 E. G W W W u �C 3 EC2 l F . LWJ J U7 f�1N N �i �. r WWW e W O N z W N !`` O n / —I ! co i Y l r bN n Ip_nN r1 N b nm O O b h i0 2 Z 2 Z Z N N Z Z Z Z N Z Z N Z N N N Z Z I W J O] Q z i n -n�O• .riN-oN"' ^'�vPn Y of m o^ u°'v,m„ o'er i A .n .on mP O -N.�Y n.onmPry nNrn NNrv�io Nn N J J J J W W W W W W W W W W W w W W W W U Z � p ;� W W W W 3 3 3 3 3 3 W 1� O O m � N 0 O N m• ry O P O d min • r N l ' n .n 'a .• i.� ' 'n ' 1. i✓1 ' io • o r ~ Y N Y a m = U Z 2 2 Z Z N N o • =n ring ring sn own �� z_ wan 'n iD O' V� w n � n �W n ari l U a i � W MY U U m,n U U 00P U o- Nn Ylnbn U W W W U W V U W W U V W W U U V W W W 200617773 8 OF 9 EXHIBIT B Legal Description of Dominant Estate VAIL SPA CONDOMINIUM, According to the Condominium Declaration for Vail Spa recorded December 4, 1979, in Book 295 at Page 457, as amended by the Amendment to Condominium Declaration for Vail Spa recorded October 11, 1988, in Book 492 at Page 715, and re- recorded June 15, 1989, in Book 508 at Page 82, and the Condominium Map for Vail Spa recorded December 4, 1979, in Book 295 at Page 458, County of Eagle, State of Colorado M3919.2 RULSH B -1 200617773 9 OF 9 EMGLE COUN - Y, CO 2006 17774 TEAK J ggSIMON70N J�j J ; 73. 346SA0 DOC f 2:44:42PM 07! 05! 2 006 111 i PRIVATE PEDESTRIAN ACCESS EASEMENT GORE CREEK PLACE, LLC, a Colorado limited liability company ( "Grantor "), for good and valuable consideration, in hand paid or received, hereby grants and conveys to THE VAIL CORPORATION, DB /A VAIL ASSOCIATES, INC., a Colorado corporation ( "Grantee "), whose street address is c/o Vail Resorts Development Company, P.O. Box 959, 137 Benchmark Road, Avon, Colorado 81620, Attention: Jack Hunn, Senior Vice President, an easement (the "Easement ") for pedestrian access over, upon and across an improved pedestrian access way (the "Access Way ") to be constructed within that certain real property described on Exhibit A attached hereto and incorporated herein by this reference (the "Servient Estate'). The Easement shall only confer rights of pedestrian access across the surface of the Access Way, and shall specifically exclude any right to improve, maintain, repair, or replace the Access Way or Servient Estate. The Easement shall constitute an easement appurtenant, for the benefit of the Grantee and Grantee's successors in interest, to their ownership of that certain real property described on Exhibit B attached hereto and incorporated herein by this reference (the "Dominant Estate "), and shall run to the benefit of and may be enjoyed by the owners of the Dominant Estate or any portion thereof, any tenants or other residents or occupants of the Dominant Estate claiming by, through or under any such owners, and the social guests of any of them (collectively, the "PermitteesI. The Easement shall be non - exclusive, and Grantor shall have and retain the right to use the Servient Estate for any uses and purposes that are not inconsistent with the use and enjoyment of the Easement, including, without limitation, use of the Servient Estate for access purposes in connection with the Project and Project Site (as both terms are defined below), and grants to others of access easement rights upon, over and across the Servient Estate or portions thereof (including, without limitation, such rights arising under the "Public Easement" and the other Private Pedestrian Access Easement hereinafter referenced). Again without limitation on the generality of the foregoing, surface driveway and related or ancillary improvements and access tunnel and other subterranean improvements (including, without limitation, building structures and utilities) will or may be constructed, maintained, used and enjoyed by or through Grantor within the Servient Estate in connection with the Project (collectively "Related Project Improvements "); Grantor's retained rights will specifically include rights to come upon the Servient Estate as necessary or appropriate, in the ordinary course of the use and enjoyment of the Project, to conduct maintenance, repairs, replacements or other work associated with the Related Project Improvements, even though damage may result to the Access Way (provided that Grantor shall be obligated to reasonably restore any such damage), and also associated with the Access Way itself. In conducting any such work, Grantor may temporarily barricade or otherwise preclude access across the affected areas of the Access Way and /or Servient Estate in order to facilitate the work and also protect persons and property. Grantor agrees that Grantor 200617774 1 OF 9 will not otherwise construct or place any above - surface improvements, barriers or obstacles within the Servient Estate that would obstruct or materially interfere with the Grantee's use and enjoyment of the Access Way. The "Project" means the residential townhome project, with related site improvements, which is presently being developed, which subsumes the Servient Estate, and which is legally described as Lot 3, West Day Subdivision, according to the plat thereof recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado (the "Project Site "), as that project may be supplemented or modified from time to time. By their acceptance of the benefits of the Easement grant hereunder, Grantee and the Permittees shall assume the risks associated with the use and enjoyment of the Easement and the Access Way, and shall hold the Grantor harmless for any claims, liabilities, damages or losses that may be suffered or incurred by Grantee or the Permittees in connection with such use and enjoyment, unless occasioned by the Grantor's actions constituting gross negligence or willful misconduct. In that regard, Grantor has and shall have no duty to Grantee or the Permittees to maintain the Access Way in any certain condition, or to provide ice or snow clearance for the Access Way, except as otherwise expressly provided herein. This instrument has been made in conjunction with a "Public Pedestrian Easement and Emergency Access Easement" made of even date herewith between Grantor and the Town of Vail, as the grantee (the "Public Easement "), pursuant to which certain access rights are publicly dedicated over certain portions of the Access Way. The Public Easement shall be regarded as cumulative with and shall not be subject or subordinate to or limited by, and in turn shall not act as any limitation upon, the terms and provisions of this instrument. In addition, this instrument and the Easement have been made on a non - exclusive basis along with another Private Pedestrian Access Easement made by Grantor in favor of Vail Spa Condominium Association, and recorded or to be recorded on or about the date of the recording of this instrument. This instrument, the Easement and the terms hereof shall touch and concern and run with the land as a burden and benefit to the Servient Estate, the Dominant Estate, and the Project and Project Site, as applicable, and shall be binding upon and inure to the owners thereof, their successors in interest from time to time, and any owners' association formed and existing from time to time that provides governing functions for the applicable property. Any such association formed for the Dominant Estate is referred to hereinafter as the " "Dominant Association," and any such association formed for the Project Site is referred to hereinafter as the "Servient Association." References herein to "Grantor" will specifically include successors in interest to Grantor's ownership of the Project and Project Site and the Servient Association, and references herein to "Grantee" will specifically include successors in interest in the ownership of the Dominant Estate and the Dominant Association. Grantor and Grantee and their respective successors in the ownership to the Servient Estate and Dominant Estate, or any portion of either, will have liability for any breach of the obligations hereunder of Grantor or Grantee, as applicable, only to the extent the breach occurs during the ownership period and in relation to the ownership interests of such party. if any such breach is attributable to any actions, omissions or property interests of the Servient Association or Dominant Association, recourse for such breach will be limited to the Servient Association or Dominant Association, as applicable. The Servient Association will enjoy the benefits and protections inuring to the Grantor hereunder; without 693066J RCHSH 200617774 2 OF 9 limitation on the foregoing, the retained rights and interests of the Grantor hereunder may be exercised through the Servient Association, and will also inure to the benefit of designees of the Grantor or Servient Association, which may include, without limitation, any agents and contractors of those parties, and applicable utility suppliers. Any subsequent waiver, amendment or modification of any provision hereof or any termination of this instrument (any of which shall be enforceable only to the extent specifically set forth in writing) that is made by the Servient Association or Dominant Association will be binding upon its constituent owners. This instrument shall be governed by and construed in accordance with the laws of the State of Colorado. The Easement shall become effective upon the due and valid execution and delivery of this instrument by Grantor, this instrument's recordation in the real property records for Eagle County, Colorado, and the completion of the initial construction of the entire Access Way (which shall not be deemed to occur until such construction is fully accepted and/or approved by the Town of Vail as a requisite to issuing all certificates of occupancy for the Project upon full build -out). [Balance of page intentionally left blank] 6390661 RCFISR 200617774 3 OF 9 IN WITNESS WHEREOF, Grantor has made this Private Pedestrian Access Easement as of theja�ly of :J:�., -e— 1 2006. Approved 95 W Firm: Legal Departa►eat Name: GE Y ARK Signs tan• Date: GRANTOR: GORE CREEK PLACE, LLC, a Colorado limited liability company a STATE OF COLORADO ) ss: COUNTY OF � /e- ) The foregoing instrumeppt was acknowledged before rnf this �� m ay of �Ct n •c , 2006, by _,7A ,_ k 1Ff ce n h as S r. U ' e /'re ; er/ of Vail Resorts Development Company, a Colorado corporation, Managing Member of Gore Creek Place, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: / 016 s f 67 d W N OtA A y•.