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Home My WebLink AboutADM070016� � � ii n.� A'• 1� � ;`��y, �ti �'��' �t � ��4F�� ADMINISTRATIVE ACTION FORM Department of Community Development 75 South Frontage Road Vail, CO 81657 tel: 970-479-2138 fax: 970-479-2452 web: www.vailgov.com ' Project Name: ARRABELLE CONDO MAP Application Type: CondThPl ADM Number: ADM070016 Parcet: 2101-063-0800-7 Project Description: FINAL APPROVAL FOR A CONDO PLAT REVIEW TO CREATE Participants: OWNER VAIL CORP 11/12/2007 PO BOX 7 VAIL, CO 81658 APPLICANT VAIL CORP 11/12/2007 PO BOX 7 VAIL CO 81658 Project Address: 675 LIONSHEAD PL VAIL Location: ARRABELLE HOTEL-675 LIONSHEAD PLACE Legal Description: Lot' �Block: Subdivision: VAIL LIONSHEAD FIL�' (0 � Comments: See Conditions BOARD/STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: ii/21/2007 Meeting Date: Conditions: Cond: 8 (PLAN): No changes to these plans may be made without the written consent of Town of Vail staff and/or the appropriate review committee(s). Planner: Warren Campbeil DRB Fee Paid: $100.00 *****+********�*****++**********++++****************************+****************+********+* TOWN OF VAIL, COLORADOCopy Reprinted on 07-02-2013 at 12:43:09 07/02/2013 Statement ****�**********************+**************************++************************************ Statement Number: R070002504 Amount: $100.00 11/12/200704 :09 PM Payment Method: Check Init: JS Notation: 3178/ARNOLD ----------------------------------------------------------------------------- Permit No: ADM070016 Type: Administrative Parcel No: 2101-063-0800-7 2101-063-2700-8 2101-063-2700-9 2101-063-2701-0 2101-063-2701-1 2101-063-2701-2 2101-063-2701-3 2101-063-2701-4 2101-063-2701-5 2101-063-2701-6 2101-063-2701-7 2101-063-2701-8 2101-063-2701-9 2101-063-2702-0 2101-063-2702-1 2101-063-2702-2 2101-063-2702-3 2101-063-2702-4 2101-063-2702-5 2101-063-2702-6 2101-063-2702-7 2101-063-2702-8 2101-063-2800-2 2101-063-2800-3 2101-063-2800-4 2101-063-2800-5 2101-063-2800-6 2101-063-2800-7 2101-063-2800-8 2101-063-2800-9 2101-063-2801-0 2101-063-2801-1 2101-063-2801-2 2101-063-2801-3 2101-063-2801-4 2101-063-2801-6 2101-063-2801-7 2101-063-2801-8 2101-063-2801-9 2101-063-2802-1 2101-063-2802-3 2101-063-2802-9 2101-063-2802-5 2101-063-2802-6 2101-063-2802-7 2101-063-2802-8 2101-063-2802-9 2101-063-2803-0 2101-063-2803-1 2101-063-2803-3 2101-063-2803-4 2101-063-2803-6 Site Address: 675 LIONSHEAD PL VAIL Location: ARRABELLE HOTEL-675 LIONSHEAD PLACE Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ******************************************************************************************** ACCOUNT ITEM LIST: Account Code Description Current Pmts -------------------- ------------------------------ ------------ PV 00100003112500 Administrative Fee 100. 00 ----------------------------------------------------------------------------- .- , � � J r-- Q Application for Administrative � c:` � � Subdivision Plat Review � �-+ z . '��'�1� � Department of Community Development � 7 75 South Frontage Road,Vail,Colorado 81657 nn� � te1: 970.479.2139 fax: 970.479.2452 tJ I'"' web: www.vailgov.com � General Information: It is unlawful for any person,business,or corporation to violate any of the provisions of Title 13,Vail Town Code, or to transfer,sell, lease or agree to sell or lease,any lot,tract,parcel,site,separate interest(including a leasehold interest),interest in common,condominium interest,time-share estate,fractional fee,or time-share license,or any other division within a subdivision within the Town until such subdivision has been approved in writing by the Administrator,Planning and Environmental Commission and/or the Council(whichever is applicable)and a plat thereof recorded in the office of the Eagle County Clerk and Recorder. Type of Application and Fee: ❑ Duplex Subdivision Plat $100 ❑ Administrative Plat Correction $100 ❑ Single Family Subdivision Plat $100 I� Condominium/Townhouse Plat $100 �, rFa ,b-e�/erZf Uai� S�uare �[es «�pn'�la / Description of the Request: C o n �lo� ;h , �c � s 1r� e rPa-�e u� n_��o ��h; u � u�,'fs -�'r�-�-, L��r sda c e L��ts ,4 fhr��l, F (�C[�/ $ ua � CJI. �`.! Location of the Proposal: Lo Block: — Subdivision: `dA' ' � —� Physical Address: (� '7 S / i o�s head �� Parcel No.: � �� 0(�3 .�5 DD ( (Contact Eagle Co. Assessor at 970-328-8640 for parcel no.) Zoning: L i o�s e a�� !�'1 � X e� L� S� � Name(s)of Owner(s): �N'ct�,e��e C17� Ua�I .S�Q u.,ct c�� , LLC_ Mailing Address: �D a o X �� U. v c�r C� �l(v � d 2ff'A; �P Fru 1a r��I Phone: - - Owner(s)Signature(s): �I t A,5 �1C2nQQin� m.�,� he� Ke�th F'� nah�(ez Name of Applicant: S cc m e `� �res%deHf Q,tci Co0 Mailing Address: S a �r, e Phone• __ S 4�N e, E-mail Address: e - Fax: 7S�—�.�'SS For Office U,sg Qn� ?v �,K` Fee Paid:�_ Check No.: t� By: Meeting Date: Admin No.: Planner: Project No.: ` F:\cdev�FORMS\Permits\PlanningWdministrative_Actions\Plat Review\condo_th_plat.doc Page 1 of 4 12-6-2005 � � From: cmcelvany@Itgc.com Sent: Wednesday, October 10, 2007 10:11 AM To: Gerry Arnoid Subject: Land Titie Delivery (ARRABELLE AT VAIL SQUARE)(buyer/ownerARRAB�LLE)(our 50012342.1) Attachments: 50012342.1-1-Misc.pdf Linked Commitment Delivery Lan� Title �UAR�INTEE C.dA1P1l�lY Attached is your Land Title commitment for order number 50012342.1 in Adobe AcrobatT"' format. See the bottom of this email for installation instructions and more details. For your conve�ience, we have a summary of your commitment below. Notice the links within the document; you can click these links and open the associated image. Any text in the Commitment Summary that has been updated or changed appears in a different color. If you have questions regarding any of the links in this email, please contact Vail Title Dept. by calling 970-476-2251. --- — -- -- ---- _____ – --- ---_------ — ---.–�___._ �� Commitment Summary_-ARRABELLE AT VAIL_SQUARE (50012342 1)______ ___1 �Your Land Title Guarantee Company Contacts: --__._._.__._._._._ +.._,_,__._��.._«__.____.____v..._.__________T_.,_�._...�_._________.__._.__ For Title Assistance: . Vail Title Dept. � Chris McElvany 108 S FRONTAGE RD W #203 � VAIL, CO 81657 -Phone: 970-476-2251 � Fax: 970-476-4732 cmcelvanvC�lt4c.com � rt,nx�r�-=_-_z_�w=S�PR.:��"�ifw�.:5.'O..'��'i�:g:L:"��:i.�'� . t�b'."Sd,23uL—._.':� x*�iaL"Z�G4�d3€!5e�.s�5'�iCir�"S'.a:�,,.m.. d,,�$. . ._.._ _._._..___ __ __._._'____'-_._ __....._. ...._.._..__.,________._._—._._.__ ._.__...___._._.____._.___.__.._. ' Commitment Delivery Parties: � ,-- _, .-- = _ -=- __:-._ _,.- � _ _ _ _- .:: .- ---:� i -- ---_ __ _ _ __ _ ___ ___ __ __. __.. __ ___. _____ 1 LAND TITLE GUARANTEE COMPANY VAIL ASSOCIATES, INC., A COLO CORP 108 S FRONTAGE RD W #203 PO BOX 7 �; ,PO BOX 357 Y��w�_ VAIL, CO 81658 ��mw,�� VAIL, CO 81657 Attn: GERRY ARNOLD !! �� Attn: Karen Biggs Phone: 970-845-2658 ':� Phone: 970-476-2251 Fax: 970-845-2555 �i Fax: 970-476-4534 EMail: gerrya@vailresorts.com !s EMail: kbiggs@Itgc.com Linked Commitment Delivery li � ii �� --._.._..�,_..�...._....,.�.__._. .._....r..._......_,..,...�..w._._�.. ._....._..�..._..- _,. _�._.,�.._._.�„�._,___._.-� Property Address: ;i __:. __ __ ---- -,-_ -___ , -_-_ - -- _=__ _=___- -__ _ _-..- _.-_. , _- ----___---- _ --_ _ _- - _ _-- __-- ___--___. _ _- --- ---__--- - '� �)Arrabelle At Vail Square i Vail, CO 81657 �� Count�of Ea�le, State of,Colorado��,.,�` i ---- _ ____------- -----------�--------___,__---------_---------� Legal Description: ; -_ --___ : __--___ _ __,_— -__ _=_- -_= -- __— --, - -- --- --_ -____ ___ -'� ,-__ ----------_ ___ __---- -- -- -___- - -------------------_ ------------------------�! ` LOT 1, LIONSHEAD SIXTH FILING, ACCORDING TO THE PLAT RECORDED NOVEMBER 21, 2005 AT ' RECEPTION NO. 937664, COUNTY OF EAGLE, STATE OF COLORADO. m�� ,��.� ---__ _---- �._._ _---- -� . ____ ___ _._.. _..._ ___ __ __. _,, Effective Date 84 Time.' �+. �October 01, 2007 at 5,:00 P.M. �� ;� �� „ ..s� � --- _______ _---__ _ _ .._---- ----_ ._._.._._ ___------ -- .--___ -------..------ , ----- ---,C Interest ;, _°- ___-- _::_ =--- ____ __- --= :-_- -_- --- -°---_--__- —:._ -_-- ===-==',i � - ___--- --- -- -----_. - -------------- -._..---------------------------� A Fee Simple�� .� �� _._. --- --- -- --_ -- -- --- -- - -- i ___ ° Seller(s) -,` ---- -.--_ __=- -_----•_- -__ -_ ,-__ -=_- -- _-- _= _ _- -_=- -_- - __=, -- =— � � ----------_____.. --------__ ---------- -------------------- -- ij ; -g ��..��,_��..�..�.�...�.� �1 ._.. ._ __ _.._ --- __.- ---- -- --;; _.___ ___ .__. --__ -------. ---- � Buyer(s)/Borrowers(s): __ � -- ----- ..__ _:._ __------ ---— -- ------- --- --- -- � -- ---- __ _____ -------____------------------------- — , - -----------�I ARRABELLE AT VAIL S UARE LLC A COLORADO LIMITED LIABILITY COMPANY '� — - - ��4_ ��....��,s..:�,,..� — ��.�...�...�....�..,., ...� �'� - -- - - --- __ . _ - -__ _ . --- -- -� Proposed Insured &Coverag�s. -_ _,_ - -- ,--- -.- --- --- ,- - i _-- -__ __ _ _. _ ___ _ __ _ ._ __ _ _ _ _ __. ___ __ _; , �i "ALTA" Owner's Policy 06-17-06 ;; Ii • ARRABELLE AT VAIL SQUARE,aLLC�,A COLORADO LIMITED LIABILITY COMPANY��I.� �. �... _ . - ---- ___ _ --- ----- ____ ------ --.._.._...- -_. _ ---------- ---.__--- ---- -� Estimated Title Fees --__-___,� ` ,- - --- __ -_ -- __ ---_ _- _.-- -__ - - --__ - j' _ _ _ _ ___ ___ __ - --- -- ._- ____ _.__._..-----.. .'� ALTA Owners Policy 06-17-06 (Resale Fee) TBD � � �a Totai Estimated Title Fees $0.00 ji _- ---- .___- --__ _____ - ---- - -------. --.. ..___.-- - ___-- -- ------- __ _--- ---._ Requirements: _ __ _ ___ _ __ _ _ _- -_ __ __ ---- ____ --- � ,: ;; Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for ;� the estate or interest to be insured. li �� ;i Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and '! duly filed for record, to-wit: " i� Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject �; premises which are due and payable. Item (d) Additional requirements, if any disclosed below: �'; THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO� � ....�...r.A.,..�.,�...,,_.._.�,.u�.�r.,...�...�.,.�.. ,�...�.,�,....,.,_.,..�,.._.�,.�. - -- c � __. _ _ _--__ __-- -- __. _.._ — ___ �i ---. , _._ _ . ___ Exceptions: i _:_ °_- _--- -=> --- -,._.=____- -_—---' __= -_---=--=__-__ -____ -__:: -,i I; -------- -----_ __..._ _--- __ ------- - ---- � - - -- - ---___ _---- -- -------- ..__._.,i : �� I 1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ;� ascertained by an inspection of the Land or that may be asserted by persons in possession of the ;� Land. �' i; �. ;i 2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. !