HomeMy WebLinkAboutVAIL VILLAGE FILING 1 BLOCK 5D LOT M O VAIL VILLAGE INN PHASE 4 AKA VAIL PLAZA HOTEL SEBASTIAN 2007 RECORDED LEGAL DOCUMENTSVart /d,/a7a-,
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TMNSFORMER ACCESS AGREEMENT 2I
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This agreement is made and entered into this /5d day ot U-W.Lu ,zo Of
betwean vAlL PLAZA DEvELOPMENT, uc, a cdioradollEited tiabffibo rTifTEiE6F
Drive, Vail, Colorado E1557, hereinafter called'owner', and Holy cross Energy. i colorado corporarion whose mailing
address is P. O. Box 2150, Glenwood Springs, Colorado 8i502, hereinafter called 'Holy Cross"-
WHEREAS, prior to thls Transformer Access Agreement, Holy Cross and Owner have entered into a Contract Letter
Agreement and a Trench, Conduit And Vault Agreement, hereinafter called 'Existing Agreements", to provide underground
electrjc facilities to serve a project known as Vail Plaza Horel, hereinafter called "Project": and,
WHEREAS, Owner owns real propeny described as follows: Those Portions of Lots M, N, and O, Block 5-D, Vajl Village First
Filing, according to lhe Map thereof, situated in Section 8, Township 5 sourh, Range 80 West of the 6th P-M., said Ponions
being more particularly described as Parcel I and Parcel 3 at Reception No. 899981, and said Map being more particularly
deJcribed at Reception No. 96382. all in the office of the Eagle County clerk and Reco.der, Eadle, Colorado, hereinaftei
called "Property', which Property is the real property where thJero.lecr is being developed: and, -
WHEREAS, lt has come to the atentlon of Holy Cross thal there are questions concerning how the Project may or may nor
be affectjng the ability of Holy Cross to access the existing transformer rhat feeds rhe Village Inn Plazi Phase; t, tt, & 5 to
the south of the Project, hereinafter the 'Transformer', the approximate location of the Transformer and its historical
access withln the Property, hereinafter the 'Access Corridor', are shown on Exhibit A attached hereto and made a part
hereof bv reference.
WHEREAS. Holy Cross desires to protect and secure ils existing access rights to the Transformer, within the Ac(ess
Corridor, by way of this Transfqrmer Access Agreement.
NOW, THEREFORE, Owner and Holy Cross agree as follows:
1. Within the Access Corridor, acc€ptable, unobstructed, boom truck access to the Transformer, as derermined solely
by Holy Cross, must be maintained by the Owner at all times.
Z. wirhin the Access Corfidor, Holy Cross is not responsible for any damage to any improvements that may resuh
from reasonable use of the A€cess Corridor bv Holv Cross.
3. All necessary alterations to the Project design, at the sole cost of the Owner, shall be implemented in order to
achieve conditions I and 2.
4. Owner covenants that it is the owner of the above described Propeny and that said Property is free and clear of
encumbrances and li€ns 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 Inter€st, and assigns, of the property,
The individual signing this Transformer Access Agreement hereby represents that he has full power and
authorlty to sign, execute, and deliver thi5 instrument-
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The foregoing instrument was acknowledged before me this Q4 da,1 of|Wf bV Wa|dn Prado as Manager of VA|L PLAZA DEVELOPMENT, LLC, aF
WITNESS my hand and official seal. /
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Address:
FILE COPT
Holy Energy, a Colorado corporation
U.
Operations
*artor Ot/aJ
My commission exDiresl
sTATEoF LA.I,*J,^
corporation.
WTNESS my hand and official seal.
My commlssion expnes. g. 7 _ O I
W,/O#o7-l 8998:52-63:Vail Plaza Hotet |,4-07
200144778 | AF 2
Byi
Revised | -4-07
PLFASE RETURN TO:
HOLY CROSS ENERCY
P.O. BOX 21 50
cLENWOOD SPR1HGS, CO 81602
4.1 t t t )ss
COUNTI oF !^+AA.tt .t4.x-4 \V^
The foregoing lnstrumenr was acknowtedged befgre me nts l5& a"y ot ,L,lAu-z+u , zo9f,bv Richard D Brlnkley, General Manager of Eledric operations anO r@nEerin! ot-F6ly-@6iiTifry, a Cotorado
Notary Public
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CONDOMINIUM DECLARATION
FORTHE
VAIL PLAZA IIOTEL RESORT CLUB
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Table of Contents
Page
ARTICLE I IMPOSITION OF COVENANTS...-'-.-..'..... """"""""' l
Section 1.1. Purpose......... """"""""""""""' I
Section 1.2. Intention ofDeclarant. """"""" 1
Section 1.3. Condominium Declaration..' """""""""""""' I
Section1.4. CovenantsRururingWiththeLand""""""' """""""""""""I
ARTICLE 2 DEFINITIONS................ """"""""""""'24
Section 2.l. 'Acf'-.-'-...--.- """"""""""""""' r'
Section 2.2. "Additional Improvements".""""""""' """""2a
Section 2.3. "Allocated Interests"'.'-.. """' ' ':
Section 2.4. "Applicable Laws"........... """"' L
Section 2.5. "gJi"l", oflncorporation"""""""" """""""'2
o
Section2.6. "Assessments"---"'.."....""" "''' """:
Section 2.7. "Association' """":
Section 2.8. "Board of Directors" " " " " ':
Section2.9. "Budgef' '""'-:
Section 2.10. "8y1aws"...............'-. """"""""' L
Section 2.1l. *C;tering Kitchen Unit" .-....."""" """"""''""21
Section 2-12. "Class" .......-.".-...... """""""""':
Section 2.13. "Commercial Activities"""""""""' """""""" J
Section2.l4. "CommercialUnit".. """"""""'3
Section 2.15. "Committee" -.'..'..-... """"""""' 3
Section 2.16. "Common Elernents" "".'""""" 3
Section 2.17. "Common Expenses" """""""" 3
Section 2.18. "Common Ex-p".rs"s Liabilitl'.'"' """"""""-' 4
Section 2.19. "Condominium Documents"" """"""""""""' 4
Section 2.20. "Condominium Map" or "Map" """""""""' """"""-"""""' 4
Section 2.21. "Condominium Project" or "Project" """"""' 4
Section 2.22. "Condominium Unit''..-.."""' """"""""".'""' 4
Section 2.23' "ConventionUnit" """"""""""4
Section 2.24. "Costs of Enforcement'.'."""""""' """""""" 4
Section 2.25. "Declatant" -"'.-..'.'.'. """"".'""' 5
Section 2.26. "Declaration"..-...-'." """"""""' 5
Section 2.27. "Deed"....--.-.-....-..'... """""""""5
Section 2.28. "Development Rights"...""" """""""""""""' 5
Section 2.29. "Dispute"......-....'......'."""""""""' """"""""" J
Section 2.30. "Eligible First Mortgagee"" """""""""""""" 5
Section2.31. -Em;loyeeHousingUnit"""""""""' """"""'5
Section 2.32. "First Mortgagee" ....""""""""" """"""""""' 5
a
Section 2.33. "Hotel Unit" '......""' ' " ' " :
Section 2.34- "Improvernent(s)"
Section 2.35. "Limited Common Elements"""' """""""""" 5
Section 2.36. *I'aadingunit"...-.-.' """""""""6
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Section 2.37. "Majority of Owners' '."-."""""' 6
Section 2.38. "Management Agreernent" .....-."..... .---...."""' 6
Section 2.39. "Management Unit" .".....'-......... 6
Section 2.40. "Managing Agent".. -.-.-.'..'....'... 6
Section 2.41. "Nonprofit Act" .'...'.'..-.........-.'. 6
Section 2.42. "Occttpant"...-........... ...'...'....-....6
Section 2.43. "Owner .-.--.---.-..'-"7
Section 2.44. *Parking Unit" --...'.......'..'.'....... 7
Section 2.45. "Percentage Interest"
Section 2.46. "Peiod of Declarant Control" ........'.'-.-.-.----.-.7
Section 2.47. "Person".,............... ...-.....'.-....'-'7
Section 2.48. "Plan of Club Ownership" .".-'..7
Section 2.49. "Plans ....'..'..'..----.-7
Section 2.50. *Plat". -.----------------7
Section 2.51. "Property'... ............. -......---....'.7
Section 2.52. "Real Estate".......... -.---.-...-.---.-.-7
Section 2.53. "Records"...........-...... -'....'.'.'-....7
Section 2.54. "Residential Unit"... ......'-'--.------7
Section 2.55. "Restaurant Unit"..........-.. "..'.'.. 8
Section 2.56. "Rules and Regu1ations"................ ."'.........'.'. 8
Section 2.57. "security lnterest".... ..'.'..'......'-. 8
Section 2.58. "service Unit"........ ...-..'..-.-.-.-'.' 8
Section 2.59. "Spa Uni1"............ ..'................'. 8
Secfion 2.60. "special Declarant Rigfrts"......... ...'.'......-..-.-.- 8
Section 2.61. "Total Voting Power' '...'.-'......... I
Section 2.62. "special Development District 6".................. .......'..-.-...-..".- 8
Section 2.63. *IJnit- .......-..........8
Section 2.64. *Yail Plaza Club" or "Club"...... ..................... 9
Section 2.65. "Vail Plaza Penthouse Unit"...-.... .....'....-.-.-..-. 9
Section 2.66. "Withdrawn Property'' .............. 9
ARTICLE 3 DIVISION OF PROJECT INTO CONDOMINruM OWNERSHIP........................9
Section 3.1. Division Into Condominium Units. .'.'.'...'......9
Section 3.2. Delineation of Unit Boundaries. ................... 10
Section 3.3. Inseparabilityof Condominium Unit........ .......................... 10
Section 3.4. Non-Partitionability of Common Elements.............................................. 10
Section 3.5. Alterations and Subdivision of Units; Relocation of Boundaries
BetweenAdjoiningUnits.................. ............ 10
ARTICLE 4 ALLOCATED rNTER8STS................. ....................... 11
Section 4.1. Allocation of Interests.... ......... 1l
Section 4.2. Formulae for the Allocation of Interests................... .......... l1
Section 4.3. Rounding Convention... ........-. 12
Section 4.4. Effective Date of Reallocation.......... ............ 13
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ARTICLE 5 COMMERCIAL, RESTAURANT, SPA, CONVENTION, CATERING
KITCHEN, AND LOADING1JNITS ............ 13
Section 5.1. Permitted Uses'.-.....---.. """""' 13
Section 5.2. Rules and Regulations.-. """"" 13
Section 5.3. Commercial Activities' """""' 13
ARTICLE 6 PARKING L1NIT........... """""""""""" 13
Section 6.1. Permitted Uses.........-... """""' 13
Section 6.2. Parking Unit Operation and Limitations' """"""""' """""' 13
ARTICLE 7 CONDOMINruM MAP """""""""""" 14
ARTICLE 8 LEGALDESCRIPTION AND TAXATION OF UNITS ......"......."14
Section 8.1. Contracts to convey Entered into Prior to Recording of
Condominium Declaration and Map"""" """""""""""""' 14
section 8.2. Contracts to convey and conveyances Subsequent to Recording of
Declaration and Map-...'.. """" 14
SectionS.3.ConveyanceDeemedtoDescribeanUndividedlnterestinCommonElements....-.. """""' 15
Section 8.4. Separate Tax Assessments. """""""""""""' 15
ARTICLE g I.JNIT OWNERS' PROPERTY RIGHTS IN COMMON ELEMENTS ........""""' 15
Section 9.1. CommonElemants-----..'....... """"""""""".'' 15
Section 9.2. Limited Common Elements. """""""""".'"' 16
ARTICLE l0 MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION,..'........"............. l6
Section 10.1. Association Membership....-.."""' """"""".' 16
Section 10.2. Vofing Rights and Meetings- """""""""""" 16
Section 10.3. Meeting to Approve Annual Budget""""" """"""""""""' 17
sectionl0.4. unitowners'-andAssociation'sAddressesforNotices......'.-.-...-.'..'..-.... 17
Section 10.5. Transfer lnformation """""""" l8
Section 10.6. Declarant Control ofthe Association""""""" """""".'""" l8
Section 10.7. Required Election of Unit Owners.."""' """' 18
Section 10.8' Removal of Members of the Board of Directors' """"""""""""""""""' l9
Sectionl0.g.RequirernentsforTurnoverofDeclarantControl'.......'......19
ARTICLE 11ASSOCIATIONPOWERSANDDUTIES.".... """" 19
Section 11.1. Association Management Duties' """"""""' 19
Section 11.2. AssociationPowers. """"""""20
Section 1 1.3. Actions by Board of Directors. """"""""""'22
Section 11.4. Board of Directors Meetings.""' """""""""'22
Section 11.5. Right to Notice and Hearrng.
Section 11.6. Palments to Working Capiial Account"""" """""""""""'23
Section I1.7. Class of Membership. -.....'...."""' """"""""'23
section 11.8. Reserved Powers: Directions to Board of Directors. ...'.""'24
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ARTICLE 12 ASSESSMENTS........... """""""""""'24
Secfion 12.1. Commencernent of Annual Assessments' """""""""""""'24
Section 12.2. Annuat Assessments- """""""25
Section 12.3. Apportionment of Annual Assessments' """'25
Section 12.4. Special Assessments. """""""25
Section 12.5. Due Dates for Assessment Payrnents""" """"""".'"""""" 25
Section 12.6. Default Assessments' "'..'..'-..'-..... """"""""' 26
Section 12.7. Covenant of Personal Obligation for Assessments"""""""""" """""""'26
Section 12.8. Lien for Assessments; Assignment of Rents' """"""""""'26
Section 12.9. Remedies forNonpayment of Assessments"""' """"""""'27
Section12.10.Purchaser'sLiabilityforAssessments"""""""""" """"""27
Section 12.1l. Waiver of Homestead Exemption; Subordination of Association's
Lien for Assessments. """"""'28
Section 12.12. Staternent of Status of Assessments...."""""""' """".'"""' 28
Section 12.13. Lrens.. """"""""29
ARTICLE 13 MAINTENANCE RESPONSIBILITY........... ..........29
section 13.1. unit owner's Rights and Duties with Respect to Interiors.."....-.....'.'...---29
Section 13.2. Responsibility of the Unit Owner' """"""""29
Section 13.3. Unii Owner's Negligence. """ 30
Section 13.4. Responsibility of the Association' ..-...""" """"""""""""" 30
ARTICLE 14 MECHANICS' LIENS ........""............30
Section 14.1. Mechanics' Liens. """""""""' 30
Section 14.2. Enforcement by the Association. ......."'.'.."" """"""""""" 30
ARTICLE 15 USE RESTRICTIONS......,............ -.-'......'....-'.....""" 30
Section 15.1. UseofUnits. """""""""""""'30
Section 15.2. Use of Common Elements. """""""""""""' 31
Section 15.3. Prohibition of Increases in lnsurable Risks and Certain Activities- .-....". 31
Section 15.4. Structural Alterations and Exterior Appearance. """""""" 3 I
Section 15.5. Pet and Use Restrictions. """"32
Section 15.6. Limit on Timesharing. .--......-.-.-.' """"""""" 32
Section 15.7. Restriction on Signs- """""""'32
Section 15.8. Commercial Operation. "..'.'..-..'.... """""""" 33
Section 15.9- Restrictions on Use ofParking and Storage Areas' """"""""""""".'""" 33
Section 15.10. Restrictions Not Applicable to owner of the Hotel Unit...........,...........'-. 33
Section 15.11. DistrictDocuments. """""""" 34
Section 15.12. Restrictions on Employee Housing Unit-.-.-.-.'..."' """""""34
ARTICLE 16 EASEMENTS................ -.-...-.....'-.'.....' 34
Section 16.1. Easement of Enjoyrnent'.-...-.......-. """""""" 34
Section 16.2. Delegation of Use. """"""""" 34
Section 16.3. Recorded Easements """"""""34
Section 16.4. Easernents Over Management Unit, Service Unit, and Convention
Unit. ....'....'... """""""""""""' 34
Section 16.5. Easements for Encroachments. -.....--....'...'- .'""""""..""".'' 35
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Section 16.6' Utility Easernents' "' """""""" 35
Section 16.7. Emergency Access Easement' """"""""""" 36
?6
Section 16.8. Maintenance Easement
Section 16.9. Easernents of Access for Repair, Maintenalce, and Emergencies' """.'" 36
?6
Section 16.10' Pedestrian Easements """"""" :;
Section 16.11- Easements Deemed Created""""' """"""""' ro
Section 16.12- Easement for Warranty Work' """""-""" """""""""""""' 36
Secfion 16.13' Reserved Easement of Hotel Unit Owner' ' :i
Section 16.14. Additional Easernents """""""""' """".'""" r /
ARTICLEITSPECIALDECLARANTRIGHTSANDADDITIONALRESERVEDRIGHTS 1Z
Section 17.1. Special Declarant Rights"""""' """""""""" r /
Section 17.2- Additional Reservedlights""""""" ".'"""" 38
Section 17.3. Limitations on Special Declarant Rights and Additional Reserved
?oRights. """""""""""
Section tf.+- nf,rference with Special Declarant Rights' 1:
Section 17.5. Rights Transferable' """""""" )>
ARTICLE 18 RESERVATION OF DEVELOPMENT RIGHTS""""'-""""' i3
Section 18.1. Development Riglrts
Section 18.2- Amencltment of Declaration"""""""" il
Section 18.3. Supplement to the Map' ;X
Section 18.4- Interpretation..""""" """""""' -v
Section 18.5. MaximumNumberofUnits"""" """"""""""' il
Section 18.6. Construction Easernent ' ' " ;Y
Section 18-7' Reciprocal Easements"""""""""" """""""' -tr
Section 18.8. Termination of Development Rights' """""' 4l
Section 18.9- Interference With Development nightt' """' 41
Section 18.10. Transfer of Development Rights"""""' """" 42
ARTICLE 19 INSURANCE................ """""""""""'42
Section19.l. Coverage-.'.."""""" 17
Section lg.2- Required Provisions ' " "'-n)
Section I 9-3- Adjushnent of Claims " """" :;
Section 19.4. Copies of Policies' """.'""""" -'-r
ARTICLE20RESTORATIONUPONDAMAGEoRDESTRUCTION...''''...'.'.'............'......44
Section20.l- DutytoRestore' """""""""""44
Section 20.2. Cost- """"""""" 45
Section 20.3- Plans.. """""""" 45
Section ZO.+. neplacernent of Less Than Entire Property' 12
Section20.5. InsuranceProceeds"' """""""''tJ
Section 20'6' a;;;i*ates by the Board of Directors' """"' 45
Section ZoJ. cernftcates by Attorneys or Title Insurance companies""""""""""""" 46
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ARTICLE 21 CONDEMNATION......... '.-.""""""""46
ARTICLE 22 MORTGAGEE PROTECTIONS ........46
Section 22.1. Inhoduction.....'.".'... """""""'46
Section 22.2. Percentage of First Mortgagees- """""""""' 46
Section 22.3. Notice of Actions. """""""""' 46
Section 22.4. ConsettRequired...-. """""""'47
Section 22.5. Notice of Objection. . """""""' 47
Section 22.6. First Mortgagees' Rights.-...-.-.-. """""""""" 47
Section 27.7. Limitations on First Mortgagee's Rights--.....-... """"""""' 48
Section 22.8. Special Declarant Rights---.-.-..'. """""""""" 48
Section 22.9. Protection of Mortgagees'...'.'..'...... """"""" 48
ARTICLE 23 DURATION OF COVENANTS; AMENDMENT AND TERMINATION.......-.48
Section 23.1. Term.. """""""" 48
Section23.2. AmendmentofDeclaration-..'..-... """""""-"49
Section 23.3. Amendment by Declarant. ...'........... """""''' 49
Section 23.4. Amendment of Other Goveming Documents- """"""""-"' 49
Section 23.5. Execution of Amendments; Expenses' """"' 49
Section 23-6. Interpretation........... """""""'- 50
Section 23.7. When Modifications Permitted. ...""""""""' 50
Section 23.8. Recording of Amendments.......----.-'- """""" 50
Section 23.9. Rights of Eligible First Mortgagees'.'.'..'.......- """""""""" 50
Section 23.10. Termination of the Condominium Project.......-'- """""""" 50
ARTICLE 24VALLPLAZACLUB........... -.-.'.-..'..-.-. 50
section 24.1. submission of Residential units to the vail Plaza club........................... 50
Section 24.2. Definitions.............. .."""""""' 51
Section 24.3. Submission of Residential Unit to Club Ownership...'......-.-..............'.."' 53
Section 24.4. Conveyance by Purchaser. -....-.-....'.""""""" 53
Section 24.5. Description of a Club Estate. ..---."......""""" 53
Section 24.6. Administration and Management.............-..' ...........".""""' 54
Section 24.7, Powers and Duties of the Association with Respect to Club
Estates. .....""""' 54
Section 24.8. Club Assessment... -."-...""""" 55
Section 24.9. Acceptance; Enforcemont; Indemnification. ....'.'.'.'..... ..."' 56
Section 24.10. Cross Use Easements Pertaining to Floating Club Estates....................... 58
Section 24.11. Resale Restriction. .-'.."......-.-.- 59
Section 24.l2.Townof Vail Requirement .".'...-.-.--...".'.."" 59
ARTICLE 25 ENFORCEMENT.......... ............-'.'......60
ARTICLE 26 MISCELLANEOUS ...." 60
Section 26.1. Nonwaiver................. ...-.-.....-.- 60
Section 26.2. 5everahility............... ."-...'...... 60
Section 26.3. Number and Gender... ...'-'--'-'.' 60
Section 26.4. Captions.....,........... --'-....'-.-..'..60
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Section 26.5. Conflicts in Legal Documents' """"""".'""' 60
Section 26.6. Vestingoflnterests. """""""" 60
Section 26.7. Exhibits.'............-.-. """"""""' 60
Section 26.8. Choice of Law. '-...."' """""""' 60
Section 26.9. Third PartyBeneficiary"""""""' """.'""""" 6l
LIST OFEXEIBITS
Exhibit A Legal Description.'......-.-...' t I
.ExhibitB TableofAllocated Interests""""""...'"" """""""""D-r
Exhibit B-1 Club Unit Allocatsd lnterests to Units""""' """""B1-1
Exhibit C Easements and Licenses of Record""' .'""""".'"""'C-l
Exhibit D Units Submitted to Vail Plaza Club"" .'.'.'"""".'"" D-l
Exhibit D-1 Club Estate Undivided Interest in Club Unit """"""" """""""" Dl -l
DlvtwEST #6310543 v5
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CONDOMINIUM DECLARATION
FOR
VAIL PLAZA HOTEL RESORT CLUB
THIS CONDOMINIUM DECLARATiON FOR VAIL PLAZA HOTEL RESORT
CLUB (the "Dgglaration" ), dated &?cqA"t-, 2001_, shall be effective upon recordation and is
made by Vail Plaza Development, LLC, a Colorado limited liability company ("Declarant').
Declarant is t}1e owner of certain real property in Eagle County, Colorado, more particularly
described on Exhibit A attached hereto and incorporated herein by this reference (the
"Property''). Declarant hereby makes the following grants, submissions, and declarations:
ARTICLE I IMPOSITION OF COVENANTS
Section 1.1. Purpose. The purpose of this Declaration is to create a condominium
project known as the Vail Plaza Hotel Resort Club (the "eSndemi4lqrn-Elqkl" or "Proiect"), by
iubmitting the Property to the condominium form of ownership and use pursuant to the Colorado
Common Interest Ownership Act, Article 33.3, Title 38, Colorado Revised Statutes, as amended
and supplemented from time to time (the "491"), to elect to have the Property treated as a
cornmon interest community and thereby subject the Project to the provisions of the Act and not
to the general cofirmon law of tenancy-in-common, and to establish a uniform plan for the
development of the Project, including the sale and ownership of time span interests in the Units,
and operation of the Restaurant Unit, Spa Unit, Service Unit, Convention Unit, Catering Kitchen
Unit, Loading Unit, Managernent Unit, Residential Units, Commercial Units, and Parking Unit
as provided herein.
Section 1.2. tntention of Declarant. Declarant desires to protect the value and
desirability of the Condominium Project, to further a plan for the improvement, sale and
ownership of the Units and Club Estates in the Condominium Project, to create a harmonious and
attractive development and to promote and safeguard the health, comfort, safety, convenience,
and welfare of the Owners of Units and Club Estates in the Condominium Project'
Section 1.3. Condominium Declarafion. To accomplish the purposes and intentions
recited above, Declarant hereby submits the Property, together with all improvements,
appurtenances, and facilities relating to or located on the Property now and in the future, to
condominium ownership under the Act, and hereby imposes upon all of the Property the
covenants, conditions, restrictions, easements, reservations, rights-of-way, and other provisions
of this Declaration, and Declarant hereby declares that all of the Property shall be held, sold,
conveyed, encumbered, leased, rented, occupied, and improved subject to the provisions ofthis
Declaration.Covenants Running With the Land. All provisions of this Declaration shall be
deemed to be covenants running with the land, or as equitable servitudes, as the case may be.
The benefits, burdens, and other provisions contained in this Declaration shall be binding upon
and shall inure to the benefit of Declarant, all Unit Owners, all Owners of CIub Estates, and their
respective heirs, executors, administrators, personal representatives, suscessors, and assigns.
DMWEST #6310543 v5
ARTICLE 2 DEFINITIONS
The following words, when used in this Declaration, shall have the meanings designated
below unless the context expressly requires otherwise:
Section 2.1. "Act" means the Colorado Common lnterest Ownership Act as defined-in
section 1.1 hereof. ln the event the Act is repealed, the Act, on the effective date of this
Declaration, shall remain applicable to this Declaration'
section 2.2. "Additional lmprovements" has the meaning set forth in Section 18'l of
this Declaration.
Section 2.3. "Allocated Interests" means the undivided interest in the Common
Elements and the corn*oo n*p"lat" t iuuiuty and the votes in the Association allocated to each
of the units in the condominium Project. TLe formulae used to establish the Allocated lnterests
are described in ARTICLE 4. The All0cated Interests for each unit are set forth on Exhibit B
attached hereto and incorPorated herein by this reference'
Section 2.4. "Applicable Laws" has the meaning set forth in section 3'5 of this
Declaration.
Section 2.5. ..Articles of Incorporation" means the Articles of Incorporation of the Vail
plaza condominium Association, lnc., fil"a *ith th" colorado secretary of State.
Section 2.6. ..Assessments" means the annual, special and default Assessments levied
pursuant to this Declaration'
Section 2.7. "Association" means the Vail Plaza Condominium Association' Inc'' a
Colorado nonprofit corporation, and its successors and assigns'
section 2.8. "Board of Directors" means the governing body of the Association, as
provided in this Declarutio" *a in the Articles of lncorporation and Bylaws of the Association'
and defined as the "Board of Managers" in the Act'
section 2.9. "Budeet" has the meaning set forth in section 10.3 of this Declaration'
section 2.10. "Bylaws" means any instruments, however denominated, which are
adopted by the Associutiin* fo, tt " regrrlation and management of the Association, including the
amendments thereto.
Section2.l1. ..Caterine Kitchen Unit" means a Unit designated in this Declaration as
the ..catering Kitchen u"tt'\tth th" p*fix "K' on the Map. References to Units shall include
the Catering Kitchen Unit unless the context would prohibii or unless this Declmation expressly
provides otherwise.
Section 2.1 2. "Class" has the meaning set forth in Section I I '7 of this Declaration'
DMWEST #6310543 v5
Section 2.13. "Commercial Activities" has the meaning set forth in ARTICLE 5 of this
Declaration.
Section 2.14. "Commercial Unit" means any Unit desigrrated with the prefix "C" on the
Map or designated as a "Commercial Unit" in this Declaration for business or commercial uses,
including Commercial Activities.
Section 2.15. "Committee" means a Committee established by the Board of Directors in
accordance with this Declaration and the Bylaws.
Section 2.16. "Common Elements" means all of the Condominium Project' other than
the Units, but including, without limiting the generality of the foregoing, the following
components:
(a) the ProPertY; and
(b) the Improvements (including, but not by way of limitation, the
foundations, columns, girders, beams, supports, perimeter and supporting walls, fireplaces,
chimneys, flues, chimney chases, roofs, patios, decks, balconies, corridors, lobbies, vestibules,
entrances and exits, exterior doors and windows, and the mechanical installations of the
Improvements consisting of the equipment and materials making up any central services such as
power, lighf gas, hot and cold water, sewer, cable television, and heating and central air
ionditioning which exist for use by one or more of the Unit Owners, including the pipes, vents,
ducts, flues, cable conduits, wires, telephone wire, and other similar utility installations used in
connection therewith) and the areas designated on the Map as including those installations, trash
rooms and storage rooms, elevators and stairs except for the Units; and
(c) the yards, sidewalks, walkways, paths, grass, shrubbery, hees,
planters, driveways, roadways, landscaping, gardens, and related facilities upon the Property; and
(d) the pumps, tanks, motors, fans, storm drainage structures,
compressofs, ducts, and, in general, all apparatus, installations, and equipment of the
Improvernents existing for use of one or more of the Unit Owners; and
(e) in general, all other parts of the Condominium Project designated
by Declarant as Common Elements and existing for the use of one or more of the Unit Owners.
The Common Elements shall be owned by, the Unit Owners, each Unit Owner having an
undivided interest in the Common Elements as allocated in Exhibits B and B-1.
Section 2.17. "Common Expenses" means expenditures made or liabilities incurred by
or on behalf of the Association, together with any allocations to reserves, including, without
limiting the generality of the foregoing, the following items:
(a) expenses of administration, insurance, operation, and management,
repair or replacernent of the Common Elements except to the extent such repairs and
replacements are responsibilities of a Unit Owner as provided in this Declaration;
DMWEST #6310543 v5
(b) expenses declared Common Expenses by the provisions of this
Declaration or the Bylaws;
(c) all sums lawfully assessed against the Units by the Board of
Directors;
the Association; and
(d) expenses agreed upon as Common Expenses by the mernbers of
(e) expenses provided to be paid pursuant to any Management
Agreernent.
Section 2.18. "Common Expenses Liabilitv" means the liability for Common Expenses
allocated to each Unit pursuant to this Declaration.
Section2.l9. "Condominium Documents!' means the basic documents creating and
governing th" Condo*irrirr* t-i""t, including, but not limited to, this Declaration, the Articles
it lrr"orp"orution and Bylaws, the Map, and any procedures, Rules and Regulations, or policies
relatingio the Condominium Project adopted under such documents by the Association or the
Board of Directors.
Section 2.20. "Condominium Map" or "Map" means that part of this Declmation that
depicts all or any portion of the condominium Project in three dimensions, is executed by the
Declarant and is recorded in the Records. A Map and a Plat may be combined in one instrument'
In a Map, a ..Horizontal Boundarv" means a plane of elevation relative to a described benchmark
that defines either a to*"r * .rpper dimension of a Unit such that the real estate respectively
below or above the defined ptaneis not part of the Unit. In a Map, a "Vertical Boundary''means
the defined limit of a Unit that is not a Horizontal Boundary of that Unit.
Section 2.21. "Condominium Project" or "Proiect" means the term as defined in Section
1-l hereof. th" Cordoillilu* P*i""t includes areas used for commercial purposes, amenities
for hotel guests and Club Estate Owners, testaurants, a loading area, hotel facilities, a parking
area, and
-Residential units for use by certain employees of the upper Eagle valley, the owner
of the Vail Plaza Penthouse Unit, hotel ggests, and the Owners of Club Estates as more
specifically described in this Declaration'
section 2.22. "condominium unit" means tle fee simple interest in and to a Unit,
together with the unaivial interest in the Common Elements appurtenant to the Unit' as
allocated in Exhibit B.
Section2.23. "Convention Unit" means a Unit designated in this Declaration as the
"Convention Urrit" *itl, th" p."ft" "B" on the Map. References to Units shall include the
Convenfion Unit unless the context would prohibit oi unless this Declaration expressly provides
otherwise.
Section 2.24. .,Costs of Enforcement" means a1l monetary fees, fines, late charges,
interest, expenses, "o*t*,
io"loding t"""iver's and appraiser's fees, and reasonable attomeys' fees
and disbursements, including legal assistants' fees, incurred by the Association in connection
DMWEST #6310543 v5
with the collection of Assessments or in connection with the enforcement of the terms,
conditions and obligations of the Condominium Documents.
Section 2.25. "Declarwt" means vail Plaza Development, LLC, a Colorado limited
liability company, and its successors and assigns, as specified in a recorded instrument
describing those rights ofthe Declarant hansferred to the successor or assignee.
Section 2.26. "Declaration' means this Declaration, together with any supplement or
amendment to this Declaration, and any other recorded instrument however denominated that
exercises a Development Right, executed by Declarant and recorded in the Records. The term
"Declaration" includes all Mapd and Plats recorded with this Declaration and all amendments
and supplernents to this Declaration and Maps and Plats without specific reference thereto.
Section 2.27. "Deed" means each initial Special Warranty Deed recorded after the date
hereof by which Declarant conveys a Unit or a Club Estate.
Section 2.28. "Development Rights" means all of the expansion rights, withdrawal
rights and development rights set forth in ARTICLE 18 of this Declaration, and in the Act.
Section 2.29. "Dispute" has the meaning set forth in ARTICLE 25 of this Declaration.
ARTICLE 25 also sets forth additional definitions relating to Disputes.
Section 2-30. "Eligible First Mortgagee" means a First Mortgagee that has notified the
Association in writing of its name and address and status as a First Mortgagee and has requested
that it receive notices provided for in ARTICLE 22 entitled "Mortgagee Protections".
Section2.31. "Emplovee Housing Unit" means the Unit designated as the'ElaplSygg
Housine Unit" with the prefix 'p" on the Map to be used as specified in Section 15.12.
References to Units shall include the Employee Housing Unit unless the context would prohibit
or this Declaration expressly provides otherwise.
Section 2.32. "First Mortqagee" means a holder of a Security lnterest in a Unit or a Club
Estate that has priority over all other Security Interests in the Unit or Club Estate.
Section2.33. "Hotel Unit" means the Unit designated as a "Hotel Unit" in this
Declaration with the prefix "fl" on the Map. References to Units shall include the Hotel Unit
unless the context would prohibit or unless this Declaration expressly provides otherwise.
Section 2.34. "Improvement(s)" means the building(s) (including all fixfures and
improvements contained within it) located on the Property in which Units or Common Elements
are located, together with any landscaping and hardscaping located on the Property that is not
part of a Unit.