< tn�., P�BL1� ''c FOF C'0i' 668066.1 aCFISH - 2� a" Notary Publi 200617774 4 OF 9 Vail Resorts Development Company, a Colorado corporation, Managing Member EXHIBIT A Legal Description of Servient Estate (see the attached) 6290661 RCFISH A -1 200617774 5 OF 9 LEGAL DESCRIMON A PARCEL OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, IN THE OFFICE OF THE CLERK AND RECORDER, COUNTY OF EAGLE, STATE OF COLORADO. BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHERLY ANGLE POINT ON THE WESTERLY LINE OF SAID LOT 3, WHENCE THE WESTERLY LINE OF SAID LOT 3 BEARS N I5 °50'27" W A DISTANCE OF 122.80 FEET FORMING THE BASIS OF BEARING OF THIS DESCRIPTION; THENCE N 73 °24'42" E A DISTANCE OF 432.25 FEET TO A POINT ON T14E SOUTH LINE OF SAID LOT 3, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING THENCE DEPARTING SAID SOUTH LINE OF LOT 3 THE FOLLOWING EIGHTEEN (I8) COURSES I) 17.77 FEET ALONG A NON = TANGENT CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 40 °25'22 ". A RADIUS OF 25.19 FEET AND A CHORD WHICH BEARS N 45 °35'07' W A DISTANCE OF 17.41 FEET; 2) N 25 °22'26" W A DISTANCE OF 14.50 FEET TO A POINT OF CURVATURE; 3) 14.01 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 37 °40'34', A RADIUS OF 21.30 FEET AND A CHORD WHICH BEARS N 06 °32'09" W A DISTANCE OF 13.76 FEET TO A POINT OF REVERSE CURVATURE; 4) 13.77 FEET ALONG A CURVE TURNING TO IRE LEFT HAVING A CENTRAL ANGLE OF 45° 17'45 ", A RADIUS OF 17.42 FEET AND A CHORD WHICH BEARS N 10 °20'45" W A DISTANCE OF 13.41 FEET; 5) N 32 °59'38" W A DISTANCE OF 6.37 FEET; 6) N 53 °27 13" E A DISTANCE OF 2.74 FEET; 7) N 36 °32'47" W A DISTANCE OF 11.57 FEET; 8) S 69 °42'13" W A DISTANCE OF 8.47 FEET: 9) N 20 °17'22` W A DISTANCE OF 16.90 FEET; 10) S 60 W A DISTANCE OF 2.70 FEET; I I) N 20 °17'56" W A DISTANCE OF 36.08 FEET; 12) N 71 E A DISTANCE OF 26.47 FEET TO A POINT OF CURVATURE; 13) 17.15 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 17 °32'39", A RADIUS OF 56.00 FEET AND A CHORD WHICH BEARS N 80 °23'28" E A DISTANCE OF 17.08 FEET; 14) N 89 °09'47" E A DISTANCE OF 3.19 FEET TO A POINT OF CURVATURE; 15) 14.29 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 31 °49'03 ". A RADIUS OF 25.74 FEET AND A CHORD WHICH BEARS N 73'15'16" E A DISTANCE OF 14.11 FEET TO A POINT OF REVERSE CURVATURE; 16) 15.83 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 16 °28'18 ", A RADIUS OF 55.05 FEET AND A CHORD WHICH BEARS N 65 °34'53" E A DISTANCE OF 15.77 FEET; 17) N 71 °58'22" E A DISTANCE OF 21.06 FEET TO A POINT OF CURVATURE; 18) 17.95 FEET ALONG A CURVE TURNING TO THE LEFT' HAVING A CENTRAL ANGLE OF 60 °32'42 ", A RADIUS OF 16.98 FEET AND A CHORD WHICH BEARS N 41 °42'01" E A DISTANCE OF 17.12 FEET TO A POINT ON THE NORTH LINE OF SAID LOT 3; THENCE ALONG SAID NORTH LINE OF LOT 3 N 69 °42'49" E A DISTANCE OF 47.88 FEET; THENCE DEPARTING SAID NORTH LINE OF LOT 3 THE FOLLOWING TWENTY-TWO (22) COURSES: S 05 °36'56" E A DISTANCE OF 23.33 FEET TO A POINT OF CURVATURE. 1 1.72 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 18 °42'45 ", A RADIUS OF 35.87 FEET AND A CHORD WHICH BEARS S 85 °24'10" W A DISTANCE OF 11.66 FEET'; N 85° 14'27" W A DISTANCE OF 6.29 FEET TO A POINT OF CURVATURE; 15.06 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 44 °15'33 ", A RADIUS OF 19.50 FEET AND A CHORD WHICH BEARS S 72 °37'47" W A DISTANCE. OF 14.69 FEET: S 50 °30'00" W A DISTANCE OF 13.47 FEET TO A POINT OF CURVATURE; P: \1100 - 1199 \1146.3 \docs \Legal - Vail Spa Pedestrian Easment.doc 200617774 6 OF 9 6) 17.77 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAI. ANGLE OF 31 °4749 ", A RADIUS OF 32.02 FEET AND A CHORD WHICH BEARS S 66 °23'54" W A DISTANCE OF 17.55 FEET TO A POINT OF REVERSE CURVATURE; 7) 30.24 FEET ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 20°20'26 ", A RADIUS OF 85.18 FEET AND A CHORD WHICH BEARS S 72 °07'36" W A DISTANCE OF 30.08 FEET TO A POINT OF REVERSE CURVATURE; 8) 23.41 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 27 °40'28', A RADIUS OF 48.47 FEET AND A CHORD WHICH BEARS S 75 °47'36" W A DISTANCE OF 23.18 FEET TO A POINT OF REVERSE CURVATURE; 9) 13.48 FELT ALONG A CURVE TURNING TO THE LEFT HAVING A CENTRAL ANGLE OF 18 °28'46 ", A RADIUS OF 41.79 FEET AND A CHORD WHICH BEARS S 80 °23'28" W A DISTANCE OF 13.42 FEET; 10) S 71 °37'08• W A DISTANCE OF 16.06 FEET; 11) S 20 °16'31" E A DISTANCE OF 22.07 FEET; I2) S 60 °10'03" W A DISTANCE OF 2.37 FEET; 13) S 20 °25'45" E A DISTANCE OF 1 1.67 FEET; 14) N 69 °49 32" E A DISTANCE OF 6.89 FEET; 15) S 36 °32'47" E A DISTANCE OF 16.42 FEET; 16) N 53 E A DISTANCE OF 2.28 FEET; 17) S 32 °5938" E A DISTANCE OF 6.99 FEET TO A POINT OF CURVATURE; 18) 21.68 FEET ALONG A CURVE TURNING TO TI IE RIGHT HAVING A CENTRAL ANGLE OF 45° 17'46 ", A RADIUS OF 27.42 FEET AND A CHORD WHICH BEARS S 10 °20'45" F. A DISTANCE OF 21.12 FEET TO A POINT OF REVERSE CURVATURE; 19) 7.43 FEET ALONG A CURVE TURNING TO THE IXXY HAVING A CENTRAL ANGLE OF 37 °40'34 ", A RADIUS OF 11.30 FEET AND A CHORD WHICH BEARS S 06 °32'09" E A DISTANCE OF 7.30 FEET: 20) S 25 °2226" E A DISTANCE OF 14.50 FEET TO A POINT OF CURVATURE; 21) 1 1.88 FEET ALONG A CURVE TURNING TO THE LE1 HAVING A CENTRAL ANGLE OF 44 °471 V. A RADIUS OF 15.19 FEET AND A CHORD WHICH BEARS S 47 °46'02" E A DISTANCE OF 11-58 FEET TO A POINT OF CURVATURE: 22) 7.62 FEET ALONG A CURVE TURNING TO THE RIGHT HAVING A CENTRAL ANGLE OF 17 °37'53 ", A RADIUS OF 24.77 FEET AND A CHORD WHICH BEARS S 61 °20'41" E A DISTANCE OF 7.59 FEET TO A POINT ON SAID SOUTH LINE OF SAID LOT 3; THENCE ALONG SAID SOUTH LINE OF SAID LOT 3 S 66'54'19" W A DISTANCE OF 12.87 FEETTO THE TRUE POINT OF BEGINNING SAID PARCEL CONTAINING 0.077 ACRES MORE OR LESS. BRENT BIGGS PLSIl27598 FOR AND ON THE BEHALF OF PEAK LAND CONSULTANTS, INC. P;11 100- 1 19911 146.31docs\Legal - Vail Spa Pedestrian Easment.doc 200617774 7 OF 9 d ~ E-1 V j o O z ca J WE- X0 G� �O z mA o n, k- V E— W E23� � o U w d i W m Q A Ww ¢� a C ol w Q J LA o �J� W n J� V U O w w s a y1 CJ N co oWW y EC14 E W h W W G3 EC2 4 � a, w �, G N E�6 J �� N w E�6 ww 1 O • N O n J � z J p � A U n r arvn p;r � H lo a melon n mom• dl�°I ziz zzzPln to o. ` 7 I n rj nc �<M H ^ te n � n P H 41 J fn 200617774 8 OF 9 • 3 3, - i7n r� OI iO nl U Z d � P d Y d N Y ip _ f .• f O m O f d ^ N pppp p� hN p f f OI a f � r� e ° dN rN f i�in i�i�bl 0 io ahr - n oN a� n � m W J m Z Z 2 2 Z Z VI Z Z Z Z Z Z N Z Z Z 2 Z pp IA Z V N O O O N O � T Q J F U . O n� P m n I N♦ M b� � N n d N IO n m P O W N H d UI Ip n a0 P O N H d N Ip OD P O N n f vt P n O� m Y � f n Y�� n O C �� � rv a�O C n h m to m f :- < i f f I J a Y o gam. vrnd�r'ao°+dr�, vn to UIJ WW WIJ W W W W W W W W 200617774 8 OF 9 • 3 3, - i7n r� OI iO nl U Z d � P d Y d N Y ip _ f .• f O m O f d ^ N pppp p� hN p f f OI a f � r� e ° dN rN f i�in i�i�bl 0 io ahr - n oN a� n � m W J m Z Z 2 2 Z Z VI Z Z Z Z Z Z N Z Z Z 2 Z pp IA Z V N O O O N O � T Q J � N n d N IO n m P O W N H d UI Ip n a0 P O N H d N Ip OD P O N n f vt 200617774 8 OF 9 EXHIBIT B Legal Description of Dominant Estate 683066.1 RUISH Lot 2, West Day Subdivision, according to the plat thereof recorded March 10, 2005, at Reception No. 908760, County of Eagle, State of Colorado. MI 200617774 9 OF 9 _ EEAK SInONTON 200623084 173 Pgs: 2 02:15:32Pn 68/23/2066 WC: 511.00 1 DOC: 4 G HOLY CROSS EN UNDERGROUND R GHfT -O I Illlll VIII Illl VIII VIII VIII Illl hill VIII IIII lilhl Illl IIII KNOW ALL MEN BY THESE PRESENTS, that the undersigned, GORE CREEK PLACE, LLC, a Colorado limited liability company (hereinafter called 'Grantor "), for a good and valuable consideration, the receipt whereof Is hereby acknowledged, does hereby grant unto Holy Cross Energy, a Colorado corporation whose post office address is P. O. Box 2150, Glenwood Springs, Colorado (hereinafter called * Grantee) and to its successors and assigns, the right of ingress and egress across lands of Grantor, situate in the County of Eagle, State of Colorado, described as follows: Lot 3, West Day Subdivision, a Resubdivision of Parcel 3, Llonshead Penthouses, and Lots A, B, D, and a Part of C, Morcus Subdivision, according to the final plat thereof, Section 7, Township 5 South, Range 80 West of the d� _ 6" P.M., more particularly described at Reception Number 908760 and Reception Number 923306 in the office of the Eagle County Clerk and Recorder, Eagle, Colorado. And, to construct, reconstruct, repair, change, enlarge, re-phase, operate, and maintain an underground electric transmission or distribution line, or both, with the underground vaults, conduit, fixtures and equipment used or useable in connection therewith, together with associated equipment required above ground, within the above mentioned lands, upon an easement described as follows: An Easement containing underground power lines with above ground pad mounted equipment as constructed, the location of said Easement upon the above described property Is shown on Exhibit A attached hereto and made a part hereof by reference. The rights herein granted specifically allow Grantee to Install additional underground and /or pad - mounted facilities within the easement described herein. It shall be the Grantors responsibility to ensure that splice vaults, switchgear vaults and transformer vaults installed hereunder on said real property are accessible by Grantee's boom trucks and other necessary equipment and personnel at all times. The use of such access by Grantee shall not require removal or alteration of any improvements, landscaping, or other obstructions. The ground surface grade shall not be altered within ten (10) feet of said splice, switchgear and transformer vaults, nor along the power line route between the vaults. The ground surface grade at said transformer and switchgear vaults shall be six (6) inches below the top of the pad. The ground surface grade at said splice vaults shall be even with the top of the pad. The manhole opening of said splice vaults shall be uncovered (excluding snow) and accessible at all times. Improvements, landscaping or any other objects placed In the vicinity of said transformers and switchgear shall be located so as not to hinder complete opening of the equipment doors. The ground surface within ten (10) feet of said transformer and switchgear doors shall be flat, level and free of improvements, landscaping, and other obstructions. Improvements, landscaping and other objects will be kept a minimum of four (4) feet from non-opening sides and backs of said transformers and switchgear. Grantors hereby agrees to maintain the requirements of this paragraph and further agrees to correct any violations which may occur as soon as notified by Grantee. Said corrections will be made at the sole cost and expense of Grantor. Together with the right to remove any and all trees, brush, vegetation and obstructions within said easement and the right to pile spoils outside said easement during construction and maintenance, when such is reasonably necessary for the implementation and use of the rights hereinabove granted. In areas where vegetation is disturbed by the above described use of the easement, the ground surface shall be seeded using a standard native mix by Grantee. Grantor agrees that landscaping or other surface improvements added on said easement after the date of execution hereof will be minimized and that Grantee will not be responsible for damage to said additional landscaping or surface Improvements caused by exercise of its rights granted by this easement. Grantor agrees that all facilities installed by Grantee on the above described lands, shall remain the property of Grantee, and shall be removable at the option of Grantee. Grantor covenants that it is the owner of the above described lands and that the said lands are free and clear of encumbrances and liens of whatsoever character, except those held by the following: TO HAVE AND TO HOLD, said rightoUway and easement, together with all and singular, the rights and