� ;i � j' � 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title �! that would be disclosed by an accurate and complete land survey of the Land and not shown by the j; Public Records. �! � �; � � ji I� 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, ' imposed by law and not shown by the Public Records. i� �; 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in �` the Public Records or attaching to the subsequent effective date hereof but prior to the date the proposed Insured acquires of record for value the estate or interest or mortgage thereon covered by, this Commitment. ;'; �; ;6. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing �y authority that levies taxes or assessments on real property or by the Public Records; (b) ": proceedings by a public agency that may result in taxes or assessments, or notices of such �� proceedings, whether or not shown by the records of such agency or by the Public RecordS. �� I; �i 7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the" issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted '; under (a), (b), or (c) are shown by the Public Records. �` i� � 8. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM �; SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN �E UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND IN UNITED i� . STATES PATENT RECORDED SEPTEMBER 04, 1923, IN BOOK 93 AT PAGE 98. :i 9. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED �; STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE!; 503 AND RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND JULY 13, 1939 IN BOOK 123ATPAGE617. 10. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE i; PLAT OF LIONSHEAD SIXTH FILING RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937664. ii �( ;NOTE: ACKNOWLEDGMENT OF SATISFACTION OF TERMINATION CONDITIONS RECORDED ]ANUARY!i 6, 2006 AS RECEPTION NO. 200600396. � ;i � I; '11. TERMS, CONDITIONS AND PROVISIONS OF LIONSHEAD CORE PROTECTIVE COVENANTS BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, ;j SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, i! NATIONAC ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR �j FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED !� BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER 21, 2005 AT ij �RECEPTION NO. 937603. �! �: i� �12. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE DEVELOPMENT AGREEMENT RECORDED If NOVEMBER 21, 2005 AT RECEPTION NO. 937604 AND AMENDMENT THERETO RECORDED �� NOVEMBER 21, 2005 AT RECEPTION NO. 937605 AND PARTIAL DISCHARGE AND RATIFICATION �� RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937676 AND ACKNOWLEDGMENT RE: � EASEMENT TERMS RECORDED NOVEMBER 21, 2005 RECEPTION NO. 937674. � �j I� li `13. TERMS, CONDITIONS AND PROVISIONS OF OPERATING COVENANT AGREEMENT RECORDED �� NOVEMBER 21, 2005 AT RECEPTION NO. 937675. i ii 14. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE LICENSE AGREEMENT RECORDED ;i NOVEMBER 21, 2005 AT RECEPTION NO. 937673. �' ;; �i ,� !15. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO LION SQUARE I� CONDOMINIUM ASSOCIATIONS RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937647. � i; i! �I i� 16. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL i� RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937648. I� � !I r 17. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL t� RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937649. ;i � ;i 18. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) I! RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937652 AND AGREEMENT WITH HOLY CROSS :; ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 RECEPTION NO. 937653. ii � �; I� 19. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) i� RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937654. ii i' � � 20. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (DRAINAGE) RECORDED „ NOVEMBER 21, 2005 AT RECEPTION N0. 937655. '.i �� 21. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTITLITIES) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937656. 22. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITES) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937667 AND AGREEMENT WITH HOLY CROSS ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937668. � �, 23. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (SERVICE AND EMERGENCY �i ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937672. ' ;� ;i !i 24. TERMS, CONDITIONS AND PROVISIONS OF COVENANT GOVERNING EASEMENTS RECORDED !; NOVEMBER 21, 2005 AT RECEPTION NO. 937677. (f ;i �; 25. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (ACCESS TO SUBJECT I� PROPERTY) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937632. i� �: ' �i �'; "26. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (ACCESS TO SUBJECT �f PROPERTY) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937635. �i i� 27. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (TUNNELL ACCESS �I RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937644. �' ,� �i ;i 28. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (SURFACE ACCESS) RECORDED NOVEMBER O1, 2005 AT RECEPTION NO. 937645. '; i; ii 29. TERMS, CONDITIONS AND PROVISIONS OF APPARATUS MOVEMENT AGREEMENT RECORDED JANUARY 23, 2006 AT RECEPTION NO. 200601649. ij �� ! i 30. TERMS, CONDITIONS AND PROVISIONS OF CONSRUCTION EASEMENT AGREEMENT RECORDED ii JUNE O1, 2006 AT RECEPTION NO. 200614304. ;f ii ii ;I ,31. DEED OF TRUST DATED JANUARY 31, 2006 FROM ARRABELLE AT VAIL SQUARE, LLC, A ;� COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE i; USE OF US BANK NATIONAL ASSOCIATION TO SECURE THE SUM OF$175,000,000.00, AND ANY If OTHER AMOUNTS PAYABLE UNDER THE TERMS THEREOF, RECORDED FEBRUARY O1, 2006, UNDER ;i RECEPTION NO. 200602695. i DISBURSER'S NOTICE IN CONNECTION WITH SAID DEED OF TRUST WAS RECORDED FEBRUARY '� O1, 2006, UNDER RECEPTION NO. 200602697. '� i., SAID DEED OF TRUST WAS FURTHER SECURED IN ASSIGNMENT OF RENTS RECORDED FEBRUARY ;� O1 2006 UNDER RECEPTION NO. 200602696. �' , �,�:sra.�n:��a;�:..��,-^�sx�x:,�:°:�.rd �w^>,r:�^.se;-�:�;�r^��::=!rr��x�:.�,:e��a�� a_,�.,x,.--��,,..TM,.��;ra,�-.x�:,�ar��a:�-a;i�,�:cr�crbr*�z.�„s�. _ _ . _ _ _ _ __ —._ __._ ; The above Summary is provided for information purposes only. To the extent that it conflicrs with or otherwise varies from the actual commitment provided, the latter shall govern. The above links and associated images are provided for information purposes only. They are not guaranteed as to accuracy, availability or quality. The above Summary is provided for information purposes only. To the extent that it conflicts with, or otherwise varies from, the terms of the attached title commitment, the latter shall govern. The above links, and associated images are provided for information purposes only. They are not guaranteed as to accuracy, availability, or quality. The attached document is a PDF (Portable Document Format) file and can be viewed or printed with Adobe Acrobat Readerr"' If you do not have Adobe Acrobat ReaderT''' on your system, you can download it for free from Adobe. Some of these documents may be designed to print on LEGAL paper. To print these on LETTER paper, select the "Fit to Page" option from within the Acrobat Reader. If you want to print on LEGAL paper, select legal-size paper from within the "Print Setup" dialog box from within the Acrobat Reader. � Content in this email is Copyright O LT Systems, L.L.C. All rights reserved. ******************************************************************************************** TOWN OF VAIL, COLORADO Statement ******************************************************************************************** Statement Number: R070002504 Amount: $100.00 il/12/200704:09 PM Payment Method: Check Init: JS Notation: 3178/ARNOLD ----------------------------------------------------------------------------- " Permit No: ADM070016 Type: Administrative Parcel No: 2101-063-0800-7 Site Address: 675 LIONSHEAD PL VAIL Location: ARRABELLE HOTEL-675 LIONSHEAD PLACE Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ******************************************************************************************** ACCOUNT ITEM LIST: Account Code Description Current Pmts PV 00100003112500 Administrative Fee 100.00 ----------------------------------------------------------------------------- � � After recordin�Lnlease return to: DRAFT November 8,2007 Vail Resorts Development Company Attn: Gerry Arnold 137 Benchmark Rd. Avon, Colorado 81620 DRAFT CONDOMINIUM DECLARATION FOR ARRABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS , 200_ • �a�� PP C� � 5�� a�� 635954.14 TABLE OF CONTENTS � - Page Article 1 DEFINITIONS AND EXHIBITS..........................................................................2 1.1 Definitions..............................................................................................................2 1.2 Exhibits ""'g ............................................................................................................. Article 2 CREATION OF THE CONDOMINIUM PROJECT; UNITS AND ALLOCATIONS....................................................................................................8 2.1 Creation..................................................................................................................8 2.2 Name...................................................................................................................... 8 2.3 Division of Property...............................................................................................8 2.4 Designation of Boundaries.....................................................................................8 2.5 Unit Subdivisions, Connections and Boundary Changes ......................................9 2.6 Limited Common Elements...................................................................................9 2.7 Allocations.............................................................................................................9 2.8 Reservation of Special Declarant Rights............................................................. 10 2.9 Number of Units .................................................................................................. 11 Article 3 EASEMENTS ...................................... 11 ................................................................ 3.1 Easements Benefiting Owners............................................................................. 11 32 Easements Benefiting Association....................................................................... 12 3.3 Easements Benefiting Declarant.......................................................................... 