Section 2.35. "Limited Common Elernents" means those parts of the Common Elements
that are limited to and reserved for the use in connection with one or more, but fewer than all, of
the Units. Without limiting the foregoing, the Limited Common Elements shall include any
balcony, deck, patio, courfyard or porch appurtenant to and accessible only from a Unit, any
shutters, awnings, window boxes, doorsteps, hallways, lobbies, entryways, stoops, porch,
DMWEST #6310543 v5
balcony or patio designated or designed to serve a single unit but located outside the unit's
boundaries, maid/maintenance "los"t-s,
laundry facilities, storage spaces, and ski lockers outside
Units desigrrated as Limited Common Elements in this Declaration or on the Map, if any' If any
chute, flue, duct, wire, conduit, bearing wall, bearing column or other lxture lies partially within
and partialiy oufside the designatea boLaaries of a Unit, any portion thereof serving that Unit is
a Limited common Element-allocated solely to that Unit, and any portion thereof serving more
than one unit or any portion of the common Elements is a part of the common Elernents'
Limited Common Elements also include any portion of the Common Elements allocated by this
Declaration or on the Map as Limited common Elements' All Limited common Elements shall
be used in connection *itt tt " appurtenant Unit(s) to the exclusion of the use thereof by the
other Owners, exce,pt by invitati,on. Subject to the Association's overall responsibility for
maintenance of ttre Limited Common Elements, each Owner shall be responsible for routine
maintenance and care of the walls, ceilings and floors of any patio or balcony or of any other
Limited common Elements appurtenant ti and accessible only from the owner's Unit, and for
keeping the same in a good, clean, sanita.y, and attractive condition. No reference to Limited
Common Elements neei be'made in any instrument of conveyance or encumbrance in order to
*u"y or encumber the Limited Common Elernents appurtenant to a Unit'
section 2.36. "Loading unit" means a Unit desigrrated in this Declaration as the
"Loading Unif' with u p."n* of .L" o" the Map. References to Units shall include the Loading
unit unless the context would prohibit or unless this Declaration expressly provides otherwise'
Section 2.37. "Maiority of Owners" means a majority of the Total Voting Power (rather
than a majority of tnoffiGt * uoti.tg by proxy at a meeting or the majority of .a SlolT):
Votes allocated to any Units owned by the Associuiiott *uy not be cast and shall not be included
in any calculation of voting Power
Section 2.38. "Management Aereement" means any contract or alrangement entered
intoforpurpoSeSorffitiesoftheBoardofDirectorsre1ativetothe
operation, maintenance, and managernent of the condominium Project.
section 2.39. "Manaeement Unit" means a unit designated in this Declaration as the
.l4qs4c9rnen'-!d',*itl'th"p,"fi*..M''ontheMap.ReferencestoUnitsshallincludethe
M*"g"*""t u"tt unless the context would prohibit or this Declaration expressly provides
otherwise.
section 2.40. "Managing Agent" means a person, firm, corporation or. other entity
ernployed o, "rrgug"d[ *InJ"pendent contractor pursuant to a Management Agreement to
perform management services for the Association'
Secfion2.4l...Ns!prcfi!_44''hasthemeaningsetforthinSection3.5ofthis
Declaration.
Section 2.42. "Occuparff'means any member of a unit owner's family or a unit
Owner's guests, invitees, servants, tenants, employees, or licensees who occupy a Unit or are on
the Common Elernents io, *y period of time, or any other person who occupies a Unit or is on
the Common Elements for any period of time'
DMWEST #6310543 v5
Section 2.43. "Owner" means the Declarant or any other person who owns record title to
a Unit or Club Estate (including a contract seller, but excluding a contract purchaser) but
excluding any Person having a Security Interest in a Unit or Club Estate unless such Person has
acquired record title to the Unit or Club Estate pursuant to foreclosure or any proceedings in lieu
of foreclosure.
Section 2.44. "Parkin& Unit" means a Unit designated in this Declaration as the
"Parkine Unit" with the prefix "P" on the Map. Referenees to Units shall include the Parking
Unit unless the context would prohibit or unless this Declmation expressly provides.
Section 2.45. "Percentase lnterest" has the meaning set forth in Section 4.2 of this
Declaration.
Section 2.46. "Period of Declarant Conhol" means the maximum period of time defined
and limited by the Act and Section 10.6 of this Declaration during which the Declarant may, at
its option, control the Association.
Section 2.47. "Person" means an individual, association, parbrership, limited liability
company, corporation, trust, govemmental agency, political subdivision or other legal entity or
any combination thereof.
Section 2.48. "Plan of CIub Ownership" means the system of mutual use riglrts and
mutual obligations established by this Declaration as set forth in ARTICLE 24.
Section 2.49. "Plans" means the initial architectural plans for the Project prepared by
Zehren & Associates.
Section 2.50. "Plat'; means that part of a Declaration that is a land survey plat as set
forth in Section 38-51-102, Colorado Revised Statutes, as amended, depicts all or anyportion of
the Condominium Project in two dimensions, is executed by the Declarant, and is recorded in the
Records.
Section 2.51. "Property'' means the real property described on Exhibit A..
Section 2.52. "Real Estate" means any leasehold or other estate or interest in, over, or
under land, including structures, fixtures, and other improvements and interests that, by custom,
usage or law, pass with the conveyance of land though not described in the contract of sale or
instrument of conveyance. Real Estate includes parcels with or without Horizontal Boundaries
and spaces that may be filled with air or water.
Section2.53. "Records" means the Office of the Clerk and Recorder in Eagle County,
Colorado, and in every county in which any portion of the Condominium Project is located.
Section 2.54. "Residential Unit" means any Unit designated as a "RC$d9U!!al_Unt" with
a prefix of "F",
Declaration. Residential Units includes Club Units ('E ), the Employee Housing Unit ("E"), the
Vail Plaza Penthouse Unit ("Y"), and the Hotel Unit ("H"). References to Units shall include the
DMWEST #6310543 v5
Residential Units unless the context would prohibit or unless this Declaration expressly provides
otherwise.
Section 2.55. "Restaurant Unit" means a Unit designated in this Declaration as the
"Restaurant Unit" *ith th" pr"fix "8" on the Map. References to Units shall include the
Restaurant Unit unless the context would prohibit or unless this Declaration expressly provides'
Section 2.56. .,Rules and Rezulations" means the rules and regulations promulgated-by
the Board of Directors tbr the management, preseryation, safety, control, and orderly operation
of the Condominium Project in ordei to effectuate the intent and to enforce the obligations set
forth in the Condominium Documents, as amencied and supplemented from time to time'
separate Rules and Regulations may be promulgated to apply only to a certain tlTe oI types of
Units.
Section 2.57. "security lnteresf' means an interest in Real Estate or personal propedy
created by contract o, "oorr"y*"" *hi"h ,""*"s payment or performance of an obligation' The
terms include a lien created ty a mortgage, deed-of trust, trust deed, security deed, contract for
deed, land sales contract, lease intendid as security, assignment of lease or rents intended as
security, pledge of an ownership interest in an Association, and any other consensual lien or title
retention-conlact intended as security for an obligation. The holder of a Security Interest
includes any insurer or guarantor of a Security Interest'
Section 2.58. "service Unit" means a Unit designated in this Declaration as the "Service
Unit', with the prefix "S'h" th" Mup. References to Units shall include the Service Unit unless
the context would prohibit or unless this Declaration expressly provides otherwise'
Section 2.59. "Spa Unit" means a Unit designated in this Declaration as the "Spa Unit"
with the prefix "A" ooT" tut-up. References to Units shall include the Spa Unit unless the
context would prohibit or unless this Declaration expressly provides otherwise.
Section 2.60. "Specia] Declarant Riehts" means those rights reserved by Declarant in
ARTICLE 17 and ARTICLE 18 of this Declaration.
Section2.6l. "Total votins Powef" means the aggregate number of votes of the
members of the Association or a Class, as applicable, that are eligible and entitled to vote on or
consent to or reject the decision or action in question'
Section 2.62. "special Development District 6" means that certain district established by
and located io th" to*nif vuil, Colotud*hich ordinance creates limitations on the use, rigftts,
and ownership of the Project and other real property within the district.
Section2.63. "unit" means a physicat portion of the condominium Project which is
designated for separate ownership of occupancy *a tl* boundaries of which are described in or
deteinined by this Declaration and depicted on the Map. A Unit shall consist of enclosed rooms
and shall be bounded by the interior ,rr.fu""t of Unfinished Perimeter Walls, Floors and Ceilings
thereof. For the prr.po*" of defining a Unit, the terms set forth below shall be defined as follows:
DMWEST #6310543 v5
(a) "Unfinished Perimeter Wall" means the studs, supports, and other
wooden, metal, or similar strucfural materials which constitute the interior face of a wall of a
Unit.
(b) "Unfinished Ceiling" means the beams, joists, and wooden or other
shuctural materials which constitute the ceiling of a Unit.
G) "Unfinished Floor" means the beams, floor joists, and floor deck
material which constitute the floor of a Unit.
A Unit shall include any lath, funing, wallboard, plasterboard, plaster, drywall, wall
paneling, wood, tile, paint, paper, carpeting, or any other wall, ceiling, or floor covering, any
fireplace or stove hearth, facing brick, tile or firebox, fixtures and hardware, all improvements
contained within the area bounded by the Unfinished Perimeter Walls, Ceilings, and Floors and
any heating and refrigerating elements or related equipment, utility lines and outlets,
telecommunications lines, electrical and plumbing fixtures, pipes, and all other related equipment
required to provide heating, air conditioning, hot and cold water, electrical, communications, or
other utility services to such Unit and located within the Unfinished Perimeter Walls, Ceilings,
and Floors; provided, however, that zuch Unit shall not include any of the structural components
of the Improvements or utility or service lines located within such Unit but serving more than
one Unit. Each Unit shall be designated by a separate number, letter, address or other synbol or
combination thereof that identifies only one Unit in the Condominium Project as more
specifically set forth on Exhibit B.
Section 2.64. "Vail Plaza Club" or "Club" means the systern of mutual use rights and
mutual obligations created and established for Owners of Club Estates pursuant to the Plan of
Club Ownership. Additional definitions relating to the Club are set forth in ARTICLE 24.
Section 2.65. "Vail Plaza Penthouse Unit" means the Condominium Unit designated as
the "Vail Plaza Penthouse Unit" in this Declaration with the prefix of 'Y" on the Map.
References to Units shall include the Vail Plaza Penthouse Unit unless the context would
prohibit or unless this Declaration expressly provides otherwise.
Section2.66. "Withdrawn Property" has the meaning given in Section 18.7 of this
Declaration.
ARTICLE 3 DIVISION OF PROJECT INTO CONDOMINIUM OWNERSHIP
Section 3.1. Division Into Condominium Units. The Property is hereby and hereafter
divided into those Units identified on Exhibits B and B-1, as amended from time to time, each
consisting of a fee simple interest in a Unit and an undivided fee simple interest in the Common
Elernents in accordance with the respective undivided interests in the Common Elements as set
forth in Exhibits B and B-1. Such undivided interests in the Common Elements are hereby
declared to be appurtenant to the respective Units. The total of the undivided interests in the
Common Elements set forth in Exhibits B and B-1, rounded to the nearest one percent (1%),
shall be deemed to equal one hundred percent (100%) for purposes of this Declmation.
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Section3.2'DelineationofUnitBoundaries'TheboundariesofeachUnitare
delineated and designate@e Map, and those numbers are set forth
in Exhibit B.
Section 3.3. lnseparability of condominium Unit. Except as provided in Section 3'5
below, and in tt " R g"G
"rrtitt"a;R"se*ation
of Development Rights," and in the Artigle
entitled "Plan of club ownership": (a) no part of a condominium unit or of the legal rights
comprising ownership of a Condtminium Unit may be partitioned-or separated from any other
part thereof during the period of condominium ownership prescribedin-this Declaration; (b) each
condominium unit shall always be conveyed, transfenid, devised, bequeathed, encumbered'
and otherwise affected only as a complete Condominium Unit; and (c) every conveyance'
transfer, gift, devise, bequei, encumbrance, or other disposition of a Condominium Unit or any
part thereof shall be presum"d to b" a disposition of the intire Condominium Unit' together with
all appurtenant rights and interests "r"ut"d
by law or by this Declaration, including the Unit
Owner's mernbership in the Association-
Section 3.4. Non-Partitionability of common Elernents. The common Elements shall
beownedincommonuvffilremainphysical1yundivided,andnoowner
shall bring any action for partition or division of the common Elements' By acceptance of a
deed or other instrument of conveyance or assignment to a Unit or Club Estate' each Owner shal1
be deemed to have specifically waived suchbwner's dght, if any, t9 institute or maintain a
partition action or any other cause of action designed to cause a division of the Common
Elements, and this Section may be pleaded as a bar io the maintenance of such an action' Any
Owner who shall institute or maintain any such action shall be liable to the Association and
hereby agrees to reimburse the Association for the Costs of Enforcement in defending any such
action. In no event shatl this Section 3.4 be deemed to prohibit a submission of a Condominium
Unit to club ownership or withdrawal of a condominium unit from the Project il accordance
with applicable provisions of this Declaration and of the Act'
fi#*ffiffi,;,h;; prioiapprorrul of the Board (which approyal-mav be withheld in the
Board's sole discretion) and the consent of all Unit Owners *a etgitt" First Mortgagees of
Units affected by such change, alter the exterior of their Units, subdivide their Units and relocate
boundaries between tirelr Uiii and an adjoining Unit and reallocate Limited Common Elements
between or among Units, subject to the provisions and requirements of this Declaration' the Act'
the Colorado Revised Nonp.ofit Corporation Act (the ;Nslp1qfiLAct")' -d any other law'
ordinance, regu.lation, or requirement of any governmental authority having jurisdiction over the
Units or the Condominium Project (colleJtively, the "Applicable-Laws"), as may be amended
and supplemented from time to ime.'Owners shill be t"tponsible for ensuring that all alterations
comply with alt Applicable Laws and that all necessary approvals are obtained from
govemmental authorities. No approval given by Declarant or the Association shall be deemed to
imply that Declarant or the Association has reviewed any applicable requirements or the
requesting owner,s compliance therewith. ln- no event shall anything in Sections 3'3, 3'4 or this
3.5 be deemed to prohibit a submission of a Unit to the Plan of dtuu ownership or withdrawal of
a unit or comrnon Elements from the project by Declarant in accordance with applicable
Section 3.5.
Adjoinine units. urrt @.Estates *hi"h 1"ip..T"1|*:J-f:
provisions of this Declaration and of the Act'
l0
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ARTICLE 4 ALLOCATED INTERESTS
Section 4.1. Allocation of Interests. The Allocated Interests assigned to each Unit in
the Condominium Project are set forth on Exhibits B and B-1. Exhibit B allocates the total
Commercial Unit Allocated Interest into fwo (2) separate Commercial Units to be described on
the Condominium Map. Exhibit B-l assigns Allocated Interests to each of the fifty (50) Club
Units in the Condominium Project. The Allocated Interests have been assigrred to Units in
accordance with the formulae set out in Section 4.2 below and on Exhibit B-1. The formulae are
to be used in reallocating interests if Units are added to the Condominium Project or if Units are
converted to Common Elements or Limited Common Elements.
Section 4.2. Formulae for the Allocation of Interests. The interests allocated to each
type of Unit have been calculated by the following formulae:
(a) Undivided lnterest in the Common Elements. The percentage
interest of the undivided interest in the Common Elements for each type of Unit (the'LelcmtaCg
lnterest") is based generally on the ratio of the floor area of each type of Unit to the total floor
area of all of the Units on the Project as shown on the Map, subject to value adjustnents for
certain Units as shown in the chart below. The value adjustments reflect the limited, special uses
of such Units.
Unit Type Square Footage
Value Adjustment
Factor
Adjusted Square
Footage of Unit Type
used to Calculate
Percentage Interest
Hotel Unit 47,415.44 0.90 42,673.90
Employee Housing
Unit
9,764.06 0.50 4,882.03
Restaurant Unit 9,340.00 0.70 6,538.00
Total Commercial
Units
2,410.15 0.70 1,687.11
Spa Unit 6,032.00 0.60 3,619.20
Management Unit 6,586.00 0.70 4,610.20
Service Unit 14,862-32 0.35 5,201.81
Parking Unit 67,844.00 0.30 243fi.20
Convention Unit 16,188.00 0.40 6,475.20
DMWEST #6310543 vs
11II
Unit Type Square Footage
Value Adiustment
Factor
Adjusted Square
Footage of Unit TYPe
used to Calculate
Percentage Interest
Catering Kitchen
Unit
2,390.00 0.40 956.00
Loading Unit 7,987.00 0.2s 1,996-75
Total Club Units 77,561.35 1.00 -7i,561.35
Vail Plaza Penthouse
Unit
6,493.00 1.00 6,493.00
O) Common Expenses Liability' The percentage of Common
Expanses Liability allocated to each Unit is equivalent to and based on each Unit's Percentage
Interest, subject to adjustments provided for in Section l2'3'
(c) Votes. Each Unit shall be allocated the portion of the voting
power in the Association equivalent to such Unit's Percentage Interest' Any specified
percentage, portion or fraction of Unit Owners, unless otherwise statgd in the Condominium
bo"rr*"it , *eans the specified percentage, portion, or fraction of all of the votes as allocated in
Exhibits B and B-1.
(d) Formula for Allocation of Interests to Club Units. The Allocated
Interest assigned to eactt- Club Unit is based upon the ratio of the floor area of each Club Unit to
the total floor area of all the Club Units as shown on the Map, subject to value adjustments for
each Club Unit as shown on Exhibit B-1. The value adjustrnents reflect the (i) size of the Club
Unit (square footage and number of bedrooms); (ii) location of th9 clu! unit within the Project
(low", o. higher flior, orientation of the Unit and views); (iii) design of the Club Unit including
iloor plan, as well as specific design feah:res such as vaulted ceilings, balconies, etc'; and (iv)
"upubility
to lock-offportions of thJ Club Unit for separate occupancy during the Club Week'
(e) Allocation of Percentage Interest in club units to club Estates-
The Allocated Interests of each club Estate have been assigned in
accordance with the Formula for Allocation of Interests to Club Estates defined in Section 24'2
below.
Section4.3, Rounding Convention. Any Allocated Interest, stated as a fraction, shall
be rounded up to the nearest one percent (17d. The total of all Allocated Interests shall be
deemed to equal to one hun&ed percent (tOO%)'for purposes gflhr.s D::laration' ln the event of
any discrepancy between the Percentage Interest *d ttt" result derived from the application of a
fonnula, because of a change in square footage of a Unit as constructed' or any other reason' the
Percentage Interest Prevails'
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Section 4.4. Effective Date of Reallocation. The effective date for reallocating
Allocated Interests to Units as a result of the exercise of Development Rights set forth in
ARTICLE l8 of this Declaration shall be the date on which the amendment required by Section
18.2 hereof is recorded in the Records.
ARTICLE 5 COMMERCIAL, RESTAURANT, SPA, COTWENTION, CATERING
IilTCiIEN, AI{D LOADING UNITS
Section5.l. Permitted Uses. Except as otherwise provided in this ARTICLE 5, the
Commercial, Restaurant, Sp4 Convention, Catering Kitchen, and Loading Units may be used for
any purposes and uses permitted by law and by Special Development Dishict 6.
Section 5.2. Rules and Rezulations. The Board may promulgate Rules and
Regulations goveming the operations of the Commercial, Restaurant, Spa, Convention, Catering
Kitchen, and Loading Units, only to the extent the operation of such Units materially affects the
Club Units or the Hotel Unit and then only to: (i) limit hours of operation when open to the
public, if applicable; (ii) prohibit amplified or exterior music after certain times; and
(iii) reasonably control odors from restaurants and other facilities. The Rules and Regulations
for such Units shall also provide a procedure whereby tJre Board, upon written request, may
waive or vary the limitations on operations of zuch Units for specific events and/or ns
circumstances otherwise allow.
Section 5.3. Commercial Activities. A variety of commercial activities are and will be
conducted in and adjacent to the Project (as further described below, the "eqrnrnerci4l
Activities"). The Commercial Activities are expected to generate an unpredictable amount of
visible, audible and odorous impacts and disturbances. The Commercial Activities may include,
without limitation: (i) office and retail uses, (ii) retail sales and rentals, (iii) restaurant and bar
operations (including without limitation, sales of food and alcoholic and non-alcoholic
beverages for consumption on and immediately adjacent to the Project and at other locations,
preparation of hot and cold food and beverages at indoor and outdoor facilities on and
immediately adjacent to the Projec0, (iv) sales of services relating to recreational activities,
(v) the installation, operation and maintenance of illuminated and non-illuminated signage,
(vi) meetings and conferences, and (vii) any other uses or activities permitted by law. The
Commercial Activities may occlu during daytime and nighttime. Cofimercial Activities within
the Units at the Project must comply with applicable laws and regulations and with Special
Development Diskict 6 requirernents.
ARTICLE 6 PARKINGUNIT
Secfion 6.1. Permitted Uses. Except as otherwise provided in this ARTICLE 6, the
Parking Unit may be used for any purposes and uses permitted by Applicable Law, including the
right of Owners and Occupants to park emergency vehicles in the Parking Unit, and by Special
Development District 6.
Section 6.2. Parking Unit Operation and Limitations. Operation of the Parking Unit
may include designated areas of the parking garage for valet parking, public parking, Club Estate
Owner parking, hotel and restaurant reserved spaces, and a designated number ofparking spaces
DMWEST #6310543 v5
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for the Vail Plaza Penthouse Unit Owner. The Parking Unit Owner may require a fee from all
users of the parking Unit and a fee from the Association or the Managing Agent for use of the
Parking unit by club Estate owners. The Parking unit owner may require valet parking for all
users.
-The Parking Unit Owner shall be required to provide:
(a)EachownerofaClubEstatewiththeuseofone(l)parkingspace
in the Parking Unit during the Club Estate Owner's Club Week(s), pursuant to the terms of the
applicable agieement betieen Declarant and the Association, so long as such an agreernent is in
effect;
(b)Atalltimes,four(a)parkingSpacesreservedandassigrredtothe
Vail Plaza Penthouse Unit Owner;
(c)SufficientaccesstoandspaceswithintheParkingUnitforuseby
the Hotel Unit Owner, Restaurant Unit Owner, Convention Unit Owner, and Management Unit
Owner and for vat"t p-king or other forms of parking as the Parking Unit Owner may determine
and agree with the Owners of such other Units; and
(d) Uses of the Parking Unit to comply with Special Development
District 6 requirernents.
ARTICLE 7 CONDOMINIUM MAP
The Map shall be filed in the Records. Any Map filed subsequent to the first Map shall
be termed a supplement to such Map, and the numericai sequence of zuch supplements shall be
shown thereon. The Map shall be dtea following substantial completion of the Improvement
depicted on the Map and prior to the convey*"" of *y unit depicted on the Map to a purchaser'
The Map shall satisfy the provisions of Section 38-33.i-209 of the Act and of Section 38-51-106'
Colorado Revised Statues.
The Map shall contain a certificate of a registered and licensed land suweyor certifuing
that the Map was prepared subsequent to the subitantial completion of the Improvements-and
contains all information r"q"ir"a ily Uris Declaration and the Act' Each supplernent shall.set
forth a like certificate when appiopriate. ln interpreting the Map, the existing physical
boundaries of each separate Unii * constructed shall be conclusively presumed -to b9-i1s
;;il;;t p.o"ia"A, ho*"1r"r, that any variation in actual as-built square footage for a Unit
shall have no effect on the Allocated Interests, as described herein.
ARTICLESLEGALDESCRIPTIONAFIDTAXATIONoFUNITS
Section 8.1.
Declaration and Map. n *.rtt*t or other agreement for the sale of a uT1,"1*"111",,tflij:
fiffiffitfiffi-u,io1in the Records may legally describe such Unit in zubstantially the
, ,,--l f,t^- ^*^ +^ I^o
manner set forth in this ARTICLE g and may indicate that this Declaration and Map are to be
recorded.
Section 8.2.
Declaration and MaP.S"U*"q*nt to the recording of this Declaration and Map,
DMWEST #6310543 v5
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contracts to
convey, instruments of conveyance of Units, and every other instrument affecting title to a Unit
shall be in substantially the following form with such omissions, insertions, recitals of fact' or
other provisions as may be required by the circumstances or appropriate to conform to the
requirements of any governmental authority, practice or usage or requirement of law with respect
thereto:
Unit , according to the Condominium Declaration for Vail
200- atPlaza Hotel Resort Club- recorded
(Reception No.) and the Condominium Map recorded
200_, at (Reception No.) in the office of the
Clerk and Recorder of Eagle County, Colorado.
Section 8.3. Convevance Deemed to Describe an Undivided Interest in Common
Elements. Every instrument of conveyance, Security lnterest, or other instrument affecting the
title to a Unit which legally describes the Unit substantially in the marurer set forth above shall
be construed to describe the Unit, together with the undivided interest in the Common Elements
appurtenant to it, and together with all fixtures and improvements contained in it, and to
incorporate all the rights incident to ownership of a Unit and all the limitafions of ownership as
described in the covenants, conditions, restrictions, easements, reservations, rights-of-way, and
other provisions contained in this Declaration, including the easement of enjoyment to use the
Common Elements.
Section 8.4. Separate Tax Assessments. Upon the filing for record of this Declaration
and the Map in the Records, Declarant shall deliver a copy of this Declaration to the assessor of
each county specified in the Records as provided by law. The lien for taxes assessed shall be
confined to the Unit(s). No forfeiture or sale of any Unit for delinquent taxes, assessments, or
other govemmental charge shall divest or in any way affect the title to any other Unit.
ARTICLE 9 T]NIT OWNERS' PROPERTY RIGHTS IN COMMON ELEMENTS
Sectiong.l. Common Elements. Every Owner shall have a perpetual non-exclusive
right and easement of access over, across, and upon any portion of the Common Elements
designated for common pedestrian use (but specifically excluding, without limitation, Common
Elements designated for maintenance, storage, utility installations and service areas), which
includes the benefit of a non-exclusive easement of access over, across and upon the Common
Elernents for the purpose of access to and from the Unit from public ways for both pedestrian
and vehicular travel, which right and easement shall be appurtenant to and pass with the transfer
of title to such Unit; provided, however, that such right and easement shall be subject to the
following:
(a) the covenants, conditions, restrictions, easements, reservations,
rights-of-way, and other provisions contained in this Declaration and the Map;
tb) the right of the Association from time to time to assigrt
equitable basis portions of the Common Elements such as storage spaces, if any,
exclusive use of the Owner of a particular Unit by an appropriate instrument in writing;
on an
for the
DMWEST #6310543 v5
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(c) the right of the Association to adopt, from time to time' any and all
rules and regulations concerning iehicular traffic and travel upon, in, under, and across the
Condominium Project;
(d)therightoftheAssociationtoadopt,fromtimetotime,anyandall
rules and regulations concerning th-e Condominium Project as the Association may determine is,
necessary or prudent for the management, preservation, safety, control, and orderly operation of
the condominium Project for the benefit of all owners, and for facilitating the greatest and most
convenient availability and use of the Units and Common Elements by Owners; and
(e) the agreement of all owners, pursuant to this Declaration, to use
reasonable and good faith efforts n6t to interfere with the usi and enjoyment of other Orvners of
the Common Elements and zuch other Owners' respective Units'
Section 9.2. Limited common Elements. Subject to the provisions of this Declaration
and the Rules and n"gotutio.,"t, """ty Owner shJl have the right to use and enjoy the Limited
Common Elements appurtenant to such Owner's Unit'
ARTICLE 10 MEMBERSIIIP AND VOTING RIGIITS IN ASSOCIATION
Section 10.1. Association Membership. The Articles of lncorporation shall be filed no
later than the date tn" rrrrt lntefest in a unit in the condominium Project is conveyed to a
purchaser. Every Owner shall be a member of the Association and shall remain a mernber for
the period of the Owner's ownership of a Unit. No Owner, whether one oI more Persons' shall
have more than one membership per Unit owned, but all of the Persons owning a unit shall be
entitled to rights of membership and of use and enjoyment appurtenant to ownership of a Unit'
Membership in the Association shall be appurtenant to, and may not be separated from,
ownership of a Unit. If title to a unit ls triia by more than one Person, such Persons shall
appoint and authorize one Person or altemate Persons to replesent the Owners of the Unit' Such
representative shall be a natural person who is an Owner, or a desigrrated board member' officer
or other authorized representative of a corporate Owner, or a general partner of a partnership
Oumer, or a comparable representatirr" of any other entity, and such representative shall have the
power to cast votes on behalf of the Owners as a member of the Association' and serve on the
Board of Directors if elected, subject to the provisions of and in accordance with the procedures
more fully described in the Bylaws. Notwithstanding the foregoing, if only one of the multiple
owners of a Unit is present at a meeting of the Association, such owner is entitled to cast the
vote allocated to that unit. If more than one of the multiple owners are present and there is no
written desigration of an authorized representative, the vote allocated to that unit may be cast
oJy i' accJrdance with the ugr"rrn"nf of a majority in interest of the Owners present, which
majority agreement may be assirmetl for all purpos"tif *y one of the multiple Owners casts the
vote allocated to that Unit without protest tein! made promptly to the person presiding over the
meeting by any of the other Owners of the Unit'
Section 10.2. Votine Riehts and Meetings. Each unit in the condominium Project shall
have the .,rot"s ullo"ut"d i.rEo.dance with Section 4.2; provided, however, no vote allocated to
a Unit or Club Estate o*n"d by the Association may be cast. Cumulative voting shall not be
allowed in the election of the Board of Directors or for any other purpose' class voting shall be
DMWEST #6310543 vs
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allowed on certain issues as described in Section 11.7. A meeting of the Association shall be
held at least once each year. Special meetings of the Association may be called (i) by the
President, (ii) by a majority of the Board of Directors, (iii) if the special meeting is being called
to address issues on which onJy the Class is entitled to vote, by Owners within the Class having
ten percent (10%) of the votes errtitled to be cast at such meeting, or (iv) by Owners having
twenty percent (20%), or any lower percentage specified in the Bylaws, of the votes in the
Association. Not less than ten (10) and no more than fifty (50) days in advance of any meeting,
the Secretary or other officer specified in the Bylaws shall cause notice to be hand delivered or
sent prepaid by United States Mail to the mailing address of each Owner. The notice of any
meeting must state the time and place of the meeting and the items on the agenda including the
general nature of any proposed amendment to this Declaration or the Bylaws, any Budget
changes, and any proposal to remove an offrcer or member of the Board of Directors. Unless the
Bylaws provide for a lower percentagg a quorum is deemed present throughout any meeting of
the Association if persons entitled to cast twenty percent (20o/o) of the votes which may be cast
for election ofthe Board ofDirectors are present, in person or by proxy, at the beginning ofthe
meeting. With respect to meetings called for issues primarily related to the Class, for which the
Owners in the Class may decide the issue voting as a Class, the presence at the beginning of the
meefing in person or by proxy of Owners within the Class possessing sufficient votes to
constitute twenty-five percent (25Yo) of the votes of all Owners within the Class shall constitute a
quonrm as to such matters conceming the Class, and such Owners in the Class present in person
or by proxy shall constitute the Owners entitled to vote upon issues that may be decided by
Owners in the Class voting as a Class presented at such meeting where a quorum is present.
Section 10.3. Meeting to Approve Annual Budeet. At the annual meeting of the
Association or at a special meeting of the Association called for such pu{pose, the Owners shall
be afforded the opportunity to ratify a Budget of the projected revenues, expenditures (both
ordinary and capital) and reserves for the Association's next fiscal year as proposed by the Board
of Directors (the "Budset"). A summary of the proposed Budget approved by the Board of
Directors shall be delivered to the Owners within ninety (90) days after its approval by the Board
of Directors along with a nofice of a meeting of the Association to be held not less *ran ten (10)
nor more than fifty (50) days after delivery of the summary to the Owners. Unless at the meeting
a Majority of Owners rejects the proposed Budget, the Budget is ratified whether or not a
quorum is present at the meeting. In the event the proposed Budget is rejected, the Budget last
ratified by the Owners continues until such time as the Owners ratify a subsequent Budget
proposed by the Board ofDirectors as provided above.
Section 10.4. Unit Owners' and Association's Addresses for Notices. All Owners of
each Unit and Club Estate shall have one and the same registered mailing address to be used by
the Association or other Owners for notices, demands, and all other communications regarding
Association matters. The Owner or the representative of the Owners of a Unit or of a Club
Estate shall furnish such registered address to the secretary of the Association within ten (10)
days after kansfer of title to the Unit or the Club Estate to such Owner or Owners. Such
registration shall be in written form and signed by all of the Owners of the Unit or the Club
Estate or by such persons as are authorized to represent the interests of all Owners of the Unit or
the Club Estate. If no address is registered or if all of the Unit Owners carurot agree, then the
address of the Unit shall be deemed their registered address until another registered address is
fumished as required under this Section 10.4. If the address of the Unit is the registered address
DMWEST #6310543 v5
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of the Owner(s), then any notice shall be deemed duly given if delivered to the principal office of
the Association. All notices and demands intended to be served upon the Board of Directors
shall be sent to the Association at the address set forth in the Articles or such other address as the
Board of Directors may designate from time to time by notice to the Owner(s).
Section 10.5. Traasfer Information. All Persons who acquire a Unit or Club Estate other
than from Declarant shall provide to the Association written notice of the Person's name,
address, Unit or Club Estate owned, date of transfer, and name of the former Owner within ten
(10) days of the date of transfer. The Person shall also provide a true and correct copy of the
recorded instrument conveying or transferring the Unit or Club Estate or such other evidence of
the conveyance or transfer as is reasonably acceptable to the Association. ln addition, the
transferor or transferee shall provide such other information as may be required pursuant to the
Bylaws and/or the Rules and Regulations or as the Association otherwise determines is necessary
or desirable in connection with obtaining and maintaining information regarding conveyances
and transfers of Units and Club Estates. The Association or Managing Agent shall have the right
to charge the Person a reasonable administrative fee for processing the transfer in the records of
the Association.
Section 10.6. Declarant Control of the Association. There shall be a Period of Declarant
Control of the Association, during which a Declarant, or persons desigrrated by the Declarant,
may appoint and remove the officers of the Association and members of the Board of Directors.
fhi perioa of Declarant Control shall commence upon filing of the Articles of Incorporation and
shall terminate no later than the earlier of,
(a)sixty(60)daysafterconveyanceofseventy-fivepercent(75%)of
the Units that may be created to Owners other than a Declarant;
(b) two (2) years after Declarant's last conveyance of a Unit in the
ordinary course ofbusiness, or
(c) two (2) years after any right to add new Units was last exercised.
Declarant may voluntarily surrender the right to appoint and remove officers and members of the
Bomd of Directors before termination of that period, but in that event the Declarant may require,
for the duration of the Period of Declarant Control, that specified actions of the Association or
Board of Directors, as described in a recorded instrument executed by the Declarant, be approved
by the Declarant before they become effective'
Section 10.7. Required Election of Unit Owners. Not later than sixty (60) days after
conveyance of twenty-five percent (25%) of thq Units that may be created by Declarant to
Owneis other than Declarant, at least one (1) member and not less than twenty-five percent
(25%) of the members of the Board of Directors shall be elected by owners other than the
beclarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Units
that may be created by Declarant to Owners other than Declarant, not less than thirty-thee and
one-third percent (33-1t3%) of the members of the Board of Directors must be elected by
Owners oiher than the Declarant. Not later than the termination of any Period of Declarant
Control, the Owners shall elect a Bomd of Directors of at least five (5) members, at least a
DMWEST #6310543 v5
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majority of whom shall be Owners other than the Declarant or designated representatives of
Owners other than Declarant. In order to assure representation of Club Members and the other
Unit Owners in the affairs of the Association and to protect the valid interests of such Owners in
the operation of the Condominium Project, following the termination of the Period of Declarant
Control, the Club Members, voting as a Class, shall be entitled to elect the greater of two (2)
members or a minimum of forty percent (40%) of the mernbers of the Board of Directors, and the
other Unit Owners shall be entitled to elect the rernaining members of the Board of Directors-
The Board of Directors shall elect the officers. The members of the Board of Directors and
officers shall take office upon election.
Section 10.8. Removal of Members of the Board of Directors. Notwithstanding any
provision of this Declaration or the Bylaws to the contrary, following notice and an opportunity
to be heard as required by this Declaration and the Act, the Owners, by sixty-seven percent
(67Vo) vote of all persons present and entitled to vote at a meeting of the Owners at which a
quonrm is present, may remove a member of the Board of Directors with or without cause, other
than a member appointed by the Declarant; provided, however, only Club Members may remove
a mernber of the Board of Directors elected by the Club Members voting as a Class pursuant to
Section 10.7 of this Declaration without cause.
Section 10.9. Requirements for Turnover of Declarant Control. Within sixty (60) days
after the Owners other than Declarant elect a majority of the members of the Board of Directors,
Declarant shall deliver to the Association (a) all properry of the Owners and of the Association
held by or controlled by Declarant, and (b) the documents, information, funds and other items
required by Section 38-33.3-303(9) of the Act, as firther specified in the Bylaws (to the extent
they are in Declarant's possession or control).