privileges appertaining thereto, unto Grantee, its successors and assigns, forever. IN n NESS WHERF,OF, Grantor has caused these presents to be duly executed on this /q� day of (,(II a - f� 2G 4_i__ . The individual signing this Holy Cross Energy Underground Right-of-Way Easement hereby represents that he /she has full power and authority to sign, execute, and deliver this instrument. APP a 11 i w riiew uRV Nwt: G TA 81 DOW STATE OF l d (t) ra46 ) ss. COUNTY OF The foregoin8_instrurpent was ackni Development WITNESS my hand and o My commission expires: GORE CREEK PLACE, LLC, a Colorado limited liability company By: Vail n I Managing M Company, a Colorado c ration, danaging Member Bv: Name: �2ksiprxlfi 1(y6Fsral�t thQ day of 20 d 6 by as Y. of Vail Resorts :Ion,"enaginq M ber of CORE CREEK PLACE, LLC, a Colo ado limited liability company. CV //NotaryPublic � /' -// Address: t� � 7 V � G S O W /O# 06-19000:52-42: UONSHEAD - CORE CREEK PLACE 8-2 -06 slvr %Arnold2 Revised 9-14-04 PLEASE RETURN TO: 200623084 1 OF 2 HOLY CROSS ENERGY P.O. BOX 2150 GLENWOOD SPRINGS, CO 81602 1 EXHIBIT A GRAPHIC SCALE 0 :0 30 40 1 � I IN FEET ) I inch = 20 R. O LOT 3 REC. #908760 2.451 ACRES rn N C , N 74'09' 35 "E l 20.00' POINT OF BEGINNING j + S1 5'50'27 "E 15.00' N 15'50' 2 7" W � 15.00' S74'09'35 "W 20.0 �.2 0 W 3z, BRASS TAG LS #27598 A PARCEL OF LAND LOCATED IN LOT 3, FINAL PLAT, WEST DAY SUBDIVISION, A RESU13DIVISION OF PARCEL 3, LIONSHEAD PENTHOUSES, AND LOTS A. B. D AND A PART OF C. MORCUS SUBDIVISION, AS RECORDED AT RECEPTION /908760, PUBLIC RECORDS OF EAGLE COUNTY, COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON WESTERLY LINE OF SAID LOT 3, FROM WHICH THE NORTHWEST CORNER OF SAID LOT 3 BEARS N15'50'27'W, 96.75 FEET; THENCE DEPARTING SAID WESTERLY LINE OF LOT 3 N74'09'35 "E, A DISTANCE OF 20.00 FEET; THENCE S15'50'27'E, A DISTANCE OF 15.00 FEET; THENCE S74'09'35'W, A DISTANCE OF 20.00 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 3; THENCE ALONG SAID WESTERLY LINE N15'50'27'W, A DISTANCE OF 15.00 FEET TO THE POINT OF BEGINNING. PARCEL CONTAINS 0.0069 ACRES 'r Rocert S. State of Colorado PIS No. 23048 NOTICE: According to Coiorodo Low you must commerce any legal action -� based upon any defect in this exhibit within three years after you first discover such defect. In ro event may any action based upon any defect = in this exhibit be commenced more than ten years from the date of the cert ;hcotlon shown hereon. E7wnVOS d�sNE :S CF�N TE�i � � BJr 57 SHEET 1 OF 1 - -DAARCS. C -RADA 21632 € 1 970) 926 -337} J rAX ,970; 926 -3390 r •, t uvua r aw9twes87aylor.Peak \HC- ESMT.owg. 72 &2006 8:49:02 AM. oabcock 200623064 2 OF 2 r�,IGLE C111111TY I'll 200635128 to 'r L ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT ( "Agreement ") is entered into this day of December, 2006, by and between the Eagle River Water and Sanitation District, a quasi - municipal corporation and political subdivision of the State of Colorado ( "District "), and Core Creek Place, LLC, a Colorado limited liability company ("Applicant "). WHEREAS, District is the owner of a Sewer Main Easement recorded in the public records of Eagle County, Colorado, immediately prior to the recordation of this Agreement (the "Easement "); and WHEREAS, Applicant is fee owner of the real property encumbered by the Easement (the "Property ") as more fully described on Exhibit A attached hereto; and WHEREAS, Applicant requests authorization to encroach upon the District's Easement for the benefit of Applicant's Property, as more fully described on Exhibit B attached hereto; and WHEREAS, the District acknowledges that hot tubs, decks /patios and other existing improvements and facilities have been constructed by Applicant within the Easement; and that the District will make a reasonable effort to avoid damaging those improvements, if at all possible; but that the District will not be responsible for damages to the improvements should the effort to avoid damage be unsuccessful; and WHEREAS, District has adopted an Encroachment Policy which, while discouraging encroachments into District Easements, recognizes extenuating circumstances occasionally make such an encroachment appropriate; and WHEREAS, District has, in this case, determined to Consent to the encroachment upon the terms and conditions contained herein, and in furtherance of the Encroachment Policy. NOW, THEREFORE, in consideration of the terms and conditions, hereinafter set forth, the Parties agree as follows: 1. Consent to Encroachment District hereby Consents to the Encroachment as fully described on Exhibit B ( "Encroachment Area as attached hereto. Any and all rights granted to Applicant under this Agreement shall be exercised at Applicant's sole cost, risk and expense, and shall be subject to the dominant and continuing right of District to use any and all of the Encroachment Area for District's public purposes; and shall further be subject to all prior deeds, casements, dedications, conditions, franchises, covenants, restrictions, encroachments and claims of title of record that may affect the Encroachment Area. Nothing contained in this Agreement shall be deemed to grant, convey, create or vest in Applicant any real property interest in the land that Applicant does not otherwise hold, including, but not limited to, any leasehold interest, easement, or irrevocable license. 705341 3 RC'i1SH 200635128 1 OF 10 v`LA)r 2. Ilse of Encroachment Area Applicant agrees that it will utilize the Encroachment Area solely for the purposes of the maintenance, repair, replacement, operation, use and enjoyment of the improvements and facilities described on Exhibit B . and for no other purpose pertaining to improvements. 3. No Interference Applicant, in the performance and exercise of its rights under this Agreement, shall not damage or interfere in any way with the use, operation, maintenance, repair, or replacement of any public facility that is owned, operated and maintained by District or its assignees within the Easement. Should the operation, maintenance, or repair of the authorized improvements in the Encroachment Area ever cause District's use of the Easement and related facilities to be interfered with or damaged, Applicant, at its sole cost and expense, shall properly repair any and all damage to District's facilities, and remove the interference as soon as practicable. District agrees to make a reasonable effort to avoid damage to the improvements of Applicant, but otherwise accepts no liability for damage. Under any and all circumstances other than District's failure of reasonable effort, all work that is necessary to repair the damage or remove the interference at any time shall be at Applicant's sole cost and expense. District, in emergency situations, may, at Applicant's sole cost and expense, repair any and all damage and remove any and all interference without prior notice to Applicant. 4. Compliance with haws Applicant shall comply A ith all federal, state and local laws in the exercise and performance of its rights and obligations under this Encroachment Agreement. 5. Encroachment Policy Applicant acknowledges that it is aware of the District's Encroachment Policy, and that this Encroachment Agreement is subject to the terms and conditions of such Policy as it may now exist and be applied consistently with the other terms hereof. 6. Indemnification and Waiver Applicant hereby agrees to indemnify, defend, protect and hold harmless District, its officers and employees, from and against any and all claims, damages, losses, liabilities, fines, penalties, of whatsoever kind or nature, including, but not limited to reasonable attorneys' fees that are incurred by District and that arise in connection with Applicant's activities that are undertaken, authorized or obligated pursuant to this Agreement. Such liability shall specifically, without limitation, extend to claims of third parties arising from the presence of the Applicant's improvements within the Easement Area. 7. Limitation on District's Liabiliri Subject to the other terms of this Agreement, District shall have no liability to Applicant or third persons related to Applicant's use of the Encroachment Area, including, but not limited to, damages to the Applicant's improvements resulting from District's dominant use of the Encroachment Area or from the repair of District facilities or the installation of any additional facilities in the future within the Easement. 8. Term This Agreement shall remain in force and effect unless and until the Easement is terminated, or the improvements and facilities which are the subject of this Agreement are removed. )u5341 ) rcnsll 2 200635128 2 OF 10 9. Successors and Assigns The rights and obligations of this Agreement shall be appurtenant to and deemed to run with the Property (with each owner being liable only for those obligations accruing during its ownership period), until such time as the District terminates or abandons the Easement. 10. Integrated Agreement This Agreement contains the entire understanding between the Parties hereto with respect to the subject matter hereof. There are no representations, agreements or understandings (whether oral or written) between or among the Parties relating to the subject matter of this Agreement which are not fully expressed herein. ]Balance of page intentionally left blank] 7OS341 J RI:FI$11 200635128 3 OF 10 IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this Agreement, duly authorized representatives of the Parties have executed this Agreement as of the date first set forth above. APPLICANT: GORE CREEK PLACE, LLC, a Colorado limited liability company am DISTRICT: EAGLE RIVER WATER AND SANITATION DISTRICT, a quasi - municipal corporation and political subdivision of the State of Colorado By. —• . 70340 RMSH 200635126 4 OF 10 Vail Resorts Development Company, Managing Member ACKNOWLEDGEMENT STATE OF COLORADO ) ss. COUNTY OF ) The fo going twist ment was acknowledged before me thiday oQ, 20� , by as of Vail Resorts Development mpany, Managing Member of Gore CMek Pla , LLC, a Colorado limited liability comp y , who represents itself to be 100% owner of the Property described herein. Witness my hand and official seal. My commission expires: STATE OF COLORADO ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of ttt 20 ( , by na/ = / dj � as ,���� of Eagle River Water and Sanitation District, aquasi- municipal corporation and political subdivision of the State of Colorado Witness my hand and official seal. My commission expires: G�aDQe_ Notary Pu c KATHY A. GARRISON ;05,413 RUISH EXHIBIT A Legal Description of the Property Sec the attached. The Property is coextensive .with the Easement. -nsro i acrisa A -1 200635128 6 OF 10 LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, IN THE OFFICE OF THE CLERK AND RECORDER, COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 3, WHENCE THE WESTERLY LINE OF SAID LOT 3 BEARS S I5 °50'27" E A DISTANCE OF 122.80 FEET, FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION. THENCE ALONG SAID WESTERLY LINE OF LOT 3 S 15 °50"27" E A DISTANCE OF 113.90 FEET TO THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID WESTERLY LINE OF LOT 3 THE FOLLOWING FOUR (4) COURSES: I) N 74 °5(Y38" E A DISTANCE OF 26.51 FEET; 2) N 75 °32'27" EA DISTANCE.OF 324.59 FEET; 3) N 67 °48'25" EA DISTANCE OF 71.01 FEET; 4) S 20°42'23" E A DISTANCE OF 5.71 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID LOT 3; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 3 THE FOLLOWING FOUR (4) COURSES: 1) S 66 °54'19" W A DISTANCE OF 52.52 FEET; 2) S 15 °46'41" E A DISTANCE OF 3.15 FEET; 3) S 74 °12'56" WA DISTANCE OF 280.00 FEET; 4) S 77"2710" W A DISTANCE OF 89.72 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 3; THENCE ALONG THE SAID WESTERLY LINE OF LOT 3 THE FOLLOWING TWO (2) COURSES; 1) N 31 °40 W A DISTANCE OF 1.44 FEET; 2) N 15 °50'27" W A DISTANCE OF 8.90 FEET TO THE TRUE POINT OF BEGINNrNG SAID PARCEL CONTAINING 0.100 ACRES MORE OR LESS. F�4�I �bYp *1WM*] =It o� m , a X xj' k A ll IA 2 Z T 5 L3 m zo q W n d Z� p oi • ; r te Ilp p Z^ n J J W m O W sad W CD 1 - 0 tn a z 1 Z OQ�� U J ? w s 'o U 6 m v U 3 M 5 r � N U r � Q ~ o N I r f-0 Lo Z f a H rn w 1 L� '� J .N m CL w U !