12 3.4 Parking Rights...................................................................................................... 12 3.5 Terrace Easement................................................................................................. 13 3.6 Storage Easement......................................................................................:.......... 13 3.7 Easements for Encroachments............................................................................. 13 3.8 Easements to Repair, Maintain, Restore and Reconstruct................................... 13 3.9 Easements for Utility/Service Elements.............................................................. 14 3.10 Right of Entry ...................................................................................................... 14 3.11 Additional Easements .......................................................................................... 14 3.12 Easements Run with Property.............................................................................. 14 3.13 Other Recorded Easements and Licenses Affecting the Property...............:....... 14 3.14 Liquor Licensing.................................................................................................. 14 Article 4 COVENANTS, CONDITIONS AND RESTRICTIONS.................................... 15 4.1 Administration..................................................................................................... 15 4.2 Compliance ......................................... 15 � 4.3' _ � �ermitted Uses................................................................. ................................ 15 � +'`�F• �44�4 . �� Prghib}te�;;Uses.................................................................................................... 15 • . .,.?}!5• � Rules �� .'....:........................................................................................................... 16 , :�:� : Indem�ity............................................................................................................. 16 . ; . 4.7 Provisibns Run with Property.............................................................................. 17 . �4.8� Enforcement......................................................................................................... Article 5 OPERATION, MAINTENANCE AND REPAIR............................................... 18 5.1 Association's Duties ............................................................................................ 18 635954.14 1 TABLE OF CONTENTS (continued) Page 5.2 Owners' Duties .................................................................................................... 18 5.3 Maintenance Standard................................................. ............................. . ........ 18 Article 6 THE ASSOCIATION AND BOARD ................................................................. 19 6.1 Formation of the Association; Membership ........................................................ 19 6.2 Powers.................................................................................................................. 19 6.3 Budget..................................................................................................................20 ; 6.4 No Master Association;No Delegation of Powers..............................................21 Article 7 CONSTRUCTION DEFECTS, DISPUTES, DISPUTE RESOLUTION ANDLITIGATION.............................................................................................21 7.1 Testing for Construction Defects.........................................................................21 7.2 Consensus for Association Litigation..................................................................22 7.3 Alternative Method for Resolving Disputes........................................................23 7.4 Claims..................................................................................................................23 7.5 Mandatory Procedures.........................................................................................23 7.6 Legal Proceedings................................................................................................26 7.7 Enforcement of Declaration, Bylaws, and Rules.................................................27 Article 8 MOLD DISCLOSURE& WAIVER...................................................................27 Article9 ASSESSMENTS..................................................................................................28 e 9.1 General Assessments ...........................................................................................28 9.2 Special Assessments............................................................................................29 9.3 Transfer Assessment............................................................................................31 � 9.4 Working Capital Fund..........................................................................................35 � 9.5 Payment of Assessments;Notice and Acceleration.............................................35 ; 9.6 Enforcement of Assessments...............................................................................36 9.7 Disputes and Records...........................................................................................36 9.8 Owners not Exempt from Liability......................................................................37 9.9 Declarant's Responsibility for Assessments........................................................37 Article10 ALTERATIONS..................................................................................................37 10.1 Permitted Unit Alterations...................................................................................37 10.2 Boundary Relocation ...........................................................................................38 10.3 Connection of Adjoining Units............................................................................38 ' 10.4 Unit Disconnection..............................................................................................39 10.5 Construction..............................................................................................:..........40 10.6 Alteration of Common Elements.........................................................................41 ' 10.7 Alterations by Declarant......................................................................................41 Article11 INSURANCE.......................................................................................................42 � 11.1 Association's Insurance.......................................................................................42 11.2 Owners' Insurance...............................................................................................44 ` 11.3 Certificates of Insurance; Notices of Unavailability............................................45 � 11.4 Waiver of Claims.................................................................................................45 : 635954.14 11 TABLE OF CONTENTS (continued) Page 11.5 Proceeds...............................................................................................................45 Article12 CASUALTY........................................................................................................46 12.1 Casualty................................................................................................................46 12.2 Disposition of Insurance Proceeds.......................................................................46 12.3 Manner of Restoration.........................................................................................47 12.4 No Abatement......................................................................................................48 Article13 CONDEMNATION.............................................................................................48 13.1 Taking of Condominiums....................................................................................48 13.2 Taking of Common Elements..............................................................................48 Article14 TERMINATION..................................................................................................49 14.1 Termination Agreement.......................................................................................49 14.2 Sale of Condominium Project..............................................................................49 14.3 Proceeds...............................................................................................................49 Article 15 total casualty iJNDER RECA..............................................................................50 Article16 AMENDMENT....................................................................................................50 16.1 Required Votes.....................................................................................................50 16.2 Amending Documents .........................................................................................51 Article 17 OWNER'S ACKNOWLEDGMENTS AND WAIVERS...................................52 17.1 Owner's Acknowledgments.................................................................................52 17.2 Lift Tickets and Other Fees..................................................................................54 17.3 Disclaimer............................................................................................................54 � 17.4 No View Easement.............................................................................................. 54 17.5 Security................................................................................................................54 17.6 Inspection by Others; Waiver of Post Inspection Liability..................................55 17.7 Drainage and Soils Condition..............................................................................55 Article 18 CONVEYANCING AND ENCUMBRANCING............................................... 56 18.1 Units..................................................................................................................... 56 18.2 Common Elements...............................................................................................56 18.3 Transferee Liability..............................................................................................56 18.4 Estoppel Certificates............................................................................................ 