ARTICLE 11 ASSOCIATION POWERS AND DUTIES
Section 1 1.1 . Association Manasement Duties. Subject to the rights and obligations of
Declarant and other Owners as set forth in this Declaration, the Association shall be responsible
for the adminishation and operation of the Condominium Project and for the exclusive
management, control, maintenance, repair, replacernent, and improvement of the Common
Elements and the Limited Common Elements, and shall use commercially reasonable efforts to
keep the same in good, clean, attractive, and sanitary condition, order, and repair. The expenses,
costs, and fees of such management, operation, maintenance, and repair by the Association shall
be part of the Assessments, and prior approval of the Owners shall not be required in order for
the Association to pay any such expenses, costs, and fees. The Association shall establish and
maintain, out of the installments of the amual Assessments, an adequate reserve account for
maintenance, repair, or replacement of those Common Elernents that must be maintained,
repaired and/or replaced on a periodic basis. The Association shall adopt and amend Budgets for
revenues, expendifures, and reserves which will be the basis for collection of Assessments for
Common Expenses from Owners. The Association shall keep financial records sufficiently
detailed to enable the Association to comply with the requirement that it provide statements of
status of Assessments. All financial and other records of the Association shall be made
reasonably available for examination by any Owner and such Owner's authorized agents.
DMWEST #6310543 v5
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Section I1.2. Association Powers. The Association shall have, subject to the limitations
contained io thi, D""l"rutioo and the Act, the powers necessary for the administration of the
affairs of the Association and the upkeep of thJCondorninium Project which shall include, but
not be limited to, the power to:
(a)adoptandamendtheBylawsandtheRulesandRegulations;
(b) adopt and amend Budgets forrevenues, expenditures and reserves;
(c) collect Assessments Ilom Owners;
(d) zuspend the voting interests allocated to a Unit, and the right of an
Owner to cast such votes, or by proxy the votes of another, during any period in which such
Owner is in default in the payment of any Assessment, or during any time in which an Ovmer is
in violation of any otherprovision of the Condomiaium Documents;
(e) hire and discharge Managing Agents and delegate to such
Managing Agents the power and duty to enforce the Rules and Regulations and other powers and
duties of the Association, subject to the requirements of the Act;
(0 hire and discharge employees and agents, other than Managing
Agents, and independent conhactors;
(g) institute, defend or intervene in litigation or administrative
proceedings or seek inj-unctive relief for violation of this Declaration, the Bylaws or the Rules
*a n"gut'utions in the Association's name on behalf of the Association or two (2) or more Unit
Owners on rnatters affecting the Condominium Project;
(h) adjust and settle insurance claims;
(i) receive notices, join in any litigation or administrative proceeding,
and execute any and ali documents in the Association's name, on behalf of the Association, or on
behalf of the two (2) or more Owners, in connection with any change in zoning, annexation,
subdivision approval, building permit, or other type of govemmental approval required to
accomplish or maintain the purposes of the Association;
0) make contracts and incur liabilities;
(k)regulatetheuse,maintenance,repair,replacementand
modification of the common Elernents, all Association property within the condominium
project or property which serves the Condominium Project but which is outside its boundaries;
1j establish policies and procedures for entry into Units under
authority granted to the Association in the Condominium Documents for the purpose of cleaning,
maintenanle and repair (including emergency repair) and for the purpose of abating a nuisance'
or a known or suspected dangerous or unlawful activity;
DMWEST #6310543 v5
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(m) cause additional improvements to be made as part of the Common
Elements;
(n) acquire, hold, encumber, and convey in the Association's name
any right, title or interest to real property or personal property, but Common Elements may be
conveyed or subjected to a Security Interest only pursuant to the requirements ofthe Act;
(o) grant easements, including permanent easements, leases, Iicenses
and concessions, through or over the Common Elements;
(p) impose and receive a payment, fee or chmge for (i) services
provided to Owners, and (ii) for the use, rental or operation of the Common Elements (other than
for the use or rental of the Limited Common Elernents);
(q) establish from time to time, and thereafter impose, charges for lateo payment of Assessments or any other sums due and, after notice and hearing, levy a reasonable
fine for a violation of the Condominium Documents;
(r) impose a reasonable charge for the preparation and recording of
amendments to the Declaration or statements of unpaid Assessments and for services provided to
Owners:
(s) recover Costs of Enforcement for collection of Assessments and
other actions to enforce the powers of the Association, regardless of whether or not suit was
initiated;
(t) provide for the indemnification of the Association's officers and
the Board of Directors to the extent permitted by law and maintain directors' and officers'
liability inzurance;
(u) assign the Association's right to future income, including the right
to receive Assessments;
(v) except with respect to members of the Board of Directors
appointed by Declarant during the Period of Declarant Control (who may be removed only by
Declarant), declare the office of a member of the Board of Directors to be vacant in the event
such member is absent from three (3) regular meetings of the Board of Directors during any one
year period;
(w) appoint any committee as required or permitted by the Declaration
or the Bylaws, and by resolution, establish committees, permanent and standing, to perform any
of the above functions under specifically delegated administrative standards as designated in the
resolution establishing the committee;
(x) by resolution, set forth policies and procedures which provide for
corporate actions and powers which are different than those set forth in the Nonprofit Act, which
are permitted to be "otherwise set forth in the Bylaws." Such resolutions shall be given the same
force and effect as if specifically enumerated in the Declaration or the Bylaws;
DMWEST #6310543 v5
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(y) exercise any other Powers conferred by the Condominium
Documents, the Act, or the Nonprofit Act or that may otherwise be exercised by entities of the
same type as the Association under Colorado law; and
(z) enter into agreements related to the Spa Unit and the Parking Unit,
to the extent permitted under all applicable law and so long as it complies with Special
Development District 6.
Section 11.3. Actions by Board of Directors. Except as specifically otherwise provided
in this Declaration, the Bylaws or the Act, the Board of Directors may act in all instances on
behalf of the Associatioo. Und". certain circumstances, the Owners may require that certain
actions be taken by the Board of Directors, including as set forth in Section 11.8 of this
Declaration.
Section 11.4. Board of Directors Meetings. All meetings of the Board of Directors, at
which action is to be taken by vote, will be open to the Owners and agendas for meetings of the
Board of Directors shall be made reasonably available for examination by all members of the
Association or their representatives, except that meetings of the Board of Directors may be held
in executive session(s), without giving notice and without the requirement that they be open to
Owners, in the following situations:
(a) matters pertaining to ernployees of the Association or involving the
employment, promotion, discipline br dismissal of an officer, agent, or employee of the
Association;
(b) consultation with legal counsel concerning disputes that_ are -the
subject of pending, threatened or imminent court proceedings or matters that are privileged or
confidential between attorney and client;
(c) investigative proceedings conceming possible or actual criminal
misconduct;
(d) matters subj ect to specific constitutional, statutory, or judicially
imposed requirements protecting particular proceedings or matters from public disclosure;
(e)anymatterthedisclosureofwhichwouldconstitutean
unwarranted invasion of individual privacy.
section 11.5. Right to Notice and Hearins. whenever the condominium Documents
require that an uctiol be taken after "notice and hearing," the following procedr:re shall be
observed: The party proposing to take the action (e.g., the Board of Directors, a committee, an
officer, a tvtaniging Agent, "t".; rttutt give notice of the proposed action to all Unit owners
whose interests the proposing party reasonably determines would be significafttly affected by the
proposed action. The^notice-shuil b" giu* not less than three (3) days before the propgs-ed
action is to be taken. 'lhe notice shall inilude a general statement of the proposed action an{ lhe
date, time and place of the hearing. At the hearing, the affected Person shall have the rigltt'
personally or by a representative, to give testimony orally and/or in writing, subject to reasonable
rul"s of pro""dure established by the party conduiting the hearing to assure a prompt and orderly
DMWEST #6310543 v5
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resolution of the iszues. Such evidence shall be considered in making the decision but shall not
bind the decision makers. The affected Person shall be notified of the decision in the same
manner in which notice of the hearing was given. Any Owner having a right to notice and
hearing shall have the right to appeal to the Board ofDirectors from a decision of a proposing
party other than the Board of Directors by filing a written notice of appeal with the Board of
Directors within ten (10) days afterbeing notified of the decision- The Board of Directors shall
conduct a hearing within forfy-five (45) days, giving the same notice and observing the same
procedures as were required for the original hearing.
Section11.6. Par4nents to Workins Capital Account. In order to provide the
Association with adequate working capital funds, the Association may collect from purchasers at
the time of the initial sale of each Unit or Club Estate by Declarant an amount not to exceed
three (3) months' worth of annual Assessments based on the Association's Budget in effect at the
time of the sale. Such payments to this fund shall not be considered advance payments of annual
Assessments.
Section 11.7. Class of Membership. Owners of Club Estates shall make up a separate
class of voting mernbers in the Association ("elaSS") for purposes of voting on certain issues as
described below, to the extent Club Estate Owners are otherwise allowed to vote on such issues
pursuant to the Act or the Condominium Documents. The Board of Directors shall establish a
Committee for the Class and shall appoint to such Committee the members of the Board of
Directors elected by the Owners within the Class, such that there will be a Club Committee made
up of the membsrs of the Board of Directors elected by the Owners of Club Estates voting as a
Class. Actions to be taken and issues to be determined by the Board of Directors shall be
determined by the Committee to the extent such actions or issues fall within the categories of
issues described below for the Class.
(") Any issue relating solely to the Club, the Club Units or the Limited
Common Elernents appurtenant to the Club Units shall be decided by the Owners of Club
Estates, voting as a Class or by the Club Committee, as appropriate, including:
Declaration;
Club Units;
(i) all issues relating to ARTICLE 24 of this
(ii) any issue expressly relating only to the Club or the
(iii) any issue expressly relating only to the
administration and management of the Club;
(iv) any Rules and Regulations affecting only the Club
Units or Owners of Club Estates:
(v) any Assessments or items shown on the Budget that
are payable only by Owners of Club Estates; and
(vi) any issue relating to the Reservation Procedures or
the level or types of services provided to the Club.
DMWEST #63'10543 v5
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The decision on whether an issue relates solely to the Club Units or otherwise fits within the
categories of the Club Class issues described above shall be determined in the reasonable
discretion of the Board of Directors based on the provisions of the Condominium Documents.
Section 11.8. Reserved Powers; Directions to Board of Directors. Notwithstanding
anything to the contrary set forth in this Declaration, no issue, action or decision which would
operate to discriminate against any Class or otherwise interfere with the operation of the Units
owned by the Class, shall be effective without a vote or agreement of at least sixty-seven percent
(67%) of the Total Voting Power of the Class. The Board of Directors shall be required to act in
accordance with the directions of a Majority of Owners within the Class in the following
circumstances:
(a) If the Majority of Owners within the Class votes to increase the
level of serwices or make additional services available to the Class and so notifies the Board of
Directors, in writing, then the Board of Directors shall promptly take reasonable action to make
such services available or to increase the level of services and the proposed Budget will be
modified accordingly.
O) If the Majority of Omers within the Class votes to increase or add
specific items to the Budget, beyond that which is included in the first Budget adopted by the
Association, affecting only the Class or to increase reserves available only to the Class and
payable only by the Class or if the Committee for the Class proposes a Budget item or charge,
ihe Board of Directors shall be so notified in writing and the Budget proposed by the Board of
Directors pursuant to Section 10.3 for the following year shall include the requested changes.
(c) If the Majority of Owners within the Class votes to add Rules and
Regulations affecting only the Class or to increase the stringency of such Rules and Regulations
ot th" penalties for violation thereof or to change the Club's Reservation Procedures, if
applicable, and so notifies the Board of Directors, in writing, then the Board of Directors shall
act to amend the Rules and Regulations accordingly.
In addition, any issue primarily relating to a Class that requires the approval or consent of the
Board of Directors shall be deerned to include a requirement for the approval or consent of the
members of the Bomd of Directors elected by the Class. Notwithstanding anything to the
contrary set forth herein, the Board shall not be required to take any action that would cause a
breach of any legal duty of the Board or that would result in a violation of the Act or a reduction
in the level or quality of serwices or management of the Project below the level in place pursuant
to the first Budget adopted by the Association for the Project.
ARTICLE 12 ASSESSMENTS
Seetion 12.1. Commencement of Annual Assessments. Until the Association makes an
Assessment for Common Expenses, the Declarant shall pay all Common Expenses- After any
Assessment has been made by the Association, Assessments shal1 be made no less frequently
than annually and shall be based on a Budget adopted no less frequently than annually by the
Association.
DIV|WEST #6310543 v5
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Section 12.2. Annual Assessments. The Association shall levy annual Assessments to
pay for the Common Expense Liability allocated to each Unit pursuant to this Declaration. The
total annual Assessments shall be based upon a Budget of the Association's cash requirements
for upkeep of the Condominium Project including operation, maintenance, repair and
replacement of the Common Elements as required by the Act and the Condominium Documents.
Any surplus funds of the Association remaining after paynent of or provision for Common
Expenses and any prepayment of or provision for reserves shall be credited to the Unit Owners in
proportion to their Common Expense Liability or credited to them to reduce their future
Assessments for Common Expenses.
Section 12.3. Apportionment of Armual Assessments. The total annual Assessments for
any fiscal year of the Association shall be assessed to the Units in proportion to their percentage
of Common Expenses Liability as shown on Exhibit B, subject to: (a) Common Expenses which
are separately metered or assessed to the Units by third parties or pursuant to service agreements
with third parties; ft) Common Expenses associated with the operation, maintenance, repair or
replacement of Limited Common Elements which shall be assessed equally or on such other
equitable basis as the Board of Directors shall determine to the Units to which the specific
Limited Common Elements are appurtenant; (c) Common Expenses or portions thereof
benefiting fewer than all of the Units which shall be assessed exclusively against the Units
benefited; (d) ay increased cost of insuraace based upon risk which shall be assessed to Units in
proportion to,the risk; (e) any Common Expense caused by the misconduct of any Owner(s),
which may be assessed exclusively or on such other equitable basis as the Board of Directors
shall determine against such Owner(s); and (0 any expenses which are charged equally to the
Units. All such allocations of Common Expenses Liability to the Units on a basis other than the
Units' percentage of Common Expenses Liability shall be made at the sole discretion of the
Board of Directors. To the extent certain items or services benefit only the Owners if a certain
type of Unit and/or within a certain Class or Classes and/or to the extent real or personal property
owned by the Association is only available for use by or only benefits the Owners of a certain
type of Unit and/or within a certain Class or Classes, costs and expenses associated with such
items may be assessed only against the Owners of such type of Unit or within the applicable
Class(es).
Section 12.4. Special Assessments. In addition to the annual Assessments authorized
above, the Board of Directors may at any time and from time to time determine, lely, and assess
in any fiscal year a special Assessment applicable to that particular fiscal year (and for any such
longer period as the Board of Directors may determine) for the purpose of defraying, in whole or
in part, the unbudgeted cosls, fees, and expenses of any construction, reconsfuction, repair,
demolishing, replacernent, renovation or maintenance of the Condominium Project, specifically
including any fixtures and personal property related to it. Any amounts determined, levied, and
assessed pursuant to this Declaration shall be assessed to the Units pursuant to the provisions in
Section 12.3 entitled "Apportionment of Annual Assessments" set forth above.
Section 12.5. Due Dates for Assessment Payments. Unless otherwise determined by the
Board of Directors, the Assessments which are to be paid in installments shall be paid semi-
annually in advance and shall be due and payable to the Association at its office or as the Board
of Directors may otherwise direct in any Management Agreernent, without notice (except for the
initial notice of any special Assessment), on the date and in the installments determined by the
DMWEST #6310543 v5
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Board of Directors, as set forth in the Rules and Regulations. The Association shall be
responsible for charging collecting and enforcing the obligations of the Owners to pay
Asiessments, including any Assessments levied solely against any Class. If any such installment
shall not be paid when due and payable, then the Board of Directors may assess a late charge,
default interest charge (not to exceed the rate from time to time allowed by the Act or applicable
law), fee, or zuch other charge as the Board of Directors may fix by de from time to time to
cover the exha expenses involved in handling such delinquent Assessment installment- An
Owner's Assessment shall be prorated if the ownership of a Unit cornmences or terminates on a
day other than the first day or last day, respectively, of a month or other applicable payment
period. However, if the Common Expenses Liability is re-allocated, any installment(s) of an
Assessment not yet due shall be recalculated in accordance with the re-allocated Common
Expe,nses Liability.
Section 12.6. Default Assessments. All Costs of Enforcement assessed against an
Owner pursuant to the Condominium Documents, or any expense of the Association which is the
obligation of an Owner pursuant to the Condominium Documents shall become a default
Assebsment assessed against the Owner's Unit. Notice of the amount and dernand for payment
of such default Assessment shall be sent to the Owner prior to enforcing any remedies for non-
payment hereunder.
Section 12.7. Covenant of Personal Obligation for Assessments. Declarant, by creating
the Units pursuant to this Declaration, and all other Owners, by acceptance of the deed or other
instrumeni of transfer of such Owner's Unit or Club Estate (whether or not it shall be so
expressed in such deed or other instrument oftransfer), are deerned to personally covenant and
agree, jointly and severally, with all other Owners and with the Association, and hereby do so
covenant and agree to pay to the Association the (a) annual Assessments, (b) special
Assessments, and (c) default Assessments applicable to the Owner's Unit or Club Estate. No
Owner may waive or otherwise escape personal liability for the payment of the Assessments
provided for in this Declaration by not using the Common Elements, Limited Common Elements
or the facilities contained in the Common Elements or by abandoning or leasing the Unit or Club
Estate owned.
Section 12.8. Lien for Assessments: Assienment of Rents. The annual, special, and
default Assessments (including installments of the Assessments) arising under the provisions of
the Condominium Documents shall be burdens running with, and a perpetual lien in favor of the
Association upon the specific Unit to which such Assessments apply. To further evidence such
lien upon a specific Unit, the Association shall prepare a written lien notice setting forth the
description of th" Unit, the amount of Assessments on the Unit unpaid as of the date of such lien
noticg the rate of default interest as set by the Rules and Regulations, the name of the Owner or
Owneis, and any and all other information that the Association may deem proper. The lien
notice shall be sigrred by a member of the Board of Directors, an officer of the Association, or
the Managing Agent and shall be recorded in the Records. Any such lien notice shall not
constitute; condition precedent or delay the attachment ofthe lien, but such lien is a perpetual
lien upon the Unit andattaches without notice at the beginning of the first day of any period for
which any Assessment is levied. Upon any default in the payment of armual, special, or default
Assessments, the Association shall also have the right to appoint a receiver to collect all rents,
profits, or other income from the Unit payable to the Unit Owner and to apply all such rents,
DMWEST #6310543 v5
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profits, and income to the payment of delinquent Assessments. Each Unit Owner, by ownership
of a Unit, agrees to the assignment of such rents, profits and income to the Association effective
immediately upon any default in the payment of annual, special, or default Assessments.
Section 12.9. Remedies for Nonpayment of Assessments. If any annual, special, or
default Assessment (or any installment of the Assessment) is not fully paid within mi.ty 1:O;days after the same becomes due and payable, then as often as the same may happen, (a) interest
shall accrue at the default rate set by the Rules and Regulations on *y amount of the
Assessment in default plus any late fee imposed under the Rules and Regulations, accruing from
the due date until date of payment, ft) the Association may declare due and payable all unpaid
installments of the annual Assessment or any special Assessment otherwise due auring the fiscal
year during which such default occurred, (c) the Association may thereafter bring an action at
law or in equity, or both, against any Unit Oluner personally obligated to pay the same, (d) the
Association may proceed to foreclose its lien against the particular Unit pursuant to the power of
sale granted to the Association by this Declaration or in the manner and form p.oia"a by
Colorado law for foreclosure of real estate mortgages, and (e) the Association may-suspend thl
Owner's right to vote in Association matters until the Assessment is paid. An action at law or in
equity by the Association (or counterclaims or cross-claims for such relief in any action) against
an Owner to recover a moneyjudgment for unpaid Assessments (or any instalhlnt thereofl may
be commenced and pursued by the Association without foreclosing or in any way waiving thl
Association's lien for the Assessments. Foreclosure or attempted foreclosure by the Associationof its lien shall not be deemed to stop or otherwise pr"ilrrd" the Association from again
foreclo^sing or attempting to foreclose its lien for any subsequent Assessments (or installmints
thereof) which are not fully paid when due or for any subsequent default Assessments. The
Association shall have the power and right to bid in or purchase any Unit at foreclosure or other
legal sale and to acquire and hold, lease, mortgage, and to convey, or otherwise deal with the
Unit acquired in such proceedings.
Section 12-10. Purchaser's Liability for Assessments. Notwithstanding the personal
obligation of each Owner to pay all Assessments on the Unit, and notrUthstanding the
Association's perpetual lien upon a Unit for such Assessments, all purchasers of a Unit shall bejointly aad severally liable with the prior Owner(s) of such Unit for any and all unpaid
Assessments against such Unit, without prejudice to any such purchaser's right to ,""ou., fro111
any prior Unit Owner any amounts paid thereon by such purchaser. A purchaser's obligation to
pay Assessments shall commence upon the date the purchaser becomes the Owner of a Unit. For
Assessment purposes, the date a purchaser becomes the Unit Owner shall be determined asfollows: (a) in the event of a conveyance or kansfer by foreclosure, the date a purchaser
becomes the Unit Owner shall be deemed to be upon the expiration of all applicable redemption
periods; (b) in the event of a conveyance or transfer by deed in lieu of foreclosure a prr."h*o
shall be deemed to become the Ou'ner of a Unit upon the execution and delivery of thi deed or
other instruments conveying or transferring title to the Unit, irrespective of the date the deed is
recorded; and (c) in the event ofconveyance or transfer by deed, i purchaser shall be deerned to
become the Unit Owner upon the execution and delivery of the deed or other instruments
conveying or transferring title of the Unit, irrespective of the date the deed is recorded.
However, such purchaser shall be entitled to rely upon the existence and status of unpaid
Assessments as shown upon any certificate issued by or on behalf of the Association to such
named purchaser pursuant to the provisions of this Declaration.
DMWEST #6310543 v5
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n"t^t", *"fr Owner irrevocably waives the homestead exemption provided by Part 2, Article 41,
title :g, colorado Revised statutes, as amended. The Association's perpetual lien on a unit for
Assessments shall be superior to all other liens and encumbrances except the following:
(a)realpropertyadvaloremtaxesandspecialassessmentliensduly
imposed by a colorado'go.r"*-"nta-l or political subdivision or special taxing diskict, or any
other liens made superior by statute;
(b) liens recorded prior to this Declaration unless otherwise agreed by
the parties thereto; and
(c)thelienofanyFirstMortgageeexcepttotheextenttheActgrants
priority for Assessments to the Association.
Any First Mortgagee who acquires title to a Unit by virh:e of foreclosing a First Mortgage or by
virtue of a deed or assignmeni in lieu of such a foreclosure, or any purchaser at a foreclosure sale
of the First Mortgage, will take the Unit free of any claims for unpaid Assessments and Costs of
Enforcernent uguinrt the Unit which accrue prior t,o the time such First Mortgagee acquires title
to the Unit except to the extent the amount of the extinguished lien may be reallocated and
assessed to all Units as a Common Expense and except to the extent the Act grants lien priority
for Assessments to the Association. Ail other Persons not holding liens described in this Section
and obtaining a lien or encumbrance on any Unit after the recording of this Declaration shall be
deemed to consent that any such lien or encumbrance shall be subordinate and inferior to the
Association's lien for Assessments and Costs of Enforcement as provided in this Article, whether
or not such consent is specifically set forth in the instrument creating any such lien or
encumbrance.
The sale or other transfer of any Unit shall not affect the Association's lien on such Unit for
Assessments due and owing prior to the time such purchaser acquired title and shall not affect
the personal liability of eaJh O*ner who shall have been responsible for the payment thereof
except (a) as provided above with respect to First Mortgagees, (b) in the case of foreclosure of
any lien enumerated in this Section, and (c) as provided in the.next Section. Further, no such
sale or transfer shall relieve the purchaser'of u Unit from liability for, or the Unit from the lien
of, any Assessments made after the sale or transfer'
section 12.12. Staternent of status of Assessments. on or before fourteen (14) calendar
days after receipt of written notice to tft" V*"gittg Agent-or, in the absence of a Managing
Alent, to the Board of Directors and payment ofu o*Jttable fee set from time to time by the
Board of Directors, any Owner, holilei oi a Secgrity Interest, prospective purchaser of a Unit or
their desigrrees shall be furnished a statement of the owner's account setting fodh:
(a) the amormt of any unpaid Assessments then existing against a
particular Unit;
(b)theamountofthecurrentinstallmentsoftheannualAssessmerrt
and the date that the next installment is due and payable;
Section 12.11.
Assessments. ey """"ptu*" of tfre deed or other instrument of transfer.of: UT, :t,,i,9t*
DMWEST #6310543 v5
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(") the date(s) for palment of any installments of any special
Assessments outstanding against the Unit; and
(d) any other information, deemed proper by the Association,
including the amount of any delinquent Assessments created or imposed under the terms of this
Declaration.
Upon the issuance of such a certificate signed by a member of the Board of Directors, by
an officer of the Association, or by a Managing Agent, the information contained therein shall bL
conclusive upon the Association as to the Person or Persons to whom such certificate is
addressed and who rely on the certificate in good faith.
Section 12.13. Liens. Except for Assessment liens as provided in this Declaration,
mechanics' liens (except as prohibited by this Declaration), tax liens, judgment liens and other
liens validly arising by operation oflaw and liens arising under Security Interests, there shall be
no other liens obtainable against the Common Elements or against the interest of any Owner in
the Common Elements excqlt a Security Interest in the Common Elements granted by the
Association pursuant to the requirernents of the Act.
ARTICLE 13 MAINTENANCE RESPONSIBILITY
Section 13'1. Unit Orvner's Rishts and Duties with Respect to Interiors. Except as may
be provided in the purchase and sale agreement or other conveyancing documents exicuted by
Declarant in connection with sales to initial purchasers of the Units, each Owner (other than CluL
Estate Owners) shall have the exclusive right and duty to paint, tile, wax, paper, or otherwise
decorate or redecorate and to maintain and repair the interior surfaces oi the walls, floors,
ceilings, windows and doors forming the boundaries of such Owner's Unit and all walls, floors,
ceilings, and doors within such boundaries. Nofwithstanding the foregoing, no Owner shall be
permitted to install any hardwood floor or other hard surface improvernents in any Unit that
might affect adjoining Units by increasing noise or vibrations, without the prior written approval
of the Association, which approval may be denied, or conditioned, in the Associationk sole
discretion.
Section 13.2. Responsibilit), of the Unit Owner. Each Owner (but not including Ownersof Club Estates) shall, at each Owner's expense, maintain and keep in repair all fixtures,
equipment, and utilities installed and included in zuch Unit commencing at a point where the
fixtures, equipment, and utilities enter the Unit. A Unit Owner shall not allow any action or
work that will impair the structural soundness of the Improvements, impair the proper
functioning of the utilities, heating, ventilation, or plumbing systems or integrity of ift"
Improvement(s), or impair any easement or hereditament. Subject to the Association's overall
responsibility for maintenance of the Common Elements, each Unit Owner (other than Ownersof Club Estates) shall be responsible for routine maintenance and care of the walls, floors,
ceilings, windows and doors of any balcony or of any other Limited Common Elements
appurtenant and accessible only from the Owner's Unit and for keeping the same in a good,
clean, sanitary and attractive condition. An Owner ftut not including Owners of Club Esiates)
shall be responsible for repairs occasioned by casualty due to the act or negligence ofthe Unii
Owner or Occupant of the Unit except as provided in ARTICLE 20.
DMWEST #6310543 v5
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Section 13.3. Unit Owner's Neglieence. In the event that the need for maintenance'
repair, or replacement of ull or *y pottio" oi the Common Elements, including the Limited
Common Elernents, is caused througlr or by the negligent or willful act or omission of an Owner
or Occupant, then the expenses incuned by the Association for such maintenance, repair, or
replacement'shall be a peisonal obligation of such owner; and, if the owner fails to repay the
"*p*r", incurred by the Association within seven (7) days after notice to the owner of the
amount owed, then the failure to so repay shall be a default by the Owner, and such expenses
shall automatically become a default Assessment determined and levied against such Unit' or
club Estate, enforceable by the Association in accordance with this Declaration.
Section 13.4. Responsibilit-v of the Association. The Association, without the
requirement of upprorrulai th"ilr, rhull maintain and keep in good repair, rqllace, and
improve, as a Comrnon Expense, all of the Condominium Project not required in this Declaration
to be maintained and kept in good repair by an Owner or by Declarant'
ARTICLE 14 MECIIANICS' LIENS
section 14.1. Mechanics' Liens. subsequent to recording of this Declaration and the
filing of the Map lt tft. n""*at, * labor performed or materials fumished for use and
incofoorated in any Unit with the consent of or at the request o^f Se Owner or the Owner's agent,
contractor or subcontractor, shall be the basis for the filing of a lien against a Unit of any other
Owner not expressly consenting to or requesting the same, or against any interest in the Common
Elements except as to the unJivided inierest therein appurtenant to -the
Unit of tle Owner for
whom such labor shall have been performed or such *ut"tiul* shall have been fumished' Each
Owner shall indemniff and hold harmless each of the other Owners and the Association from
and against any liabiiity or loss arising from the claim of any mechanics' lien or for labor
perforired or for materials fumished in work on such Owner's Unit, against the Unit of another
b*tt"t or against the Common Elements, or any part thereof'
, Section 14.2. Enforcement bv the Association. At its own initiative or upon the written
request of any owner (tf tt* A$"rt"ti"" d"t".*in"t that further action by the Association is
propol, the Associationshall enforce the indemnity provided by the provisions of this ARTICLE
i+ fy'collecting from the Owner of the Unit oo-*hi"h the labor was performed or materials
fumished the amount necessary to discharge by bond or otherwise any such mechanics' lien' to
pay all costs and reasonable utto*ryr' feei incidental to the lierl and to obtain a release of zuch
lien. If the Owner of the Unit on which the labor was performed or materials fumished refuses
or fails to indemnisr *ithin rru" (5) days after the AsJociation shall have given notice lo _tt-"h
Owner of the total amount of the ilaim, then the failure to so indemnify shall be a default by
such Owner under the provisions of this Section 14.2, and such amount to be inderrnifred shall
automatically beeome a default Assessment determined and levied against such Unit' and
enforceable by the Association pursuant to this Declaration'
ARTICLE 15 USE RESTRJCTIONS
Section 15.1. Use of Units. Except for uses reserved to Declarant in ARTICLE 17
entitled "special O""t*uttt nlghtt *d Additionai Reserved Riglrts," and except for any uses
reserved to the Owner of the Hotel Unit, all Residential Units shall be used for dwelling purposes
DMWEST #6310543 v5
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on1y. Except as otherwise restricted herein, Owners of the Residential Units may rent or lease
the Residential Units to others for these pu4)oses and may use the Residential Units for home
occupations which do not cause unreasonable disturbance to other Owners and which are
permitted by applicable zoning codes. Each non-Residential Unit shall be used for lega1 business
or commercial putposes compatible with the operations of the Vail Plaza Hotel, which are not
otherwise prohibited under the Condominium Documents.
Section 15.2. Use of Common Elements. There shall be no obstruction of the Common
Elements, nor shall anything be kept or stored on any part of the Common Elements by any
Owner without the prior written approval of the Association. Nothing shall be altered on,
constructed in, or removed from the Common Elements by any Owner without the prior written
approval of the Association. Owners and Occupants shall not disturb, damage, or have access to,
certain restricted access areas in the Common Elements as desigrrated on the Map or in the Rules
and Regulations.
Section 15.3. Prohibition of lacreases in Insurable Risks and Certain Activities.
Nothing shall be done or kept in any Unit or in or on the Common Elements, or any part thereof,
which would result in the cancellation of the insurance on all or any part of the Condominium
Project or in an increase in the rate of the insurance on all or any part of the Condominium
Project over what the Association, but for such activity, would pay, without the prior written
approval of the Association. Nothing shall be done or kept in any Unit or in or on the Common
Elements which would be in violation of any statute, rule, ordinance, regulation, permit, or other
imposed requirement of any govemmental body having jurisdiction over the Condominium
Project. No damage to or waste of the Common Elernents shall be committed by any Owner or
Occupant, and each Owner shall indemnify and hold the Association and the other Owners
harmless against all loss resulting from any such damage or waste caused by such Owner or such
Owner's guest (including all attomeys' fees, costs and expenses incurred in the defense of claims
arising by reason of this section and incurred in establishing the right to indernnification).
Failure to so indemnifo shall be a default by such Owner under this Section. At its own initiative
or upon the written request of any Owner, if the Association determines that further action by the
Association is proper, the Association shall enforce the foregoing inderrurity as a default
Assessment levied against such Unit. ln no event, regardless of any provision to the
Condominium Documents, shall the Association or the Board of Directors be liable to anv
Person for failure to enforce the provisions ofthis Secfion.
Section 15.4. Structural Alterations and Exterior Appearance. No structural alterations
to any Unit, including the construction of any additional skylight, window, door or other
alteration visible from the exterior of the Unit or to any Common Element (except if and to the
extent expressly required to be permitted under the Act) shall be made or caused to be made by
any Owner without the prior written approval of the Declarant during the Period of Declarant
Control and, thereafter, the Association. No window coverings or other improvements,
alterafions or decorations visible from outside a Unit shall be added by an Owner without the
prior written approval of the Declarant during the Period of Declarant Control and, thereafter, the
Association. No alteration or subdivision of Units or relocation of boundaries between adjoining
Units shall be made by the Owners without the prior written approval of the Declarant during the
Period of Declarant Control and, thereafter, by the Association. The Association shall
promulgate Rules and Regulations establishing procedures for the approvals required by this
DMWEST #6310543 v5
3l
Section 15.4. Such Rules and Regulations shall include, but shall not be limited to, requirements
that the applicant submit (a) plans and specifications showing the nature, kind, shape, height'
color, maierials, and location of the proposed alterations in sufficient detail for the Association
and Declarant to review them; and (b) processing and/or review fees, which may include any
professional fees the Association or Declarant might incur in retaining architects or engineers to
ieview the plans and specifications. The Rules and Regulations shall specifically consider the
impact of the alteration on the harmony of extemal design and location in relation to surrounding
structures and topography. Unit Owners shall be responsible for ensuring that all alterations
comply with ali Applicable Laws and that all necessary approvals are obtained from
governmental authoriiiis. No approval given by Declarant or the Association shall be deemed to
imply that Declarant or the Aisociation has reviewed any applicable requirernents or the
requesting Owner's compliance therewith.
Section 15.5. Pet and Use Restrictions. No animal pens, sheds, fences or other
outbuildings or structures of any kind shall be erected by any Owner. No activity shall be
allowed *hi"h itttof"t"s unduly with the peaceful possession and proper use of the-
Condominium Project by the Owners, nor shall any fire hazard or unsiglrtly accumulation of
refuse be allowed. No lights shall be emitted which are unreasonably bright or cause
unreasonable glare; no sound shall be emitted which is unreasonably loud or annoying; and no
odor shall be emitted which is nauseous or offensive to others. No animals, birds, insects, or
livestock of any kind shall be raised, bred, or kept on or in the Condominium Project excqrt as
permitted by the Association in its sole and final discretion and except for properly licensed and
ce*ified service animals for disabled Persons. The Board of Directors may (but shall not be
obligated to) approve a request of an Owner to keep a personal household pet with such
"onditioot
as the Board of Directors in its disoetion may impose, including, without limitation,
that such pet shall be registered, licensed and inoculated as may be required by the Board of
Directors or local law from time to time, and that the Board of Directors may impose a special
Assessment on an Owner to defray the maintenance costs associated with the pet.
Notwithstanding the foregoing, the occupant of the Vail Plaza Penthouse Unit shall be allowed to
keep a ."uro.rubl" number of rt*d*a household pets without obtaining Board of Director
consent and without the obligation to pay additional maintenance costs' The pets must be kept
on a short leash when anylvhire on the Project outside of the Vail Plaza Penthouse Unit and may
be outside such Unit only for the purpose of direct transit from the Unit to the outside or parking
gaftge. The Vail Plaza Penthouse Unit Owner must ensure that all pets comply with all noise
and nuisance restrictions herein.