� O a t539p R R�O 6$£A4i1Np� � O P 18 P555 W ` R p , 200635128 8 OF 10 EXHIBIT B Encroachment Area See the attachment, which depicts the improvements and facilities creating the encroachments authorized by this Agreement. The Encroachment Area shall be constituted by the areas on which those improvements and facilities are located, together with those other areas within the Property (the Property being shown on the attachment as the "Sewer Main Easement") that are reasonably necessary or appropriate for accommodating those purposes set forth in paragraph 1 of this Agreement. 703111.2 9,=H B -1 200635128 9 OF 10 _ y � T ga 9 o'fl�� Vs IRV I 1 m am .;b (A 5 R � I m CA A m Y\ x_ O m rn 200635128 1 OF 10 1 TgEAKEJCSIMONTONO 200635127 REC: $36.00 DOG: 0 3 :58 =09PM 1 2r22r2006 SEWER MAIN EASEMENT D-2 THIS EASEMENT is made thiday of December, 2006, by and between GORE CREEK PLACE, LLC, a Colorado Invited liability company (hereinafter referred to as "Grantor "), its successors and assigns, and EAGLE RIVER WATER AND SANITATION DISTRICT, a quasi- municipal corporation of the State of Colorado within the County of Eagle (hereinafter referred to as "District" or "Grantee "). The District has maintained a sewer main in this Iocation for well over eighteen (t 8) years and claims a prescriptive Easement, but the parties wish to settle any issue regarding such an Easement through this Easement Conveyance. WITNESSETH: That for and in consideration of the sum of fen Dollars ($10.00) and other good and valuable consideration paid by District to Grantor, the receipt of which is hereby acknowledged, the Grantor does hereby grant and convey unto the Grantee/District, its successors and assigns, a perpetual Easement and right to construct, install, remove, replace, add to, maintain, repair, operate, change or alter underground sewer lines and appurtenances, together with any and all sewer lines and manholes situate therein, all necessary rights -of -way for convenient ingress and egress thereto and therefrom, and the right to occupy and use, from time to time, as much of the premises described below as may be reasonably necessary for any of the aforesaid purposes, over, under and across the following described premises, situate in the County of Eagle, State of Colorado, to wit: An area configured 8.5 north of the centerline of the existing sewer main and south from such centerline to the southerly boundary of a part of Lot 3, West Day Subdivision, according to the recorded plat thereof ("Lot 3 "), as such area is more particularly described on Exhibit A , as attached hereto and incorporated herein. Grantor wan that the Grantor has the lawful right to grant such an Easement, and that the Grantor, and any successors and assigns, will, at no time, permit any building or other permanent improvement to be hereafter constructed within such Easement other than may be allowed by separate encroachment agreement. Following the completion of the purpose of any entry by the Grantee upon such Easement for any of the aforesaid objects, the Grantee shall restore the premises to substantially the same condition existing at the time of the entry thereon, except for trees, shrubs, plants, sidewalks, structural improvements, driveways or parking areas thereon located or damaged thereby (provided that Grantee will make reasonable effort to avoid damaging same). 705747.2 FtC"3H ro J ',J) 200635127 1 OF 7 Grantee, by its acceptance of this instrument as set forth below, hereby sells, conveys and quitclaims to Grantor all right, title and interest of Grantee in and to Lot 3, excepting only the Easement granted to Grantee hereunder. [Balance of page intentionally left blank[ 200635127 2 OF 7 IN WITNESS WHEREOF, the parties hereto have set their hands and seals the day and year fast above written. GRANTOR: GORE CRE)K PLACE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, Managing Member By: ^.✓ Na u Title: vei : k*T7 STATE OF COLORADO ) } ss. COUNTY OF ) e fo i g instrument w ackn wledg before me this 2�6ay of December, 2006, b as f Vail Resorts Development Company, Managi g ember of Gore Creek Pl e, L C, Colorado limited liability company. Witness my hand and official seal. My commission expires: [Signature block of District follows on neat page] 707713.: RCFWI 200635127 3 OF 7 ACCEPTED by the Eagle River Water and Sanitation District this o�`day of December, 2006. STATE OF COLORADO EAGLE RIVER WATER AND SANITATION DISTRICT By:, ss. COUNTY OF . - . Zg a & ) The foregoing instrument was acknowledged before me this ' �.Q day of December, 2006, by i77,-£ lcs as 0re4l Aw,�C& Eagle River Water and Sanitation District. Witness my hand and official seal. My commission expires: _Q JA2 4 2 g • ' + , X 1 1 / `��I_I. /L � 1 f_ KATHY A. GARRISON 705343.7 RCFI$H 4 200635127 4 OF 7 F.XIIIBIT A Legal Description and Drawing of the Property (See the attachment) 7053411 ncrurt A -1 200635127 5 OF 7 LEGAL DESCRIPTION A PARCEL OF LAND LOCATED IN LOT 3, WEST DAY SUBDIVISION, AS RECORDED MARCH 10, 2005 AT RECEPTION NO. 908760, IN THE OFFICE OF THE CLERK AND RECORDER, COUNTY OF EAGLE, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 3, WHENCE THE WESTERLY LINE OF SAID LOT 3 BEARS S 15 0 5077" E A DISTANCE OF 122.80 FEET, FORMING THE BASIS OF BEARING FOR THIS DESCRIPTION. THENCE ALONG SAID WESTERLY LINE OF LOT 3 S 15 °50'27" E A DISTANCE OF 113.90 FEET TO THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID WESTERLY LINE OF LOT 3 THE FOLLOWING FOUR (4) COURSES: 1) N 74 °5(Y38" EA DISTANCE OF 26.51 FEET; 2) N 75 °3277' EA DISTANCE OF 324.59 FEET; 3) N67°48'25' EA DISTANCE OF 71.01 FEET; 4) S 20 °42'23" E A DISTANCE OF 5.71 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID LOT 3; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 3 THE FOLLOWING FOUR (4) COURSES: 1) S 66 °54'19" W A DISTANCE OF 52.52 FEET; 2) S I5 °4641" E A DISTANCE OF 3.15 FEET; 3) S 74 °12'56" W A DISTANCE OF 280.00 FEET; 4) S 77°29'10" W A DISTANCE OF 89.72 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 3; THENCE ALONG THE SAID WESTERLY LINE OF LOT 3 THE FOLLOWING TWO (2 ) COURSES; 1) N 31 °4014" W A DISTANCE OF 1.44 FEET; 2) N 15 °5077" W A DISTANCE OF 8.90 FEET TO THE TRUE POINT OF BEGINNING SAID PARCEL CONTAINING 0.100 ACRES MORE OR LESS. 200635127 6 OF 7 i 'r rn 1 A ll W ; ' qb 1 w Z z 4 to 2 A a o E- F O E., O S ro ow >w ° w •� �V)<7 ci 2 0 z v N N W .� N u , W w N (� Zi F-- �c+ 7 L `N m r o a U 4 U 0 � � a R FB � OA ` � p ,,1S <� o R p W•� 200635127 7 OF 7 1owA1 e a EAGLE COUNTY, CO 200703485 TEAK J SINONTON 18 81P11 7/2007 020 TEAK 2 05 AEL: .II .N o�: Illllgll� IINII III I� alq �� III qlq �I Ala I� IA TOWN OF VAIL APPLICATION FOR REVOCABLE PERMIT TO ERECT OR MAINTAIN IMPROVEMENTS ON A PUBLIC RIGHT -Of -WAY *THIS FORM CANNOT BE REDUCED (Please type) TYPES OF IMPROVEMENTS Fence Wall Landscaping Other x OWNER OF PROPERTY Gore Creek Place, LLC ADDRESS 825 W. Forest Rd Vail. CO. 81657 Gore Creek Townhomes LEGAL DESCRIPTION OF PROPERTY TO BE SERVED: LOT 3 BLOCK SUBDIVISION _ West Day Lot (If necessary, attach description on separate sheet). Corner lot x Inside lot DETAILED DESCRIPTION OF STRUCTURE OR ITEM(s)INTO RIGHT -OF -WAY: New construction of sidewalk. Replacement of curb and gutter Part of a drainage inlet (TOV easement existing) Landscaping Does structure presently exist? yes Proposed date for commencement of construction In consideration of the issuance of a revocable permit for the structure above indicated, applicant agrees as follows: 1. That the structure herein authorized on a revocable permit basis is restricted exclusively to the land above described. 2. That the permit is limited specifically to the type of structure described in this application. 3. That the applicant shall notify the Project Planner and Public Works Department, or their duly authorized agent, twenty-four hours in advance of the time for commencement of construction, in order that proper inspection may be made by the Town. 4. The applicant agrees to indemnify and hold harmless the Town of Vail, its officers, employees and agents against all liability, claims and demands on account of injury, loss or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with applicant's activities pursuant to this permit, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence or other fault of the applicant, his contractor or subcontractor or any officer, employee or representative of the applicant, his contractor or his subcontractor. The applicant agrees to investigate, handle respond to, and to provide defense for and defend against, any such liability, claims, or demands at the sole expense of the applicant. The applicant also agrees to bear all expenses relating thereto, including court costs and attorney's fees, whether or not any such liability, claims, or demands alleged are groundless, false, or fraudulent. f n : TOWN OF VAIL OFFICE OF THE TOWN CLERK Reviud 0l /19/07 75 S. FRONTAGE ROAD 200703485 1 WIRe —able ROW File \825 W. Forest Rd. Gore Creck TowNromcs.doc VAII, COLORADO 8189 a/ Applicant agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to ensure against all liability claims, demands and other obligations assumed by the applicant pursuant to this Paragraph 4. Applicants further agree to release the Town of Vail, its officers, agents and employees from any and all liability, claims, demands, or actions or causes of actions whatsoever arising out of any damage, loss or injury to the applicant or to the applicant's property caused by the Town of Vail, its officers, agents and employees while engaged in maintenance or snow removal activities or any other activities whatsoever on Town of Vail property, streets, sidewalks, or rights -of- way. 5. That the permit may be revoked whenever it is determined that the encroachment, obstruction, or other structure constitutes a nuisance, destroys or impairs the use of the right -of -way by the public, constitutes a traffic hazard, or the property upon which the encroachment, obstruction, or structure exists is required for use by the public; or it may be revoked at any time for any reason deemed sufficient by the Town of Vail. 6. That the applicant will remove, at his expense, the encroachment, obstruction, or structure within ten days after receiving notice of any revocation of said permit. 