57 Article19 GENERAL PROVISIONS ..................................................................................57 19.1 The Act; Severability...........................................................................................57 19.2 Interpretation of Declaration................................................................................58 19.3 Notices .................................................................................................................58 19.4 Partition................................................................................................................58 19.5 Assignment of Special Declarant Rights .............................................................58 19.6 Taxation of Units.................................................................................................58 EXHIBITA THE PROPERTY.................................................................................................. 1 635954.14 111 TABLE OF CONTENTS (continued) Page EXHIBIT B COMMON ALLOCATIONS ••••••••••••••••••••••••••••••••••-•••• 1 ......................................... „ EXHIBIT C YEAR ROUND PARKING RIGHTS ................................................................... 1 EXHIBIT D OTHER RECORDED EASEMENTS AND LICENSES AFFECTING THE PROPERTY........................................................................................................... 1 ; EXHIBITE ARBITRATION RULES....................................................................................... 1 � �' � � � � � � � � � � � ��: � � � � �: �' �' � 635954J4 1�7 �.. � CONDOMINIUM DECLARATION FOR ARRABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS THIS CONDOMINIUM DECLAR.ATION FOR ARRABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS (this "Declaration") is made as of , 200_, by ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company. RECITALS This Declaration is made with respect to the following facts: A. Certain real property located in Eagle County, Colorado was legally subdivided pursuant to the Condominium Plat for Vail Square (the "Plat") recorded in the real property records of Eagle Couniy, Colorado (the "Records") on , 200_, at Reception No. . Pursuant to the Plat, certain airspace located within the real property subjected to the Plat was defined and legally established as six severed and independent property interests each in the form of an "estate above the surface" as authorized under Section 38-32-101, et seq., C.R.S. (collectively, the "Property"). The remainder of the property subjected to the Plat is a single, subdivided lot (the "Commercial Lot"). The Commercial Lot and the improvements located thereon are collectively referred to as the "Commercial Project." B. The Property is legally described on the attached Exhibit A and is owned by the "Declarant" (as defined in Section 1.1). Although the airspace comprising the Property is physically surrounded by the Commercial Project, the Commercial Project does not include the Property. C. The Commercial Project, as of the date of this Declaration, contains, among other things, a hotel and related amenities, restaurants, a plaza area with ice skating rink, retail space, a parking garage and skier services. The Property contains a combination of residential dwellings and individual sleeping rooms attached to some of the residential dwellings. Although portions of the"Project Structure" and the "Project Service Elements" (as both are defined in Section 1.1) pass through the Property, the Project Structure and the Project Service Elements are not a part of the Property, but rather are a part of the Commercial Project. D. Declazant and the owner of the Commercial Project (the "Commercial Project Owner") entered into a Reciprocal Easements and Covenants Agreement recorded in the Records on , 2007, at Reception No. (the "RECA"). The RECA (i)establishes certain easements benefiting the Property and Declarant and burdening the Commercial Project; (ii) establishes certain easements benefiting the Commercial Project and the Commercial Project Owner and burdening the Property; (iii) provides an allocation of responsibilities and costs between the Commercial Project Owner and Declarant that are associated with ownership of the Commercial Project and the Property; and (iv) otherwise regulates the use and enjoyment of the Property and the Commercial Project. E. In accordance with the provisions of the "Act" (as defined in Section 1.1), and subject to the terms of the RECA, Declarant now desires to establish the Property as a condominium project consisting of condominium units designated for separate ownership and 635954.14 � common elements designated for ownership in common by the owners of those condominium units. DECLARATION NOW, THEREFORE, Declarant declares as follows: ARTICLE 1 � DEFINITIONS AND EXHIBITS 1.1 Definitions. The following initially-capitalized terms have the respective meanings set � forth below: � "Act" means the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101, et seq., as amended from time to time. "Actual Value" is defined in Section 9.3(b). "Alteration" is defined in Section 10.5. "Assessments" is defined in Section 9.5 "Association" means Arrabelle at Vail Square Residential Condominium Association, Inc., a nonprofit Colorado corporation, formed or to be formed pursuant to Section 6.1. "Board" means the Board of Directors of the Association. "Boundary Relocation" means: (i)the combination of two or more adjoining Units into a single Unit; or (ii) the alteration of the boundary or boundaries separating two or more adjoining Units. `Building" means the building located on the Commercial Lot and the Property in which � the Commercial Project and the Condominium Project are located. "Bylaws" means the Articles of Incorporation and the Bylaws of the Association. ° � "Casualty" is defined in Section 12.1. � �' "Claims" is defined in Section 7.3. � "Commercial Activities" is defined in Section 17.1(c). � � "Commercial Lot" is defined in Recital A. �' � �' "Commercial Project" is defined in Recital A. The Commercial Project includes the � Project Structure. � � "Commercial Project Owner" is defined in Recital D. � - � �i � � 635954.14 2 �:�.�. "Common Allocation" means, with respect to each Unit, the percentage allocated to the Unit as set forth on Exhibit B. The Common Allocation for each Unit has been determined by dividing the Measured Area of the Unit by the total Measured Area of all the Units. If additional Units are created pursuant to Declarant's exercise of Development Rights in accordance with Section 2.8(a), the Common Allocation for each Unit shall, upon creation of such additional Units, be recalculated by dividing the Measured Area of the Unit by total Measured Area of all the Units, including the newly added Units. "Common Alteration" is defined in Section 10.6(a). "Common Element Taking" is defined in Section 13.2. "Common Elements" means all portions of and areas within the Condominium Project, excluding the Project Structure and the Project Service Elements, that are not part of the Units. Limited Common Elements and General Common Elements are both part of the Common Elements. A portion of the Common Elements may be referred to as a"Common Element." "Common Expenses" means, except for those costs and expenses expressly excluded below, all costs, expenses and financial liabilities incurred by the Association pursuant to the RECA, this Declaration or the Bylaws including, without limitation: all "Expense Payments" under the RECA, all costs of operating, managing, administering, securing, protecting, insuring, ventilating, lighting, decorating, cleaning, maintaining, repairing, renewing, replacing or restoring (to the extent not covered by insurance or condemnation proceeds), the Common Elements; all costs of providing water, sewer, waste disposal, telecommunications, electricity, natural gas and other services, energy and utilities to, the Common Elements and the Association's personal property and equipment located in, or used in connection with the operation or maintenance of, the Common Elements; all costs of providing utility service to the Units to the extent not charged directly to the Unit Owners pursuant to Section 9.1(b); taa�es on any property owned by the Association; and funding of working capital and reasonable reserves for Common Expenses. Except to the extent provided in Sections 9.2 and 18.3(c), Common Expenses will not include Limited Benefit Expenses, Reimbursable Expenses, the costs of any Restoration Deficit, Voluntary Capital Expenses or any other cost or expense which, pursuant to this Declaration, may be separately assessed (i.e., in addition to General Assessments for Common Expenses) against any Condominium(s). "Condominium" means a Unit, together with the undivided interest in the Common Elements and all Easements, rights, licenses and appurtenances allocated or made appurtenant to the Unit pursuant to this Declaration. "Condominium Project" means the condominium, as defined in Section 103(9) of the Act, created by this Declaration and consisting of the Property and all improvements located thereon. The Condominium Project does not include the Commercial Project or the Project Structure. "Consideration" is defined in Section 9.3(b). "Construction Activities" is defined in Section 17.1(b). 