Section 15.6. Limit on Timesharine. No Unit Owner, excluding Declarant, shall offer or
sell any interest 11 sn"tt Unit under a "timesharing," "vacation club," "private residence club,"
.'non-equity club," "fractional plan" or "interal ownership" plan, or any similar plan without the
specific prior written "pp.ou"l of the Declarant during the Period of Declarant Control, and
thereaft er the Association.
Section 15.7. Restriction on sipns. Except with regard to the operation of the Hotel
Unit, no ,igrr, biubo*dg p*t."boards, or advertising structure of any kind shall be displayed,
erecied, orlaintained for any purpose whatsoever except such signs as have been approved by
the Declarant during the period of Declarant Control and, thereafter, the Board of Directors'
except those ""p."rrly required to be permitted under the Act (such as certain flags and political
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signs), including type, size and timing of display. Such approval shall be given only if such
signs are of attractive desigr and as small a size as reasonably possible and shall be placed or
located as directed or approved by the Board of Directors. Any sigrs which are permitted under
the foregoing restrictions shall be erected or maintained only if and to the extent they are in
compliance with all Applicable Laws.
Section 15.8. Commercial Operation. Each Owner of a Commercial Unit must comply
with the Rules and Regulations for Commercial Units as adopted from time to time by the
Association, subject to limitations on the Board's ability to promulgate Rules and Regulations
under Section 5.2. -
Section 15.9. Restrictions on Use of Parking and Storage Areas. No parking shall be
permitted at any location on the Common Elements unless specifically desigrrated for parking by
the Association, or in a location designated as Limited Common Elements and appurtenant to a
specific Unit. No storage is permitted outside of Units except in specifically designated storage
areas, if any. No Owner may use any parking or storage space assigned to another. No Owner
may use any parking space for storage or use afly parking or storage space in any manner that
obstructs or interferes with any other Owner's parking or storage rights or that constitutes a
safety hazard. Without limiting the generality of the powers of the Association with respect to
parking or storage, the Association is specifically authorized, but not obligated, to remove any
abandoned or inoperable vehicle, any vehicle parked in any area not designated for parking, or
any vehicle parked in any space that is assigned to another porson or reserved for a specific use,
or any vehicle parked in an obstructing or hazardous manner, except if and to the extent such
parking of such vehicle is expressly required to be permitted under the Act, or to remove any
improperly stored or hazardous materials, in all cases at the expense of the Owner or Occupant
that ovrms such vehicle or materials. Expenses incurred by the Association in connection with
such removal (and storage, if necessary) shall be a personal obligation of such Owner and, if the
Owner fails to pay such amount within seven (7) days after notice to the Owner of the amount
owed, then the failure to pay shall be a default by the Owner and such expenses shall
automatically become a default Assessment determined and levied against zuch Unit enforceable
by the Association as provided in this Declaration.
Section 15.10. Restrictions Not Applicable to Owner of the Hotel Unit. Notwithstanding
an1'thing in this Declaration to the contrary, no Owner or Occupant, except the Hotel Unit
owner, the Declarant, the Restaurant Unit owner, the convention unit owner, and any
Commercial Unit Owner permitted by the Association, after the Period of Declarant Control
ends, shall have any right to the sale or service of food or alcoholic beverages on the Project.
The Hotel Unit Owner may designate in writing any and all permitted providers for the sale or
service of food or alcoholic beverages on the Project. No Owner or Occupant shall do an1'thing
as may hinder or interfere with the Hotel Unit Owner's ability (or the ability of any person or
entity designated by the Hotel Unit Owner as permitted provider) to secure and maintain licenses
for the sale or service of food or alcoholic beverages. The Association shall promptly execute
such documents as may be requested by the Hotel Unit Owner, from time to fime, to further
assure the rights granted to the Hotel Unit Owner under this Section I 5.10. Notwithstanding any
restriction or limitation in this Declaration, the Hotel Unit Owner shall have the right, without
the consent or approval of the Association or other Owners, but without obligation, to (a) make
alterations, additions or improvanents, structural and nonstructural, interior and exterior,
DMWEST #6310543 v5
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ordinary and extraordinary, in, to and upon the Hotel Unit or any other Units owned by the Hotel
Unit Owner (including, without limitation, the removal of walls, floors, ceilings and other
structural portions of any improvements within such units), and (b) expand, alter, discontinue,
replace or add to all or any part of the recreational facilities or other improvements.
Section 1j.ll.District Documents. The Pmject is located in Special Development
District 6 and is subject to and govemed by vmious recorded and unrecorded documents
pertaining to such district, including but not limited to, that certain Declaration of Easements and
Rights reiorded on February 2, 1988 in Book 478,Page 377 in Records concerning parking
utiiities, easernents and. other matters within such district, and that certain Declaration
Concerning Parking Within Special Development District 6, recorded July 10, 1984, in Book
388, Page 856 in Records.
Section 15.12. Restrictions on Employee Housing Unit. The use and occupancy of the
Employee Housing Unit is limited by zoning codes and ordinances as more specifically
aescribed in the deed of conveyance of the Employee Housing Unit to the Owner of such Unit'
ARTICLE 16 EASEMENTS
Sectionl6.l. Easement of Enioyment. Every Owner shall have a non-exclusive
easement for the use and enjolnnent of the Common Elements (which includes the benefit of the
non-exclusive easement for access over, througtr and across the Limited Common Elements of
the Management Unit, Service Unit, and Convention Unit as provided under this Article), which
shall be appurtenant to and shall pass with the title to every Unit, subject to the easements set
forth in this ARTICLE 16 and the easements and restrictions set forth in ARTICLE 9 entitled
"Unit Owners' Property Rigbts in Common Elements".
Section 16.2. Delegation of Use. Any Owner may delegate, in accordance with the
Condominium Documents, the Owner's right of enjoyment in the Common Elements to an
Occupant of the Owner's Unit.
Section 16.3. Recorded Easements. The Property shall be subject to any easements as
shown on any recorded plat affecting the Property, as shown on the recorded Map or reseryed or
granted under this Declaration. The recording data for recorded easements and licenses
ippurtenant to or included in the Property or to which any part of the Property may become
suti""t is set forth on Exhibit C attached hereto and incorporated hereinby this reference.
Section 16.4-
nonexclusive easement in favor of each Owner and permitted Occupant shall exist for pedestrian
traffic over, through and across such portions of the Limited Common Elements appurtenant to
the Management Unit, Service Unit, and Convention Unit, as are designated, modified, altered
and relocated from time to time by the Owners of such Units for the purpose of providing direct
pedestrian access to and from the applicable Residential Unit and the public rights of ways
adiacent to the Project, subject to thi procedures, rules and regulations as may be established
from time to time by the Owners of such Units'
A
DMWEST #6310543 v5
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Section 16.5. Easements for Encroachments. The Condominium Project, and all
porfions of it, are subject to easements hereby created for encroachments between Units and the
Common Elements as follows:
(a) in favor of all Oumers, so that they shall have no legal liability
when any part of the Common Elements encroaches upon a Unit;
(b) in favor of each Owner, so that the Owner shall have no legal
liability when any part of such Owner's Unit encroaches upon the Common Elements ot npon
another Unit; and
(c) in favor of all Owners, the Association, and the Owner of any
encroaching Unit for the maintenance and repair of such encroachments.
Encroachments referred to in this Section 16.5 include, but are not limited to, encroachments
caused by error or variance from the original plans in the construction of the lmprovements or
any unit constructed on the Property, by error in the Map, by settling, rising, or shifting of the
larth, or by changes in position caused by repair oi recottstrucfioo ol *y part of the
Condominium Project. Such encroachments shall not be considered to be encumbiances upon
any part of the Condominium Project; provided, however, that encroachments created by the
intentional act of an Owner shall not be deemed to create an easement on the Property and shall
be considered an encroachment upon the Condominium Project. Such encroachment shall be
removed at Owner's expense immediately upon notice from the Association. In the event such
encroachment is not timely removed, the Association may effect removal of the encroachment
and the expense thereof shall be a default Assessment to the Owner.
Section 16.6. Utility Easements. There is hereby created a general easement upon,
across' over, in, and under all of the Property for ingress and egress and for installaiion,
replacement, repaf, and maintenance of all utilities and services for the Owners, including buinot limited to water, sewer, gas, telephone, electricity, cable television, cable, and other
communication systems. By virtue of this easement, it shall be expressly permissible and proper
for the companies providing such utilities to erect and maintain the neclssary equipment on the
Property and to affix and maintain electrical, communications, and telephone wires, circuits, and
conduits under the Property. Any utility or service company using this general easement shall
use its best efForts to install and maintain the utilities provided without disturbing the uses of
other utilities, the Owners, the Association, and Declarant; shall complete its installation and
maintenance activities as promptly as reasonably possible; and shall iestore the surface to its
original condition as soon as possible after completion of its work. Should any utility or service
company furnishing a service covered by this general easement request a specific easement by
separate recordable document, Declarant during the Period of Declarant Control and, thereaftei,
the Association, shall have the right and authority to grant such easement upon, across, over, or
under any part or all of the Property without conflicting with the terms hereof. The easements
provided for in this Section 16.6 shall in no way affect, avoid, extinguish, or modify any other
recorded easement on the Property.
DIVIWEST #6310543 v5
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Section 16.7. Emergency Access Easement. A general easement is hereby granted to all
police, sheriff, fire protection, ambulance, and all other similar emergency agencies or Persons to
enter upon all streets and upon the Property in the proper performance oftheir duties.
Section 16.8. Maintenance Easement. An easement is hereby granted to the Association
and any Managing Agent and their respective officers, agents, employees and assigns upon,
across, over, in, and under the Common Elements and a right to make such use of the Common
Elements as may be necessary or appropriate to perform the duties and functions which they are
obligated or permitted to perform pursuant to this Declaration.
Section 16.9. Easements of Access for Repair. Maintenance. and Emergencies. Some of
the Common Elements, including Limited Common Elernents, are or may be located within the
Units or may be conveniently accessible only through the Units. The Hotel Unit Owner and the
Association shall have the irrevocabte right (but not the obligation), to be exercised by the
Association as the Owners' agent, to have access to each Unit, excqrt the Vail Plaza Penthouse
Unit, and to all Common Elements from time to time during such reasonable hours as may be
necessary for the maintenance, repair, removal, or replacement of any of the Common Elements
therein or accessible therefrom or for making emergency repairs therein necessary to prevent
damage to the Common Elements or to any Unit. Unless caused by the negligent or willful act
or omission of an Owner or Occupant, damage to the interior of any part of a Unit resulting from
the maintenance, repair, emergency repair, removal, or replacement of any of the Common
Elements or as a result of emergency repair within another Unit at the instance of the Association
or of the Owners shall be a Common Expense. In order to effectuate this right, the Association
shall retain a master key, in the form of a card which opens all doors within the Project or other
access device, including all Units and an Owner shall not tamper with the cardreader on any
door, including a door to or within such Owner's Unit.
Section 16.10. Pedeshian Easements. The Declarant and/or the Association may grant
certain easements to the public and/or adjacent property owners relating to the Commercial
Activities, the Convention Unit, the Spa Unit, the Hotel Unit, the Restaurant Unit, the Parking
Unit, the Loading Unit, and/or the Commercial Units. Such easements shall be depicted on the
Map or otherwise recorded against the Property.
Secfion 16.11. Easernents Deemed Created. All conveyances of Units hereafter made,
whether by Declarant or otherwise, shall be construed to grant and reserve the easements
contained in this ARTICLE 16, even though no specific reference to such easernents or to this
ARTICLE 16 appears in the instrument for such conveyance.
Section 16.12. Easernent for Warranty Work. To the extent that and for as long as
Declarant remains liable under any warranty, whether statutory, express or implied, for any act
or omission of Declarant in the development, construction, sale and marketing of the
Condominium Project, then Declarant and its contractors, agents and designees shall have the
right, in Declarant's sole discretion and from time to time, to enter the Property for the purpose
of making any necessary inspections, tests, repairs, improvements and/or replacements required
for the Declarant to fulfill any of its warranty obligations. Failure of the Association or any
Owner to grant such access may result in the applicable warranty being nullified and of no
further force or effect.
DMWEST #6310543 v5
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Section 16.13. Reserved Easement of Hotel Unit Owner. There is reserved to the Hotel
Unit Owner, its express successofii, transferees, designees, agents, assigrrs and colicensees, the
exclusive right to provide room service and any other hotel services on the Project, including the
non-exclusive right to sell, serve and deliver alcoholic beverages of every kind and character to
and within all portions of the Project, specifically including the Management Unit, Service Unit,
Spa Unit, Convention Unit, Residential Units, Commercial Units, the Common Elements, and all
Limited Common Elernents appurtenant to such Units. The exercise or grant of such exclusive
and non-exclusive rights shall not be deemed to preclude, prevent or prohibit other uses of the
Common Elements or the Units not in conflict with such exclusive and non-exclusive rights (for
example, the Restaurant Unjt may include a bar and the service and sale of alcoholic beverages
and the Convention Unit Owner may serve and sell alcoholic beverages to Convenfion
attendees). Grantees of any interest in the Project, by acceptance of any deed, lease or license,
shall be and are hereby bound by such reservations of rights.
Section 16.14. Additional Easements. In the event an additional easement is reasonably
requested by an Owner or the Association for purposes consistent with the intent of this
Declaration, each Owner and the Association, as applicable, will act reasonably and in good faith
in waluating the request and will not unreasonably withhold its consent to the granting of any
such easement.
ARTICLE 17 SPECIAL DECLARANT RIGHTS AND
ADDITIONAL RESERVED RIGHTS
Section 17.1. Special Declarant Rights. Declarant hereby reseryes the right, from time
to time, to perform the acts and exercise the rights hereinafter specified (the ..SpeglellDgSle&d
Rlg!ts'). Declarant's Special Declarant Rights include the following:
(a) Completion of Improvements. The right to complete
Improvements indicated on Plats and Maps filed with this Declaration.
(b) Exercise of Development Rights. The right to exercise any
Development Right reserved in ARTICLE l8 of this Declaration.
(c) Sales, Management and Marketing. The right to locate, relocate
and maintain sales offtces, managernent offices, signs advertising the Condominium Project, and
models within any Unit or Units and in the Common Elements. Declarant shall have the right to
show Units and the Common Elements to prospective purchasers and to arrange for the use of
any parking, storage, or recreational facilities within the Common Elements by prospective
purchasers.
(d) Construction Easements. The right to use easements through the
Common Elements for the purpose of making Improvements within the Condominium Project.
(e) Master Association. The right to make the Condominium Project
subject to a Master Association.
(0 Control of Association and Board of Directors. The right to
appoint or remove any officer of the Association or any member of the Board of Directors.
DMWEST #6310s43 vs
(g) Amendment of Declaration. The right to amend this Declaration in
connection with the exercise of any Development Rights.
(h) Amendment of Map. The right to amend the Map in connection
with the exercise of aay Development Riglrts.
(i) Signs. The right to maintain signs on the Common Elements
advertising the Condominium Project, the Vail Plaza Hotel, the Vail Plaza Club, and any
exchange program coDrected with the Club.
1j; Post-Sales. The right to use the Common Elements to maintain
customer relations and provide post-sale and re-sale services to Owners of Club Estates.
(k) Beverage Stand. The right to establish, operate, and maintain a bar
or other beverage stand, providing alcoholic and/or nonalcoholic beverages open to the public
and to Owners and Occupants and which may be located in any of the common areas including
Common Elements and may convert such area into a Limited Common Element of the
Management Unit, Service Unit, or any other Unit owned by Declarant.
0) Merger. The right to merge or consolidate a project with another
project of the same form of ownership.
(rn) Parking/Storage. The right to use and to allow others to use all
parking and storage areas in connection with its mmketing efforts'
Section 17.2. Additional Reserved Rights. In addition to the Special Declarant Rights
set forth in Section 17.1 above, Declarant also reserves the following additional rights (the
"Additional Reserved fu phts"):
(a) Dedications. The right to establish, from time to time, by
dedication or otherwise, utility and other easernents for purposes including but not limited to
Streets, paths, walkways, ski-ways, drainage, recreation areas, parking areas, driveways, ducts,
shafts, hues, conduit installation areas, and to create other reservations, exceptions and
exclusions for thebenefit of and to serye the Unit Owners within the Condominium Project.
(b) Use Agreements. The right to enter into, establish, execute,
amend, and otherwise deal with contracts and agreements for the use, lease, repair, maintenance
or regulation of parking and/or recreational facilities, which may or may not be a part of the
condominium Project for the benefit of the owners and/or the Association.
(") Easernent Rights. The rights to an easement through the Common
Elernents as may be reasonably necessary for the purpose of discharging Declarant's obligations
arising under this Declaration or the AcL
(d) Club Weeks. The right to establish and change the number of Club
Estates (as defined below) in each Club Unit.
DMWEST 1i6310543 v5
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(e) Other Rights. The right to exercise any Additional Reserved Right
created by any other provision of this Declaration or of the Act.
Section 17.3. Limitations on Spsq_ial Declarant Riqhts itional Reserved fugllts.
Unless sooner terminated by an amendment to this Declaration executed by the Declarant, any
Special Declarant Right or Additional Reserved Rights may be exercised by the Declarant so
long as the Declarant (a) is obligated under any warranty or obligation; (b) holds a Development
Right; (c) owns any Unit or any interest therein, including, without limitation, Club Estates
created pursuant to the Plan of Club Ownership; or (d) holds a Secwity Interest in any Unit(s);
provided, however, all Special Declarant Rights and Additionat Reserved Rights shall terminate
thirty (30) years after the date of recording this Declaration. Earlier termination of certain rights
may occur pursuant to requirements of the Act.
Section 17.4- Interference with Special Declarant Riehts. Neither the Association nor
any Unit Owners may take any action or adopt any rule and/or regulation that will interfere with
or diminish any Special Declarant Rights or Additional Reserved Rights without the prior written
consent of the Declarant.
Section 17.5. Rishts Transferable. Any Special Declarant Rights or Additional
Reserved Right created or reserved under this ARTICLE 17 for the benefit of Declarant may be
transferred to any Person by an instnrment describing the rights transferred and recorded in the
Records. such instrument shall be executed by the transferor and the hansferee.
ARTICLE 18 RESERVATION OFDEVELOPMENT RIGHTS
Section 18.1. Development Rights. Declarant expressly reserves the right to create
Units, Common Elements and Limited Common Elements (the "Additional Improvements") to
combine Units, to subdivide Units, to convert Units into Common Elements, to convert Common
Elements into Units, and to allocate Real Estate as Limited Common Elements on all or any
portion of the Real Estate reserved for future development in this Declaration. Declarant may
exercise any or all of the Development Rights so reserved at any time with respect to all or any
of the Real Estate marked subject to Development Rights in this Declaration. No assurances are
made with respect to the boundaries of any parcels that may be developed or the order in which
the parcels may be developed. Exercise of a Development Right with respect to any one parcel
does not require exercise of a Development Right on any other parcel of Real Estate subject to
Development Rights. No assurances are made, however, that any further development will
occur. Declarant expressly reserves the right to withdraw all or any portion ofthe Property that
is designated as subject to withdrawal in this Declaration from the Condominium Project by
recording a document evidencing such withdrawal in the Records; provided, however, that no
portion of the Property may be withdrawn after a Unit in that portion of the Property has been
conveyed to a purchaser. The Real Estate withdrawn from the Condominium Project shall be
subject to whatever easements, if any, are reasonably necessary for access to or operation of the
Condominium Project. Declarant shall prepare and record in the Records whatever documents
are necessary to evidence zuch easements and shall amend Exhibit C to this Declaration to
include reference to the recorded easement. The Declarant alone is liable for all expenses in
connection with Real Estate subject to Development Rights.
DMWEST #6310543 v5
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Section 18.2. Amendment of Declaration. If Declarant elects to submit the Additional
Improvernents to this Declaration, or to subdivide or to convert Units or Common Elements, then
at such time as construction of the Additional Improvements is zubstantially complete Declarant
shall record an amendment to this Declaration reallocating the Allocated Interests so that the
Allocated Interests appurtenant to each Unit will be apportioned according to the total number of
Units submitted to this Declaration. The Allocated Interests apportioned to each Unit in the
Condominium Project, shall be based on the formulae set forth in Section 4.2. Mere subdivision
of a Unit shall not affect the Allocated lnterests of any Unit not included in such subdivision.
The Amendment to this Declaration shall contain at a minimum a legal description of the Real
Estate on which the Additional Improvements being zubmitted.to this Declaration are located
and a schedule of the Allocated Interests appurtenant to the Units in the Condominiurn Project.
Section 18.3. Supplement to the Map. Declarant shall, contemporaneously with the
amendment of this Declaration, file a supplement to the Map showing the location of the
Additional Improvements or the construction, combination, subdivision, conversion or allocation
of Units or Common Elements allowed by this Article. The supplement to the Map shall
substantially conform to the requirements contained in this Declaration.
Section 18.4. Interpretation. Recording of amendments to this Declaration and
supplernent to the Map in the Records shall automatically:
(4 vest in each existing Owner the reallocated Allocated lnterests
appurtenant to each Owner's Unit; and
(b) vest in each existing holder of a Security lnterest a perfected
Secwity lnterest in the reallocated Allocated Interests appurtenant to the encumbered Unit.
Upon the recording of an amendment to this Declmation, the definitions used in this Declaration
shall automatically be extended to encompass and to refer to the Properfy, as expanded' The
Additional Improvements shall be added to and become a part of the Project for all purposes. All
conveyances of Units after such expansion shall be effective to transfer rights in all Common
Elements as expanded, whether or not reference is made to any amendment to this Declaration or
suppleraent to the Map. Reference to this Declaration and Map in any inskument shall be
deemed to include all amendments to this Declaration and supplements to the Map without
specifi c reference thereto.
Section 18.5. Maximum Numbe.r of Units. The maximum number of Units in the
Condominium Project shall not exceed three hundred (300) Units, or, if allowed by the Act, the
maximum number of Units allowed by any governmental entity having jurisdiction over the
Property, pursuant to any development plan for the Property, if any. Declmant shall not be
obligatid to expand the Condominium Project beyond the number of Units initially submitted to
this Declaration.
Section 18.6. Construction Easement. Declarant expressly reserves the right to perform
waranty work, and repairs and construction work and to store materials in secure areas, in Units
and in Common Elements, and the fufure right to control such work and repairs, and the right of
access thereto, until its completion. All work may be performed by Declarant without the
DIVMEST #6310543 v5
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consent or approval of any Unit Owner or First Mortgagee or holder of a Security Interest.
Declarant has such an easement through the Common Elements as may be reasonably necessary
for the purpose ofdischarging Declarant's obligations and exercising Declarant's reserved rights
in this Declaration. Such easernent includes the right to construct underground utility lines,
pipes, wires, ducts, conduits, and other facilities across the Property not designated as reserved
for future development in this Declarafion or on the Map for the purpose of fumishing utility and
other services to buildings and improvements to be constructed on any of the Property reserved
for future development. Declarant's reserved construction easement includes tha right to grant
easements to public utility companies and to convey improvements within those easements
anywhere in the Common Elements not occupied by an Improvement containing Units. If
Declarant grants any such Exhibit C easements, Exhibit C to this Declaration will be amended to
include reference to the recorded easement.
Section 18.7. Reciprocal Easements. If property is withdrawn from the Condominium
Proj ect ("WilhdrA.w! lpperty") :
(a) the owner(s) of the Withdrawn Property shall have whatever
eassments are necessary or desirable, if any, for access, utility service, repail maintenance and
emergencies over and across the Condominium project; and
(b) the Unit Owner(s) in the Condominium Project shall have
whatever easements are necessary or desirable, if any, for access, utility service, repair,
maintenance, and emergencies over and across the Withdrawn property.
Declarant shall prepare and record in the Records whatever documents are necessary to evidence
such easements and shall amend Exhibit C to this Declaration to include reference to the
recorded easement(s). Such recorded easement(s) shall specify that the owner(s) of the
Withdrawn Property and the Unit Owners in the Condominium Project shall be obligated to pay
a proportionate shme of the cost of the operation and maintenance of any easements utilized by
either one of them on the other's property upon such reasonable basis as the Declarant shall
establish in the easement(s). Preparation and recordation by Declarant of an easement pursuant
to this Section 18.7 shall conclusively determine the existence, location and extent of the
reciprocal easements that are necessary or desirable as contemplated by this Section 18.7.
Section 18.8. Termination of Development Riphts. The Development Rights reserved to
Declarant, for itself, its zuccessors and assigns, shall expire thirty (30) y"*r ufto the date of
recording this Declaration in the Records, unless the Development Rights are reinstated or
extended by the Association, subject to whatever terms, conditions, and limitations the Board of
Directors may impose on the subsequent exercise of the Development by Declarant. Declarant
may at any time release and relinquish some or all of the Development Rights with respect to all
or any part of the Real Estate subject to such rights by instrument executed by Deciarant and
effective when recorded in the Records. Upon the expiration or other termination of the
Development Rights, any Real Estate then subject to such rights shall become Common
Elements or Units, as applicable.
Section 18.9' Interference With Development Rie*rts. Neither the Association nor anyUnit Owner may take any action or adopt any rule or regulation that will interfere with or
DMWEST #6310543 v5
4l
diminish any Development Rights reserved by this ARTICLE 18 without the prior written
consent of the Declarant.
Section 18.10. Transfer of Development Rights. Any Development Riglrts created or
reserved under this ARTICLE 18 for the benefit of Declarant may be transferred to any person
by an inskument expressly describing the rights transferred in whole or in part and recorded in
the Records. Such instrument shall be executed by the transferor Declarant and the transferee.
ARTICLE 19INSURANCE
Section 19. I . Coverase. Commencing not later than the first conveydnce of a Unit to a
purchaser and to the extent reasonably available, the Association shall obtain and maintain
in"*ance coverage as set forth in this Article. The Association shall have the power and
authority to obtain additional policies or coverages not specified herein in the Board's discretion.
Ifsuch insurance is not reasonably available, or ifany policy ofsuch insurance is canceled or not
renewed without a replacernent policy, or if the Board of Directors determines that any insurance-
described herein wili not be maintained, the Board of Directors shall promptly cause notice of
that fact to be delivered to all Owners and Eligible First Mortgagees at their respective last
known addresses.
(a) Property lnsurance. The Association shall maintain property
insurance on the Condominium Project for broad form covered causes ofloss in an amount not
less than the fu1l insurable replacement cost of the insured property less applicable deductibles at
the time insurance is purcliased and at each renewal date, exclusive of land' excavations,
foundations, and other items normally excluded from property insurance policies.
O) Liability Insurance. The Association shall maintain commercial
general liability insurance against claims and liabilities arising in connecfion with the ownership,
existence, use, or managem-nt of the Condominium Project, insuring the Board of Directors, the
Association, the Managfng Agent, and their respective employees, agents and all persons acting
as agents. ihe Oeclarant rnflt t" included as an additional insured in such Declarant's capacity
as an Owner and member of the Board of Directors. Owners shall be included as additional
insureds but only for claims and liabilities arising in connection with the ownership interest in,
existence or management of the Common Elernents or membership in the Association- The
insurance shall cover claims of one or more insured parties against the other insured parties.
(c) Ficlelity Insurance. The Association shall maintain fidelity
insurance on all persons who control or disburse funds of the Association- Coverage shall not be
less in the aggregate than two (2) months' current Assessments plus reserves, as calculated from
the current e"ag"t of the Association. Any person ernployed as an independent contractor by the
Association, including the Managing Agent must obtain and maintain fidelity insurance.in like
amount for the benefit of the essoc;ation unless the Association names such person as an insured
employee in the policy of fidelity insurance specified above'
(d)otherlnsurance.TheBoardofDirectorsmayalsoprocufe
insurance against srrch additional risks of a type normally carried with respect to properties of
DMWEST #0310543 v5
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comparable character and use that the Board of Directors deems reasonable and necessary in
order to protect the condominium Project, the Association and the Unit owners.
(e) Unit Owners' Policies. Each Owner, excluding CIub Unit Owners,
may obtain additional property insurance at their own cost for their own benefit covering ali
personal property within their own Unit. A11 such policies shall contain waivers of subroga-tion
and provide further that the liability of the carriers issuing inswance to the Association hereunder
shall not be effected or diminished by reason of any such insurance carried by *y Unit Owner.
Each Owner waives and releases all claims against the Association to the extent such claim is
covered by applicable insurance policies, regardless of whether damage, loss, or injury arose
from the negligence or breach of any agreement by the Association. -Each Owneg-excluding
Club Unit Owners, acknowledges that insurance obtained by the Association does not obviate the
need for an Owner to obtain separate insurance for their own benefit. Each Owner, other than
Club Unit Owners, shall also obtain general liability insurance at their own cost for their own
benefit covering their own operations and activities within their own Unit. Such coverage shall
also extend to cover any legal liability imposed on an Owner due to an Owner's interest in the
Common Elements or membership in the Association.
(0 Claims by Owner. A Unit Owner may file a claim against thepolicy of the Association to the same extent, and with the same effect, as if the unit o*n", *o" u
named insured if the following conditions are met: (a) the Unit Owner has contacted the Board ofDirectors or Managing Agent in writing, and in accordance with any applicable association
policies or procedures for owner-initiated insurance claims, regarding ttre iuqect matter of theclaim, (b) the Unit Owner has given the Association at leasif,rteen its; days to respond inwriting, and, if so requested, has given the Association's agent a reasonabll opportunity toinspect the damage, and (c) the subject matter of the claim falls within the Association's
insurance responsibilities. The Association's insurer, when determining premiums to be charged
to the Association, shall not take into account any request by a Unit Owner for a clarification of
coverage.
Section 19.2' Required Provisions. All insurance policies carried by the Association
pursuant to the requirements of this ARTICLE 19 must provide that:
(a) each Unit Owner and each Eligible First Mortgagee is an insuredperson under the policy with respect to liability arising out of such Owner's interest in the
Common Elernents or membership in the Association;
_ (b) the insurer waives its rights to subrogation under the policy against
any Owner ormember of an Owner's household;
(c) no act or omission by aoy owner or Eligible First Mortgagee,
unless acting within the scope of such Owner's authority on behalf of the Association, will void
the policy or be a condition to recovery under the policy;
- (d) if, at the time of a loss under the policy, there is other insurance in
the name of an Owner covering the risks covered by the policy (ottrei than a Unit Owner's policy
covering such Owner's personal property), the Association's policy provides primary insurance;-
DMWEST ti63'10543 v5
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(e) any loss covered by the policies must be adjusted with the
Association;
(t the insurance proceeds for any loss (other than for a Unit Owner's
personal property) shall be payable to an insurance trustee designated for that purpose, or
otherwise to the Association and not to any holder of a Security lnterest;
(g) the insurer shall issue certificates or mernoranda of insurance to the
Association and, upon request, to any Owner or holder of a Security Interest; and
(h) the insurer issuing the policy may not cancel or refuse to ren'ew it
until thirty (30) days after notice of the proposed cancellation or non-renewal has been mailed to
the Association and any Owner(s) and holder(s) of Security lnterests to whom a certificate or
memorandum of insurance has been issued at their respective last known addresses.
Section 19.3. Adjustment of Claims. The Association may adopt and establish written
nondiscriminatory policies and procedures relating to the submittal of claims, responsibility for
deductibles, and any other matters of claims adjustment. To the extent the Association settles a
property insurance claim, it shall have the authority to assess negligent Unit Owners causing
such loss or benefiting from such repair or restoration all deductibles paid by the Association. In
the event more than one Unit is damaged by a loss, the Association in its reasonable discretion
may assess each Unit Owner a prorata share of any deductible paid by the Association.
Section 19.4. Conies of Policies. A copy of each insurance policy obtained by the
Association shall be made available for inspection by any Unit Owner at reasonable times.
ARTICLE 20 RESTORATION UPON DAMAGE ORDESTRUCTION
Section20.l. Duty to Restore. Any portion of the Condominium Project, for which
insurance is required under the Act or for which insurance carried by the Association is in effect,
that is damaged or destroyed must be repaired or replaced promptly by the Association unless:
(a) the Condominium Project is terminated;
(b) repair or replacement would be illegal under a state statute or
municipal ordinance governing health or safety;
(c) sixty-seven percent (67%) of the Unit Owners, including every
Owner of a Unit or assigned Limited Common Elernent that will not be rebuilt, vote not to
rebuild, or
(d) prior to the conveyance of any Unit to a purchaser, the holder of a
Security Interest on the damaged portion of the Condominium Project rightfully demands all or a
substantial part of the insurance proceeds.
In the event the Condominium Project is not repaired or replaced as allowed by Subsections (a),
O) and (c) above, then the Real Estate in the Condominium Project shall be sold and the
DMWEST 1t6310543 v5
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proceeds distributed pursuant to the procedures provided for in the Act for termination of
condominium projects.
Section 20.2. Cost. The cost of repair or replacement in excess of insurance proceeds
and reserves is a Common Expense.
Section 20.3. Plans. The Property must be repaired and restored in accordance with
either the original plans and specifications or other plans and specifications which have been
approved by the Board of Directors and any percentage of Owners required to approve the same
under the Act.
Section 20.4. Replacement of Less Than Entire Propeqy. If the enfire Condominium
Project is not repaired or replaced, the insurance proceeds attributable to the damaged Common
Elernents shall be used to restore the damaged area to a condition compatible with the remainder
of the Condominium Project and, except to the extent that other percons will be distributees:
(a) the insurance proceeds attributable to a Unit and Limited Common
Elements that are not rebuilt must be distributed or credited to the Unit Owner of the Unit and
the Unit Owner of the Unit to which the Limited Common Elements were allocated, or to holders
of Security lnterests, as their interests may appear;
(b) the rernainder of the proceeds must be distributed or credited to
each Unit Owner or holders of Security Interests, as their interests may appear, in proportion to
the Allocated Interests in the Common Elements of all the Units; and
(c) if the Unit Owners vote not to rebuild a Unit, the Allocated
Interests of the Unit are reallocated upon the vote as if the Unit had been condemned, and the
Association promptly shall prepare, execute and record an amendment to this Declaration
refl ecting the reallocations.
Section 20,5. lnsurance Proceeds. The insurance trustee, or if there is no insurance
trustee, then the Board of Directors, acting by the President, shall hold any insurance proceeds in
trust for the Association, Unit Owners and holders of Security Interests as their interest may
appear. Subject to the provisions ofthe Sections above, the proceeds shall be disbursed first for
the repair or restoration of the damaged Property, and the Association, Unit Owners and holders
of Security Interests are not entitled to receive payment of any portion of the proceeds unless
there is a surplus ofproceeds after the Property has been completely repaired or restored, or the
Condominium Project is terminated, in which event the surplus proceeds will be distributed as
provided in this Declaration and the Act. Except as otherwise provided by the Acq no provision
of this Declaration, the Bylaws, or the Rules and Regulations, shall be construed to grant to any
Owner, or to any other party, any priority over any rights of any First Mortgagees pursuant to the
terms of their Security Interests in the case of the distribution to Owners of insurance proceeds or
condernnation awards for losses to or a taking of Units and/or the Common Elemints or any
portions thereof.
Section 20.6. Certificates by the Board of Directors. The insurance trustee, if any, may
rely on the following certifications in writing made by the Board of Directors:
DMWEST #6310543 vs
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(a) whether or not damaged or destroyed Property is to be repaired or
restored; and
(b) the amount or amounts fo be paid for repairs or restoration and the
names and addresses of the parties to whom such amounts are to be paid.
Section 20.7. Certificates by Attorneys or Title Insurance Companies. If payments are
to be made to Unit Owners or holders of Security Interests, the Board of Directors, and the
insgrance trustee, if any, shall obtain and may rely on a title insurance company or attomey's
certificate of title or a title insurance policy based on a semch of the Records from the date of
recording of this Declaration stating the names of the Unit Owners and the holders of Security
Interest.