7. That the applicant agrees to maintain any landscaping associated with the encroachment on the right -of -way. B. That in the event said removal of the encroachment, obstruction, or structure is not accomplished within ten days, the Town is hereby authorized to remove same and have the right to make an assessment against the property and collect the costs or removal in the same manner as general taxes are collected. 9. That the applicant has read and understands all of the terms and conditions set forth in this application. 10. Recording Fee for Revocable Right -of -way Permit is $ 35.00. $ 11.00 of the $35.00 goes to Eagle County for recording. Make checks payable to the Town of Vail. 11. Special conditions: c-�d 1Jls Signature of Property Owner Date (If joint ownership, both signatures) Signature of Property Owner Date (If joint ownership, both signatures) A / PP � ROVED: Apprnred as to 1:01 111: - V Project Planner Aif N „oe; JULIE 51 "Et ,EL j - Hato. O D partment of Public Works • n%:.iJ earied gitl8/07 ,lpba wft and Sddnp\cakeHyU -0 ShcmplTemporary humid R JWOLRE11Rev able ROW permit ( —).doc 200703485 2 OF 2 TER COUNTY. CO TERK 200806946 J S I I+ONTON p 6 Pgs+ 3 9229 =35P17 p!�f31 f2VeQ R C= $16.99 DOC= II�l��Il�l j` EXHIBIT A iff�l�llli GRANT OF EASEMENT This Grant of Easement (the "Easement") dated February 1. 2007 by and between Comcast of Colorado VI, LLC its successors and assigns, hereinafter referred to as "Grantee" and Gore Creek Place Homeowners Association. Inc. hereinafter referred to as "Grantor ". Grantor and Grantee are parties to a Bulk Service Agreement dated February 1. 2007 pursuant to which Grantee provides certain broadband communications services to the Property described below. In consideration of One Dollar (S 1.00), Grantor(s), owner(s) of the property described below, hereby grant(s) to Grantee, its successors and assigns, an easement in gross and right -of -way to construct, use, maintain, operate, alter, add to, repair, replace, reconstruct, inspect and remove at any time and from time to time a broadband communications system (hereinafter referred to as the "System ") consisting of wires, underground conduits, cables, pedestals, vaults, and including but not limited to above ground enclosures, markers and concrete pads or other appurtenant fixtures and equipment necessary or useful for distributing broadband services and other like communications, in, on, over, under, across and along that certain real property (the "Property ") located in County of Eagle State of Colorado described as follows: LEGAL DESCRIPTION: Gore Creek Place Town of Vail, County of Eagle, State of Colorado Account Number: R057135 Parcel Number: 210107217003 Legal Description: SUB DAY SUBDIVISION LOT:3 R908760 MAP 03 -10 -05 R910218 BSD 03 -24 -05 R923305 BSD 07 -18 -05 R923306 BSD 07 -18 -05 Physical Address: 000825 FOREST RD VAIL AREA Acres: 2.45 Grantor(s) agree for themselves and their heirs and assigns that the Company Wiring on the Property shall be and remain the personal property of the Grantee and may not be altered, obstructed or removed without the express written consent of the Grantee. The Grantee, and its contractors, agents and employees, shall have the right to trim or cut trees and/or roots which may endanger or interfere with said System and shall have free access to said System and every part thereof, at all times for the purpose of exercising the rights herein granted: provided, however, that in making any excavation on said Property of the Grantor, the Grantee shall make the same in such manner as will cause the least injury to the surface of the ground around such excavation, and shall replace the earth so removed by it and restore the area to as near the same condition as it was prior to such excavation as is practical. This easement shall run with the land for so long as Grantee, its successors or assigns provides broadband service to the Property. rev. 7/03 200806946 1 of 3 �D This agreement must be executed by Association on or before April , 007 in order to be valid. Executed this day of N a l 2007. Is WITNESS: ASSOCIATION: Gore Creek Place Homeowners Association, Inc. � % By: 4 ?� UV-4 Nam U ne Iv as Man ' A ent d by Wayne Rutmg, President WITNESS: Comcast of Colorado VI, LLC r ZI JA 1, J4 J (A "' ` By: d�K Name: Scott Binder Title: Senior Vice President rev. 7/03 9 200806946 2 of 3 STATE OF (2 A0Aa 0 ) ( t- , ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this IK day of Art , 2007 by Jane Iv v , of Vail Beaver Creek Resort Pro erties Inc on behalf of Gore Creek Place Homeowners Association, Inc. ,_, on behalf of the co o ersonall ) or (has presented (type of identification) d/did not take an oath. hand and off dill al. BG PAC {Prin Name) Notary Public __.....� My STATE OF of& L ) ss. COUNTY OF a ) y The foregoing instrument was acknowledged before me this 31 day of 7'u 2007 by Scott Binder, of Comcast of Colorado VI, LLC on behalf of the limited liabili company He /She is personally known to me and did not take an oath. Witness my hand and official seal. 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ICI t ' I I 11� ICI (n � J �fg .OHZZI G-142 4/7 w � � } § 2 h! \ / \ \\ �•;,Q . that\ \ \ `w\ %\ g ��� § &)° © . < �` q ' §2/ ® • . ~ / \ t \� § \ \; \ m 5� ( ;| \; \ > � 2 . n� } %| E \ . *` » z ^ X` �.. \ / \ \\ �•;,Q . that\ \ \ `w\ %\ g ��� § &)° © . < �` q ' §2/ ® • . ~ / \ t \� § \ \; \ m 5� ( ;| \; \ > � 2 . n� } %| E \ . G -142 5/7 _ n 3 10 o€ aw� �WhWC. U w V U j !f V -Al U \ Ira G-142 6/7 O 1 52 kl I All Al' \•\ . Le o \� UA z CO CO ti of I 5 G-142 7/7 O O 4 4 I 14 Ui oa oe O. 14 - 47, Fil, ti die i3; AFTER RECORDING RETURN TO: Goodman and Wallace, P.C. P.O. Box 1886 Edwards, Co. 81632 �, �� ��:• 2 � 0 g 2� p 6��/ py 2 IyI 0 I � I 11 IIAA tlIYl1A� YMIWIM���YWWI� FIRST AMENDMENT TO THE CONDOMINIUM DECLARATION FOR GORE CREEK PLACE RECITALS A. Gore Creek Place, LLC, a Colorado limited liability company, created the Gore Creek Place community and the Gore Creek Place Homeowners Association, Inc. (collectively "Association ") by recording a Condominium Declaration for Gore Creek Place in the real property records of the County of Eagle, State of Colorado, on July 5, 2006, at Reception No. 200617775, as amended by the Supplemental Condominium Declaration for Gore Creek Place, recorded in the real property records of the County of Eagle, State of Colorado, on December 22, 2006, at Reception No. 200635129, (collectively the "Original Declaration "). B. The Original Declaration provides for and allows for this Amendment to the Condominium Declaration for Gore Creek Place (the "Amendment ") in Article XV, Section 15.1(h), which provides as follows: Except as provided in Sections 15.1(a) through Section 15.1(g), this Declaration (including the Map) may be amended by the affirmative vote or written consent of the Owners of Units to which more than 50% of the votes in the Association are allocated. C. All Owners are aware of the provisions of the Original Declaration allowing for amendment, by virtue of the record notice of the Original Declaration, by acts and disclosures, newsletters or notices of the Association and by other means. D. The purpose of this Amendment is to convert the Common Element crawl spaces and attics to Limited Common Elements which shall then be allocated to the Units to which they are appurtenant with each Unit Owner to then be solely obligated to maintain, repair and replace said Limited Common Element crawl space and attic that is assigned to their Unit per this Amendment. The Map shall also be amended to reflect the foregoing. E. The undersigned, being the President and Secretary of the Association, hereby certify that at least fifty -one percent (51 %) of the Owners of Units in the Association (05605672.DOC;1) 201101515 1 OF 5 have consented and agreed to this Amendment. Approval of eligible first mortgagees is not required for this Amendment under the Original Declaration. The undersigned further certify that originals of the written consents of the Owners, along with the recorded Amendment, shall be in the corporate records of the Association and available for inspection. F. As amended by this Amendment the Original Declaration shall be referred to as the "Declaration." G. In the event of any conflict between any provisions of the Declaration and other Association governing documents and this Amendment this Amendment shall govern. NOW THEREFORE, I. Amendments The Original Declaration is hereby amended as follows: Article 2 (a) Amendment. Section 2.7 of the Declaration is hereby amended with the addition of the following: (e) Attics and Crawl Spaces. All attics and crawl spaces are Limited Common Elements allocated to the Unit to which they are appurtenant for that Owner's exclusive use and obligation to repair, replace and maintain. Article 5 (b) Repeal and Restatement Article 5, Section 5.2 is hereby repealed in its entirety and the following Article 5, Section 5.2 is substituted: 5.2 Owners' Duties Subject to the provisions of Article 12 and Article 13, each Owner will at its expense (i) maintain at all times in good and clean condition, and perform all required repairs, replacements or restorations of its Unit, the Unit Mechanical Equipment, and any Utility /Service Elements, Hot Tubs, crawl spaces, and attics allocated exclusively to the Owner's Unit as a Limited Common Element; (ii) clean and keep in a sanitary condition any Hot Tub, Deck, and Patio, crawl space and attic allocated to its Unit as a Limited Common Element; (iii) perform its responsibilities in a manner that does not unreasonably disturb other Owners or their Permittees; and (iv) promptly report to the Association any defect or need for repairs for which the Association is responsible. Except as expressly provided above, no Owner may alter, repair, replace, or maintain any part of the exterior of any Building or a Limited Common Element without the express consent of the Association in advance thereof. All expenses related to an Owner's Duties as defined in this Section 5.2 shall be the sole obligation of the Owner and shall not {05605672.D0Ca } 2 201101515 2 OF 5 be Common Expense. Each Owner shall also be solely liable for any uninsured expenses related to the Limited Common Element Hot Tubs, crawl spaces and attics. Article 10 (c) Amendment. Section 10.1 of the Declaration is hereby Amended by addition of the following: (f) does not alter the use or appearance of a Limited Common Element. II. No Other Amendments Except as amended by the terms of this Amendment the Declaration shall remain in full force and effect. IN WITNESS WHEREOF, this Amendment is executed by the undersigned. t05605672.DOC;I } 3 201101515 3 OF 5 IN WITNESS WHEREOF, this Amendment is executed by the undersigned. Gore Creek Place Homeowners Association, Inc., a Colorado nonprofit corporation By: , �/ / P esi nt By: Secretary STATE OF TEXAS ) ss. COUNTY OF Tr s ) The foregoing was acknowledged before me this I S day of OCkobe,y -- , 2010, by k tcY16p:%w"as President of Gore Creek Place Homeowners Association, Inc., a Colorado nonprofit corporation. Witness my hand and official seal. Tres: I S a O l y *!. CODY KATHLEEN CRANDALL =`~� Notary Public. State of Texas Q yyK My Commission Expires 'tW September 15, 2014 NO lc State of Texas STATE OF COLORADO ) ss. COUNTY OF The foregoing was acknowledged before me this day of 2010, by , as Secretary of Gore Creek Place Homeowners Association, Inc., a Colorado nonprofit corporation. Witness my hand and official My commission expir Public 7 0 � boo co (05605672.noC;1 ) 4 . InCT 201101515 4 OF 5 CERTIFICATE OF SECRETARY 1, NP-P16 , as Secretary of Gore Creel Place Homeowners Association, Inc., hereby certify that the Association has received the written consent to the foregoing First Amendment to Declaration of Owners representing an aggregate ownership interest in the Common Elements of fifty -one percent (51 %) or more (all capitalized terms not defined herein shall have the same meaning as in the Declaration). GORE CREEK PLACE HOMEOWNER'S ASSOCIATION, INC a Colorado nonprofit corporation By. 4� - I L =.