635954.14 � � "Declarant" means Arrabelle at Vail Square, LLC, a Colorado limited liability company, � or any Person designated as a successor to Declarant's rights and obligations under this � Declaration in a written instrument signed by Declarant recorded in the Records. Notwithstanding the foregoing, Special Declarant Rights may be transferred only in accordance � with Section 304 of the Act. « �� innin on the date the Association is � Declarant Control Period means the period beg g formed and ending on the first to occur of(i) 60 days after 75% of the total number of Units that may be created pursuant to Section 2.9 have been conveyed to Owners other than Declarant; (ii)two years after the last conveyance of a Unit by Declarant in the ordinary course of business; (iii)two years after any right to create new units pursuant to this Declaration was last exercised; or (iv)the date on which Declarant, in its sole discretion, voluntarily terminates the Declarant Control Period pursuant to a Recorded statement of termination executed by Declarant. If Declarant terminates the Declarant Control Period pursuant to the preceding clause (iv), Declarant may require that, for the balance of what would have been the Declarant Control Period had Declarant not terminated it, certain actions of the Association or the Board, as described in the Recorded statement of termination, be approved by Declarant before they � become effective. � "Declarant Development Period" means the period beginning on the date this �' Declaration is Recorded and ending on the tenth anniversary of the date on which this � Declaration was Recorded. � "Delinquency Costs" is defined in Section 9.5. "Development Rights" is defined in Section 2.8(a). "Easements" means all easements that burden or benefit the Condominium Project or a portion of it, including (i) easements established or granted under this Declaration; (ii) easements established or granted under the RECA; (iii) easements which first burdened or benefited the Property before the Recording of this Declaration; and (iv) easements which first burden or benefit the Property after this Declaration is recorded. � � "First Mortgage" means a Mortgage that is Recarded and has priority of record over all �` other Recorded liens except those lines made superior by statute (e.g., general ad valorem tax ` liens and special assessments and mechanics' liens). � �' "First Mortgagee" means the holder, from time to time, of a First Mortgage on any Unit or Units as shown by the Records. If there is more than one holder of a First Mortgage, the holders will be treated as, and act as, one First Mortgagee for all purposes under this Declaration � and the Bylaws. �, "Fiscal Year" means the fiscal accounting and reporting period of the Association � selected by the Board from time to time. � � "General Assessments" is defined in Section 9.L �` � "General Benefit Expense" is defined in Section 9.2(a). � � � � � 635954.14 � �' �' "General Common Elements" means all Common Elements that are not Limited Common Elements. A portion of the General Common Elements may be referred to as a "General Common Element" (and labeled on the Map as "GCE"). "Indemnity Claims" is defined in Section 4.6. "Limited Benefit Expenses" is defined in Section 9.2(b). "Limited Common Elements" means the portions of the Common Elements allocated to the exclusive use of one or more, but fewer than all, of the Units. A portion of the Limited Common Elements may be referred to as a "Limited Common Element." Some of the Limited Common Elements are designated in this Declaration and on the Map and identified by the initials "LCE" followed by the number of the Unit to which the Limited Common Elements are allocated. For example, a Limited Common Element allocated only to the use of Unit 7 may be identified as "LCE 7." "Map" means the Condominium Plat for Arrabelle at Vail Square Residential Condominiums, which was Recorded on the same date as this Declaration and is made a part of this Declaration, as such Condominium Map and Plat may be amended in accordance with this Declaration. "Measured Area" means for each Unit the area in square feet of all floor space included in the Unit measured from the vertical boundaries of the Unit (as described in Section 2.4). "Mold" is defined in Article 8. "Mortgage" means an unpaid or outstanding mortgage, deed of trust, deed to secure debt or any other form of security interest encurribering a Unit. "Mountain Activities" is defined in Section 17.1(a). "Mountain Recreational Areas" is defined in Section 17.1(a). "New Owner" is defined in Section 18.3. "Owner" means a Person or Persons, including Declarant, owning fee simple title to a Unit from time to time. The term Owner includes a contract vendee under an installment land contract, but does not include the vendor under such a contract or a Security Holder (unless and until a Security Holder becomes an owner in fee simple of a Unit). "Parking Rights" means those rights granted to the"Airspace Lot Owner" under Section 2(a)(iii) of the RECA to park up to 91 "Motor Vehicles" (as defined in the RECA) in the Commerical Project from time to time which are referred to in the RECA as the"Parking Rights" and which include the Year Round Parking Rights, on terms and conditions set forth in the RECA. "Permitted Unit Alteration" is defined in Section 10.1. 675954.14 � "Permittee" means a Person, other than an Owner, rightfully present on or in rightful possession of a Unit or Common Element, or a portion of a Unit or Common Element; including, without limitation, (i) a tenant of an Owner or the Association or (ii) an agent, employee, customer, contractor, licensee, guest or invitee of an Owner, the Association, or a tenant of either of them. "Person" means a natural person, corporation, partnership, limited liability company, trust or other entity, or any combination of them. "Project Service Elements" means all shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits, utility lines or telecommunications, telephone, television, security or similar lines or equipment that (a) serve the Commercial Project regardless of whether located in the ` Commercial Project or on the Property; or (b) are located within the Commercial Project regardless of whether they serve either the Commercial Project or the Condominium Project exclusively or serve both. "Project Structure" means those portions of the Commercial Project that constitute the structural support and building enclosure systems, including, by way of example only and without limitation, bearing walls, bearing columns, structural slabs and decks for floors, ceilings or roofs, structural girders, beams and joists, foundations and footings. "Property" means the airspace legally established as a severed and independent property interest as an "estate above the surface" as authorized under Section 38-32-101, et seq., C.R.S. and described on Exhibit A, and within which the Condominium Project is located. � "RECA" is defined in Recital D. "Records" means the real property records maintained by the Clerk and Recorder of Eagle County, Colorado; to "Record" or "Recording" means to file or filing for recording in the Records; and"of Record" or"Recorded"means recorded in the Records. ' � � "Reimbursable Expenses" is defined in Section 9.2(c). � "Reserve Fund" is defined in Section 6.3. ��Restoration Deficit" is defined in Section 9.2(d). "Rules" means the policies, procedures, rules and regulations that the Association adopts from time to time. "Security for an Obligation" means the vendor's interest in an installment land contract, the mortgagee's interest in a mortgage, the beneficiary's interest in a deed of trust, the purchaser's interest under a sherif�s certificate of sale during the period of redemption, or the holder's or beneficiary's interest in a lien. "Security Holder" means any Person owning or holding a Security for an Obligation encumbering a Condominium, including any First Mortgagee. 635954.14 `� � "Shared Area" is defined in Section 10.3(a). "Special Assessments" is defined in Section 9.2. "Special Declarant Rights" means the rights reserved by Declarant in Section 2.8. "Storage Areas" is defined in Section 3.6. "Supplemental Declaration" means an amendment to this Declaration prepared and Recorded by Declarant as necessary to exercise Development Rights pursuant to Section 2.8(a) or to assign Storage Areas to Units as provided for in Section 3.6. "Supplemental Map" means an amendment to the Map prepared and Recorded by Declarant as necessary to exercise Development Rights pursuant to Section 2.8(a). "Taking" is defined in Section 13.1. "Termination Agreement" is defined in Section 14.1. "Termination Allocation" is defined in Section 14.3. "Terraces" means the balconies, decks and terraces which adjoin and are accessible from the interior of the Condominium Project. Notwithstanding the foregoing, the Terraces are part of the Commercial Project. "Town" means the Town of Vail, Colorado. "Transfer" is defined in Section 9.3(b). "Transfer Assessment" is defined in Section 9.3(a). "Transferee" is defined in Section 9.3(b). "Unit" means a portion of the Condominium Project designated for separate ownership. Each Unit is designated for separate ownership in this Declaration, and its boundazies are delineated on the Map and described in Section 2.4. The definition of "Unit" excludes the Project Structure and all Common Elements, including, without limitation, any Common Elements passing through or existing partly or wholly inside the boundaries of the Unit (e.g., any ducts, pipes flues, chases or equipment serving portions of the Condominium Project other than the Unit). "Unit Connection" is defined in Section 10.3(a). "Unit Disconnection" is defined in Section 10.4(a). "Utility/Service Elements" is defined in Section 2.4(d). "Voluntary Capital Expenses" is defined in Section 9.2(e). 6J5954.14 � "Working Capital Fund" is defined in Section 9.4. "Year Round Parking Rights" means that portion of the Parking Rights under Section 2(a)(iii) of the RECA which allow up to 25 "Motor Vehicles" (as defined in the RECA) to be parked in the Commercial Project from time to time regardless of whether the "Airspace Lot Owner" is in residence within the "Airspace Lot," which are referred to in the RECA as the "Year Round Parking Rights." 1.2 Exhibits. The Exhibits listed below are attached to and incorporated in this Declaration: Exhibit A—The Property Exhibit B - Common Allocations Exhibit C—Year Round Parking Rights Exhibit D—Other Recorded Easements and Licenses Affecting the Property Exhibit E -Arbitration Rules ARTICLE 2 CREATION OF THE CONDOMI1vIUM PROJECT• UNIT5 AND ALLOCATIONS 2.1 Creation. Declarant declares that, upon the Recording of this Declaration executed pursuant to the Act, the Property will be a"condominium" within the meaning of Section 103(9) of the Act and, thus, constitutes the Condominium Project. 2.2 Name. The name of the Condominium Project is "Arrabelle at Vail Square Residential Condominiums." 2.3 Division of Propertv. Declarant, pursuant to the Act,hereby divides the Property into the Units (identified by number on E�chibit B and depicted on the Map) and the Common Elements and designates the Units for separate ownership and the Common Elements for common ownership solely by the Owners. 