ARTICLE 21 CONDEMNATION
If all or part of the Condominium Project is taken by any power having the authority of
erminent domain, all compensation and damages for and on account of the taking shall be payable
in accordance with the provisions on eminent domain in the Act-
ARTICLE 22 MORTGAGEE PROTECTIONS
Section22.l. Introduction. This ARTICLE 22 establishes certain standards and
covenants which are for the benefit of First Mortgagees. This ARTICLE 22 is supplemental to,
and not in substitution for, any other provisions of this Declaration, but in the case of any
conflict, this Article shall control.
Section 22.2. Percentage of First Mortgagees. Unless specifically provided otherwise,
wherever in this Declaration the approval or consent of a specified percentage of Eligible First
Mortgagees is required, it shall *"* th" approval or consent of sixty-seven percent \61%) ott!e-
Total-Gting power of Eligible First Mortgagees. Each Eligible First Mortgagee shall be entitled
to the samJvoting powerk held by the encumbered Unit or Club Estate for each Unit or Club
Estate held as security by such Eligible First Mortgagee-
section 22.3. Notice of Actions. If requested in writing to do so, the Association shall
give prompt written notice of the following to each Eligible First Mortgagee making such
request:
(a)anycondernnationlossoranycasualtylosswhichaffectsa
material portion of the Common Elements or any Unit in which an interest is held by the Eligible
First Mortgagee;
(b)arrydelinquencyinthepal.rnentofAssessmentswhichremains
uncured for sixty (60) days by an Owner whose Unit or Club Estate is encumbered by a Security
Interest held by such Eligible First Mortgagee;
(") any lapse, cancellation, or material modification of any insurance
policy or fidelity bond maintained by the Association;
DIVIWEST #6310543 v5
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(d) any proposed action which would require the consent of Eligible
First Mortgagees as set forth in this Article;
(e) any judgment rendered against the Association having a material
effect on the ability of the Association to perform its obligations herewith;
and
(0 a copy of any financial statement of the Association;
(g) a copy of all notices of Association meetings delivered to Owners;
(h) a copy of any proposed amendment to the Articles of Incorporation
or Bylaws of the Association at least ten (10) days prior to its enactrnent.
Section 22.4. Consent Required. The Association may not take any of the following
actions, except as such rights have been specifically reserved by Declarant under the provisioni
of this Declaration, without the consent of sixty-seven percent (67%) of theTotal Voting power
of the Eligible First Mortgagees:
(a) sale, conveyance or encumbrance of the Common Elements
(provided, however, that the granting of easements for public utilities, for construction and
maintenance of roads within the Condominium Project, or for other purposes provided for in this
Declaration will not be deemed a transfer within the meaning of thisilause);
_ (b) restoration or repair of the Condominium Project (after hazard
damage or partial condemnation) in a manner other than that specified in this Declaration;
(c) termination of this Declarafion for reasons other than substantial
destruction or condemnation, subject to the approval percentages required for such termination;
(d)
interest community; or
merger of the Condominium Project with any other common
(e) any action not to repair or to replace the Common Elements except
as permitted in this Declaration.
Section 22-5. Notice of Objection. Unless an Eligible First Mortgagee provides the
Secretary of the Association with written notice of its objection, if any, to any proposed
amendment or action requiring the approval of Eligible First Mortgag""t *ithi., tfulrty qiOj aaysfollowing the receipt of notice of such proposed amendment oi action, the ftigiUte Eiist
Mortgagee will be deemed conclusively to have consented to or approvetl the proposed
amendment or action.
Section 22.6. First Mortgagees' Rights.
: (a) Advances. First Mortgagees, jointly or singly, may pay taxes or
other charges which are in default and which may or have become a charge againit any of the
Common Elements or improvernents thereon, and may pay overdue premiums on hazard
DMWEST #6310543 v5
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insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for the
Common Elements. First Mortgagees making such payments shall be owed immediate
reimbursement from the Association.
(b) Cure Rights. First Mortgagees shall be entitled to cure any
delinquency of the Unit Owner encumbered by a First Mortgage in the payrnent of Assessments.
In that event, the First Mortgagee shall be entitled to obtain a release from the lien imposed or
perfected by reason ofsuch delinquency.
(c) Mortgagee lnspection. First Mortgagees shall have the right to
examine the books and records of the Association at any reasonable time upon reasonable
advance notice.
Section 22.7. Limitations on First Mortgagee's Rigfits. No requirement for approval or
consent by a First Mortgagee provided in this ARTICLE22 shall operate to:
(a) deny or delegate control over the general adminishative affairs of
the Association by the Unit Owners or the Board of Directors;
(b) prevent the Association or Board of Directors from commencing,
intervening and/or settling any legal proceeding; or
(c) prevent any insurance trustee or the Association from receiving
and distributing any insurance proceeds in accordance with the requirements of ARTICLE 20
entitled "Restoration Upon Damage or Destruction".
Secfion 22.8. Special Declarant Rights. No provision or requirement of this ARTICLE
22 ernifled "Mortgagee Protections" shall apply to or contravene any Special Declarant Rights
reserved to Declarant in this Declaration.
Section 22.9.. Protection of Mortgagees. Except as set forth in the Act or as required by
other applicable law, no violation or breach of or failure to comply with any provision of the
Declaration and no action to enforce any such provision shall affect, defeat, render invalid or
impair the lien of any Security Interest taken in good faith or for value and perfected by
recording in the Records, nor shall such violation, breach, failure to comply or action to enforce
affect, defeat, render invalid or impair the title or interest of the holder of any such Security
Interest or the title or interest acquired by "ny
pruchaser upon foreclosure of any such Security
Interest or other lien or result in any liability, personal or otherwise, of any such holder or
purchaser.
ARTICLE 23 DURATION OF'' COYENAFITS;
AMENDMENT AND TERMINATION
Section23.l. Term. This Declaration and any amendments or supplernents to it shall
remain in effect from the date of recordation for a period of fifty (50) years. Thereafter, this
Declaration shall be automatically extended for successive periods often (10) years each, unless
otherwise terminated or modified as provided in this Article.
DMWEST #6310543 v5
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Section 23.2. Amendment of Declaration. This Declaration may be amended as
follows:
(a) Reserved Amendment Rights. To the extent that this Declaration
and the Act expressly permit or require amendments that may be executed by the Declarant or by
the Association, this Declaration may be amended by amendments executed solely by the
Declarant or solely by the Association. To the extent permitted by the Act, Declaranf may
execute any amendment required or necessary to comply with applicable state regulatory
requirements.
(b) General Amendments. Except as otherwise allowed or restricted
by this Declaration, this Declaration may be amended by a vote or agreement of a Majority of
Owners. Notwithstanding the foregoing provision, the percentage of the voting power of the
Association necessary to amend a specific clause or provision of this Declaration shall not be
less than the percentage of affirmative voting power prescribed for action to be taken under that
clause or provision.
(c) Permitted Use Amendments. Except to the extent otherwise
expressly permitted or required in this Declaration, this Declaration may be amended to change
the uses to which any Unit is restricted only by a vote or agreement of Owners holding at least
sixty-seven percent (67%) of the Total Voting Power of the Association, including a malority of
the Total Voting Power allocated to any Class directly afFected by such amendment (e.g.,
amendments changing uses for Club Units).
(d) Special Declarant Rights Amendments- Except to the extent
otherwise expressly permitted or required in this Declaration or under the Act, this Declarafion
may be amended to increase Special Declarant Rights, increase lhe number of Units or change
the boundaries of any Unit or the Allocated Interests of a Unit or Club Estate only by a vote or
agreement of Owners holding at least sixty-seven percent (67Y$ of the Total Voting Power of
the Association, including sixty-seven percent (67V$ of the Total Voting Power allocated to
Units or Club Estates not owned by Declarant.
Section 23.3. Amendment by Declarant. To the extent permitted by the Act, Declarant
may execute any amendment to this Declaration required or necessary to comply with secondary
mortgage market and Colorado state regulatory requirements.
Section 23.4. Amendment of Other Governing Documents. The Articles of
Incorporation and Bylaws shall be amended in accordance with the terms of such documents
and the Colorado Revised Nonprofit Corporafion Act, as amended. The Rules and Regulations
may be amended as determined by the Board of Directors.
Section 23.5. Execution of Amendments: Expenses. Arry amendment shall be prepared,
executed and recorded either by the Declarant or by an officer ofthe Association designated for
that purpose or, in the absence of a designation, by the President of the Association. All
expenses associated with preparing and recording an amendment to this Declaration shall be the
sole responsibility of: (u) any Owners desiring an amendment as provided for in this Declaration
or the Act; (b) the Declarant, to the extent the right to amend this Declaration is reserved to the
DMWEST #6310543 v5
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Declarant and exercised by the Declarant; or (c) in all other cases by the Association as a
Common Expense.
Section23.6. Interpretation. Recording of amendments to this Declaration and
supplernent to the Map in the Records shall automatically:
(a) vest in each existing Owner the reallocated Allocated Interests
appurtenant to each Owner's Unit or Club Estate; and
(b) vest in each existing holder of a Security Interest a perfected
Security lnterest in the reallocated Allocated Interests appurtenant to the encumbered Unit or
Club Estate.
Upon the recording of an amendment to this Declaration, the definitions used in this Declaration
shall automatically be extended to encompass and to refer to the Property, as expanded. All
conveyances of Units or Club Estates after such expansion shall be effective to transfer rights in
all Common Elements as expanded, whether or not reference is made to any amendment to this
Declaration or supplement to the Map. Reference to this Declaration and Map in any instrument
shall be deemed to include all amendments to this Declaration and supplements to the Map
without specifi c reference thereto.
Section 23.7. When Modifications Permitted. Notwithstanding the provisions of
Section 23.2 and Section 23.3 above, no amendment or termination of this Declaration shall be
effective in any event during the Period of Declarant Control, unless the written approval of
Declarant is first obtained.
Section 23.8. Recording of Amendments. Any amendment to this Declaration made in
accordance with this ARTICLE 23 shall be immediately effective upon the recording of the
executed amendment in the Records together with a duly authenticated certificate of the
Declarant or the Secretary of the Association stating that the required vote of Owners, if any, and
required consents of First Mortgagees (and/or Eligible First Mortgagee, as applicable) were
obtained and me on file in the office of the Association or were not required to be obtained
pursuant to this Declaration or the Act. The amendment must be indexed in the grantee's index
in the name of the Condominium Project and the Association and in the grantor's index in the
name of each person or entity executing the Amendment.
Section 23.9. Rights of Eligible First Morteasees. To the extent allowed by the Act,
Eligible First Mortgagees shall have the rights to approve specified action of the Unit Owners or
the Association as a eondition to the effectiveness of those actions as provided in ARTICLE 22
entitled "Mortgagee Protections".
Section 23.10. Termination of the Condominium Project. The Condominium Project may
only be terminated as provided in the Act.
ARTICLE 24 V AIL PLAZA CLUB
Section 24.1. Submission of Residential Units to the Vail Plaza Club. Up to fifty (50) of
the Residential Units in the Project will be submitted by Declarant to the Vail Plaza Club as set
DMWEST tF631o543 v5
50
forth in this Article. The provisions of this Article relate only to those Residential Units
submitted to the Vail Plaza Club and shall govem the ownership of Club Estates in said Club
Units and the rights, duties and obligations of Club Members. So long as Declarant: (a) holds a
Development Right; (b) owns any Condominium Unit or Club Estate; (c) holds a Security
Interest in any Condominium Unit or Club Estate; or (d) for thirty (30) years after the date of
recording this Declaration, the right to submit a Residential Unit to the Vail Plaza Club shall
extend only to the Declarant and shall specifically not be available to purchasers ofResidential
Units in the Pmject, their successors, or assigns except with the prior written consent of
Declarant. Thereafter, any Owner may submit a Residential Unit to the Vail Plaza Club, with the
prior written consent of the Association. Submission of a Residential Unit to the Vail Plaza Club
shall be subject to the prior written consent of any First Mortgagee of the Club Unit. The
provisions of this Declaration shall apply to all Club Units and Club Estates created hereunder;
provided, however, in the event of an inconsistency between this Article and the remaining
provisions of this Declaration with respect to the ownership of a Club Unit or Club Estate and
the rights, duties, and obligations of Club Mernbers, then the provisions of this Article shall
control.
Section 24.2. Definitions. Unless the context expressly requires otherwise, words shall
have the meanings desigrrated below with respect to those Residential Units which are submitted
to the Vail Plaza Club.
(a) "Christmas Holiday and New Year's Holiday'' means extended
occupancy periods for Christmas and New Years which include more than seven (7) days and
never begin or end on Christmas Eve or New Year's Eve or Christmas Day or New Year's Day.
The Christmas Holiday always begins on the second Saturday that occurs on or before December
27 each year, with any Saturday falling on December 27 counting as the first of the two
Saturdays, and ends on December 27. T\e New Year's Holiday always begins on December 27
and ends on the Saturday that begins Club Week 1 in the succeeding year. Club Week 49 begins
on the Saturday seven (7) days before the Saturday that begins the Chrishnas Holiday each year.
All preceding Club Weeks in each calendar year (48 to l) begin on the Saturday seven (7) days
before the start of the succeedilg Club Week.
(b) "Club Assessment" means the assessment paid by the Club
Members pursuant to this Article.
(c) "Club Calendar" means the calendar prepared each year by the
Association which shall at all times establish the dates of each Club Week at least five (5) years
into the future.
. (d) "Club Estate" means a time span estate consisting of an undivided
interest as tenant in common in the present estate in fee simple in a Club Unit, together with an
exclusive right to possession and occupancy of the Club Unit during the Club Week assigned to
the Club Estate Owner by the Club Calendar or the Club Week specified in the deed conveying
the Club Estate to the Club Estate Owner,
(e) "Club Member" or "Member" means the Owner vested with legal
title to a Club Estate.
DMWEST #6310543 v5
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(0 "Club Unit" means a Residential Unit which is submitted to the
Vail Plaza Club-
(g) *Club Unit Fumishings" means all fumiture, appliances, moveable
equipment, utensils, carpeting, accessories, and other personal property located within a Club
Unit.
(h)..ClubWeek''meansaperiodofexclusivepossessionand
occupancy of a Club Unit established in the initial Deed conveying a Club Estate to a Club
Estate Owner or reserved pursuant to the Reservation Procedures. Club Weeks for each Club
Unit are established each year for the dates set forth in the Club Calendar. Club Weeks will
usually consist of seven (7) consecutive days beginning on a Saturday. Club Weeks in a Club
Unit Jhall be computed on the same basis and shall commence and end at the same time, on the
same day of the week, according to this section unless the initial Deed conveying a Club Estate
in a padicular Club Unit includei or refers to a Club Calendar which creates a Christmas Holiday
and New Year's Holiday.
(i) "Flpgting-ebb--EcI4e" means a Club Estate zubject to the Use
Right Easement and Reservation Procedures set forth in this Plan of Club Ownership.
0) "Formula for Allocation of Interests to Club Estates" means the
formula establishing each Club Estate's undivided interest as tenant in common in the Club Unit
set forth on Exhibil D-1 which is based on the relative value of the Club Estate to all Ctub
Estates within a Club Unit. The relative value is based upon various factors including the season
in which the Club Week occurs (high season or low season for tourism in the Town of Vail), the
specific Club Week within such season assigned to the Club Estate, and whether the Club Estate
includes Christmas Holiday orNew Yeat's Holiday-
(k) "Fractional Fee Club Ow"has the meaning set
forth in Section 24.12 of this Declaration.
0) "Resalg-&e$gdiQn" has the meaning set forth in Section 24'll of
this Declaration.
(m) "Reservation Procedures" means the Reservation Procedures
established by the Association pursuant to Section 24.10.
(n) 'Beslqglisa Jenqd" has the meaning set forth in Section 24'll of
this Declaration.
(o) ..Town of Vail Requirement,' has the meaning set forth in
Section 24.12 of this Declaration.
(p) "Transfer" has the meaning set forth in Section 24'll of this
Declaration.
(q)
ofthis Declaration.
DMWEST #6310543 v5
'USe &CblEqsement" has the meaning set forth in Section 24'10
52
Section 24.3. Submission of Residential Unit to Club Ownership. Declarant may submit
a Residential Unit to Club Ownership either by recording a properly acknowledged notice
executed by Declarant describing the Residential Unit to be submitted to CIub Ovmership and
reciting Declarant's intention to do so or by Declarant's execution, delivery and recordation of a
Deed conveying a Club Estate to a Club Member. By acceptance of a deed to a Club Estate,
each Club Member waives their right to bring a suit for partition except in accordance with the
provisions of this Declaration. For purposes of Section 10.6 and Section 10.7 of this
Declaration, a Residential Unit submitted to Club Ownership shall be deemed conveyed to a Unit
Owner other than Declarant after conveyance of twenty percent (20%) of the Club Estates in the
Club Unit.
Section 24.4. Conveyance by Purchaser. Each Club Estate shall constitute an estate in
real property separate and distinct from al1 other Club Estates in the Club Unit and other Units,
which estate may be separately conveyed and encumbered. A purchaser may acquire more than
one Club Estate and thereafter convey or encumber each Club Estate so acquired separately,
subject to the Resdle Restriction and the Town of Vail Requirement described in Sections 24.11
and 24.12 below. In no event, however, shall a Club Member convey or encumber less than a
Club Estate as defined herein, or attempt to subdivide a Club Estate into lesser interests. In the
event all Club Estates in a Club Unit are acquired by one Member, such Club Unit may, at such
Member's election and with the written consent of the Association by notice duly recorded. be
withdrawn from this Vail Plaza Club.
Section 24.5. Description of a Club Estate. A contract for sale of a Club Estate written
prior to the date this Declaration is filed in the Records may legally describe a Club Estate by
reference to the Club Unit No. and either the specific Club Week(s) or the purchaser's right 6
use and occupy the Club Unit during the weeks reserved under the Reservation Procedures. or bv
completing the following legal description:
Club Week , in Club Unit _ [or a Club Estate consisting
of an undivided interest as tenant-in-cornmon together with the
exclusive right to possession and occupancy of Club Unit _during Club Week(s) _ or reserved by the Club Member
pursuant to the Reservation procedures], according to the
Condominium Declaration for Vail plaza Hotel Resort Club, to be
filed for record in Eagle County, Colorado.
After submission of a Condominium Unit to Club ownership, every contract for sale, deed, lease,
mortgage, trust deed, or other instrument relating to a Club Estate will legally describe the Club
Estate as follows:
Club Week _, in Club Unit
-_
[or a Club Estate consisting
of an undivided interest as tenant-in-common together with the
exclusive right to possession and occupancy of Club Unit _during Club Week(s) _ or reserved by the Club Member
pursuant to the Reservation Proceduresl. accordine to the
Condominium Declaration for Vail Plaza Hotel Reslort CtuU.
DMWEST #6310543 v5
53
recorded ( dateJ, at ( Reception No.) and the Condominium Map
recorded ( date ), at (Reception No.) in the office of the Clerk and
Recorder of Eagle County, Colorado.
Any legal description substantially in the form provided above or which is otherwise sufficient to
identiff the Club Estate shall be good and sufficient for all purposes to sell, convey' transfer and
encumber or otherwise affect a Club Estate and all Common Elements, Limited Common
Elernents and easements appurtenant thereto'
Section 24.6. Adminiskation and Management. The administration and managernent of
the Vail Plaza Club shall be performed by the Association. The Association shall have all
powers necessary or desirable to effectuate any of the purposes provided for herein' A Club
Member, upon becoming the owner of a Club Estate, shall be a member of the Association and
shall remain a mernber for the period of time a Club Estate is owned- A Club Member shall be
entitled to a vote, the size of which vote shall be based upon each Club Member's undivided
interest as tenant in common in the present estate in fee simple in the applicable Club Unit as set
forth on Exhibit D-1. Voting by proxy shall be permitted. The Club Members shall constifute a
separate Class of Members in the Association for purposes of voting on all iszues affecting the
adminishation and managernent of the YallPlaza Club, as further described in Sections 1 1.7 and
I1.8 of this Declaration.
Section24.7. Powers and Duties of the Association with Respect to Club Estates- B|
way of enumeration and without limitation and in addition to the powers and duties of the
Association provided for in this Declaration, the Association shall also have the following
specific powers and duties with respect to Club Estates:
(a) coordinate the plans of members for moving their personal effects
into and out of the Club Unit with a view towards scheduling such moves, so that there will be a
minimum of inconvenience to other Members;
(b) cause each Club Unit to be maintained in a first class manner and
condition. The Association shall determine the color scheme, decor, and furnishing of each Club
Unit as well as the proper time for refurbishment, redecorating, and replacernent thereof;
(c)acquireandholdtitletoallClubUnitFumishings'The
Association shall, on behalf of all Members, hold title in its name to all Club Unit Furnishings,
and no Member shall have any rigfrt, title, or claim thereto, and the Association shall have the
right to deal with Club Unit Furnishings for all purposes;
(d) bill each Member for the expense of occupancy of a Club Unit
during which occupancy the Association determines the individual expenses of the particular
Memier, including, but not limited to long-distance and other extraordinary telephone charges,
extraordinary t"puitt or charges for damage to the Club Unit, the Club Unit Furnishings,
equipment, fr*t'oi"r, appliances, and carpeting caused by a Member or such Member's guest or
p"r*itt"a bccupant, diewood, other charges rendered by the Managing Agent on behalf of the
particular Memter and maid service in addition to the standard maid service provided for each
blub Week and included within the Club Assessment provided for in this Article;
DMWEST #6310543 v5
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(e) collect the Club Assessment provided for in this Article;
(0 establish, subject to modification at any tirne, publish, and
administer (i) a list of services to be offered by the Association to the Members, the cost of
which shall be included in the Club Assessments; (ii) such other rules and regulations as the
Association deems necessary or desirable, specifically including but not limited to fines and
restrictions on use and occupancy if a Member is not current on Assessments or is otherwise in
violation of the provisions of this Article; and (iii) if applicable, a Reservation Procedure as
provided for in this Plan of Club Ownership;
(g) upon the vote of a Majority of Club Members, establish, subject to
modification at any time, publish and administer procedures for the rental of Club Estates by
Owners; and the Association may enter into separate rental agreements with Owners, provided
that the Association shall not be the exclusive rental agent for the Vail Plaza Club or impose any
limitation or restriction that may cause the rental arrangements to be deemed securities under
federal or state law;
(h) prepare the Club Calendar;
(D enter into license agreements or other like agreements with respect
to the operation, management, maintenance and/or benefits related to the Club; and
0) enforce the remedies for non-payment of the Club Assessments set
forth in this Article.
Section 24.8. Club Assessment. In addition to the Assessment for Common Expenses
established by the Association to meet the Common Expenses of the Project, the Association
shall also establish a separate Club Assessment which will be assessed against Club Estates to
cover the Assessment for Common Expenses for the CIub Units and the additional costs of
operating the Club Estates as part of the Vail Plaza Club.
(a) Club Assessment Items. The Club Assessment for each Club
Estate may include but is not limited to, the following:
(i) the allocated share of the Club Unit's Common
Expenses Liabilify attributable to each Club Estate based on the Club Estate's undivided interest
as tenant in common in the oresent estate in fee simole in the Club Unit as set forth on Exhibit D-
L;
(ii) maintenance and regularly scheduled cleaning and
maid service and upkeep of the Club Unit;
(iiD repair and replacement of the Club Unit
Furnishings;
(iv) any additional prernium for property or liability
insurance occasioned by the operation of the Vail Plaza Club;
DMWEST #6310543 v5
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(") real and personal property taxes, if any, assessed
against the Club Estates;
("i) management fees assessed by the Managing Agent
to cover the costs of operating the Vail Plaza Club that are in addition to the management fees set
by the Managing Agent for management of the Condominium Project;
(vii) a reserve for refirbishment and/or replacement of
Club Unit Fumishings;
(viii) premiums attributable to commercial general
liability insurance coverage for death, bodily injury and propgrtl damage resulting from the use
of a Ciub Unit within the iroject by Owners of Club Estates, their guests or other users;
(ix) amenities use fees assessed by the Managing Agelt
or Owner of the Parking Unit and/or dpu Unlt for the use of the health spa and Parking Unit; and
(x) any other expenses incurred in the normal operation
of the Project athibutable to operation of tUe ilub Units as part of the Vail Plaza Club and not
otherwise within the definition of Common Expenses provided for in this Declaration'
(xi) Club Estate Assessments Allocation' The Club
Assessment shatl be assessed and prorated *"o"g the Members on the basis of each club
Estate's undivided interest as tenant ir, "o*on in the club Unit as set forth on Exhibit D-l'
(b) Obligafion to Pav Club Assessments, Th3 Club Assessment shall
be paid by the M"*bo p*rfii to *"n"aUe established by the Association' These
Assessments shall be the personal and individual debt of the Club Mernber and all zums assessed
but unpaid shall constitute a lien on the Club Estate. The Association shall have all of the rights
in connection with the collection thereof as it has in corurection with the collection of unpaid
Assessments for Common ExPenses.
(c)TaxesonClubEstates.TheDeclarantshalladvisetheCounty
Assessor for Eagle County, Coto*ao of n" o*n"rrhip of the Club Estates operated by the Hotel
Unit owner u, purt of ttre commercial hotel operation, and the allocation of Percentage lnterests
to all club Estates pursuant to Section 2a.2Q) andExhibit D-l for purposes of implementing the
special assessment procedures set forth in C.R'S' 39-1-102(5'5)'
(d)ClubAssessmentforAmenities.The'ClubAssessmerrtswill
include a fee to Ue paiA ,,'o"t6ty io the Managing Agent, and/or the Spa Unit Owner, as
applicable, for the use of the healtir spa, inclutling the outdoor pool to be located on the Project'
The Association has or will enter into a bincling agreement with the Spa unit owner to require
the Spa Unit Owner to make such amenitie* irtuilubl" to Club Estate Owners so long as the
Association makes its payments to and meets all of the obligations of the Association under such
agreement to keep such amenities available to the Club Estate Owners.
Section 24.9. Acceptance: Enforcernent: lndemnification. By acceptance of a deed to a
Club Estate, u CtoU tut"*U;; ugr""r to be bound by the terms and conditions of this Declaration'
DMWEST #6310543 v5
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specifically including, but not limited to, the provisions of this Article. In addition to all
remedies provided to the Association in this Declaration, the Association shall also have the
following special remedies with respect to any Club Member who fails to pay the Club
Assessment or is otherwise in default of any provision of this Article:
(a) In the event any Club Member fails to vacate a Club Unit after
termination of the Club Week in which an Owner is entitled to use of the Club Unit or otherwise
ti:e9 or occupies or prevents another Owner (or permitted Occupant) from using or occupying a
Club Unit, that Club Member shall be in default hereunder and shall be subject to immidiate
removal, eviction or ejection from the Club Unit wrongfully occupied; shall be deemed to have
waived any notices required by law with respect to any legal proceedings regarding the removal,
eviction or ejection; and shall pay to the Owner (or permitted OccupantJ entitled to use the Club
Unit during such wrongful occupancy, as liquidated damages for the wrongful use of the ClubUnit' a sum equal to two hundred percent (200%) of the estimated expense of providing the
arriving Owner (or pennitted Occupant) with equivalent lodging and amenities, as determinJd by
the Association in its sole discretion for each day, or portion thereof, including the day of
surrender, during which the club Member wrongfully occupies a unit, ptus all costs of
Enforcement which amounts may be collected by the Association in the manner provided herein
for the collection of Assessments for Common Expenses.
(b) Any Club Mernber who suffers or allows a mechanics' lien or
other lien to be placed against their CIub Estate or the entire Club Unit shall indemnifu, defend
and hold each of the other Club Members harmless from and against all liability or loss arising
from the claim or such lien. The Association may enforce zuch indemnity by coilecting from thE
Club Mernber who suffers or allows such a lienihe amount necessary to aischarge ttre tien and
all Costs of Enforcernent incidental thereto. If such amount is not promptly paid, the Association
may collect the same in the manner provided herein for the iollection of Assessments for
Common Expenses.
(c) Witlihold use or possession of the Member's Club Estate dwing
the Club Week entitled to use of the Club Unit, prohibit the CIub Member &om making an!
reservation pursuant to the Reservation Procedures, and upon notice, cancel any ."r"rrr=utiorr.
previously made by such Member, and rent or reallocate any Club Week to wfriih a Member
would otherwise be entitled to use the Club Unit.
- (d) Suspend all of such Mernber's rights and privileges as a member ofthe Association, including but not limited to, the right to p".tlUput" in any vote or otlrer
determination provided for in the Condominium i)ocuments.
(e) Except as to a transfer to a First Mortgagee by foreclosure or deedin lieu of foreclosure, no transfer of a Club Estate shall be permitted unless and until the
proposed transferor is current as to all Assessments due to the AsJociation and is otherwise not in
default under any other provision of this Declaration. Aay purported transfer of a Club Estatewhile a Member is delinquurt or is in default on any other obligaiion shall be null and void.
All of the remedies granted by the Condominium Documents, specifically including the
specific remedies provided for in this Article are cumulative, and the Lxercise of one rieht or
DMWEST #6310543 v5
5l
remedy by the Association shall not impair the Association's right to exercise any other remedy.
The Association shall not be limited to the remedies set forth herein and may invoke any other or
additional remedies provided for or allowed by the Act, in law or in equity. The Association
may pursue any of the remedies provided for in whatever order is determined by the Association.
The failure by the Association to insist in any one or more instances upon the strict compliance
with any provision of the Condominium Documents, to exercise any right or option contained
therein, to serve any notice or to institute any action or proceeding, shall not be construed as a
waiver or relinquishment of any such provision, option or right.
Section24.10. Cross Use Easements Pertainins to Floating Club Estates. All Floating
Club Estates are subject to the following cross use easement rights and reservation procedures:
(a) Cross Use Easement Rishts. In order to maximize the availability
of space to fulfill Club Members' desired use, subject to the provisions of Paragraph (b) below
relating to reservations, all Floating Club Estates shall be available for reservation, occupancy
and use (the "Use Right Easement') by Members of compmable Floating Club Estates in the
Project. Comparable Floating Club Estates shall be deemed to be all Floating Club Estates in the
same type of Club Unit (l-bedroom Club Unit, Z-bedroom Club Unit, 3-bedroom Club Unit, and
penthouse Club Unit). Each deed conveying a Floating Club Estate shall be deemed to include a
reservation of this Use Right Easement benefiting all Club Members.
{b) Reservation Procedures. All Club Mernbers shall be entitled to
make reservations with the Association for the Club Week(s), or portions thereof, the Member
desires to use pursuant to the reservation procedwe from time to time established by the
Association by rule and regulation (the "Reservation Procedure"). Th" Reservation Procedure
shall specifu the manner in which reservations are to be requested and confirmed. The right to
reserve a Club Week, if unused in any year, is lost and does not acffue. The Reservation
Procedure shall contain such schedules, conditions, restrictions and limitations as are deemed
necessary or desirable by the Association. The Association may from time to time, without the
consent of the Members or Eligible First Mortgagees, amend the Reservation Procedure to
include, by way of enumeration and without limitation, one or more of the following features:
(i) A preferential reservation system for holidays zuch
as New Year's Day, Martin Luther King Jr. Day, Presidents' Weekend, Memorial Day,
Independence Day, Labor Day, Veterans' Day, Thanksgiving, Christmas or other holiday period
which allocates the opportunity to reserve the more populm holidays among the Owners of
Floating Club Estates;
(iD A procedure for determining priority of reservation
by lot, drawing, rotation, or otherwise on an annual or rotating basis;
(iii) Restrictions on use and occupancy of a Club Unit if
a Member is not current on Assessments or is otherwise in violation of the provisions of the Vail
Plaza Club;
(iv) Penalties, including forfeitures of reservation rights
for the calend ar year, for untimely cancellations or reservations;
DMWEST #6310543 v5
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(v) Short term reservation procedures for Bonus Time
(as hereinafter defined);
(vi) A schedule offees to be separately charged to Club
Members who use a portion of a Club Week or who use Bonus Time on a space available basis
to cover the additional expenses of such use, including but not limited to, additional
administrative, janitorial and maid service costs; or
(viD Such other conditions, restrictions and limitations as
the Association shall deem necessary under the circumstances to assure a manageable and fair
system.
(c) Bonus Time. Bonus Time shall mean any period of time not
otherwise reserved which is used by a Member pursuant to the short term reservation procedures
(e.g. upon only 24 or 48 hours notice) of the Reservation Procedure and is in excess of the Club
Week(s) to which the Member is entitled. The purpose of Bonus Time is to allow Members to
use and occupy Club Units, or poftions thereof, on short term notice and on a space available
basis which might otherwise remain unoccupied.
(d) Rental. The Reservation Procedures may prohibit or limit the right
of Club Members to rent or to allow use by an unaccompanied guest of any Club Unit otherwise
properly reserved by a Club Mernber.
Section24.11. Resale Restriction. Owners of Club Estates shall be prohibited from
selling, assigning, or otherwise transferring a Club Estate (not including a deed in lieu of
foreclosure, transfer by public trustee or sherifPs deed, any transfer of a First Mortgagee's right
or interest in a Club Estate or any transfer in connection with the merger, consolidation,
liquidation or reorganization ofan Owner) (a "Tl44sfer") until the date that is one (l) year from
the recording of this Declaration (the 'EestriStian JenSd") unless Declarant determines, in
Declarant's reasonable discretion, that the Transfer of the Club Estate by an Owner is at or above
Declarant's then current sales price for Club Estates in the same Club Unit type based upon the
sales prices for the most recent closed sales of such comparable Club Estates. This i3csalg
Restriction" shall automatically expire on and be of no further force and effect from and after the
last day of the Restriction Period. During the Restriction Period, Declarant shall also have the
right, in Declarant's sole discretion, to waive the Resale Restriction with respect to specific
Transfers of Club Estates by Owners. The purpose of the Resale Restriction is to: (i) protect
Declarant's interest in the orderly marketing and initial sale of all Club Estates; and (ii) prevent
artificial, short term impacts on prices due to resales by speculators or distressed Owners.
Section 24.12. Town of Vail Reqqiteuqent. The Vail Plaza Club is a Fractional Fee Club
as defined in Section 12-2-2 of the Town Code of Vail ZotingTitle. The ZotingTitle imposes
various restrictions and requirements on Fractional Fee Clubs, including a requirement thai each
Fractional Fee Club Unit have no fewer than six (6) and no more than twelve (12) Owners (the
'practionA fee Ct* OwnerRequirement"). To ensure compliance with the Fractional Fee Club
Owner Requirement, all Transfers by Owners of Club Estates, subsequent to the initial sales of
Club Estates by Declarant, shall include all Club Estates initially acquired by each Owner from
Declarant (the "Town of Vail Requir em"). The Town of Vail Requirement shall continue
DMWEST #6310543 vs
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unless and until such requirement no longer applies to the Vail Plaza Club. Any atternpted
Transfer of a Club Estate in violation of this Section 24.12 is void and unenforceable.
ARTICLE 25 ENFORCEMENT
The provisions of the Act and the provisions of the Condominium Documents
may be enforced by proceedings at law or in equity against any Person violating or attempting to
violate such provisions, all as more specifically set forth in the Act and as more specifically set
forth in the Condominium Documents.
ARTICLE 26 MISCELLANEOUS
Section 26.1. Nonwaiver. Failure by Declarant, the Association, or any Unit Owner or
Eligible First Mortgagee to enforce any covenant, condition, restriction, easement, reservation,
right-of-way, or other provision contained in the Condominium Documents shall in no way or
event be deemed to be a waiver of the right to do so thereafter.
Section 26.2. Severability. The provisions of this Declaration shall be deeured to be
independent and severable, and the invalidity of any one or more of the provisions of it by
judgment or corut order or decree shall in no way affect the validity or enforceability of any of
itt" ottt"r provisions, which provisions shall remain in fuIl force and effect. Any provision which
would viblate the rule against perpetuities and the rule prohibiting unlawful restraints on
alienation shall be construed in a manner as to make this Declaration valid and enforceable.