=== , Secretary STATE OF COLORADO ) ) SS. COUNTY OF EAGLE ) The foregoing ins ent was a oryledged before me this t day of 2010, by ` Y CNM 0 as Secretary of Gore Creek Place Association, a Colorado nonprofit corporation. My commi [SEAL] (05605672.DOC;I } 5 201101515 5 OF 5 EAGLE COUNTY. CO TEAK J SIMONTON 200909872 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (this "Agreement") is made as of the W. day of 2009, by and between GORE CREEK PLACE HOMEOWNERS ASSOCIATION, Colorado nonprofit corporation ( "Grantor "), and RCR VAIL, LLC, a Colorado limited liability company ( "Grantee "). RECITALS: A. Grantor is the governing owners association for the residential condominium community established in part pursuant to the condominium plat for Gore Creek Place — Phase I recorded in the real property records of Eagle County, Colorado (the "Records "), on July 5, 2006, at Reception No. 200617776, and the supplement thereto, denominated as the condominium plat for Gore Creek Place - Phase II (the "Phase II Plat "), and recorded in the Records on December 22, 2006, at Reception No. 200635130 (together the "Condominium Plat "). The real property subject to and included within the Condominium Plat, which real property is situated in the Town of Vail, County of Eagle, State of Colorado, is sometimes referred to hereinafter as the "Condominium Property." B. The Condominium Property is subject to the terms, conditions and provisions of a certain Public Pedestrian Easement and Emergency Access Easement recorded in the Records on July 5, 2006, at Reception No. 200617772 (the "Public Easement Agreement "). The terms of the Public Easement Agreement (as supplemented by the Phase II Plat), among other things, establish a public pedestrian access easement (defined therein as the "Pedestrian Access Easement," and referred to herein as the "Public Pedestrian Easement ") over and across an improved pedestrian access way that lies within the Condominium Property and is defined in the Public Easement Agreement as the "Access Way" (such improved pedestrian access way, in its actual configuration from time to time, is referred to hereinafter as the "Public Access Way "). C. Grantee is the owner of certain real property contiguous to the northerly boundary of the Condominium Property which is legally described as Lot 2, West Day Subdivision, according to the recorded plat thereof (the "West Day Plat "), County of Eagle, State of Colorado ("Lot 2 "). Grantee has commenced development and construction on Lot 2 of a mixed -use residential, recreational and commercial real estate project (as the same may be developed, redeveloped and modified from time to time, the "Lot 2 Project "). Certain aspects of the construction and development of the Lot 2 Project, as well as the prior development of the Condominium Property, are governed by a Construction, Staging and Support Easement Agreement recorded in the Records on July 5, 2006, at Reception No. 200617769 (the "Construction Agreement "). Pursuant to the Construction Easement, Grantee, as the successor owner to Lot 2, has certain rights and obligations to complete landscaping within the Servient Estate (defined below). After moraina ukase return to Gerry Arnold p o Box 959 — IIC 87 Avon. Co 81620 200909872 1 of 14 D. In accordance with the terms and provisions of this Agreement, Grantor and Grantee have determined (i) for Grantor to grant easements to Grantee over the Servient Estate allowing for up to eight (8) pedestrian paths connecting to the Public Access Way from the Lot 2 Project (collectively, the "Pedestrian Connections "), for pedestrian access between the Public Access Way and Lot 2, subject to the terms and conditions herein, (ii) for Grantor to grant to Grantee easements to allow and that govern Grantee's installment and subsequent maintenance of landscaping and related irrigation within the portions of the Condominium Property north of the Public Access Way, subject to the terms and conditions herein, and (iii) also to provide certain confirmations and agreements regarding rights under or related to the Public Easement Agreement. This Agreement and the grants herein shall serve as a supplement and complement to the landscaping undertakings of Grantee pursuant to the Construction Agreement. But for such grants and confirmations, Grantee would not proceed with the construction and development of the Lot 2 Project as presently designed and planned. NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, Grantor and Grantee hereby covenant and agree as follows: 1. Grant of Easements: The following constitute the grant of easements herein and the conditions related thereto (collectively the "Easements "). The Easements shall constitute easements appurtenant benefiting the ownership of Lot 2, including the Lot 2 Project and other improvements located thereon from time to time (subject, however, to the limitations hereinafter set forth). The "Servient Estate" shall be constituted by those areas lying between the northerly edge of the Public Access Way and those portions of the northerly boundary of the Condominium Property that are coincident with the southerly boundary of Lot 2. A. Construction Easement. Grantor grants to Grantee an easement to construct and install up to eight (8) Pedestrian Connections within the Servient Estate as generally depicted for reference purposes (but not legally described) on Exhibit A attached hereto for use as provided for herein ( "Construction Easement "). Grantee is presently the owner of Lot 2, and has currently adopted and established plans for the Pedestrian Connections (the "Plans "). (i) Approval. Grantor hereby consents and agrees to permit the construction of the Pedestrian Connections, provided that the construction is undertaken in substantial conformance with the Plans. For purposes of the foregoing, any material modification to the Plans for the Pedestrian Connections will be subject to the prior written approval of the Grantor, and to the extent any such modification is so approved, it will become part of the Plans. (ii) Construction Upon Approval. The parties acknowledge that the construction of any portion of the Pedestrian Connections upon the Servient Estate, is contemplated and governed by the terms of the Gore Creek Property Construction Easement provided for in the Construction Agreement. Grantee shall be fully and solely responsible for all construction means and methods and 200909872 2 of 14 for constructing the Pedestrian Connections in substantial conformance with the Plans and any governmental or quasi governmental agency requirements. Grantee shall indemnify and hold harmless Grantor and the Condomimiun Property from and against any and all claims of any nature or kind that may occur and be asserted in relation to the construction of the approved Pedestrian Connections including, but not limited to, mechanic lien claims. Construction of the approved Pedestrian Connections shall occur with due regard for Grantor and its constituent member - owners and shall meet all construction limitations and parameters, including work hours and control and disposal of construction debris and dust, in effect at the time of construction per the Town of Vail and this Agreement. Construction, once commenced, will proceed diligently and professionally in order to complete the construction in a timely and efficient manner. Any damage or disturbance of the Condominium Property as a result of construction of the approved Pedestrian Connections shall be returned by Grantee to the condition it was in prior to the construction except for those portions of the Condominium Property modified in compliance with the Plans. Grantee shall provide to Grantor any and all information during the construction phase that Grantor may reasonably request that is related to the construction of the Pedestrian Connections. Grantee shall complete installation and construction of the Pedestrian Connections, related snow -melt system and Irrigation Systems and Connections Landscaping (the "Work ") by December 15, 2010 at which time the Construction Easement shall automatically terminate ( "Termination Date ") along with the right to construct any Pedestrian Connections upon the Servient Estate not installed by said time. All construction or other vehicles having a wheel load in excess of 10,000 pounds and maximum total vehicle weight of 15,000 pounds are specifically prohibited from accessing the Public Pedestrian Easement and Pedestrian Connections. Within seven (7) days of the termination of the Construction Easement as provided for herein, Grantee shall inspect the Public Pedestrian Easement, Pedestrian Connections and Connections Landscaping for any construction- related damage caused by Grantee which shall be promptly repaired by Grantee to the condition prior to the Work being performed except for those portions of the Condominium Property modified in compliance with the Plans. During the construction of any Pedestrian Connection, Grantee may not block or impede pedestrian traffic through and across the Pedestrian Access Easement, Public Access Way or any already constructed Pedestrian Connections except as allowed by Section I (C)(ii) herein. Additionally, during construction of any Pedestrian Connection Grantee will insure that Grantor and its constituent member - owners, guests and invitees have pedestrian access over and across the Servient Estate except as allowed by Section 1(C)(ii) herein. B. Maintenance Easement. (i) Maintenance Easement Parameters Grantor grants to Grantee an easement for repair, replacement and maintenance of the Pedestrian Connections and Connections Landscaping located upon the Servient Estate per the terms herein ( "Maintenance Easement "). The Maintenance Easement is limited to a total of five (5) days per fifty -two calendar weeks ( "Maintenance Work Days "). The Maintenance Work Days