2.4 Designation of Boundaries. (a) Units. The vertical and horizontal boundaries of each of the Units are described below and are graphically depicted on the Map. (i) Horizontal Boundaries. The upper horizontal boundary of each Unit is the underside of the concrete slab or other feature forming the unfinished ceiling of the top level contained in such Unit. The lower horizontal boundary of each Unit is the unfinished surface of the top of the floor slab or subfloor immediately beneath the lowest level contained in such Unit. (ii) Vertical Boundaries. The vertical boundaries of each Unit are generally the unfinished interior surface of the wallboard or plasterboard forming a part of the perimeter walls of the Unit as depicted on the Map. Without limiting the generality of Section 10.6(a), no Owner may remove, penetrate or do anything to otherwise impair the fire-separation capability or acoustical separation capability of any perimeter wall forming the vertical boundary of any Unit. 675954.14 , o (b) Commercial Project. The Project Structure and the Project Service Elements are not a part of the Condominium Project, regardless of whether they are located wholly or partially within the Property. (c) Doors and Windows. All doors and windows, including glazing, sashes, frames, sills, thresholds, hardware, flashing and other components of those doors and windows in the boundary walls of each Unit, are a part of the Commercial Project and are not a part of the Unit or the Condominium Project. (d) Utili�/Service Elements. Any shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits, utility lines or telecommunications, telephone, television, security or similar lines or equipment located wholly within the Property and exclusively serving the Condominium Project (or a portion thereo fl (collectively, "Utility/Service Elements") are a part of the Condominium Project. Any Utility/Service Elements that exclusively serve a single Unit but that are not located entirely within the Unit are Limited Common Elements allocated to the Unit. Any Utility/Service Elements that serve two or more but fewer than all Units are Limited Common Elements allocated to all of the Units they serve. Any Utility/Service Elements that serve all of the Units are General Common Elements. Any Utility/Service Elements that exclusively serve a Common Element are a part of the Common Elements. Utility/Service Elements also include any submeters installed by the Association as needed to allocate water usage by each Unit pursuant to Section 9.1(b). (e) Improvements in Unit. Subject to Sections 2.4(b), 2.4(c) and 2.4(d), above, all spaces, interior partitions and other fixtures and improvements within the boundaries of any Unit are a part of the Unit. (fl Penetrations. Where a Unit boundary is penetrated by an opening (e.g., a flue, chase, window, or door), the boundary at such penetration is the surface which would result from the extension of the nearest adjacent surface comprising the boundary that is penetrated by the opening. 2.5 Unit Subdivisions Connections and Boundarv Chan�es. No Unit may be subdivided into two or more Units except by Declarant pursuant to Section 2.8(c); provided, however, that no Unit may be subdivided into more than one Unit if, as a result of the subdivision, there would be more than 99 Units in the Condominium Project. Subject to this Section 2.5, a Boundary Relocation may be made by Declarant pursuant to Section 2.8(c) or by Owners pursuant to Section 10.2; a Unit Connection may be made pursuant to Section 10.3; and a Unit Disconnection may be made pursuant to Section 10.4. 2.6 Limited Common Elements. The Limited Common Elements consist of those designated in this Declaration, including, without limitation in Section 2.4(d), those designated by the Board pursuant to Section 10.3, and those designated"LCE" or otherwise allocated on the Map. 2.7 Allocations. (a) Ownership of Common Elements. Each Unit is allocated a percentage of undivided interest in the Common Elements equal to its Common Allocation. 615954.14 � (b) Liabilitv for Common Expenses. Each Unit is allocated, and the Owner of the Unit is liable for, a percentage of all Common Expenses equal to the Unit's Common Allocation. All other costs and expenses of the Association are allocated among the Units as otherwise provided in this Declaration (such as the allocation of Limited Benefit Expenses set forth in Section 9.2('a), the allocation of Reimbursable Expenses set forth in Section 9.2(c), and the allocation of Voluntary Capital Expenses set forth in Section 9.2(e)). (c) Votes in the Association. In all matters coming before the Association for which a vote of the Owners is required, each Unit is allocated the number of votes equal to the Unit's Common Allocation. Notwithstanding the foregoing, the Association is not entitled to any votes for any Unit(s) it owns. 2.8 Reservation of Special Declarant Rights. Declarant reserves the following Special Declarant Rights: (a) Development Rights. During the Declarant Development Period, Declarant may but is not obligated to (i) construct and create additional Units and Common Elements, (ii) convert Units into Common Elements; (iii) withdraw real estate from the Property; or (iv) add real estate to the Property to the extent allowed under the Act, including, without limitation, Section 222 (the "Development Rights"). The Development Rights apply to all portions of the Property but are subject to the limitations of Section 2.9. The Development Rights may be exercised with respect to different portions of the Property at different times, and no assurances are made regarding the specific boundaries of such portions of the Property or the order in which any of the Development Rights may be exercised with regarding to such portions of the Property, and the exercise of any Development Right in any portion of the Property shall not obligate Declarant to exercise such Development Right in all or any other part of such portion of the Property. Declarant shall exercise any Development Right by preparing, executing and Recording a Supplemental Declaration as necessary to effectuate the exercise of such Development Right, which Supplemental Declaration shall be accompanied by a Supplemental Map, as required by the Act. If Declarant, by exercising any Development Right, creates any new Common Elements, then the Supplemental Declaration shall describe such newly created Common Elements. If Declarant, by exercising any Development Right, creates any new Units, such Supplemental Declaration shall include a revised Exhibit B, which shall show the new Common Allocations for all of the Units, calculated in accordance with the formula included in the definition of Common Allocation in Section 1.1. Except as expressly provided to the contrary in this Declaration, Declarant's exercise of any Development Right shall not require the consent of any other Owner. (b) Improvements. During the Declarant Development Period, Declarant may, but is not required to, complete any one or more of the following improvements or alterations at the sole cost and expense of Declarant: (i) constructing any improvements indicated on the Map; (ii)remodeling, refurbishing or improving any one or more of the Common Elements; (iii) completing, remodeling or refurbishing any Unit owned by Declarant; (iv) installing � security equipment, such as cameras, monitors and video recorders, on or about the Property; (v) installing utility lines, running through existing or newly created chases in the Common Elements or in any or all of the Units, as may be necessary or desirable to provide additional utility services in some or all of the Units; (vi) constructing or installing lighting in or on any of � � 635954.14 �O - the Common Elements; and (vii) constructing or installing signage relating to the Condominium Proj ect. (c) Boundary Relocation; Subdivision. During the Declarant Development Period, Declarant may from time to time make Boundary Relocations affecting any Unit(s) then owned by Declarant or may subdivide any Unit then owned by Declarant into two or more Units, subject to Section 2.9. To effect a Boundary Relocation or subdivision during the Declarant Development Period, Declarant shall execute, acknowledge and Record an amendment to this Declaration (including the Map) showing the affected Units, their new boundaries and dimensions and any changes to their�identifying numbers, and revising Exhibit B to show any changes in Common Allocations resulting from the Boundary Relocation or subdivision. The revised Common Allocations resulting from any Boundary Relocation or subdivision made by Declarant must be based on the formula set forth in the definitions of"Common Allocation" and "Measured Area" as set forth in Section l.l. Nothing in this Section 2.8(c) prohibits Declarant, as an Owner, from making a Boundary Relocation pursuant to Section 10.2. (d) Marketin�. During the Declarant Development Period, Declarant may maintain sales offices, management offices and model Unit(s) in any Unit(s) owned by Declarant. Declarant may change the locations of the offices and model Unit(s) from time to time during the Declarant Development Period. (e) Easements. Declarant may use the Easements described in Section 3.3 for so long as those Easements remain in effect. (fl Appoint Board and Officers. Subject to the provisions of the Bylaws, during the Declarant Control Period Declarant may appoint and remove the members of the Board and the officers of the Association. (g) Amend Declaration. In addition to the amendments to this Declaration which Declarant may expressly make pursuant to the provisions of this Declaration, Declarant may during the Declarant Development Period amend this Declaration (including the Map) in any manner authorized by the Act. 2.9 Number of Units. Initially, the Condominium Project consists of 66 Units. The maximum number of Units that may be created, by subdivision or otherwise, equals 99. ARTICLE 3 EASEMENTS 3.1 Easements Benefiting Owners. Each Owner, and its Permittees, is the beneficiary of those easements granted to the "Airspace Lot Owner" in the RECA, subject to the terms and conditions of the RECA, this Declaration and the Rules. To the extent that any Unit is allocated the exclusive use of a particular Limited Common Element pursuant to this Declaration and/or the Map, the Owner of that Unit has an Easement for the exclusive use and enjoyment of that Limited Common Element. In those cases where a Limited Common Element is allocated to more than one Unit pursuant to this Declaration, the Owners of the Units to which that Limited Common Element is allocated have a nonexclusive Easement for the use and enjoyment of that Limited Common Element. Notwithstanding any provision of this Declaration to the contrary, � 635954.14 �� whenever an Owner has an Easement to use any Limited Common Element pursuant to this Declaration, and regardless of whether the Easement is deemed exclusive or nonexclusive or whether it concerns a Limited Common Element,the right of the Owner and its Permittees to use that Limited Common Element is subject to the Easements described in Sections 3.2 through 3.7, inclusive, and Sections 39 through 3.10, inclusive. 