Section 26.3. Number and Gender. Unless the context provides or requires to the
contrary, the use of the singular herein shall include the plwal, the use of the plural shall include
the singular, and the use of any gender shall include all genders-
Section 26.4. Captions. The captions to the Articles and Sections and the Table of
Contents at the begiruring of this Declaration are inserted only as a matter of convenience and for
reference, and are in no way to be construed to define, limit, or otherwise describe the scope of
this Declaration or the intent of any provision of this Declaration.
Section 26.5. Conflicts in Legal Documents- In case of conflicts between the provisions
in this Declaration and the Articles of lncorporation of the Association or the Bylaws, this
Declaration shall control. In case of conflicts in the provisions in the Articles of lncorporation
and the Bylaws, the Articles of Incorporation of the Association shall conh.ol.
Section26.6. Vestine of lnterests. Any interest in property granted under- this
Declaration shall vest, if at all, o; or before the date of the death of the survivor of the now living
children of Prince Charles, Prince of Wales, plus twenty-one years'
Section 26.7. Exhibits. Al1 the Exhibits attached to and described in this Declaration are
incorporated in this Declaration by this reference.
Section 26.8. Choice of Law. This Declaration shall be construed and interpreted in
accordance with the tu*r of ttt" Stutr of Colorado, and specifically, the provisions of the Act and
not the general common law (including remedies) of tenancy-in-colnmon'
DIVtwEST #6310543 v5
60
Section 26.9. Third Pa4v Beneficiarv. This Declaration is submitted, imposed, and
declared solely for the benefit of the Declarant, Unit Owners, First Mortgagees, and their
respective successors, assigns, heirs, executors, administrators, and personal representatives. No
party shall be deemed a third party beneficiary of this Declaration.
IREMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
DMWEST #6310543 v5
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Executed as ofthe _ day of 20
Y AIL PL AZA DEVELOPMENT, LLC, A
Colorado limited liability company
t'l=----z----
ir{tName: Waldir Prado
DMWEST #6310543 v5
62
STATE OF COLORADO
COUNTY OF EAGLE
)
) ss.
)
The ,foregoing instrument was acknowledged before me this 3?d d"y of
] by Waldir Prado, the Manager of Vail Plaza Development, LLC, a
Witness myhand and official seal.
GERALDINE C. McINTOSH
NOTARY PUBLIC
STATE OF COLORADO
rprenvPUBLrc
My Commission Expires: n lz+ f|rl
DMWEST #6310s43 v5
63
MORTGAGEE'S CONSENT
The undersiped hereby consents to the execution and recording of the foregoing
Declaration, agrees to be subject to and bound by the terms of the foregoing Declaration, and
hereby subordinates the lien of that certain Deed of Trust, Assignment of Leases and Profits,
Securify Agreement and Fixture Filing, from Declarant, as gtantor, to the Public Trustee of the
County ofEagle, as trustee, for the benefit ofthe undersigned, as beneficiary, dated August 29,
2005 and recorded August 29,2005 in Book 83 at Page 416 as Reception No. 927649 in the
records of Eagle County, Colorado (the "Deed_oIlruE!"), to this Declaration and the effect
hereof; provided, however, that the Deed of Trust, as a lien recorded prior to recordation of the
Declaration, has and shall coutinue to have priority over al1 assessment liens of the Association
(as defined in the Declaration), pursuant to c.R.s. $ 38-33.3-316(zXa)0. For as long as the
Deed of Trust remains of record, the undersigned shall also be (or be deemed to be) an Eligible
First Mortgagee as to any Units owned by the Declarant for purposes of this Declaration and the
Bylaws.
The lien of the Deed of Trust is and shall continue to be a valid and continuing fust lien
against (i) all of the units established under the Declaration, and (ii) all of the undivided interests
in the common elements of the Condominium appurtenant to such units, subject, however, to the
terms and conditions of Section 70 of the Deed of Trust. This subordination shall not impair,
abridge or otherwise affect the Deed of Trust (or the rights and remedies of the beneficiary
thereunder), which shall remain in fuIl force and effect.
This subordination shall not be construed as a joinder by the undersiped in the
Declaration.
Dated thisfQ day of October,2007.
Title: Vice President
STATE OF
couNrY oF cooi( ]"'
On the30 day of October, 2007, personally appeared before me Denise M. Koprowski
who, being by me duly swom did say that she is a Vice President of Capmark Bank, a Utah
industrial bank and that said instrument was sisred on behalf of said corooration.
OFFIC!AL SEAL
JANET A TICHELETTO
IIOIARY PUILIC, TTATE OF ILLII'OI'tycorltrltorEtnnE!: Q eS aolO
416994E6\3 \20751 I \00530 l0B0/20o7 l0:10 AM
WASHINGTONDC: 0101367.00000: 2499v1
BANK a Utah indqshial bank
Exhibit A
To
Declaration
LEGAL DESCRIPTION
LTG Policy No. CTAI50009{20
O|'r Ordcr No. VC50009420
. IEGAI.DESGHPnOiI
PARCEL I:
THOSE PORTIONS OF LOTS M, N, AND O, BIOCK 5-D. VAIL VILI^AGE. FIRST FILING,
ACCORDING TO THE MAP THEREOF RTCORDEI) UNDER RECEPTION NO. 9E}82 IN THE OFNCE
OF THE EAGI^E COUNTY, COLORADO CLERK AND RECORDER (CLERI('S RECORDS) DESCRIBED AS
FOLLOWS:
BF4INNINC AT A POINT, ON T}IE NORTHERI.Y UNE OF SAID LOT O, WHICH IS THE
NORTHEAST CORNER OF A PARCEL DESCRIBED IN BOOX 230 AT PACE 556 OF TIIE C-ERK'S
RECORDS, WHENCE TITE NORT}IWEST CORNER OF SAID LOT N BEARS NORTTI ?S DEGREES 46
MINUTES m SECONDS WEST r75.m FtrET DISTANT; THENCE, ALONG SAID NORTIIERLY LINE,
SOUTH 79 DEGREFS {6 MINUTES fi} SECONDS EAST 178.40 FEET. TO TT{E NORTHWEST
CORNER OF VILLAGE INN PLAZA, A CONDOMINITJM, ACCORDINC 10 TTIE MAP THEREOF
RECORDED IN BOOK 349 AT PAGE ll OF Tl{E CLERK'S RECoRDS; THENCE, AIONG IIIE
WESTERIY LINE OF SAID VILLACE INN PI.AZA, A CONDOMINITIM, SOUTH 09 DEGREES 30
MINUIES OO SECONDS WEST 37.6I FEET TO THE NORT1IEASTERLY CORNEB OT CONDOMINIUM
MAP FOR VILI-AGE INN PLAZA - PfnSE MOND0MINMT,{S. ACCORDINC TO TIIE MAP THEREOF
RECORDED IN TllE CLERK'S RECORDS; TIIENCE, DEPARTING SAID WESTERLY LINE. TIIE
FOLLOWING NINE COURSES ALONG THE NORTTIERLY, EASTERLY AND SOUTI{ERIY LINES OF
SAID CONDOMINIIJM MAI FOR VILLACE INN PLAZA - PHASE rv : (l) NORTH ?9 DEGREES 47
MINUTES m SECONDS WEST 70.07 FEET; (2) soUTH 32 DEGREES 56 MINUTES 2? sEcoNDS
WEST 63.51 FEET; (3) N0RTH ?s DEGREBS {? MINUTES 0E SECONDS WEST 61.{5 FEET:
(4) SOUTH r0 DEGREES 12 MINUTES 52 SECONDS WEST 69.82 FEET, TO TfiE NORTHERLY
FACE OF AN EXISfiNG BUILDING; (5) SOUTH 79 DEGREES 58 MINLITES sl SECONDS EAST
6.35 FEET, ALONG THE NORTHERLY FACE OF SAID EXTSTWG BUI,DINGi (6) SOUru I(t
DEGREES 01 MINUTES 09 SECOI{DS WEST 6.4I FEETT ALONG THE EASTERLY FACE OF SAID
D0STII{C BUILDING; f/) DEPARIING TtlE EASTERLY FACE OF SAID EXISTING BUILDING,
soulll 79 DEGREES {7 MINUTBS 08 SECONDS EAST 83.93FEET; (8) NOnTH 10 DECREES 12
MINU"IES 52 SECONDS EAST 9.60 FEET; (9) S0UIII 79 DEGREES {7 MINIJTES 08 SEcoNDs
EAST 67.05 FEET, To THE SAID WESTERLY LTNE OF VILLACE INN PI.AZA, A CONDOMINruM:
fiENCE THE FOLL0WINC THREE COURSES ALONG SAID WESTERLY LINE: (l) SOUTII 09
DEGREES 30 MINUTES 00 SECONDS WEST 50.9r FEE-ri (2) SOUTH 80 DEGREES 30 MINUTES
00 SECoNDS EAST 56.60 FEETi (3) SOUTH 09 DEGREES 30 MINUTES 00 SECON'DS WEST
7.46 FEET. TO IlIE NORTHER,LY LINE OF VIII.AGE INN PIAZA PIIASES I AND tr,
ACCORDING Tr0 II{E MAP THEREOF RECORDM N BOO( 388 AT PACE 855 OF THE CLERK'S
RECORDS; THENCE TIIE FOLLOWING FOUR COURSES AIONG TIIE NORTIIERLY AND WESTEnIY
LINES oF SAID VILLAGE INN PLAZA PHASES I AND lI; (t) NORTH 80 DEGIEES 22
MINUTES 22 SECONDS WEST 125.ss FEET; (2) SOUIH 42 DEGRXES 32 MINUTES 2l SECONDS
WEST 46.0r FEm; (3) SOUTII 8z DEGREES 06 MINUTES 46 SECONDS WEST 49.48 FEET;
(4) SOUTfl TO DEGREE5 13 MINUTES 02 SEOONDS WEST 53.5I FEE-I TO T}IE NORTHEASTERI.Y
CORNER OF FORFETTUNE OR REVERIER CI.AUSE AMENDMENT TO CONDOMIMTJM MAP OF \'ILI.AGE
INN PLAZA . PHASE V CONDOMIMUMS. ACCORDING TO 'IIIE MAP THEREOF RECORDED IN THE
CLERI('S RECOmS: THENCE THE FOLLOWING TI{REE COURSES ALONG T}IE NORTHERLY LINE OF
SAID FIRST AMENDMENT TO CONDOMIMT'M MA} OF VILIAGE lNN PI.AZA - PHASE V
CONDOMIMUMS: (l) NORTH E0 DEGREES 0Z MIMJTES 4{ SECONDS WEST 106.72 FEET; (Z)
NoRTH 0e DBGRIES 57 MINUTES 16 SECONDS EAST 0.?5 FEET; (3) NORTH 80 DEGREES 02
MINUTES 44 SECONDS WEST 52.23 FEET, To THE WESTERLY LINE oF SAID LOT M; THENCE
NORTH OO DEGNEES 23 MINI.TTES OO SECONDS WEST 105.?6 FEET. ALONG SAID WESTERLY
LINE, To TI{E NORT}IWEST COR}IER OF SAID LOT M; THENCE, ALONG :rHE WEST LINE oF
SAID LOT N, NORIII OO DECREES 23 MINUTES Ot} SECONDS WIST 50.05 FEET. TO THE
DMWEST #6310543 v5
A-l
LTGFotcyNo. CTN50009420
Our Ordrl No. VC5$0944t
tEGALLESCRImOII
SOUTII\ryEST CORNER Of &qID PARCEL DESCRIBED IN BOOK ?30 AT PACE 556 OF THE
cLERK.s RlEcoRDs; TI|EI.|CE TttE FoIJoIt{I'lG Two cot,RsEs AI€NG IIIE soul}IERLY AND
EA$II;RLY uNES oF SAID PARCEL: (r) SOUTH ?9 DEGREES 46 MINUTES 00 SECONDS EAST
TIZ.TE PTTT; {2) UORTII tO DEGREFS i{ MINUTES t}O SECONDS EAST 11?.43 FEET' TO
THE PODTT Oi'BEGN.TNING, COUNTT OF EAGI.E, $TATS OF COIORADO.
AND
CoNDoMINIUM MAP FoRVILLAGE INN PLAZA PHASE rV CONDOMINIT MS'Agqqryryq-T-Tq
CONDOMIT\IruM MAP THEREOF RECORDffi UNDER RECEPnON NO' NO' 193003 IN TtlE CLERK
AND RECOBDERS OFFICE OI'EAGLE COUNTY, COLORADO.
DMWEST #6310543 vs
A-2
Exhibit B
to
Declaration
TABLE OFALLOCATED INTERESTS TO I]NITS
Type of Unit
Percentage Interest
in Common
Elements
Percentage
Interest in
Common
ExDenses
Vote in the affairs
of Association
L Total Allocated
Interests of Vail Plaza Ctub
Units (See Exhibit B-1 for
each Club Unit's Allocated
lnterest)
42.3722 42.3122 42.37
II. Vail Plaza
Penthouse Unit
3.5472 3.5472 3.55
ilI. Employee lfousing
Unit
2.6671 2.6671 2.67
IV. Hotel Unit 23.3130 23.3130 23.31V. Total Allocated
Interests of Commercial
Units
0.9217 0.9217 0.92
A. Commercial Unit I
(Spa Retail)
0.3740 0.3140 0.37
B. Commercial Unit 2 0.5477 0.5471 0.55
VI. Parking Unit I l'1r91 I l.l 191 11.12VII. Management Unit 2.5186 2.s186 2.52
VIII. Loading Unit 1.0908 1.0908 1.09IX. Catering Kitchen Unit o.s223 o.5223 0.52X. Convention Unit 3.5374 3.5374 3.54XI. Service Unit 2.8418 2.8418 2.84XII. Spa Unit 1.9172 1.9772 1.98
XIII. Restaurant Unit 3.571',7 3.s717 3.57
TOTAL 100 percent 100 percent 100 percent
B-l
DMWEST #6310543 vs
Exhibit B-1
to
Declaration
CLUB UNIT ALLOCATED INTERESTS
(See Attached)
DMWEST #6310543 v5
B-l-1
Club Unit
No.
Club Unit
Designation No.
Club Unit Square
Footage Pursuant to
the Map
Value
Factors
Equivalent
Square Footage
Percentage Undivided
Interest in Common
Elements
108 I 1,553.85 o.75 1.165 0.70r6%
114 t,497.99 0.75 1.123 0.6764%
118 J 1,94032 0.75 | 45{0.8762%
T2IA i 2,245.84 0.85 I,909 1.1493%
12tB 5 598.51 0.85 509 034$%
208 6 1,547.01 0.77 1.191 0.7172%
214 1 1,466.07 0.77 1,r29 0.6797%
218 8 l,936.90 o.77 1,491.0.8979%
222 9 1,822.90 0.77 1.404 0.8451yo
2234 t0 1,160.54 0.85 986 0-5939y"
223P,ll 535-81 0.85 455 o.2742yo
1.1i A t2 745.57 0.87 649 0.3905%
224F,1,657.59 0.87 tM)0.8682%
2254 14 565.45 0.87 492 0.2962010
2258 l5 l,822.90 0.87 1.586 0.9548%
227A l6 1,765.89 0.75 t.324 0.7974%
2218 t7 494.77 0.75 371 0.2234%
308 18 1,584.63 0.87 l17q 0.8300%
3t0A l9 I,48s.45 0.95 l,4t I 0-8496%
3108 20 448.03 0.95 426 0.2s63%
311 2l 1,653.03 0.95 1.570 0.94ss%
312 22 2,281.18 I 7 )R1 1.3734%
313 21 2,233.30 I ) )\7 1.3446%
374A NA r,963.12 0.91 I,786 r.4756%
3l4B 25 715.93 0.91 651 0.3922%
315A 26 I,893.s8 0.93 1.761 1.0603%
3r58 nn 467.41 0.93 435 o.26t7%
316 28 2,245.84 I z.z+o 1.3521%
3t't 29 2,251.54 I 2,252 1.3556%
3t8A 30 637.84 0.9 574 0-3456%
3t8B .]I 1,'743.66 0.9 1,569 0.9448%
3214 32 1,573.23 0.7'l 1,21r o.7293%
32tB J')497.05 o.77 J6J 0.2304yo
401 34 t,202.72 0.95 I 141 O.6879o/o
402 35 r,608.s7 I I,609 0.9685%
403 JO 2,19t.12 I 2,191 r.3192%
DMWEST 1f6310543 v5
B-l-2
Club Unit
No.
Club Unit
Designation No.
Club Unit Square
tr'ootage Pursuant to
the Map
Value
Factors
Equivalent
Square Footage
Percentage Undivided
Interest in Common
Elements
404 )t 2,t70.60 I 2,17 |1.3068%
405 38 2,t63.76 I 2,164 t.3027%
406 39 1,320.1s I t,320 0:t948%
40']40 2,130.70 I 2,131 1.2828V.
42"1 4l 2,094.22 I 2,O94 1.2609Yo
4254 ,t1.,1,914.10 0.87 1,665 r.0026%
4258,43 499.33 0.87 434 0.2615%
501 44 2,065.72 I 2,066 r.2437%
502 45 2,193.40 I 2,193 t.3206%
503 46 I,66r.01 0.9 1,495 0.9000%
504A 47 554.05 0.9 499 0.3w2%
5048 48 2.014.42 0.9 1,813 t.w15%
505 49 2,t92.26 I 2,192 1.3199Yo
506 50 2,120.44 1 2,120 1 .27 660/o
Total 70"151 42,2359"/0
DMWEST #6310543 v5
B-1-3
Exhibit C
to
Declaration
EASEMENTS AI{D LICENSES OFRECORD
Permitted Exceptions
RIGHT OF PROPRIETOR OF A VE]N OR LODE TO EXTRACT AND REMOVE H]S ORE THEREFROM SHOULD THE
SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED ]N UNITED STATES PATENT
RTCORDED ]ULY 12, I 899, IN BOOK 48 AT PAGE 475.
RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUT}IORITY OF THE UNITED STATES AS
RESERVED IN 1JNITED STATES PATENT RECORDED ruLY I2, 1899, IN BOOK 48 AT PAGE 475.
RESTRICTIVE COVENANTS WHICH DO NOT CONTAJN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING
ANY COVENANT OR RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAM]LIAL STATUS
OR NATIONAL ORIG]N UNLESS AND ONLY TO THE EXTENT'IHAT SAID COVENANT (A) IS EXEMPT I.JNDER
CHAPTER 42, SECTION 3607 OF THE LNITED STATES CODE OR (B) RELA,TES TO HANDICAP BUT DOES NOT
DISCRIMINATE AGAINST HANDICAP PERSONS, AS CONTAINED IN INSTRUMENT RECORDED AUGUST 10, 1962,
IN BOOK I74 ATPACE I79.
REC]PROCAL EASEMENT AGREEMENT BETWEEN VAIL VILLACE INN, A COLORADO COPJORATION, JAMM
LTD., A COLORADO LIMITED PARTNERSHIP AND VAIL VILLAGE INN ASSOCIATES, A COLORADO GENERAL
PARTNERSHIP RECORDED JANUARY 3.I983 IN BOOK 35I AT PAGE 324.
TERMS, CONDITIONS AND PROVIS]ONS OF AGREEMENT RTCORDED SEPTEMBER 09, 1983 IN BOOK 367 AT
PAGE 833.
CONVEYANCE OF EASEMENTS BETWEEN VAIL VILLAGE INN, INC., A COLORADO CORPORATION AND F&L
VAIL VILLAGE INN PARTNERSHIP, A COLORADO GENERAL PARTNERSHIP RECORDED ]ULY IO, 1984 IN BOOK
388 AT PAGE 861.
DECLARAT]ON OF PARTIAL VACATION OF EASEMENT IN CONNECTION WITH SAID EASEMENT RECORDED
JULY 25, 1985 IN BOOK 420 AT PAGE 74I,
TERMS, COND]TIONS AND PROVISIONS OF DECLARATION OF EASEMENTS AND RIGHTS RECORDED
FEBRUARY 04. I988 IN BOOK 478 AT PAGE 371 .
TERMS, CONDITIONS AND PROV]SIONS OF DECLARATION CONCERNING PARKJNG WIT}IIN SPECIAL
DEVEI.OPMENT DISTRICT 6 RECORDED ruLY IO, 1984 IN BOOK 388 AT PAGE 856.
TERMS, COND]TIONS AND PROVISIONS OF DECLARATION OF EASEMENTS RECORDED DECEMBER 17, 1992 IN
BOOK 596 AT PAGE 908 AND AS SHOWN ON AITAJACSM SURVEY PREPARED ruLY 26. 1996 BY EAGLE VALLEY
SURVEYING, INC., JOB NO. 854.5.
EASEMENTS, CONDIT]ONS, COVENANTS. RESTRICTIONS, RESERVAT]ONS AND NOTES ON THE RECORDED
PLAT OF VAIL VILLAGE FIRST FILINC.
EASEMENT AND zuGHT OF WAY AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC., ]N
INSTRUMENT RECORDED NOVEMBER 19, I97I IN BOOK 222 AT PAGE 32I, AND AS SHOWN ON TT]E
CONDOM]NIUM MA} RECORDED NOVEMBER I 9. 1982 IN BOOK 349 AT PAGE I I.
EASEMENT GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION. INC.. IN INSTRUMENT RECORDED JANUARY
2t. 1983 IN BOOK 352 AT PAGE 397.
DMWEST #6310543 v5
c-1
THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS AND RESTRICTIONS' WHICH ARE A
BURDEN TO A CERTAIN CONDOMIN]UM UNIT, AS CONTAINED IN INSTRLMENT RECORDED NOVEMBER 19'
1982, ]N BOOK 349 AT PAGE 12.
EASEMENT BETWEEN VILLAGE ]NN PLAZA CONDOMINITJM ASSOCIATION, A COLORADO NON'PROFIT
CORPORATION, VAIL VILLACE INN, ]NC., A COLORADO CORPORAT]ON' AND F & L VA]L VILLAGE
PARTNERSHIP, A COI.ORADO GENER;L PARTNERSHIP IN DOCI.AdENT RECORDED JULY 10, 1984 IN BOOK 388
AT PAGE 862.
EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED
CONDOMINIUM MAP OF VILLACE INN PLAZA
UTILITY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATTON, INC. IN INSTRUMENT
RECORDED JA}IUARY 2I, 1983 IN BOOK 352 AT PAGE 396'
ENCROACHMENT AND ROOF OVERHANG OF VILIAGE INN PLAZA PHASES I AND N ONTO SUBJECT PROPERTY
AS SHOWN ON IMPROVEMENT LOCAT]ON CERTIFICATE BY EAGLE VALLEY SURVEYING' INC'' JOB NO' 854-5'
DATED JULY 26,1996.
NOTE: EASEMENT AGREEMENTIN CONNECTION WITH SAID ENCROACHMENT WAS RECORDED JULY IO' 1984
IN BOOK 388 AT PAGE 861.
TERMS, CONDITIONS AND PROVISIONS OF ENCROACHMENT AND V]EW AGREEMENT RECORDED DECEMBER
22, 1989 IN BOOK 520 AT PAGE 167.
TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED APRIL 14' 1992 IN BOOK 577
AT PAGE 62E.
TERMS, CONDITIONS AND PROVISIONS OF RESTRICTIVE COVENANTS RECORDED A}RILZ3' 1992IN BOOK 578
AT PAdE 368 AND RERECORDED A}ruL 30, 1992 IN BOOK 578 AT PAGE 996.
TERMS, CONDITIONS AND PROVISIONS OF DEED OF EASEMENT RECORDED MAY 18, 1994 IN BOOK 640 AT
PAGE 62I.
EX]STIN6 LEASES AND TENANCIES.
DIVIWEST 1S6310543 v5
c-2
Exhibit D
To
Declaration
I]NITS SUBMITTED TO VAIL PLAZA CLUB
(See Attached)
DMWEST #6310543 v5
D-1
Club tl'trt xo.
Glub Unit
DesrtsratiqnlNo'Glub Unit No.
Club Unit
Desisrctien-No.
108 1 315A 26
114 1 3158 27
118 J 316 28
1214 4 317 29
1z',t8 3 31BA 30
208 6 3188 31
214 7 3214 32
218 6 3215 33
222 I 401 34
2234 10 402 35
2238 11 403 36
224A.12 404 37
2248 13 405 3B
2254 14 406 39
2258 15 447 40
2274 16 427 41
2278 17 4254 42
308 18 4255 43
310A 19 501 44
3108 20 502 45
311 21 503 46
312 22 5044 47
313 23 5048 48
3144 24 505 49
3148 25 506 50
Total Club Units = 50
DMIryEST t6310543 vs
D-2
Exhibit D-l
To
Declaration
CLUB ESTATE I]NDTVIDED INTEREST IN CLUB I.INIT
(See Attached)
DMWEST #6310s43 v5
D-l-1
Club Week
Value
Factor
Undivided
Interest in Club
Unit
I 0.8 2.781o/o
2 0.8 2.18r%
3 0.8 2;t8lo/o
tl.t 0.8 2:181o/o
5 0.95 3.302%
6 1 3A76%
I 1.05 3.6s0%
8 I 3.4760/o
9 I 3.416%
10 1 3.476V,
11 1 3.476%
t2 I 3.416%
13 1 3.476%
t4 0.1 2.433%
15 0.01 0.035%
t6 0.01 0.035%
17 0.01 I 0.03s%
l8 0.01 0.035%
t9 0.1 o.348%
20 0.1 0.348%
2l 0.1 0.348%
22 0.1 034&%
23 0.3 1.043%
.A 0.3 1.043o/o
25 0.6 2.086%
26 0.7 2.433%
27 0.6 2.086%
28 0.6 2.086%
29 0.65 2.259%
30 0.6 2.086%
3l 0.6 2.086%
i./.0.5 1.738%
JJ 0.5 1.138%
34 0.5 t.738%
35 0.5 1.738%
DMWEST ,i6310543 vs
D-l-2
Club Week
Value
Factor
Undivided
Interest in Club
Unit
36 o.27s 09s6%
37 0.275 0.956%
38 0.275 0.956%
39 o.275 0.9s6%
40 0.1 0.348%
4l 0.1 0.348%
42 0.1 0.348%
43 0.1 0.348%
44 0.1 0.348%
45 0.1 0.348%
46 0.9 3.128%
^1 0.8 2.781%
48 0.8 2.781%
49 0.8 2.181%
C.H.*1.514 5.263%
N.Y.H.*r.964 6.827%
AII Estates 100.0070
*C.H.: Christmas Holiday
*N.Y.H. - New Year's Holiday
The Club Week assigned to each Club Estate determines the Club Estate's undivided interest astenant-in-common in the particular Club Unit.
DMWEST #631099 v5
D-1-3
fr\ r rILT I)OPY
RECORD ANI} RETI,JRN TO:
Locke Lord Bissell & Liddell LLp
40i g'h sr., N.w.
Suite 400 South
Washington, DC 20004
Atln: Christopher J. Hart, Esq.
THIS INSTRI,MENT PREPARED BY:
Christopher I. Ilart, Esq.
Locke Lord Bissell & Liddell LLp
401 grn st., N.w.
Suite 400 South
Washington, DC 20004
Attn: Christopher J. Hart, Esq.
EAGLE COUN]Y, CO
TEAK J SINONTONPEB: 9 O3:31:53PH
REC: $46.08 00C: $
200731906
I?/95/?}07
I |||ilt Iilil tilil ilil ilfi tillt ilil ||il t]il tilt il]l| ilil ilil
EXECTITION COTJNTERPART
lluu-
TIITS OMNIBUS MODIFICATION TO DEED OF TRUST, BUILDINGLOAN AGREEMENT AND^ pISE_B.LO$N DOCUMENTS (this ,,Amendment,,) ismade and entered into as of lffiiiff {, zooz, by and betwe"nTlti-pLnze
DE_VILOPMENT, LLC, a colorado rimited liabrtity company i"Bonower',), WALDIRR. PRADo, an individual (the "Guarantor") and cirnnRK BANK a utab industrialBank, formerly known as GMAC commercial Mortgage Bank, a utah industrial Bank("Lender").
wIINEE.gETH:
WHERI,AS, Bonower executed and delivered to Lender that certain Deed of
Iry, !9L" in the original principal amount of sixty-Eight Miltion and No/100 Dollars(s68,0o0,000.00) (the "Loan") dated August 29,20oi (as amarded from time to time, the"Note"), which Note and the indebtedness evidenced thereby or otherwise payabre underthe l,oan Documents (as defined berow) (the "Indebtedness"), is secured iy, inter atia,that certain Building Loan Agreement lthe "LoilTereement,'), between Borrower andLenderdated August 29,2005, and that ""rt"inEeedifTilt, Assignment of l"ur", undRents, security Agreement and-Fixture Filing dated as of August l.s,zoos executed byBorrower in favor of Lender (the "Deed oflrust"), and recoided on August 29, zo05under Reception No. 927649 in the offi"" of the
'Eagle
county, cororaTo clerk andRecorder- (the "&;corder's gffice"), encumbering that certain property more particularry
described in Exhibit A attached to the Deed of Tirst (the .,propertv";. The Noie, the Deedof rrust, the Loan Agreement and a oth",
'
do"urn6t.-evidencing, 'r""r.ing,
wASHtNCTONDC: 0 | 0136?.00000: 2494v]
200731906 1 of 9
guaranteeing, indemnifying or goveming the Indebtedness, including, but not limited to,
that certain Guaranty Agreement dated as ofAugust 29,2005 executed by Guarantor, infavol ef ;sn6er (the "Gug!agly"), that certain Environmental Indonnity Agreement datedas of August 29, 2005 from Guarantor and Borrower in favor oi Lender (the
"Environmental Indemnitv") are hereinafter collectively referred to as the ',Loan
Documents").
WHEREAS, The Bonower has requested that Lender agree to certain
modifications and amendments to the Loan and the Loan Documents (iollectively, the"Loan Modification"), and Lender has agreed to such Loan Modification, as
'more
particularly set forth herein.
AGEgEME NI.
NOW' TIIEREFORE, for and in consideration of the matters described in the
foregoing recitals- and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the undersigned hereby repiesent.
warrant, covenzrnt and agree as follows:
I Rqcigls/9apitalized Terqg. The recitals set forth above are incorporatedherein. All capitalized terms use.d but not defined herein shall have the meanings
ascribed thereto in the Loan Agreement or thc Deed of rmst, as applicable.
2' Borrower's Acknowledgments. The Bonower represenrs, warrams,
acknowledges and agrees that as of the date of this Arnendment: (a) to its knowledge, no
breach, default or event which, with the passage of time, ttre gi.tning of notice oi both
would become a defauit, exisls under any of the Loan Documentq 1b; except with respect
to the Construction Schedule which has changed since the date ofthe Loan (such changes
having been approved by Lender), all of the provisions of the loan Documents, includingwithout limitation ail representations and warranties set forth therein, are unchangedl
except as expressly arnended hereby, are in full force and effect and are hereby ratffied
and confirmed ry pe |nd complete without exception as of the date hereof; *C 1"y tH,
Amendment and the other Loan Documents will not and do not contravene or constitute
an event which itself or which, with the passing of time or giving of notice or both, would
constitute a default under any deed of trust, loan agreement, inOinture or other agreement
to which the Borrower is a party or by which the Borrower's property is bound.
3 Rafitic.4fion. Nothing herein contained shall in any manner impair theenforceability or validity of the Note, the Loan Agreement, the Deed of Trust, the LoanDocuments or any other security for the Indebtedness held by Lender, or alter, waive,
annul or affect any provision, condition, or c,ovenant therein or any rights, powers orremedies thereunder, exce,pt as specifically provided in this Amendment. It is the intentof the parties hereto that the terms and provisions of the Note, the Loan Agreement, theDeed of Trust, the Guaranty, and the Environmental Indemnity and all other LoanDocuments as herein and previously amended, shall continue in full force and effectexcept as specificarly modified hereby, and that such terrns and provisions, as somodified, are hereby ratified and confirmed. Nothing herein contained is intended as. or
WASHNCTONDC: 0l 0 I i67,00000: 2494v1
200731906 2 of 9
shall be construed as, a novation or alteration of the liens, security agreements,
guara-ntees and assignments evidenced by the Deed of rrust or any other Loan ilocumenlall ,of which liens, security agreernents, guarantees and assignments continue to reflectand retain, without diminution or alteraiion, their original
*enforceabiiity,
prionty andrank.
(a) The obligation of Lender to crose the Loan Modification is subjectto the continuing accuacy and validity of all representations, warranties and covenants
set forth in Article 3 of the Loan Agreement (suiject to the changes in the consbuction
schedule noted in section 2 above) and to the disbursement conditions and procedures
set forth in Article T of the Loan Agreement.
O) All costs, fees and expenses incurred in connection with the
closing of the Loan Modification shall be paid by Borrower.
(c) The obligation of Lender to consent to rhe Loan Modification is
subject to Bonower's compliance with section I1.26 of the Loan Asreement.
5 omnibus Amendment to Loan Documents, The Loan Documents are
hereby modified as follows:
(a) Aftcr the date hereof, references in the Note, the Deed of Trust, theLoan Agreement or the other Loan Documents to the "Note", the "Deed of Trust", the"Guaranty Aereement", the "Environmental Agreement", or any of thJ other i,oanDocuments, shall me an such corresponding foan Document, as modified by thisAmendment.
(b) The Loan Documents are hereby amended to reflect that theParking condominium will rernain part of rhe collateral and will be encumbered by theDeed of Trust, but the Parking condominium will not be subjected to the Declaration orbecome part of the condominium. The definition of "Individual Units', (as set forth insection 2.49 of the l-oan Agreement) is hereby amended to delete reierence to theParking Unit.
(c) After the date hereof, Exhibit A to the Deed of rrusr, as weri asany other exhibit to any of the other Loan pocuments that contains the legal descriptionof the Property is hereby amended and repraced with Exhibit A attached hJeto.
Re-affirma4qn of Guarantor's obrieatrons. In consideration forI ender's agreement to modift th" t".*i *aGiffiis set forth in the Loan Documenrsin accordance with the terms of this Amendment, the Guarantor shall acknowredge, byhis execution of this Amendment, that thc execution and delivery ol this Amendmentshall not and does not in any way modify, reduce, revrse, Iessen or decrease his
4.Condi4ons Precedent to Loan Modification.
wASHINCTONDC: 0 t0 t167 00000: t494vl
200731906 3 of 9
obligations as guarantor and indemnitor under the Loan as set forth in the Loanuocuments.
1 . Miscellaneous. The parties hereby further agree as follows:
(a) Furthe-r Assurances. The Borrower and Guarantor each agree tosign, execute and deliver and to do or make, upon the written request of Lender, any andall agreernents, instruments, papers, deeds, acts or things, as may be reasonably requiredby Lander to effectuate the purpose of this Amendrnent and the other Loan Documenrs.
(b) completeness and Modification. This Amendment shalr constirutethe entire agreement between ttt" pu.tG- h"reto with respect to the transactionscontemplated hereby and shail supersede ail prior discussions, understandings,agreements and negotiations between the parties hereto. This Amendment may bernodified only by written instrument duly executed by all of the parties hereto.
(c) successors and Assiqns. This Amendment shalr bind and inure tothe benefit of the parties hereto and tt"l,,e$.tiu" successors and assigns.
(d) Goveming Law. This Amendment and a documents referred toherein shall be govemed by and construed and interpreted in accordance with the laws ofthe State of Colorado, excluding the principles of confti"t. of laws,
(e) No partnership. This Amendment does not and shalr not becon1tru3d to create a partnership, joint venture or any other relationship between theparties hereto except the relationihip as debtor and creditor specifically esiabliJea uy trreLoan Documents.
(0 Headines. paragraph or other headings contajned in thisAmendment are for reference purposes onryand are not intendea 6 "rr""t i" ury way themeaning or interpretation of this Amendment.
(g) countemarts. This Amendment may be executed in any nurnber ofcount€rparts and each such dupricate originar shalr be deemed to be an o.rgini. -
. (h) Tirne of Essence. Time is of the essence o f this Amendrnent andofeach and every term, covenant and condition herein.
(i) Loun Documents Remain Un . Except as specifically setforth herein, ali other- term. *a .onatio* or a" Loan Documents sharr remarnunchanged and in full force and effect.