shall be from 9:00 a.m. until 5:00 p.m. Monday through Friday. Maintenance Work Days shall be prohibited during the last three weeks 200909872 3 of 14 of December through the first week in January of each year, February 15 through February 25 of each year, March 10 through April 10 of each year and July 1 -10 of each year. Grantee may purchase up to five (5) additional Maintenance Work Days per each fifty -two (52) week calendar period from Grantor at a daily rate of two hundred fifty dollars ($250) per day subject to the restricted dates set forth herein. Grantee shall provide Grantor with at least seven (7) days prior notice before commencement of any maintenance work to be undertaken upon the portions of the Pedestrian Connections and/or Landscaping Connections located upon the Servient Estate. All maintenance, service or other vehicles having a having a wheel load in excess of 10,000 pounds and maximum total vehicle weight of 15,000 pounds are specifically prohibited from accessing the Public Pedestrian Easement and Pedestrian Connections. Within seven (7) days of the performance of any maintenance work, Grantee shall inspect the Public Pedestrian Easement, Pedestrian Connections and Connections Landscaping for any damage caused by Grantee in its performance of any maintenance work and will promptly repair the same to the condition before the maintenance work as performed. During any maintenance of any Pedestrian Connection or Connections Landscaping, Grantee may not block or impede pedestrian traffic through and across the Pedestrian Access Easement or Pedestrian Connections except as allowed by Section I (C)(ii) herein. (ii) Maintenance Requirements. Grantee, its heirs and assigns, shall repair and at all times maintain and keep sightly the Pedestrian Connections and Connections Landscaping, including those portions located upon the Servient Estate, including, but not limited to, snow and ice removal, snow melt and irrigation. The Connections Landscaping installed and maintained pursuant to the terms herein shall include and be complemented by a landscape irrigation system installed by Grantee within the Servient Estate and operated by its connection to water supply systems for the Lot 2 Project (the "Irrigation System "). The Irrigation System, its installation and maintenance, shall be the sole responsibility of the Grantee. In the event that any improvements installed by Grantee upon the Servient Estate pursuant to this Agreement are damaged or destroyed or any portion of the Condominium Property disturbed pursuant to maintenance, repair or replacement of the Pedestrian Connections and Connections Landscaping, Grantee shall be responsible for the prompt restoration, repair and replacement of the improvements to their immediately prior condition including the cost of restoring the surface and landscaping as near as may be practical to the same condition it was in prior to any damage, repair, maintenance, removal or replacement of any improvements installed by Grantee upon the Servient Estate. Grantee shall be responsible at Grantee's sole cost and expense for connecting and operating the snow melt system from the Pedestrian Connections to the Public Access Easement and shall be responsible for all future maintenance, repair and replacement of said snow melt connections. In the event Grantee fails to repair, maintain or replace any improvements installed by Grantee upon the Servient Estate, Grantor may repair, maintain or replace the same at Grantor's cost and seek reimbursement of said expenses from Grantee. Prior to undertaking any such work Grantor shall provide Grantee with written demand ( "Maintenance Demand') for performance of the maintenance, repair or replacement work ( "Maintenance 4 200909872 4 of 14 Work'). If Grantee fails to commence the Maintenance Work within thirty (30) days of the date of the Maintenance Demand (or such longer period as may be necessary due to the black -out periods set forth in subsection (i) above or weather or other seasonal considerations), Grantor shall be entitled to perform the Maintenance Work and seek its reimbursement from Grantee. (iii) Grantor Installed Improvements. As set forth in Section 1 (B) (i) and (ii) above, Grantee shall furnish such maintenance, repair and replacement for the Pedestrian Connections and Connections Landscaping that Grantee installs and locates within the Servient Estate from time to time as reasonably necessary to keep such Connections Landscaping in well - maintained condition. As part of these maintenance obligations, Grantee will also undertake such maintenance, repairs and replacements as are reasonably necessary from time to time to keep the Irrigation System in operating condition and repair. Grantor will not locate, construct or install, or cause or permit any of its owner- members to locate, construct or install, any landscaping or hardscaping elements or other improvements within the Servient Estate where the Connections Landscaping is located without Grantee's prior written consent, not to be unreasonably withheld (this consent right to be attendant to and part of the Maintenance Easement and Pedestrian Connections Easement rights). To the extent any such landscaping, hardscaping or other improvements are completed by or through Grantor with Grantee's consent ( "Grantor Site Improvements "), Grantor, and not Grantee, shall be obligated for the ongoing maintenance and repair of any Grantor Site Improvements, unless Grantee elects (as confirmed by written instrument) to undertake such maintenance and repairs in whole or part. Grantor will also be solely obligated for all costs and expenses incurred by Grantee for the restoration of any damage to the Connections Landscaping or Pedestrian Connections resulting from any undertaking of Grantor Site Improvements or maintenance thereof by or through Grantor. The foregoing requirement for Grantee's consent to Grantor Site Improvements shall not apply to subterranean improvements made by Grantor within the Servient Estate that do not require any surface access, penetration or use and will not cause any interference with the use and enjoyment of the Easements by or through Grantee. In the event the Grantor is required to or needs to render any maintenance work above ground for subterranean improvements in the area of the Servient Estate, Grantor has the right to do so with Grantee's prior written consent but will promptly return the disturbed areas to the immediately prior condition they were in prior to the work being performed. C. Use of Easements. (i) Pedestrian Connections Easement. Once constructed by Grantee, Grantor grants to Grantee an easement to use and enjoy the portions of the Pedestrian Connections that are located upon the Servient Estate for pedestrian ingress and egress to, from and between the Public Access Way and Lot 2 and the improvements located thereon from time to time (the "Pedestrian Connections Easement "). The Pedestrian Connections Easement shall be for the benefit of Grantee and 200909872 5 of 14 its successors in interest in the ownership of Lot 2, or any portion thereof, any owners association established from time to time for governance of the ownership, occupancy, use and enjoyment of Lot 2 and the improvements thereon from time to time, or any portion thereof (an "Association) and any tenants, other residents or other occupants of Lot 2 or the Lot 2 Project claiming by, through or under Grantee or any such successors from time to time, and the social guests, licensees and invitees of any of them, and also any Association and its employees and agents. However, the Grantee named herein may also restrict or preclude the rights of its successors in ownership (and those claiming through or under such successors) to exercise the Pedestrian Connections Easements so long as the Grantee named herein holds any ownership interest in Lot 2 (and this right may also be assigned of record to any successor in ownership to the Grantee named herein), and any Association may similarly restrict or preclude the exercise of the Pedestrian Connections Easement by its constituent members (and those claiming through or under such members). The parties permitted to use and enjoy the Easements under the foregoing provisions are sometimes referred to hereinafter as the "Permittees." (ii) Easement Non - Exclusive. Subject to the limitations under the other provisions hereof, the Easements herein shall be non - exclusive, and Grantor and its constituent member - owners will retain the right to use and enjoy the Servient Estate for any uses and purposes that are not inconsistent with the use and enjoyment of the Easements. In connection with any exercise of the Pedestrian Connections Easement, Construction Easement and Maintenance Easement, Grantee and Grantor may temporarily barricade aspects of or otherwise reasonably preclude full access to or across affected areas in order to facilitate the related work and also protect persons and property but in such event a reasonable pathway will be provided such that the Pedestrian Connection(s) will not be completely blocked or passage completely impaired. Grantor specifically agrees that neither Grantor nor its constituent member - owners will hereafter construct or place any improvements, barriers or obstacles within the Servient Estate (except for Grantor Site Improvements approved under Section l(B)(iii) above) or otherwise engage in any course of conduct that would obstruct or- materially interfere with Grantee's use and enjoyment of the Easements except as provided for herein. 