3.2 Easements Benefiting Association. The Association, and its Permittees, is the beneficiary of those easements granted to the "Airspace Lot Owner" in the RECA, subject to the terms and conditions of the RECA, this Declazation and the Rules. The Association also has nonexclusive Easements over and across the Common Elements, and over and across other portions of the Condominium Project to gain access to the Common Elements, as reasonably necessary or convenient for the Association, acting through its Permittees, to exercise its rights and perform its obligations under this Declaration, including, without limitation, its rights and obligations to enforce this Declaration and the Rules and to operate, manage and control the Common Elements. Without limiting the generality of the previous sentence, the Association has an Easement to enter each Unit to the extent reasonably required to operate, manage and control any Common Elements within the boundaries of the Unit or as reasonably necessary to perform other maintenance and repair duties imposed on the Association by this Declaration. Except in the case of emergency situations concerning threatened injury or damage to persons or property, the Association shall not enter into any Unit pursuant to the Easement established under this Section 3.2 without giving reasonable advance notice to the occupant thereof. 3.3 Easements Benefitin� Declarant. Declarant hereby reserves Easements over and across the Common Elements as reasonably necessary for the purposes of completing the construction of the Condominium Project, including any improvements or alterations described in Section 2.8(b), and for the purpose of exercising any Development Rights pursuant to Section 2.8(a); constructing and installing any shafts, chutes, flues, ducts, vents, chases, pipes, wires, conduits or utility lines necessary to serve those improvements or alterations; storing construction materials relating to those improvements and alterations and their service elements; showing Units and Common Elements to prospective purchasers; displaying signs; and performing any of Declarant's obligations under this Declaration. Declarant's Easements will exist as long as reasonably necessary for those purposes. Without limiting the generality of the previous two sentences, if Declarant elects to install utility lines to provide additional utility services in some or all of the Units, Declarant will have Easements to install the utility lines and chases housing them on, over, under, across and through the interior or exterior Common Elements. 3.4 Parkin�ghts. Pursuant to the �ZECA, the "Airspace Lot Owner" was granted the Parking Rights, some of which are Year Round Parking Rights. Each Owner, by taking title to a Unit, acknowledges and agrees that the terms of RECA provide that (a) all Parking Rights, including Year Round Parking Rights, may be exercised only through the use of valet service provided by the Commercial Project Owner, unless the Commercial Project Owner determines to allow self-parking from time to time, in its sole and absolute discretion as provided for in the RECA; and (b) all Parking Rights other than the Year Round Parking Rights may be exercised only when an Owner is in residence in its Unit. Each Unit is allocated a portion of the Parking Rights as necessary to allow one "Motor Vehicle" (as defined in the RECA) to be parked in the � � � �: 635954.14 1 2 �'" � � Commercial Project. In addition, those Units indicated on the attached Exhibit C are also allocated a portion of the Year Round Parking Rights as indicated on the attached Exhibit C. 3.5 Terrace Easement. Pursuant to the RECA, the "Airspace Lot Owner" was granted an easement to use and occupy the Terraces. Each Owner and its Permittees is allocated the right to use such easement as it relates to the Terrace(s) attached to the Owner's Unit, as depicted on the Map. Each Owner acknowledges and agrees that its use of the applicable Terrace is subject to the terms of the RECA. 3.6 Stora�e Easement. Pursuant to the RECA, the "Airspace Lot Owner" was granted an easement to use and occupy certain storage areas within the Commercial Improvements as identified in the RECA (the "Storage Areas"). Unit is allocated the right to use such easement as it relates to all Storage Areas; provided, however, that at any time (so long as Declarant still owns Unit � Declarant may record a Supplemental Declaration allocating the right to use such easement as it relates to individual Storage Areas to other Units. Each Owner acknowledges and agrees that its use of the assigned Storage Area is subject to the terms of the RECA. 3.7 Easements for Encroachments. If, as a result of the construction, reconstruction, shifting, settlement, restoration, rehabilitation, alteration or improvement of the Condominium Project or any portion of it, any Common Element encroaches upon any part of any Unit, or any part of any Unit encroaches upon any Common Element or upon any part of another Unit, an Easement exists for the continued existence and maintenance of the encroachment. The Easement will continue for so long as the encroachment exists and will burden the Unit or Common Element encroached upon and benefit the encroaching Unit or Common Element. No Easement exists for any encroachment that is materially detrimental to or interferes with the reasonable use and enjoyment of the Common Element(s) or Unit(s) burdened by the encroachment. 3.8 Easements to Repair Maintain Restore and Reconstruct. With respect to any provision of this Declaration or the Act that authorizes or requires any Person (including, without limitation, the Association) to repair, maintain, restore or reconstruct all or any part of any Unit or Common Element, Easements exist as necessary or convenient to gain access and perform the authorized or required work to the portions of the Condominium Project requiring repair, maintenance, restoration or reconstruction, with persons, materials and equipment to the extent and for the periods reasonably necessary to enable the Person to perform the authorized or required work. Without limiting the generality of the previous sentence, the Association has an Easement to enter each Unit to the extent reasonably required to repair and maintain any Common Elements located in the Unit. The Easements created under this Section 3.8 burden those portions of the Condominium Project through which they run and benefit the Persons authorized or required to perform, and those portions of the Condominium Project requiring, the repair, maintenance, restoration or reconstruction. Except in the case of emergency situations concerning threatened damage to persons or property, no Person shall enter into any Unit pursuant to the Easement established under this Section 3.8 without giving reasonable advance notice to the occupant thereof. Prior to exercising its rights under this Section 3.8, each Owner must notify the Association so that the Association may coordinate the required access through and/or wor�C to the Common Elements or other Units with the impacted Owners. Such Owner's 635954.14 �� 3: access and work may proceed only at the times and in accordance with the arrangeinents approved by the Association. 3.9 Easements for Utilitv/Service Elements. An Easement exists for the benefit of each Unit and Common Element for the use of all Utility/Service Elements that serve the Unit or Common Element and run through any other Unit(s) or Common Element(s). The other Unit(s) or Common Element(s) are burdened by the Easement. 3.10 Right of Entrv. Declarant reserves for the Association an easement for the right, but not the obligation, to enter upon any Unit: (i) for emergency, security and safety reasons; and (ii)to inspect any Unit for the purpose of ensuring compliance with this Declaration, the Bylaws and the Rules. Such right may be exercised by any member of the Board and the Association's officers, agents, employees and managers and, for emergency, security and safety purposes, all � police, fire and ambulance personnel and other similar emergency personnel in the performance of their duties. This right of entry shall include the right of the Association to enter upon any Unit to cure any condition that may increase the possibility of a fire or other hazard in the event an Owner fails or refuses to cure such condition within a reasonable time after requested by the Association, but shall not authorize entry into the residence located on or constituting any Unit without permission of the occupant, except by emergency personnel acting in their official capacities. 3.11 Additional Easements. (a) Declarant's Right to Grant Easements. Declarant reserves the non-exclusive right and power to grant, during the Declarant Development Period, such additional specific easements over any portion of the Property owned by Declarant and the Common Elements as may be necessary, in the sole discretion of Declarant, to the orderly development of any portion of the Property. (b) Association's Right to Grant Easements. Notwithstanding anything to the contrary in this Declaration, the Association, acting through the Board and without the approval of the Owners, may grant easements over the Common Elements for installation and maintenance of utilities and for other purposes that benefit the Owners. 3.12 Easements Run with Propertv. Except for the Easements described in Section 3.3, all Easements existing pursuant to this Article 3 are appurtenant to and run with the Property and will be perpetually in full force and effect so long as the Condominium Project exists and inure to the benefit of and are binding upon Declarant, the Association, Owners, Permittees, Security Holders and any other Persons having any interest in the Condominium Project or any part of it. The Units will be conveyed and encumbered subject to all Easements set forth in this Article 3, whether or not specifically mentioned in the conveyance or encumbrance. 