ISIGNATURES BEGIN ON FOLLOWING PAGEI
WASH h"OTOI., DC : O | 0 I I 67.00000: 2494v1
200731906 J of 9
IN WITNESS WHEREOF, Borrower, Lender and Guarantor each has executedand delivered this omnibus Modification to Deed of rrwt, Building Loan Agreementand other Loan Documents *nder seal as of the day and year fust aboie writt"n-
BORROWER:
VAIL PLAZADE\,'ELOPMENT, LLC. a
Colorado limited liability company
By' YailPlazaMezzanine, LLC, a Delaware
limited liability cornpary, its managing
member
By:Vail Plaza SPE Equity, LLC, a
Delaware limited liability companyr
its sole member
By'
STATE OF (alomto ,
CO{"INTY OF
41700484\lU075t I \00i30 10,5/]007 l1:i7,ra[{
WAS H INGTONDC: 010ti67.00000; t1t4v3
200731906 5 of I
^^^_ .ft*--liegoing instrum*j *T acknorvledged before me this &o.au1 of October,2007 bv watdir prado, as !3gs]-agnt or lafr=er'corporation,-i-.v., 'r- obtu**.corporation, the sole member of Vail plaza spE Equify, LLa, a Delaware timtea tiauifitycompany, the sole mernber ol Vail^fl-a?g_M "u*o.i LLC, a Delarvare iimitea iiauifitycompany, as manasins member of vail plaza Deveiopment, LLC, a colorado limitedliability compan y .
J
Dalmer Corporation, a
rporation, its sole
I crnnmrrur c. MctNTosH
L g$ffi?15,.'i"'l?o
My Commission Expires 1 0/26/2009
GUARANTOR:
STA-IE OF
(sEAL)
Before me, the undersigned Notary public, on this day personary appearedwaldir R Prado known to me to be the person' whose name is subscribed to theforegoi::g instn:ment, and acknowredged to' me that h" executed the same for thepurposes and considerations therein expressed and in the capacity therein stated. Givenunder my hand and notarial seat, this ,?4 day ofOctober, 2007.
GERALDTNE C. Mc|NTOSH
NOTARY PUBLIC
STATE OF COLOBADO
My Commission Expires r o,eOZ0'Os
41700484\t\20?5lt\0053o l0/rn007 1t 37 N!.1. WASHINGTONDC: 010136? 00000: 24t4v3 . :
200731906 6 of I
CAPMARK BANI( formerly known as GMAC
Commercial Mortgage Bank, a Utah industrial Bank
LENDER:
By:
Name:
Title:
S TATE O f __:-[rn*_-s_-___J
coLNTY oF--Ir0ts---j
1{"* me'.M, on this day personaltyappearedkqr"s-\r8eu,sLl knovh to m"ro t" tto person whose name is subscribed! 9: foregoing institment, and known to me to be the Urc
:1:"y11ry1_?Aryt'<' g**ly.kn9* * cMAa-a;,*.,"r u=;i|;ffi u"Tindusrrial Bank, and acknowledged to me rhai hrlrh, ;;;;;l'r^ii"in-rir,il'rii r", ,i,,purposes and consideration therein expressed, and as the act of said
"ntirr
--dir.n
*a".myhand and seal ofofficethis f O dayofOctober. 2007.
OFFICIAL gEAL
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r? cortt.rtor rtf tr.f: Ci.A.S,aOtO
4 | 700.484\l \2075 | I \00530 | o/l/Zoo7 r I rl3 A.],twASHINGTONDC: 0t 0l 367.00000. 2494vJ
200731906 7 of 9
DENISE KdPHOWSKI
EXHIBIT A
Legal Description
(attached hereto)
wASHINCTONDC: 0 |0867 00000: 2494v1
200731906 8 of 9
L[0AL DESCfllPTl0l{ Our order No. vc5000e420.2_z
ALL UNITS CRMTED BY THE CONDOM]NIUM DECLARATION FOR VAIL PLAZA HOTEL RESORTCLUB' RECORDED DECEMBER 5, 2007 AT REcEPrtoN No .eJ@;N;iin bdNoovrnnurr,tMAP RECORDED DECEMBER 5, 2OO7 AT RECEMON NO.:Y,J1WN'iHE OiPr-C-E'OE rrrrCLERK AND RECORDER OF EAGLE COUNTY, COLORADO.
Forn LEGA!. A+lrBI? 09/02
200731906 9 ot 9
D tflt c0PY
WASHINGTONDC: 0101367.00000: 2495v1
41700842\2U07 51 l\00J30 l0/5/200i I t:36 AM
EHI'LL LUUNII' r-U
TEAK J SII1ONTONPgs: 5 03:31 :54Pf1
REC: $26.00 DoC: 5
tt,v f Jtljt4 (
t2/85/?487
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Li,jfd
COLLATERAL ASSIGNMENT OF' CONDOMINIUM DOCUMENTS.
I |||llr llil ilIil lilil ililt ilil illll ilil llil llil lilil lil llllr_r.\guuuurl \-uPy
DEVELOPER'S RIGHTS
WHEREAS, Capmark Bank, a Utah industrial bank, formerly known as GMAC
commercial Mortgage Bank, a Utah industrial bank ("Lender"), has made a loan to vail
Plaza Development, LLC, a colorado limited liability company (the "Borrower") in the
amount of $68,000,000.00 (the "Loan"), which Loan is evidenced by a Deed of rrust
Note (the "Note"), dated as of August 29, 2005, in the principal amount of
$68,000,000.00 and a Building Loan Agreement, dated as of August 29,2005, by and
between Borrower and Lender (the "Loan Agreement"). The Loan is secured by a Deed
of Trust, Assignment of Leases and Profits, Security Agreement and Fixture Filing, dated
as of August 29, 2005, by Borrower in favor of the public Trustee of Eagle county,
colorado, as trustee (the "Trustee") for the benefit of Lender (the "Deed of rrust'). said
Deed of rrust encumbers certain real property located at i00 E. Meadow Drive, in the
Town of Vail, Eagle County, Colorado 8 1657 as more particularly described on Exhibit"A" attached hereto and made a part hereof (the "propertv"), which, after the
Condominium Creation will include, without limitation, the Individual Units and
common Elements (such capitalized terms being defined in the Loan Agreement) (the
"ProperW").
WHEREAS, Borrower used the proceeds of the Loan to construct a luxury hotel and
resort and condominium complex on the Property which shall be subject to a
condominium regime known as the vail plaza Hotel Resort club (the ',project"). The
Project will be comprised of several commercial and residential units as well as the Vail
Plaza club (the "club") which shall consisr of up to fifty (50) club units (the "club
units") and related common areas. The vail plaza condominium Association, Inc., a
Colorado norl+roflt corporation (tle "Association", toge*ler with the Borrower, the
"Assisnor") has been formed to manage and operate the project, including the club and
to own the personal property within the Club Units.
Now, THEREFORE, for the better securing of the paynent of the Loan and other good
and valuable consideration paid to the Borrower, the receipt of which is heieby
acknowledged, the Assignor does hereby assign, grant, bargain and convey to Lender ail
of Assignor's dght, title and interest in and to the following: (i) any and all, now or
hereafter existing, contracts for the purchase of the condominium units in the buildings
constructed upon the Property and to deposits and down payments towards the pwchase
ofsuch units, (ii) any personal properfy, now or hereafter contained on the project, for as
long as such properfy remains part of the property encumbered by the Deed of Trust and
the other Loan Documents, (iii) any and all rights of Borrower in connection with the
development of the Project, (iv) all brochures, advertising materials, condominium
documents, prospectuses, and any other documents or instruments now or hereafter
existing relative to the Project being constructed on the property and all rights of
Assignor pursuant thereto, and (v) all proceeds of insurance policies, condemnation
s/re -
'to:
-n$1o
#tl,n: Yzurr-n $i'Y1t
awards and proceeds and other deposits and funds arising under or paid in connection
with any of the condominium documents for the Proiect in accordance with the Loan
Documents.
To protect the security of this Collateral Assignment of Condominium Documents,
condominium unit Sale contracts and condominium Developer's Rights (the
"Assignment"), Assignor agrees to perform and discharge each and every material
provision, term and obligation under all of the matters and items hereby assigned on the
part of Assignor to be performed pursuant thereto; and Assignor further agrees nor to
tenninate or materially modifu any of the terms, provisions or conditions under any of the
matters and items assigned hereunder without obtaining the prior written consent of
Lender in each instance, all in accordance with the provisions of the Loan Documents.
This Assignment is an assignment of benefits only and Lender does not assume any
obligation to perform any of the terms and provisions of the items and matters assigned
hereby. Nothing contained herein shall be construed to impose any liability upon Lender
by reason of the assignment granted hereby, except to the extent caused 6y Lender's
willful misconduct.
This Assignment shall be in firll force and effect as of the date hereof but, subject to any
limitations set forth in the Loan Agreement or the Deed of Trust, until the occurrence of
an "Event of Default" as defined in the Loan Agreement or the Deed of Trust, Assignor
shall have the right to take all action with respect to the items and matters assisned
hereby. NoMthstanding any of the foregoing, upon Borrower's cure of an Eveit of
Default in accordance with the terms and provisions of the Loan Documents, which cure
shall be acceptable to Lender in its sole discretion, the rights of Borrower granted
hereunder shall be reinstated.
This Assignment is a security agreement under the Uniform Commercial Code for the
purpose of creating a lien on the personal property described herein.
This Assignment shall be construed, interpreted, enforced and govemed by and in
accordance with the laws of the State of Colorado, excluding the principlei thereof
governing conflicts of law.
This Assigrunent shall be binding upon the Assignor and other parties, if any, executing
this Assignment and their respective successors and assigns, and shall inure to the benefit
ofthe Lender, its successors and assigns.
This Assignment shall be in addition to, and not in substitution of, an Assigrunent of
Conshuction Agreements, Plans and Property Agreements executed as of the date hereof
by Borrower in favor of Lender.
WASHINCTONDC: 0t01367.00000: 2495v1
41700842Up0?511\00530 l0/5D007 I l:36 AM
IN WITNESS WHEREOF, Assignor has duly executed this Assignment the ft\uy of
October,2007.
ASSIGNOR:
V NL PL AZA DEVELOPMENT, LLC, a Colorado
limited liability company
By: Vail Plaza Mezzanine, LLC, aDelaware limited
liability company, its managing member
By: Vail Plaza SPE Equity, LLC, aDelaware
limited liability company, its sole member
By: Daymer Corporation, a Delaware
WASHINGTONDC: 0101367.00000: 2495v1
41700842UU07511\00530 l0/5/2007 1 I :36 AM
its sole member
CONDOMINIUM ASSOCIATION.
WASHINGTONDC: 0101367.00000: 2495y1
41700842UU07511\00530 l0/5D00? lt:36.AM
tEGAt DESCRIPTI0N our Order No. VC50009420.2-2
ALL UNITS CREATED BY THE CONDOMINIUM DECLARATION FOR VAIL PLAZA HOTEL RESORT
CLUB, RECORDED DECEMBER 5, 2()O7 AT RECEPTION NO.Joq13I4lAND THE CONDOMINIUM
MAP RECORDED DECEMBER 5, 2007 AT RECEPTION Norbo7 34b5IN THE OFFICE OF THE
CLERK AND RECORDER OF EAGLE COUNTY. COLORADO.
Folrn IESL. EXHTBI.I 09/02
FILT CllPY
After Recording Rehrm To;
Gwendolyn C. AJlen, Esq.
Ballard Spahr A-ndrews & Lrgersoll, LLp
1225 17tr Steet, Suirc 2i00
Denver, Colorado 80202
2007319A9
r?/95/209?
llill lill ililil iiilt illt llli
ts / ra-AMENDMENT TO DECLARATION
OF EASEMENTS A}ID RIGIITS
poading for SIID6; phase V parking Access)
.'.,- .fft **Hl j" Declaration of Easements and Rights (this "Amendmenf,) is rnadethrs lr " dar of t4cegS ', 2007 by vail plaza Developmenq LLC, a
'colorado
llnited liability "o-p;y (\rpc Deciao"i'), iuitr, rhe consent of vail plaza condominiumAssociation, Inc., a colorado non-profit corpootioo ith" "vpc Association,r.
RECITALS
A' A Declaration yf Egemeag and Rights was recorded on February 4, lggg in
9g-g( 478' Page 377, covering_fhasesrrr, tv, iia v or s;;i"l b1r"ffi*, District6
!"sPD6'? established by Town of vail ordinunce No. z, series of 1976 (as um-enoea from timeto time, the "Declaration").
B' vPC Declarant is the owner of Phase IV and is the Declarant under that certaincondominium Declaration f:l g: v.ll plaza Hotel Resorr club recorded ." ,*ii -'-' ljffi
11
nec-eptiol_t l o 2gf,Aq64 !t!e,,1?c p*r"""ri"r;1, ;Jffi;"d";l,ffi Map for VaiJPlara Hotet Resort Club recorded on lal5 ,iOOt ^rReception No.&Ofilgea (the"VPCMap").
c' Pursuant to the Declaration, vPC Declarant has the power to modifu certain termsthereof' certain of {re easement areas described herein are common elements or limitedcommon elements admini5lgred by the VPC Association, and the VpC Association has thereforeconsented to the recording of this Amendment.
AGREEMENT
Now, therefore, wc Declarant hereby makes, publishes and declares as follows:
l ' Access and Par.kiqg Easement. In light of the Loading Easement described below,Article II of the Declaratioo is hi."byFr"t"d hil entirety. In its place, the following newArticle ll is hereby adopted:
vpc Declarant hereby creates and grants, subject to the terms of thisDeclaration, a private, non-exclusive perpenral iasemeut {the ..Access
Easement') to the owners of units g-z oi tire viuage ro" pru* - phas€ vcondominiums, according to the condominium 6 ,Jf; recorded atReception No. 374590 (the "phase y Map,'), over the surface of that certain
D|vM/EST #651 1624 v4
200731909 1 ot i5
u
Access
access ea$ement area driveway depicted on ExhibitA attached hereto (the
"Access Easement.Are{'), fo. the sore purpose of ingress, egress, and access toand from the tbree *L.C.E. parking Spaces,
^Uoit*
l_Z io"f"rlui; * Jo*o oo tn"
fh*: v Map (the"Benefited parking spaces"). The Access Easement Area andthe Benefited Parking spaces are oepicteo on ExhibitA attached hereto. Nol:t"g or 4erivery shall be permitted on tn" n*"nt"a e-e*iofi;;;.;;, rhroughthe Access Easement Area- The Access Easement is non-exclusive and the wcAssociation shall have the right to use rbe Access Easement Area for all purposesnot inconsistent with t" rights granted above to the owners of units 3-7 0f viltagelnn Plaza - phase v condominiums and their successols *a .rtig!q- provide.dtlat in so doing there shall be no unreasonabre impairruenf lstriction orobstuction of tJre 'se and enjoyrnent of the Access Easement as provided herein.The vPC Association shall be responsibre for, and rrtar, *J"t i", ,"pui. *areplace the Access Fasement Area and the improvements thereon in good and safeeondition. and repair incruding, without timiLtion, cleaning -a oriri, .roroua,snow and ice removal,_ patching, and resurfacing or replac-ement of G surface.The beneficiaries of the Access Easement shil ina"m"ity, a.r""J-*a noraharmless the vpc Association and vpc Declarant *d th;i;;;;u" iir""too,of.cers, members, employees, agents, successors and assigns from a.nd against allclaims, damages' rosses, costs, expenses and riability
^rtJitg fi"-E" Jse of tn"Access Easement or presence in the Access Easernent Area ly such beneficiariesor their respective members, guests or invitees.
Trash Removar Rights. Articte v of the Declaration is hereby amended todescribe the actual location of tbe trash collection and removal facilities benefiting phases rVand V (the "Refuse tr'acilities'). The Refi.rse racilities shall be to"ut"J Juio tn. ..Loading
unit" as defined in the wc Declaration and as depicted on *r" vrc r"rap. VidDeclarant is theowner of the Loading uniJ 9o hereby grants to'the owners association governing the VillageIna Plaea Phase v condominiruns (the;'fhase v essociation") and its members an easement foraccess to the Loading unit for trash coflection and removal pupor", (th; "R;;se Easement,).Access for purposes consistent with the Refus" gasement shall be through the entrances shownon the Map, P t'lgttught.d on Exhibit B for ease oi."rrr.n.". The phase v Association and irsmembers' rights under the Refuse Easement shalr be subject to such J"- *a *grrations as maybe adopted ftom time to time ry ru roaJioe unrt o;;.ii:;iiHffiffi for use of theRefi'rse Easement as reasonablr j9t !r tir" r"Joire iJ"it owner from time to time in accordancewith Article v, Paragraph 3, of the ne"taratio-o.
-
The phase v xro.iutioo shall carrycommercially reasonable insurance covering its activities and access ,.-trr" i"Ji"g unil andshall indemnifu, defend and hold harrnlels ,rr"-v'pc Declarant and its ai.".tor., oftrcers,
f:::":t:^:.1]:Iees, age:l:, successors and assigns from and uguinst al-cfaims, damages,rosses, cosrs, expenses and liability arising from thJ use of the neni. e^"i"rrt or presence inthe t oading unit by the phase v Associati-on o. it, ie-u"n, guests or invitees.
DtunATEST t 651I624 v4
200731909 2 ol 15
3.
follows:
DIfWEST #6Sii6?4 v4
200731909 3 of 1s
\rtr
Loadine and Delivery
vPC Declarant hereby creates and grants a private, non-excr'siveperpetual easement (the "Loading Easement")1o the owners orproperty *im'
-sDD6
and any owners' associations forrned therefor, for access tJ an'J*e or tneT-oading unit (the 'Loading unit"). The Loading unit may be accessed through
9" *"" of ingress and egress identified on pxniuit g. Access to *a use or tn.Loading Unit shalr be subject to such *r.. *d r"g*rlations as may ue adoptedfrom time to time by the Loading unit owner and Jubject to a fee ior use of thel,oading Easement as reasonably set by the Loading ur,it o*o", to- ti*" totime' Each eutitr wh]9h is a beneficiary of the Lo-ading r*"-.J rrar "u-ycommercially reasonable insurance covering its activities and access to. theLoading unit, and shal indemniff, defend and hold harmless the vpc Declarantand its directotr, ?F:"I, members, ernployees, agents, successors aod assigrrsfrom and against all claims, damages, lorr.sl costs, expenses and liability arisingfrom the use of the Refuse. Easeient or presence in the Loading unit by suchbeneficiaries or their respective members, guests or invitees.
In the event a gruage entry is constructed connecting the Loading unit andthe adjacent parking_garage for phase III, known as v'hgJkur plrr4E ownersof property within_phase rII and any owners, association fomred therefor sballhave an easement for access to such garage through the floor surface areas of theLoading Unit shown -on pxhibit C qihe ;Garagu .Easement,), which easemenrshall be subject to such rures *a ..gut"tion, * may be adopted from time to timeby the Loading uni] o-wner, subjeJt to a fee for *" or ta" o*ui. E*.-"ot *reasonably set by the Loading unit owner from lime to ti*.,"* ,uu3""t toinsurance and indemnification provisions similar to those set forth above.
4. Miscellaneous,
a' count€rparts. This Amendment may be executed in any n'mber ofco'nterparts, each of whic\ when so executed and deriveredl ,h"ll ;;;;;;-un o.igioa, tut "ttof which shall together constitute on" *A th" **" Jo-"rrn,"rr,.
b' confliq. In the event of any conflict or inconsistency between theprovisions of this Amendment and th" n""la.utiof the pmvisions of this Amendment shallgovem and conhol.
IN WITNESS WHEREOF, the vPC Declarant and the vpc Association have executedthis Amendment as of the date first above written. ---'
Loading and Delivery. A new Article vII is hereby added to the Decramtion as
[SIGNATURE PAGE FOLLOWSJ
i -'
i ,',.8,\ .,lNFC Mc|NTOSHr ' . r:,,i ,,l\ts (;. MCINTC' )TARY PUBLICi i-e oF COLoBADO
VAIL PLAZA DEVELOPMENT, LLC, A
limited liabiliry comp€ny
Name: WaldirPrado
' r:ission Expires 10126A0;9
STATE OF COLORADO
COTINTY OF EAGLE
)
)
)
4.y: foregoing^instrument was acknowledged before me n" ,&day of' t t'tn-L ,2007 by waldir prado, the Manager of vail praza o*u.rop*"nt, LLC, aColorado limited liabilify company.
Witness my hand and official seal.
GERALDINE C. MctNTOSH
NOTARY PUBLIC
STATE OF COLORADO
My Commission Expires 10/26/2009
My Commission Expires:
DtvfWEST #651 t 624 v4
200731909 4 oi 15
4
VAIL PLAZA CONDOMINIUM
ASSOCL{TION, INC., a Colorado non-
profit
t%
i GEBALD|NE C. MclN I
I
-1##aFi;.'""ii'"
iT;m;;ffi#J
STATE OF COLORADO
COLINTYOF EAGLE
Fv,
.d.!" foregoing^instru&enr was ac@owledged before me this t*lday of##ffi;'q; J"?I^u!t","Wffi ,n I'tn^i4zt or vur pru"u
Witness my hand and official seat.
My Commission Expires: t n lz* loq
DMWEST 1651 1624 v4
200731909 5 ot 15
MORTGAGEE'S CONSENT
The undersigned hereby consents to the execution and record.ing of the foregoingAmendment, agrees to be subje^ct to and bound by the terms of the foregoiig Amendmenl andhereby subordinates the lien of that certain Deed of Trust, Assignment of Leases and profi*,
lecurity Agreement and Fixh-re Filing, from Declarant, as grantor, to the public Trustee of thecounty of Eagle, as trusree, for the benefit of the undersigred, as beneficiary, dated August 29,2005 and-recorded August 29,20as in Book g3 at page 416 as Reception No.927649 .'therecords of Eagle county, colorado (the "Deed of rrusf'), to ihe Amendment and the effecthereof.
The lien ofthe Deed of Trust is and shall continue to be a valid and continuing tirst lienagainst (i) all of the units established under the Declaration, and (ii) all of the rmdivided interestsin the common elemenls of he Condorninium appurtenant to such units, subject, however, to theterms and conditiolu of Section 70 of the Deed of Trust. This subordination st urr not impair,abridge or otherwise affect the. Deed of Trust (or the rights aod remedies oi the benefi"iarythereunder), which shall remain in firll force and effect.
'rhis subordination shall nor be constued as a joinder by the undersigned in theDeclaration.
Datedthisfl dayof -\. / / ,2007.
CAPMARK BANK, a Utah indushial bank
By:
Narne:
Title:
STATE OF -r-2,1 ,>t.. <
) ss.
COLJNTY oF ta d_
Utah industial bank and that said instument
OFFICIAL SEAL
GCTHI.EEN M REYNOI.OS
T0TARY PUSL|C . SIAIE OF N.!riO6
rf,Y COrfl |sslo.t EXP|RE$:06,:EDE
me l-"&,i{/r,t"*/rz-
_ of Capmark Bank, a
)
)
o.n ft."L2 9uv off-/;f,- __, 2007, personally
y-h9, l"yg by me duly sworn aia say that hs'is a il,r_ .
behalf bank.
PTIBLIC
Dlvli/EST {€5 1 1 624 v4
20073'1909 6 of 15
D(HIBITA
ACCESS EASEMENT AREA
DMWEST #€S11624 v4
200731909 7 of 15
LEEAL DESCRIPTION
tE+p*-oF LAND LocArED rN vAiL PLAZA HoTEL RESoRT cLrJB AS RECoRDED5, ?xffi##ffiFOLLOWS:
COMMET{CING AT T}IE NORTI{WEST CORNER OF SAID VAIL PLAZA HOTEL RESORT CLT]RWHENCE THE SOUTEWEST COMMN Or SEN VEN Pi,AZf,riOTEL RESORT CLI]B BEARSS OO9}OO" E A DISTANCE OF TSS.TS rBgr, FONr"M.IC-NiEJASI' OF BEARING FOR T1IISDESCRIPTION:
THEI.ICE ALONG TTIE WEST I,INE OF SAID VAIL PLAZA HOTEL RESORT CLUB S OOO23'OO. E ADrsrANcE oF 66.02 FEEr ro rr{E rmle ponrr orEsdniim.ra.
THENCE DEPARTING SAID WEST LINB OF VAIL PLAZA HOTEL RESORT CLUB TTIEFOLLOMNG TWO (2) COURSES;
t) s 79s45'33" E A DISTANCE OF 56.51 FEET;2) S 09O5716" W A DISTANCE OF TZ.S9 FMT rO N POiNf ON T.IE SOUIH LINE OF SAII)VAIL PLAZAHOTEL RESORT CLTJB;
Tr{ENcE ALoNc SAID sourH LINE oF VAIL PLAZA HorEL RESORT clr.iB N s0"0u,g" w ADJSTANCE OI28,fi) FEET:
THENCE DEPARTING SAID SO'UTT' LINE OF VAIL PLAZA HOTEL RESORT CLUB THEFOLLOWING Two (2) COURSESI
I ) N 0905716" E A DISTANCE OF 56.88 FEETI?) N 7905455' W A DISTAT{CE OF 22.79 FEi TO A POINI' ON TIIE WEST LINE OF SAIDVAIL PLAZA HOTEL RESORT CLUB;
THENCE ALONG SAID WEST TJNE OF VAIL PLAZA HOTEL RESORT CLIIB N OOO23'OO" W ADrsrANcE oF 31 85 FEEr ro rrrE rnueponn or b;6-ffic.
SAID PARCEL CONTAINING 0.075 ACRES MORE OR LESS.
EXHIBITA
BREI.q-r BIGGS Pi.S. NoIE d
PREPARM FOR AND ON BE}IALF OF
PEAK LAND SURVEYING, INC.
P:\1200-1299\1290.5\docsU.egal-phase V parking Access Faserngrt.doc
200731909 I of 15
e.46:00,,
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FIRST AMENDMENT
TO CONDOMINIUM
MAP OF VILLAGE INN PLAZA
PHASE V CONDOMINIUMS
(RECEP'ION No. J87596)
'------/
I
Irf
l]
I
SfJLt! r-,tu'
P.O.C.
T.P.O.B.
VAIL PLAZA HOTEL
RESORT CLUB
(1.467 ACRES)
LC.E. PARKTNG SPACES (3)
UNITS 5-7 INCLUSVE
(REC€PfioN No. J87598)
LINE TABLE
UNE LENGIH BEARING
LI 52.23'N8032'4+"W
L2 o ta)N0957'16"E
L3 55.50's]013'O2"W
L4 49.48's62!6'45"W
E5 22.7l',N795+'55"w
EXHIBIT A
VAIL PTAZA HOTEL RESORT CLUB
TOWN OF'VAIL
200731909 I of 15
E}ffiIBIT B
AREA OF REF'USE EASEMENT AIID LOADING EASEIMNT
' DNM/EST 165i 1624 v4
200731909 10 of t5
LEGALDESCRIrjflON
A PARC.EI,.OF I.AMD LOCATED IN VAIL PT.AZA HOTEL RESORT CLUB AS RECOR'ED
l?HrTo*'**'"
COMMINCINO AT TI{E NORIHVIEST CORNER OF SAID VAIL PI.,AZA HOTEL RESORT CLUB, WIIE}|CETlrE NoRTHEAST coRNER oF sAID vert naz,c, HoGr.irsonrclus nEAxss 79"46'00" E A DlsrANcE oF tz8.3s FET, roRNm'Ic ncbeiii or "nennro FoR TTrrs DEscRrpTroR
THFICE AIONO THE NORTH LINE OF SA]D VAIL PLAZA HOTE.L RbSORT CLUB S 79"46'00" E ADISTANcE oF 9.3oreff ro rus rRUEpotrr.r oF gEon'nil,r6.-
THENCE coNTINtilNc ALoNo rI{E sAiD NoRrH LINE oF vArL pr-AZA HorEL REsoRT CLUBs 79'4600'E A DISTANCE oF 44.8r FEET ro e ronrr or-NoN-relonrr cunverrng;-rffiietg*tgo * - NoRrH LrNE oF vAu. praze qo-rpc nr]-oir crue rrs rolrofrrc sxiit
l)
EXHIBIT B
SAJD PARCEL CONTAINING O,I8O ACRES MORE OR LESS,
13.54 FEET ALONGA NON.TANGENT CURVE TURNINO TO TI]E LEFT I{AVING A CENTRALA}{GLE OF 3IOOI I9", A RADruS OF 25.00 FEET AND A CHbru WHCrr SEARS S 02'05?5' E ADISTANCE OF 13.37 EEET:
S 17o36'04" E A DISTANCE OF 4-42 FEETi
S IOO14OO" W A DISTANCE OT I.53 FEET:
s 79.4d00, E A DISTAI.ICE OF t rg.oo FET,
S IO"I4'OO" W A DISTANCE OF I,I3 FEET:
S 79"46'00' E A DISTANCE OF I.58 FEET TO A POINT ON TTIE EAST I,INE OF SAJD VAIL PL{Z{HOTE, RESORT CLUB:
3\
4)
s)
0)
'I}IENCE ALAN{G SAID EAST LINE Of VAIL PT,AZA HOTEL RESORT CII]B S O9'30'OO. W A DISTANCE OFI 6'25 FEET; THENCE DEPARTING sArD rmr rnre op' vau. u-lza norel REsoRT CLIJB THEFOLLOWINO FOIJRTEEN (14) COIJRSES:
l)t\
4)
6)
7)
E)
e)
10)
1l)
l?)
l3)
l4)
N ?9'46'00' W A DISTANCE OF 1.79IEET;
S IOOI4@" WA DISTANCE OF lJ? FEET:,
N 79.46'00" w A DTSTANCE oF 45.e7 FEEI:s r0"t4,00" w A osteucr or z:o rmrj
N 79'116'00" WA DISTANCE OF 20-36 Fmt
s 10014'00' w A DISTANCE OF 35.35 FEET:
N 79"46 OO" W A DISTANCE OF 13.55 FEEI
S- IO'I4'OO" W A DISTANCE OT 6.80 FEET;
N 7904600" W A DISTANCE OI25.?5 FEEi:
N IO"I4'OO' E A DISTANCE OF 83.0I FEET:
s 79"4600" E A DISTANCE OF 2.33 FEEE
N t0"14'00'EA DISTATiICE OF r.00 FEEI,
N ?9.46'00' w A DISTaNCT or tr.zs rtdlN ro"t4,00. E A DISTANcE oF rr.sa rrer io nc rRUE poINT oF BEcINNING.
L-RB,r-aBmSTr-sM zrsss --
PREPARM FOR AND ON BEHALF OF
PEAK I.A,ND SURVEYINq INC,
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200731909 .13 of 15
FOLLOWS:
COMMEbTCING AT TTIE NORTI-IWEST CORNER OF SAID VAIL PLAZA HOTEL RESORT CLUB,WHENCE TI{E NORT}IEAST CORNER OF SEIN VNN PiEZA TTOTEL RXSORT CLUB BEARSs 79'46'00" E A DISTANCE oF rzs.:e FEnr, FoRrnm{c fr,u-eesrs or erARrNc FoR THISDESCRIPTION;
HE'ICE ALONG THE NORTH LINE OF So'D VAIL FI-AZA HO'EL RESORT CLUB S 79.46'00" EA DrsrANcE oF 9.30 F-EEI ro rHErnue ponn oFB-dcrihiNo.
THENCE CONTINUING ALONG THE SA]D NORTH IJNE OF VA'L PLAZA HOTEL RESORTcl-url s 790,{6'00'E ADrsrANcEOF qq.sr FEET ro tfiiirbrrow-reNcnn cuRVAruRE;TF'ENCE DEPARTING SAID NORII{ LINE OI'VANPiEZ"'HO''EL RESONT CLUB'ftIEFOLLOWING SD( (6) COURSES:
I) 13.54 FEET ALONG A NON-TANGENT CURVE TURNING 1'O THE LEFT II.{VING ACENTRAI ANGLE OF 3I"0I,I9., A RADrui Or ZS.M iIE'r ANO A CHORD WHICHBEARS s 02q05,25" E A DIsTANCE or r:.:i rrri;- - -'
2) S 17"36'04' E A DISTANCE OF 4.47 FEET;3) s r0.14'00r w A DISTANCE oF r.53 FEEi;4) S ?9"4600n E A DTSTANCE OF I ls.Oo FEET;5) S 10014'00" W A DISTANCE oF t. t 3 FtrTl6) S 79046'00'EADISTANCEOF r.SEFE t rO E FOINT ON
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EAST LINE OF SAIDVAIL PLAZA HOTEL RESORT CLUB;
THENCE ATONG SAID EAST LINE OF VAIL PLAZA HOT"' RESORT CLT]B S 09"30'OO" W A
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l) N 79"4600, wA DTSTANCE OF 1.79 EEET;2) S 10.14'00'WADISTANCEOF t.zl ewr;3) N 790.1600' w A DISTANCE OF I S+.OO rEnT;4) N 10014,00' E A DISTANCE OF 19.65 FEEII5) N 7964000, w A DISTANCE OF r t.z: rErt;6) N IOOI4'OO'1 E A DTSTANCE OF r Z.SOTEETiO TIG TRUE POINT OF BEGINNING.
SATD PARCEL COMTAINING 0.086 ACRES MORE OR LESS,
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LEGALDES1CRIPTION
A Pl\c,-q,/ SILAND LOCATED TN vArL PLAZA HOIEL REsoRr CLUB As REC ORDED
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tsRENT BIGGS p.t .S. No. 2r:S8
PREPARED FOR AND ON BEHALF OF
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200731909 15 of 15
I
@ FILT I}ilPY
E66LE COUNTY, CO
TEAK J S IMONTONPgs: 2 93:31:57Pfl
REC: S11.00 oOC: $
24073r910
I2/95/2907
After recordin€: retum to:
Gwendolyn C. Allen, Esq.
Ballard Speftr Andrews & Ineersoll LLP
l2?5 l7f Street. Suite 2300
Denver, CO 80202
I |||ilt tilt ilil ilffi ffiil tilil ilil tilt iltil ilil ill|| til ill
2 /t''
COVENANT RESTR]CTING
PUBLIC USE OF SPA T'NTT
VAIL PLAZA
VAJL PLAZA DEyELOPMENT, LLC, a Colorado fimited liability company('A!.nef) is the orner of ttrat certain spa unit (the "&gp4') as defined in and created by that
certain Condominium Declaration for the Vail Plaea Hotel Resort Club, as recorded oulCli_ ,?997, il Reception No&a;iQpl__, and as de,picted on the Map, asrecordedon /st[5,2007,atReceptionNo.JOa?3/?d{.
Pursuant to ordinance No, 16, series of 2004 (the'orai&sgq"), by which rhe revised
Approved Development Plan for Special Development District No. 6 was approved to allow for
the conshuction of the Vait Plaza Hotel Resort Club, Owner is required to iecord a resfuiction
prohibiting public use ofthe spa facilities on the Property as a result ofthe lack ofpublic parkhg
to support such public use.
Therefore, Owner hereby covenants and agrees that the Property is and shall continue tou9 9$j9ct to the following restrictive covenant: -that only ora,o".s of units or interests in unitswithin the Yul Plaza Hotel Resort Club or their guesrs or occupants; occupants of hotel roomswithin the Vail Plaza Hotel Resort Club and their guests; and/oi members (if anyy of the spa on
9: P.o-ptt v shall be perrnitted to use the spa facilities on the Properry, una general public access
is hereby prohibited.
This covenant shatl biod aad run with the land, and may only be terminated in t1e eventthat owner satisfies the Town that adequate pro*sions for parking have been made toaccommodate public use as set forth in the Ordinance, or upon repeal of the restriction set forthin the Ordinanco relating to use of the property.
oatedthis t{F day ot MLl,vnh<nt-,2ss7.
Dfi,MEST t6502764 vZ .