2. Public Uses. (a) In connection with the use and enjoyment of the easements and rights pursuant to the Public Easement Agreement, Grantor confirms and agrees as follows: (i) Lot 2 Ramp Extension. The "Lot 2 Ramp," as defined in the Public Easement Agreement (which may include and incorporate, without limitation, a retaining wall) may extend into the Condominium Property as necessary to complete its physical connection to the Public Access Way. To the extent the Lot 2 Ramp does so extend into the Condominium Property, it will constitute part of the Public Access Way for purposes of the use and enjoyment of the Public Pedestrian Easement. However, Grantee and other Permittees of 200909872 6 of 14 the Easements will have the exclusive right and obligation to maintain and operate that extension and its snowmelt systems along with the balance of the Lot 2 Ramp located within Lot 2. For that purpose the Work License (as defined in the Public Easement Agreement) under the Public Easement Agreement in favor of Grantee, as the successor to The Vail Corporation d/b /a Vail Associates, Inc. in the ownership of Lot 2, will apply fully to any such extension of the Lot 2 Ramp into the Condominium Property and will inure to Grantee and any other Permittees of the Easements. (ii) Bicycle Access. As a part of and supplement to the Public Pedestrian Easement, the Public Access Way may be used for bicycle access routed from the north side of the Condominium Property during the period of the pending construction and development of the Lot 2 Project; provided, however, that such period for bicycle access will not extend beyond December 31, 2011; Grantee shall be required to post and maintain signage at the entry into the Public Access Way, on the north side of the Condominium Property, expressly requiring bicyclists to dismount and walk their bicycles across the Public Access Way ( "Signage ") . The Signage shall be placed so it is readily visible and shall be of a professional design and appearance. (iii) Emergency Access Easement. As a part of and supplement to the Emergency Access Easement (as defined in the Public Easement Agreement), the Public Access Way and the Servient Estate may be used and enjoyed for vehicular and pedestrian access by the Town of Vail and its agents, contractors, invitees and designees engaged in providing maintenance, repairs, replacements or other improvements associated with storm drainage facilities located within West Day Subdivision. Maintenance or service vehicles engaged for these functions must comply with the wheel load and total vehicle weight limitations as provided for in the Emergency Access Easement. The provisions of this Section 2(a) pertaining to access uses shall inure to the Town of Vail (and its agents, contractors and invitees) as part of its rights as the grantee under the Public Easement Agreement, and also the Public (as defined in the Public Easement Agreement) as a beneficiary of the Public Pedestrian Easement, as well as Grantee. (iv) West Day Plat. In relation to the obligations of Grantor and Grantee to bear equal shares of maintenance, repair and replacement costs for the "Lots 2 and 3 Drainage Easement," as set forth in QJeneral Note 22 of the West Day Plat, the parties mutually acknowledge and agree that their equal shares will be determined after application of any contribution by the Town of Vail to the maintenance, repair and replacement costs from time to time. 3. Run with the Land This Agreement and the Easements and the terms and provisions hereof shall touch and concern and run with the land as a burden and benefit to the Servient Estate, the Condominium Property, and Lot 2, as applicable, and shall be binding upon and inure to the owners thereof, and their successors in interest from time to time, as well as 7 200909872 7 of 14 Grantor as the governing owners association for the Condominium Property (subject, however, to any limitations arising under Section 1 above). References herein to "Grantor" will specifically include Grantor's constituent owner- members and their successors in interest in the ownership of the Condominium Property and the condominium units located therein. 4. Maintenance of Construction Sites. Grantee shall exercise commercially reasonable standards of care in reducing and minimizing dust, construction debris and trash upon the Servient Estate during the exercise of any of the rights as to the Servient Estate granted under this Easement Agreement. 5. Indemnification To the extent allowed by law, Grantee shall indemnify and hold harmless the Grantor, its successors or assigns from and against any action or claim of liability, loss, injury, damage or death, occurring to persons or property (real or personal), of the Grantor or third parties, arising in each case or which is attributable to the use of the Easements granted herein by Grantee, the Permittees or by those persons whose use of the Easement is derived from Grantee or by virtue of the grant of the easement herein by Grantor to Grantee. To the extent allowed by law, Grantee shall indemnify and hold harmless the Grantor, its successors and assigns from and against any claim of liability arising from the acts or omissions of the Grantee, and its employees and agents, in connection with the Easements granted herein. Grantee, its agents or employees shall not be liable under this section for any claim, loss, damage, cost, charge or expense arising out of any act, error, omission, or negligent act by the Grantor, or any of its officers, constituent owner members, agents, or employees, nor for any liability to Grantee incurred by Grantor as a result of Grantor's breach of the terms and conditions of this Grant of Easement. Notwithstanding the foregoing, neither Grantor nor Grantee are waiving any immunities, limitations, defenses, or bars to claims asserted by any third party against either Grantor or Grantee provided under the Colorado Premises Liability Act, C.R.S. 13 -21 -115, or any similarly enacted statutes. 6. No Waiver. Failure of a party to invoke it rights hereunder on one or more occasions shall not be construed as a waiver of the right to enforce this agreement as to future breaches or infractions. If any provision of this Easement is declared by a Court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect the remaining provisions thereof and this Easement shall be construed and enforced as if such invalid provisions had not been contained herein. 7. Default. In the event of default by either party hereto, the non - defaulting party shall have the right to enjoin the continuance of such default (the parties hereby waiving the posting of any bond and stipulating that a default of this Easement Agreement by a party inflicts irreparable injury upon a non - defaulting party) and, in addition, the non - defaulting party shall have the right of specific performance, damages, or both against the defaulting party. The jurisdiction and venue of any such proceedings shall be in Eagle County, Colorado. 8. Amendment. This Easement Agreement cannot be modified, altered or amended, or any term or provision hereof waived, except by written agreement executed by both parties and recorded with the Eagle County Clerk and Recorder. 200909872 8 of 14 9. Consents. Grantor represents to Grantee that Grantor has taken all actions and received all consents or authorizations from its board of directors (however denominated) and/or its owner - members which are requisite to Grantor's entry into this Agreement, that Grantor's entry into this Agreement constitutes the duly authorized corporate and association action of Grantor, and that this Agreement is binding on Grantor and its constituent owner- members. Grantee represents to Grantor that Grantee has taken or received all company action or authorization necessary for Grantee to enter into this Agreement, that Grantee's entry into this Agreement constitutes the duly authorized company action of Grantee, and that this Agreement is binding on Grantee. 10. Entire Agreement This Agreement and the other documents and instruments referenced herein constitute the entire agreement between Grantor and Grantee regarding the subject matter hereof, and any prior or extrinsic agreements, understandings, statements or communications, written or verbal, shall be deemed merged herein and superseded hereby. 11. Attorney Fees In the event any legal proceeding arises out of the subject matter of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other party all costs and expenses, including reasonable attorney fees, incurred by the prevailing party in connection therewith (and the presiding court will be bound to make this award). 12. Counterparts This Agreement may be executed in counterparts, each of which shall constitute and original, and which together shall constitute one and the same agreement. 13. Governing _Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, without reference to conflicts of laws principles. 14. Perpetual Easement Except for the termination of the Construction Easement provided for herein, the easements, rights, covenants, agreements, reservations, restrictions and conditions contained in this Agreement shall run with and bind the land and shall inure to the benefit of and be enforceable by Grantor and Grantee, and their respective successors and assigns perpetually. Notwithstanding the foregoing, if and to the extent that any of the covenants and restrictions would otherwise be unlawful or void for violation of (a) the rule against perpetuities, (b) the rule restricting restraints on alienation, or (c) any other applicable statute or common law rule analogous thereto or otherwise imposing limitations upon the time for which such covenants or restrictions may be valid, then the provision concerned shall continue and endure only until the expiration of a period of twenty -one (21) years after the death of the last to survive of all of the lawful descendants of August William `Bill" Ritter, Junior, Governor of the State of Colorado, living at the date of this Declaration. 15. Successors and Assigns All of the contained shall run with the land and shall inure Association and each subsequent holder of any Property or Lot 2. easements, rights, and agreements, herein to the benefit of and be binding upon the interest in any portion the Condominium 200909872 9 of 14 16. Unenforceability In the event that any provision of this Agreement shall be unenforceable in whole or in part, such provision shall be limited to the extent necessary to render the same valid, and shall be excised from this Agreement, as circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited, or as if said provision had not been included herein, as the case may be. 17. Headings Headings of sections are for convenience of reference only, and shall not be construed as a part of this Agreement. [Balance of page intentionally left blank] I1] 200909872 10 of 14 IN WITNESS WHEREOF, Grantor and Grantee have executed and delivered this Easement Agreement as of the date of this Agreement as set forth at the beginning hereof. GRANTOR GORE CREEK PLACE HOMEOWNERS ASSOCIATION, INC., a Colorado nonprofit corporation By: c rol r Title: P Q -e STATE OF I e r a s ) ss: COUNTY OF -- 7 Avl S ) The foregoing instrument was acknowledged before me this 14 day of N au k , 2009, by Q.{ cAng - T �� as of Gore Cr k Place Homeowners Association, Inc., a Colorado corporation. Witness my hand and official seal. My commission expires: 55 o; CODY K. CRANDALL •e' Notary Public, State of Texas My Commission Expires September 16, 2010 C.':1- tom- al,-C4 Not Public [Signature blocks continue on following page] 11 200909872 11 of 14 GRANTEE STATE OF Go ' O rwdL O COUNTY OF RCR VAIL, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, as Managing Member By: Name: Title: ss: The foregoing instrument was acknowledged before me this 2 t- day of M a-y , 2009, by K6+L, T rr� et as pre 5 i &A'4 4 C_0 0 of Vail Resorts Development Company, a Colorado corporation, as Managing Member of RCR Vail, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: `i — t I — I I Notary 4pprove a to For Val is Lega r cm By Name: N414LIE-NIOSESS Date: � 12 200909872 12 of 14 EXHIBIT A Depiction of Pedestrian Connections (See the attached) 200909872 13 of 14 1p EE 1 1 a �F �;' 1 r 1 1 � � p ia. �'• .; ,- ,�.< -� .� -.- :�rl;? :.� .a. j� � ��F ■� __ - ' 1 1 r 1, t `'t _�° � `� 1'_ j I 1 � ��' � NMI FE l A jL 200909872 14 of 14 'IrVA IV S20 MOLL79VD RH.L L I L I' 1p EE 1 1 a �F �;' 1 r 1 1 � � p ia. �'• .; ,- ,�.< -� .� -.- :�rl;? :.� .a. j� � ��F ■� __ - ' 1 1 r 1, t `'t _�° � `� 1'_ j I 1 � ��' � NMI FE l A jL 200909872 14 of 14