200731910 1 of 2
V NL PLAZr' DEVELOPMENT, LLC, A
STATE OF COLORADO
COLNTYOFEAGLE
)
I
)
4,,y" foregoing^^^irxtrument was acknorvledged before me tlus AA6ay o1i I t *rt- ,2007 by waidir prado, the Manager of vail
'rr" o.urloporent, LLC, aColorado limjted liabiliry company.
V/itness my hand and official seal.
My Commission Expires:
*By \&2.1L<
,/frirttrG* Waairp*a"
Itsld{anager
Di/nATEST #A50275a v2
200731910 2 of 2
o T ILE
COUNTY , COJ S lfrol.rroN5 03:31 :sBPn
$26.40 DoCj S
e0a731911
L2/@5/2007
EAGLE
]EAK
REC:C$P Y
rypE ,,, EM'L.'EE _"J[lllul{ilu lll]l lllll lilll llil llill lllll lill llill lil lll
REsrRtclvE covENANr j/l f" -
WHEREAS, Vail Plaza Development, LLC, a Cotorado limited liability company, is the owner (',the
Omel") of certain property legally described as tire E-Units according to the Condominium plat of Vail plaza
Hotel and Resort Club recorded on / J l{ , 2007 at Reception No.jff13n65 and the Condominium
DeclarationfortheVail PlazaHotel Resortctubrecordedon lJ15 2007atRlceptio"no.\oo1 34O4
(each, an "Employee Unif ) and \
\
WHEREAS' the Owner wishes to place certain restrictions on the use of the Employee Units for thebenefit of the Owner and the Town of Vail,'Colorado (,the Town,")
NOW THEREFoRE, the owner does hereby impose, establish, acknoMedge, and declare for thebenefit of all persons who may hereinafter purchase, br base, or hold the Ernployee Units flle followingreskictions, @venants, and conditions, atl ;f which shall be deemed to run with the land and inure to thebeneft and be binding upon the owner, its respective grantees, successors, and assigns.
1 . There a* 19-5jilo,, ylgl 1" emptoy-ee housing unik, or EHUs, and which coilectivetycontain approximalely 9.764.06 square feet. eactr EnU is hereby iestn'cted as a Type lliEHU whicfi must comply with all the provisions of Chapter tS, fide te oi tne Town Code ofVail as amended
2' Each Type llt EHU shall not be subdivided or divided into any form of timeshares, intervalownership, or fractional fee.
3 Each Type lll EHU shall be leased to and occupied by tenants who are fuil-time employeesMo wotk in 5:98_c..1rry,, [1h rype lll E]l_U'shalt ,ioiG rdaslo roia'perioa nss'trdnrrirty(30) consecutive days- For the puryoses of this paragrapir,
" rr.,fr-ume
"rirpf"yee
is one who-'works an average of a minimum of thirty (30) hours eEcti weet< on a yeai rouno basis. EachType lll EHU shall be mntinuously rented'and shall not remain u""arit iot " period to exceedfive (S) consecutive months.
4' occupancy of each Type lll EHU shall be limited to a maximum of two persons per bedroom.
5' !39h Type lll EHU shall have its own entrance. There shall be no interior ac-cess from theEHU to any dwelting unit to which it may be attached.
6. Each Type lll EHU must contain a kitchen or kitctrenete and a bathroom.
7' Each Type lll EHU may be sold, transferred, or conveyed separately from other dwellingunits or EHUs..that may be located on the same lot or within ihe ;ani" uriioing, if one of thefollowing conditions are met:
a' lt_musl be utilized according to the criteria set forth in paragraphs 2 and 3 of thisdocument, or
b' rt must be used by the owner of the Type lt EHU as a permanent residence.
For the purpose of this paragraph, a permanent residence shall mean the home or place in whichone's habitation is fxed and to wtticlione, whLn"*r tr"'oi"n".is absent t a" "
pre""nlinGntion of retumingafter a departure or absence lhererym, regardlelJbi tre'o-rrution of absence. 'rn a"i"-i"i"g what is apermanent residence, th" Tor-"F[:hail take.ttre forowing circumstances;"ii;;i;iii;'"wnerof theresidence into account business plrsuits,.employment, indme sources, residenc€ for income or other bxpurposest age' matital stafus, residence of parenis, spouse and children if any, lo;inn oi p"r*n"r and realproperty' and motor vehicle registration. rnirty looj aiys prio, to th" transrer 6i oeeo iorine Type t1 EHU, the
Rdur\rr\ tD l-ib t-on a{ VLrt I
15 g, (yv nltttg- (oad
\)ai)-,Lo sit 97
200731911 1 of 5
prospective purchaser shall submit an application obtained from the community Developmeol Department, tothe.community Development DePartment documenting that the prospective pui"rr".ii fi*tr the cnteria setforth herein and sharr incrude an affidavit affirming thaiheror srre meets these criteria.
8' No later than febryar.v 15 oJ each year, the owner of each Type lll EHU shall submit a swomaffidavit on a form to be obtained fiom the Community oeveiopmeni Depirtmen! to theCommunity Development Department setting torttr wioence e'.t"ufi=rri"5 tn"t Employee Unithas been rented
-or
owqgroccupied through6ut the year, tne rentar..t",irre emptoyer, andthat the tenant who resides within the emflloyee nou'sin j unit ii a ruir-time
"mpriyel in rageCounty.
I' Each Type lll EHU shall be_operated and maintained in accordance with Chapter 13, Ti e l2of the Town Code of Vail. Failure to do so may result an enforcement proceeoings in a courtof competent jurisdiction and in accordance wiih ctrapieis, iitre ri oitire rown code ofVail.
't0' The conditions, restrictions, stipulations, and agreements contained herein shall not bewaived, abandoned, terminated, or amended e-xcept oy tfre written conient or uorh the Townof Vail and the Owner of Ore property.
11' Wh.enever possible, each provision of this Agreement and any other related document shallbe interpreted in such a manner as to be valfu under appli""nie-f"*; out ii any provision ofanv of the foregoing shail be invarid and prohibited u#6;id $prUte'L,lv, ,u"n provisionsshall be ineftuctive to the extent of such invalidity or prohibitionwithout'invalioating theremaining provisions of such documents.
'l.2' lf any of the terms, covenants, conditions, restricti-ons, uses, limitations, obligations oroptions created.bv this Agreernent shalr be unrawtul oi vord 'f;r;idiio;
Jri 1"; tn" runagainst perpetuitf-: gt,:ot: analogous statutory provision, tti ir,l--lJi,i *itri"ting resbaint onalienation, or (c)€ny other statutorf or common lau, rules imposing like or similar time limitg,hen such provision shall continue bn[ for the period of the lives of the cunent etected andseated Town council of the Town of Vait, vait,'cob;do; ih"ir ""* livi.i i"scencrents, if any,and tne survivor of them, plus twenty-one (2t J years.
lsignature Pages Followl
200731911 2of 5
2
TOWN OF VAIL, a Colorado municipal corporation
Town Manager
STATEOF COLOMDO
COUNTY OF EAGLE
. -
Th: for"going instrumentwas acknowredged before me thi*2f*du, o*ffroo, uy $zr-nt_<z+.tlef . Town Manager.
Notary Public:
My commission exoires:
200731911 3of 5
limited liabitity company
ffiI NOTARY PUBLTC fI srArE oFCOLORADO l-t-a--aaa--_-a,
My Commisston Expires 1 0/2612009
COUNTY OF EAGLE
strArE oF coLoRADO
The foregoing instrument was acFp_wtedged before me this?,-# t .y o{fffrootby Watdir prado,the Manaserof Vait ptaza Devetopment, t_tc, u Ct]oralo iirit"a ri.uiritvid;6;y.'-,, -"
Witness my hand and official seal.
My Commission Expires:
MORTGAGEE'S CONSEI,IT
- The undersigned hereby consents to the execulion and recording ol the foregoing Restrictive
CovenanL agrees.to be subject to and bound by the terms of the foregoing RestrictivE Colvenant, and hereby
subordinates the lien of that cerlain Deed of T*"1 Assignr"nt of Leises-and Proftts, Security Agreement
-
:nd F_ln{e Filing, from Declarant, as grantor, to the Pu6lic Trustee of the County of Eagle, ai tru1tee, for the
benefit of the undersigned, as beneficiary, dated August 29, 2oo5 and recorded August-aS, eOOg in Book 83
1t Page.4l-6_as Reception No. 927549 in the recordi of Eagle County, Colorado (thL 'Deed of Trusf), to ttris
Restrictive Covenent and the effect hereof.
The lien of the Deed of Trust is and shall continue to be a valid and continuing first lien against (i) all
of the units established under the Declaration, and (ii) all of the undivided interests in Ihe common elements
of the Cond-ominium appurtenant to such units, subject, however, to the terms and conditions of Sectjon 70 ofthe Deed of Trust. This subordination shall not impiir, abridge orotheruise effect the Deed of Trust (or therights and remedies of the beneFciary thereunder), which shlll remain in full lorce and effect.
This subordination shall not be construed as a joinder by the undersigned in the Declaration.
Dated this i ) dayof :\; /y ,2007.
CAPMARK BANK, a Utah industrial bank
By:
Name:
Title:
STATE OF Fz, t,.t". :
) ss.
couNT{aF rz-a_
who, being
; a Utah industdal bank and
OFFiCIAI SEAL
CAfttEEN MRFYNC|,OS
NOTAnY tugrc . srAtE oF i.rfts
MY COHr€St0it EXpTRES:Gr2Anf
200731911 5 0f 5
, FILEG0PY i$jtr!lti'i*1'r,."*. ,3,3:il3lji
I |ilil[ilil lllilllill illr ililI llilt ilil ililt lil lilill ililI ilil ililSIDEWALK/STREETSCAPEO'*O*#J,tN,rAIi.rffiNANffi,C,ihEUN,ffiMr
Irl
THIS SIDE*ALK/STREETSCAPE & SNo*MELT MAINTENANcE AGREEMENT ,<IGI'
!1!1 _-lsreemenf') is made effective as of the$flhay of November,2o07,by and between theTOWN oF VAIL, a municipal-corporation dulyiftanized and existing unO", ana uy virtue of thelaws of the state of colorado (the "Town',), *d vuit pta* oevelopm.it, LLC, a colorado limitedliability company (the ..Developer").
RECITALS
A' The Developer has caused the redevelopment of certain real property in the Town ofvaii,.commonly known as the Vail Plaza Hotel Resort CluU lthe *erojei;),-which is located inSpecial Development District -No. 6, as more particularly oes"auJ ., g*hiuit a. Theredevelopment shall be in accordance with the Town of Vail approved ptans puiuant to Town ofVail Ordinance No. 16, Series of 2004.
A portion of the paving and sidewalk areas within the Project, as shown on Exhibit B(the "Projectrmprovements'), are equipped with certain sno*-"lt ,yste,nr, as further describeaherein' certain paving and {dewalk areas adjacent to the Project withio u puttic right of way, asshown on Exhibit,c (the "pullic Imp.on"-"ots";, are also "qiripped with snowmelt systems. Thesnowmelt system in the Public Improvements reliei on certainiquipment and boilers located on theProject in order to function, and the Project Improvements are in an area that is or shall be subject toan easemenJ for public pedestrian access. The Project Improvements and the public lmprovementsare referred to collectively herein-as the "fmprovements." The areas in which the Improvementsare located, as sbown on Exhibit B, are referred to herein as the ,!mprov"-"ot A"""".,,
9 Developer has agreed that the ftnprovements will be rnaiatained to a maintenancestandard at least equivalent to that set and exemplified by the Town of Vail,s maintenance ofpavingand sidewalk improvements along the public sLeet commonly known as Eqst Meadow Drive , asfirther set forth herein.
AGREEMENT
Now' TfmREFORE, in consideration ofthe above prernises and the mutual covenants andagreements set forth herein, the parties agree as fo ows:
J : - Maintenance of Snowlqelt System. The Developer agrees and confirms that it wiu besolely obligated for the construction, inst"ltation und maintenance of"th. rno**art 5'vrt",,1 within theImprovement Areas. This.maintenance obligation *if d;if;;ilrd";-il"ut limiration,provision ofsnow removal by rneans ofadequite snowmeli heat sources, t" * "qrl"a"nt standardset by the Town of vail's snowrnelt system iocated along East Meadow Drive. This shall includebut is not specifically lirnited to; operation otsno*rn"tt systenrs' mechanical, electrical, hydronic,plumbing and material systems qi.e. uonen, snowmelrtubing, manifolds,."ilr"iJ boxes, pumps,etc"')' Developer fi.uther agrees that it shali opemte, maintain and ,"pui.ri" ,no*"lt systern, at itssole cost, in such a manner equivalent to trt" r"u.r oi sadard set by the Towu of Vail's snowmelt
ly:stem located along East Meadow D1v9. The operation ortrr",rro*rneri ryrario rrrar
"ontinue atthis set level at a minimum until such time the io*, or vuir ..*"r to op'"*t" uod maintain thesnowmelt system along East Meadow Drive, at which tirne u" n.ueiope, frt maintain ttre
DIT|WEST *6557748 v4
200731903 1 ol 12
A!*tp'*--to ' TgWN 0F VAIL
OFFICE OF THE TOWNCI,ERK
i5 S, FRONTAGE ROAO
vAtL, coloMm 8t85t
obligation of snow removal, at its sole cost, as per the Town code. However, the means and
methods will be at the Developer's discretion. The Developer will specifically have and retain the
f8ht and authority to assigr and delegate these maintenance obligatiors to any i'vletropolitan Disrictformed, and the Developer till be released froih the maintenance obligaiions so assigned anddelegated.
2' Maintenancg of $treetscape and Sidewalk. In addition, the Developer agrees andcon-firms that it will be solely obligated forthe maintenance and repairoithe pro.lectlmprivements
rl $e qgrtion of thc Improvement Areas shown on Exhibit c (the .Trardscapinjlmprovements',).
This obligation will specifically include, ,,ritttoutlimitution, su.fu"e *d souiurface conditions,maintained to an equivalent standard set by the Town of Vail's streetscape and sidewalkimprovements located along East Meadow Drive. This shall include but is not sp'ecifically limitedto; pavers, paver restraints, sand, snowmelt fubing, and pavement subsurface strucfure. Themaintenance of streetscape and sidewalk provideiherein shall also be at the sole cost of theDeveloper.
3. License to Enter and Access. The Town hereby grants Developer, its agents,consultants and contractors a license to enter upon and to o.iup-y any portion of the public
Improvements for the purposes of carrying oui the Developer's ottigaiions pursuant to thisAgreement' all at no cost to the Developer (untess Developer must obtairia pubiic way permit, inwhich case Developer shall pay the Town's usual and customary fees for such permit). Developershall provide the Town with reasonable notice prior to entering the puf,lic ponion of theknprovement Area to repair or maintain the public i*prou"_.ntr.
t -, Indemnificatign bv Develooer. Developer shall indernnil!, defend and hold theTown' its officers' and employees rru""t"". r.o- all causes of acdon, craims, suits, judgments,losses, achral damages and costs (incJuding withour limitation reasonuui" rtto-lyr, fees) inc'rredby the Town as a result of the negligence-or willful misconduct "" th" p* ;i',he Developer incarrying out its obligations under this Agreement. Developer further undersands ano agrees that theTown is relying on, and does not waive or intend to waive by any provision of this Agreement, themoneta4/ limitations or any other rights, immunities, and protections provioeJty the colorado
!3ve1mental..s-*iry Acf c.R.s. $ 24-10-101 "t ,"q., or any other limitation or defenseotherwise available to the Town, its officers, or its employees.
5' Binding Effect. The provisions ofthis Agreernent shall run with the land and shall bebinding upon and inweto the benefii orburden oftheDeveloper aoa th" rown, theil;;#.r;
T:iflt' upon recording of tbis Agreement in the Eagle county, colorado real estate records.Without limiting the generality ogthe OreSopq, the partes ackn"liri.Oe.
""J "g.* thar in rhe evenrthat a common interest corununity ir estiutrTiea Gaer m provisions of the colomdo commonInterest ownership Act, c.R.s.. 3.g-33.3-l0l et seq., in connection with the project, all ofthe rightsand obligations of Develooer shall be ex^ercisabt* ty ri. urro.iation formed to govern the same (the"Association') without the necessity of the .onr.nt oi*y o*", of a unit or interest or any partyholding a security interests in a unit or interest atta,
"pon recording the condominium declaration andcondominium map for the project, the Associatioo ,[Jr be o""med to be a party to this Agreementin substitution forDeveroperand to haveassumetD;;i"p"r'r.ighr, *J "in#i"*hereunderandDeveloper shall have no irther liability o. oUfiguti*, t o"*a"..
DIfWEST rS557748 v4
200731903 2 of 12
6 Modifications. Any modification of this Agreement or additional obligationsasslmed.by eitber party in connection with this Agreement stAt U. binding only if evidenced inwriting signed by each paxty or an authorized repre-sentative of each part5r.
. 7 ' No Joint Venturg or Partnership. No form of joint venture or partnership existsbetween the Town and the Developer, and nothing contained in this Agreement shall be construed asmaking the Town and Developer joint venturers-or partners.
. 8' Counterparts' This Agreement may be executed in counterparts, each ofwhich shallconstitute an original, and which together shall constitute one and the same agreement.
^ 9^ - Recording. This Agreement shall be recorded in the real property records for EagleCoungz, Colorado.
l0' Exhibits. All Exhibits referenced under the foregoing provisions as being attached tothis Agreement are incorporated herein by this reference and made a part hereof.
with the laws of the State of Colorado.
DfVWEST #6557748 v4
200731903 3 ol 12
IN WITNESS WHEREOF, the Town and Developer have made this Agreement as of theday, month and year first above written.
TOWN:
TOWN OF VAIL, amrnicipal corporation duly
STATEOFCOLORADO ]
J ss.
COI]NTY OF EACLE )
A \ The foregoing instrument was acknowledged before me ,ti, ld\ a", oflu@.e--.rbo"r- , 2007, by Stanley B. zemter, as Town Manager of the -fown of vail, amunicipal coqporation duly organized and existing by virtge of the laws of the State of Colorado.
Witness my hand and official seal.
My Commission expires:
[Signature blocks
rlf,-\ /pLl l&)0
DtvfiAlEST I,655Z748 v4
200731903 4 oJ 12
VAIL PLAZA DEVELOPMENT. LLC. a
Colorado limited I iabi liry company
STATE OF COLORA.DO
COLNTY OF EAGLE
,, ft: foregoing_
-
instrunent was acknowledged before me this , /d..Laay ot
= lr t ?l"r - 2007 by wardir prado, the Maniger of vair pL o.rn"top,rrent, LLC, aColorado limited liability company.
Witness my hand and official seal-
My Commission Expires:
D|VIWEST #6557240 v4
OTARY PUBLIC
200731903 5 of 12
EXIIIBIT A
PROJECT LEGAI DESCRIPTION
LTGPofictNo, CIAI5{r0094m
ol|' (H.f N9. VC5000tt4?0
urrtt ofscilpil0ft
PARCEL I:
THOSE PORTIONS OF LOTS M, N, AND O, BLOCK 5.D, VAIL VILIACE, FIRST FILING,ACCORJINC TO 1118 MAP THEREOT RECONDED UNDER RECEPNON IrO Si3SZ tr{ T}rE OFflCEOF THE EAGLS COUNTY, COLORADO CLERI. A}iD RECORDER (CL'Nf'i'iiiONOSl OTSCNTAM ESFOLLOWS:
BEGINNINC AT A POINT, ON fiE NOR1TIERLY UNE OF SA,D LOT O, \{HICH JS TJIENOftTttEASr CoRJfER OF A PAXCEL DESCRjTED rH BOO|( 230 AT pAbC Sli Or nm cr.rnx,sRECORDS, WIIENCE THE NORTHWEST CORNER OF SAID LOT N BEq.RS r'rdrrrr ZS OECRTES A6MINUTES 00 SECONDS WESI U5.m FEEI DTSTANT; rHErrcE, ALONC SarD NOrnmnrv rnn.souTH ?e DSGREES t6 MTNUTFS 00 SECoNDS rASi rn.o mri, io nie-noirnrwEsrCORNER OF VILI.AGE INN PI"AZA. A CONDOMIMT'M. ACCONPTiIC M'NiS MAP IIERTOPRETORDED IN BOOK 349 AT PAGE I I OF THE CLERK'S RECORDS: 1+IENCL, ITOTVC rrrEwEsrERLy UNE oF setD vtlrncE ItrrN pLAzA, A coNDolffirr,Ji.{. so'imi m pecn€ls:o
MrNr.rrEs 00 sEcoN'Ds wEsr 3?.G1 FEET TO nni NOrnnesriirr ionr,rin br cor,mommurrrMAP FOR WLIIA.CE I}IN PI,MA. PHASE IV CONDOMINIUMS, ACCMDN.TC TO THT MAP THEREOTRECORDED rN TltE CLERI('S RECORDS; ]rrENCr, Orparrnrb uro-wfritiiy lwe, rHBFoLLowINc NrNE colJRsss AroNc rne Nonrdrmy, rnsrunry erl-ioimcnlv rwps onSAJD CONDOMINIUM !'t{P FOR VTLLAGE INN PIIZA - PHAS! IV
'(iir'rONrrr ZS IECRSES rZMOrurEs 08 sEcoNDs wEsr ?0.0? FEE[: (4 SOUIH 32 DEGREij io'iiilnlil zr sncorvnswEsr 6x5t FEm: (0 NotrrH ?e DECREBS {7 rmvrms m scoi6i-,iEiiiilr rsEr,u) sourfi r0 DE0REES lz MrNUrEs 5? sEcoNDs wgsr 69^a2 rEEr. rd1d-liosnnnry
llgE_o-I-AN qq!!rc BUTLDING; (r) sourH rg orcnms m wvi.Gs li-seaoNos E{sf8.35 fEET, ALONC rHE NORTHgRty FACE Or SAID Et(ISm{c Burlnri: ol isourH rsDEGRTES 0r MTNUTES m sEcdrDs wtsr 6.{l FEE-r. ALoNc rItB raGii recr or seroEKsrrNG EUtr DING: o) DEpAfirrNc rHE EAsrEru.y prqcs or sAD Dgsrtr{c BlJrLDrNc,souTH 7e DEGREES {? MI{UTES 0S SECONDS ee,Sr $.ss FEr.rrE} NoRn;li orcnrrs rzMTNTJTES 52 sEcoNDs EA.sr 32.G0 FEEr; (e) solm 7e DEGREEi li iifrjfti-os sscoNDsEAsr 67.05 FEET. m rrrE sAID wEsrEnly UNE oF vru_acE INN nr_lil, e coruool,mtuu,THENCE TflE FOLUIWINC TI{REE COURSES ArONc S,Cn U,ES-IERLY Ln:b, tU SOrmr osDECREES s, MINUTES 00 SEcoNDs wEsr 50,g1 FEEr; (r) sourHio DrcC#',so }ff,rurEs0o.sEcoNDs EAsr 56.60 FEgr: G) SOtnH 09 DECnEES ili !,&.nrEs oo sri:ortos wur
1.!6_I!e'r! p !m Nornrnru,y rnw or vu.ucr nrH pi,ct irrAliijffi LACCORUNC m rfiE ltlcp THEREo! nECORDEO N rOOr$s AT'AGE iii bl TtE CrrnrsRECORDS; THENCE THE FOLLOI,I/ING FOIJN COURSES gOIiC rlri IIbNriiENr.V AND WESTERLYL|NES OF SAID VTLU|CE rNN pr-AZA Pti,$ES r rtl.rn lI; (t) Norrir ri oi-Cinri aMTNUIIS 22 SECONDS WES" 125.59 FEEI; {2) sotmr re'nrcnrps s2 [dirr* zr sscoNDswEsT {0.01 FEEr; (0 SOttII{ 8z DEGREES 0c Mr{uTEs ro srcor,US ritsilil.ls rrar;(4 SOUrU l0 DEcREf,s 13 MTNUTES 02 SEcONm WrSr ls.sr FEiIT-]i;fficonNER oF FORFETTUnE oR REvEnrSR CrAuSr Al,cmor,clrr-ro cor6-o:imnnr MAp oF vrLt-A,cEINN PLAZA - pHAsE V CONDOMTNTUTVTS, ACCOnnurc ro nie [Ar rrflii;6inrcomno w nCCLERK'S RECOaDS; TlrENcE TlrE FOLLOWIITC nng coiliad nr"bnC-rrji ronrrunry rnqg orSAID NRST AMENDMEIIT TO CONDOMINIInI MAP ON VNr.ACr ri,{-ii;'i IHASE Vco^NDoMrrr[rMS: (l) NoRTH S0 DEGREES.q MD{Urrs ll srcoNDs'iffi;r-iir.rz rrrr; talN_otrn 6 DEcREES 5r MrNUrEs 16 sEcoNDs nnsrnrs'r6]iit -r,rijffrr
i6 or"nres oaMrNUT[s r-{ sEcoN.Ds wEsr f r.z' FEET. To 1''E wrsrenry-uifE ir-r iiiirbr u, r'*wcrNoRrH m DEGRIES zs MrNUrEs 00 sgcoNm wasr i0riiFEgr,-Albfri*siri, wssrErurLINE, ?0 TfiB NoFTHlvESr COnNER OF sAtD LOT u; rHn{CE, iioN?iilr-w"*r r.we orSAID LOT N, NORTH OO DEGREFS 23 MINL,TE5 OO SECbNDS VrE;i Sji#fr. M rHE
DIV|WEST t 6357748 v4 A_ I
200731903 6 of 12
LTC PdcJ No. CTAIS{1009{?0
Oor (Ha No. VC50tl094Zl
lfcfl. DEsCSmoil
SOUT}IWEST CONNEN OF SAID PAXCEL DESCRIBED IN BOOK 23} AT PACE 55G OF lI{ECLEM'S RECORDS: fiENCE TI{E FOLLOIVINC T1I/rO COUNSTS ErOXC NC iUTHERLY ANDEA$EnLY LD{ES OF SAID PAICEL: 0) SOUTH ?9 DEGnEES rO mnnrs m StCoNm EAST147.36 FEET; (4 NORm r0 DEGREES lt MTNUTES m SECONDS EA.sr i{Xrirrrr, roI{E FOII{T OF BEGTNNING , COTJNTY OF EACLE, STATE OF COLORADd.
AND
CONDOMD{IUM MAP FOR VILLAGB NN PI.AZT PHASE ry CONDOMINII,MS, ACCOXDING TO lHECONDOMIMTJM MAP TflERroF RECSnDED U}IDEn hEiEPndi N.il. Nb. isi,fi3 tr.J THE cllRxAND RECORDERS OFFICB OF EACLE COUNTY, COLOnADO.
. DiflVEST 16557748 v4 : . A_2 :
200731903 7 of 12
EXHIBIT B
DEPICTION OF IMPROVEMENT AREAS
DIllv\TEST i6557748 va
200731903 8 of 12
DMWEST #6557748 v4
EXHIBIT C
DEPICTION OF HARDSCAPE IMPROVEMENTS
200731903 10 of 12
200731903 11 0f 12
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TYPE IIIEMPLOYEE HOUSING UN]T
RESTRICTIVE COVENANT slra..
WHEREAS,VaiIP|azaDevelopment,LLC,aCo|orado|imited|iabilitycompany,istheowner(''the
owne/,) of certain property legally described as the E-Units according to the condominium Plat of Vail Plaza
Hotel and Resort Club ,""orOeO on / J l{ , 2OO7 alReception No' M13ffi5 and the Condominium
Dectaration for the Vail plaza Hotet Resorr Gtub **"". ".-jG-5tt "*t"*iion n"''aoc;l 346 4
I
(each, an'EmPloYee Unif) and \
WHEREAS, the Owner wishes to place certain restrictions on the use of the Employee units for the
oenefit of the Ownei and the Tctvvn of Vail, Colorado ("the Town"')
NOW, THEREFoRE, the Owner does hereby impose' estalrlqf ' acknowledge' and declare for the
benefit of all persons who mayfr-reinafter purchase, oi lJ*,'o1" hold the Employee Units the following
resrrictions, covenants, #'ilffi;;, "riii*ni"n "nirio"
alet"a to run with the land and inure to the
;;{i;i]ti;drs'rp"; ffi o";;;,]i" respective grantees, successors, and assigns.
1.Thereare19E-Units'whichareemployeehousingun.its,orEHUs,andwhichco||ectively
contain approximately 9.764.00 "quar"'t""i.
-E""f
eHU is hereW restricted as a Type lll
EHU which mustcomptywith att the pioi-''Jion" oicnapter 13, Titie 12 of the Town Code of
Vail as amended.
2. Each Type lll EHU shall not be subdivided or divided into any form of timeshares' interval
ownershiP, or fractional fee'
3. Each Type lll EHU shall be leased to and occupied by tenants who are full-time employees
wno *o*ln'Li;i; ffi;t. Eacrr rvpl'irr EHuin"rr not be leased for a period less than thirlv
(30) consecutive days. For the prrpoi"r ot ini" p"r"gr"ph, a full-time employee is one who
*o*,
"n
li!i"g" "i
; *irir"rni or't irtv tioi n".ro "i"ri r1* :n a year round. basis. Each
Type llt enii"n?rr be continuously rent6ci ano shall not remain vacant for a period to exceed
five (5) consecutive months'
4,occupancyofeachType|||EHUshallbe|imitedtoamaximumoftwopersonsperbedroom.
5. Each Type lll EHU shall have its own entrance. There shall be no interior access from the
EHU toany dwelling unit to which it may be attached'
6. Each Type lll EHU must contain a kitchen or kitchenette and a bathroom'
T.EachType|l|EHUmaybeso|d,transferred,orconveyedseparate|vfromotherdwe|ling
units or EHUs that may be rocateo oriine slme lot or within the same building, if one of the
t"-^t"*l:::::;H:r
according to the criteria setrorth in parasraphs 2 and 3 orthis
document, or
b.|tmustbeusedbytheowneroftheType|||EHUasapermanentresidence.
For the purpose of this paragraph, a permanent residence shall mean the home or place in which
one,s habitation is fxed and to which one, wheneveitre or sne is absent has a present intention of retuming
after a departure o, aO.en"oin"t"iiot, rlgardless oi tne Ouration of absence'. In determining what is a
permanent residence, th; i;; staff shall-take tne iorlo,r'ing circumstances relatino to the owner of the
residence into account: business pursuits, employment, inCome sources, r-esidencE for income or other tax
purposes, age, maritat
"i"tur,
,oiJ"n"" ot p"i'"r*", -rfilt;;; children if any, location of personal and real
property, and motor vehicte registration. Thirly (30) ilF F;r to the transfer 6t oeed for the Type lll EHU' the
R!*1^^-vl '{D iI TE:'J*X#'+ u"a
{la;*,ca aitn-sl
A--!.^ ' s, l! n a. -T t )tztvtrt
1* ii t''ll) f.": &I l'"y
!Q
prospectivepurchasershallsubmit?"?lPI4T^1?F:t"iit-"J:l:":$.#lHi#.8#il",,|,lj"Jffililii'"iH#'ffi:fiilffilft;if i#-q{i:*$#:i:i"*:;:'meers the criteria set
ili,$#:,H'#LffiiT#ffi;;"-5niffii';+-*''s thaiher or sne meets these criteria.
to
8.No|aterthanFebruary15ofeachyear'.the-ownerofeachType||lEHUshallsubmitasworn
afiidavit on a rorm il'te'Iui;il;ir". ii; community DevelopmentDepartment to the
community Devetopment Departmenl ."tting i;;h';;oence e'stantishing.that Employee Unit
has been rented or owner-occupied tnrougttouiihe vear, ttre rental rat:,-the employer, and
that the tenant who resides within ttre emptoyee"noJsind unit is a full-time employee in Eagle
County.
g.EachTypelllEHUshal|beoperatedandmaintainedinaccordancewithChapter13'Tit|e12
of the Town cooe i'Gii -riilure
to do * r"v r".Jt in enforcem.e-nt proceedings in a court
of competentiurisdiction and in accordance w'r'tt'Lf'-"pi".S' Title 12 oi the Town Code of
Vail.
l0.Theconditions,restrictions,stipulations'and,agreementscontainedhereinshallnotbe
waived, abandoned, terminated, o, "r"no"o
l"*J"pi uy tne written consent of both the Town
of Vail and the Owner of the Properly'
ll.Wheneverpossible,eachprovisionofthisAgreementandanyotherre|ateddocumentshal|
be interpreted i. ,itnfi!"r* al io U" ua',-ii-rlij"flppii*np hw; but if anv provision of
any of the for"goin?;h1ii'te inv"fiO anO prninit"O ,nOJt said applicable law, such provisions
sha, be inetrectivelo'iil';i;;i;f ;; i"""rioiiv "i ptohibition without invalidatins he
remaining provisions of such documents'
12.|fanyoftheterms,covenants,conditions,restrictions,uses,|imitations,ob|igationsor
options created by this Agreement shall 9.e^y"i"wf"t
oi void for violation ot (a) the rule
against perpetuiti6s or so-me analogous rt"trtw pioui"ion, (b) the rule restricting restraint on
alienation, or (c) any other statutory o|. *r.i'nii* tGs imb6sing like or similar time limits'
then such proui"io,ir"n"'fi*r'ti"r" trf' i"t tn" p"ti"a oin" tiues oi tttt cunent elected and
seated Town Gouncil of the Town ot vail, v_aii,'coioi"oo, tn"it now living descendents' if any'
and the survivor of them' plus twenty-one (21) years'
[Signature Pages Follow]
TOWN OF VAIL, a Colorado municipal corporation
Town Manager
STATE OF COLORADO
COUNTY OF EAGLE
)) ss.
)
The foregoing instrumentwas acknowtedged before me thi",2q*sd", o#ff ooz uy $ern
Zeatby- ,Town Manager.
Notary Public:
My commission exPires:
Waldir Prado
My Commission ExPires:
lim'rted liabilitY comPanY
GERALDINE C" MCINTOSH
NOTARY PUBLIC
STATE OF COLORADO
My Commission ExPires 1012612009)
) ss.
coUNTY oF EAGLE ) " wo,T bywaldirPrado'
The foregoing instrumentwas acknowtedged before me this?'J+tday of
tne r,nanagJriiv"iipi"r" d"""iopment LLC, a colorado limited liabilitv company'
Witness mY hand and official seal'
MORTGAGEE'S CONSENT
The undersigned hereby consents to the execution and recording of the foregoing Restrictive
.
Covenant, agrees to be sunlectio anO bound by the terms of the foregoing Reltrictive Govenant, and hereby
subordinateJthe lien of thaf certain Deed of Trust, Assignment of Leases and Profits, Security Agreement .
and Fixture Filing, from Declarant, ai grantor, to the Pu6lic Trustee of the County of Eagle, as trustee' t9r]!e
benetit of the unlersigned, ai OetieRc-rary, daied August 29, 2005 and recorded August 29, 2005 in.Book.83
at Page 416 as Rece[tion No. 927649 in the records of Eagle County, Colorado (the "Deed of Trusf), to this
Restrictive Covenant and the effect hereof.
The lien of the Deed of Trust is and shall continue to be a valid and continuing first lien against (i) all
of the units established under the Declaration, and (ii) all of the undivided interests in the common elements
of the Gondominium appurtenant to such units, subject, however, to the terms_and conditions of Section 70 of
the Deed of Trust. This subordination shall not'irnpiir, abridge or otherwise affect the Deed of Trust (or the
rights and remedies of the beneficiary thereunder), which sh-all remain in full force and effect.
This subordination shall not be construed as a joinder by the undersigned in the Declaration.
Datedthisl) dayof :\--lY ,2007.
CAPMARK BANK, a Utah industrial bank
STATE OF )TLf ,"n", t
) ss.
COUNTY OF
On the l/ day ot Jl, / t , 2007, personally.appeared beiorc meAPEz AL{Hnraw|3t!3i19
of Cdpmark Ban( a Utah industrial bank and
OFFICIAL SEAL
CATHI.EEN MREYNO'S
r,toTARv PuELrC . srATE 0F rLUlOlS
MY Crt$rlS$tC['t EXPIRES:OGfiEOC