3.13 Other Recorded Easements and Licenses Affecting the Propertv. The recorded easements and licenses identified on Exhibit D, which were created prior to the date of this Declaration, and the easements created by the Map affect the Property. � � 3.14 Liquor Licensin�. Each Owner, by taking title to a Unit, acknowledges and agrees that, � pursuant to Section 4(d) of the RECA, for all purposes relating to the licensing for alcoholic � 635954.14 �-T beverage possession and service under applicable state and local laws, the Commercial Project Owner retained possession and control of the Property. Declaxant hereby consents to such retention and grants the Commercial Project Owner such of possession and control of the Property for such purposes. The Commercial Project Owner may assign the possession and control of the Property for such purposes to any lessee or manager of the hotel within the Commercial Project from time to time without the consent of or notice to the Association or any Owner. ARTICLE 4 COVENANTS. CONDITIONS AND RESTRICTIONS 4.1 Administration. The Condominium Project will be administered in accordance with the provisions of the Act, this Declaration and the Bylaws. All Common Elements aze subject to the reasonable supervision, operation, management and control of the Association. 4.2 Compliance. Each Owner, Permittee and Security Holder and all parties claiming under them will take and hold their right, title and interest in any Unit subject to all of the covenants and conditions of the Act, the RECA, this Declaration, and the Bylaws. Each Owner, Permittee and Security Holder and all parties claiming under them will comply with all applicable provisions of the RECA, the Act, this Declaration, the Bylaws, and any Rules, as may be amended from time to time. 4.3 Permitted Uses. Subject to the terms of the RECA, each Unit may be occupied and used only for (i)residential uses and uses incidental to them; (ii) long term and short term rentals of the Unit or any individual sleeping rooms located within the Unit for residential and lodging purposes, to the extent permitted by applicable zoning laws; and (iii) home occupations permitted by applicable zoning laws, so long as that use is incidental to residential use of the Unit, does not involve use of the Unit by any employee or independent contractor (other than the Owner of the Unit), does not involve regular commercial deliveries to or from the Unit other than small packages shipped by an express courier service, does not involve regular visits to the Unit by any customers or prospective customers, does not materially increase the use of elevators, lobbies or other common areas in the Commercial Project, and is not advertised or identified by signage on or any directory in the Commercial Project. 4.4 Prohibited Uses. In addition to the use restrictions contained in the RECA and this Article 4,the following uses aze prohibited: (a) Insurance Risks. No portion of the Condominium Project may be used for any use which would constitute an unusual fire hazard, would result in jeopardizing any insurance maintained on any part of the Condominium Project or would result in any increase in the premium for that insurance. (b) Overloadin�. No Unit or Common Element may be used for any use beyond the maximum loads the floors of the Building are designed to carry and no apparatus, equipment, fixtures or other property of any nature may be located within the Condominium Project if the same, singularly or in the aggregate, would violate the ma�cimum loads that the structural 635954.14 �� flooring in the Building is designed to support. Further, no Unit or Common Element may be used for any use which would place any extraordinary burden on any portion of the Building. (c) Nuisance. No Unit or Common Element may be used for any use (1) constituting a public or private nuisance; (2) consisting of the manufacture of any product; or (3)which causes undue odor, noise, vibration or glare, including, without limitation, the use of any equipment or machine. (d) Violation of Law. No portion of the Condominium Project may be used for any use which violates any law, statute, ordinance, rule, regulation or order of any governmental authority having jurisdiction over the Condominium Project, including, without limitation, any of them that regulate or concern hazardous or toxic waste, substances or materials. �; 4.5 Rules. In addition to the restrictions, conditions and covenants in this Article 4 concerning the use of the Condominium Project, the Board from time to time may promulgate and amend reasonable Rules not in conflict with the RECA, the Act, this Declaration or the Bylaws. To the extent not covered elsewhere in the Declaration or the Bylaws, such Rules will include policies specified in Section 209.5 of the Act. Prior to the adoption or amendment of any such Rule, the Board must give written notice to each Owner containing the proposed Rule or amendment to a Rule and the Owners must be allowed a reasonable opportunity to be heard at the Board meeting regarding such proposed new or amended Rule. 4.6 Indemnity. Subject to Section 11.4, each Owner will be liable to and will protect, defend, � indemnify and hold harmless the Association and the other Owners from and against any and all damages, claims, demands, liens (including, without limitation, mechanics' and materialmen's liens and claims), losses, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other expenses of litigation) and liabilities of any kind or nature whatsoever (collectively referred to as "Indemnity Claims") suffered or incurred by, or threatened or asserted against, the Association or any other Owner as a result of or in connection with (a)the willful misconduct, negligence or breach of the RECA, the Act, this Declaration, the Bylaws or the Rules by the indemnifying Owner or its Permittees; (b) any repair, restoration, replacement, alteration or other construction, demolitian, installation or removal work on or about the Condominium Project contracted for, or performed by, the indemnifying Owner or its Permittees; or (c)the operation, use, ownership or maintenance of the indemnifying Owner's Unit by the indemnifying Owner or its Permittees. The indemnifying Owner will pay for all Indemnity Claims suffered or incurred by the Association for which the indemnifying Owner is responsible promptly upon receipt of a demand for payment from the Association. The amount of the Indemnity Claims will constitute Special Assessments against the indemnifying Owner's Unit. If the indemnifying Owner fails to make such payment within 30 days after receipt of the Association's demand for it, the Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. Nothing in this Declaration relieves any Permittee from liability for its own acts or omissions. Nothing contained in this Section 4.6 will be construed to provide for any indemnification which violates applicable laws, voids any or all of the provisions of this � Section 4.6 or negates, abridges, eliminates or otherwise reduces any other indemnification or � right which the Association or the Owners have by law. � � � � 635954.14 16 �` 4.7 Provisions Run with Propertv. Each Condominium, Owner, Permittee and Security Holder are subject to all provisions of this Declaration and those provisions are covenants running with the land or equitable servitudes, as the case may be, and bind every Person having any interest in the Condominium Project and inure to the benefit of every Owner. 4.8 Enforcement. This Declaration and the Bylaws constitute a general scheme benefiting each Unit and the Property as a whole and may be enforced by Declarant, the Association or an aggrieved Owner. A violation of any of the provisions of this Declaration causes irreparable damage to the Property. Therefore, subject to the terms and conditions of this Section 4.8 and except as otherwise expressly provided elsewhere in this Declaration, Declarant, the Association and any aggrieved Owner may prosecute a proceeding at law or in equity against any Person violating or attempting to violate the provisions of this Declaration or the Bylaws, including, without limitation, an action for a temporary restraining order, preliminary injunction and permanent injunction. Any Person attempting to enforce the provisions of this Declaration or the Bylaws, including, without limitation, attempting to collect delinquent Assessments, regardless of whether a suit is initiated, may recover reasonable attorneys' fees and other legal costs incurred in successfully enforcing the provision to the extent provided in Section 123 of the Act. Any Owner who is successful in defending such a claim raised against it is also entitled to reasonable attorneys' fees and other legal costs it incurs in successfully defending such a claim to the extent provided in Section 123 of the Act. If the Person is an Owner, the amount of the fees and costs constitute a lien against the Owner's Unit which may be foreclosed in accordance with Section 9.6. In addition, if any Owner fails to comply with the RECA, this Declaration,the Bylaws or the Rules, the Association may (i)temporarily suspend the Owner's right to use or enjoy any of the Common Elements, (ii) impose monetary penalties, and (iii) impose other appropriate measures;provided, however, that before imposing any of those measures (other than late charges, interest and reasonable collection costs relating to delinquent payments), the defaulting Owner is provided prior notice of the claimed default and an opportunity to be heard by the Board prior to the imposition of the disciplinary measure in accordance with the provisions of the Bylaws. In accordance with and furtherance of Section 124 of the Act, an aggrieved Owner may prosecute any proceeding at law or in equity enforcing the provisions of this Declaration or seeking other relief relating to a violation or attempted violation of the provisions of this Declaration, the Owner will first give written notice to the Board specifying the violation or attempted violation of the provisions of this Declaration, the facts and circumstances sunounding the violation, and the name of the Person alleged to have violated or attempted to violate the provisions of this Declaration. The Board may initiate a proceeding at law or in equity to enforce the provisions of this Declaration, to prevent a violation or to obtain damages for damage to the Common Elements resulting from the violation, or may otherwise enforce the provisions of this Declazation. The aggrieved Owner may exercise any of its rights under Section 4.8 if(i)the violation or attempted violation results or would result in direct and immediate physical damage to the Owner's Unit, or (ii) the Association fails to enforce or cause enforcement of the violated provisions of this Declaration within 60 days after the Board receives the Owner's notice. This Section 4.8 constitutes the Association's written dispute resolution policy in accordance with Section 124 of the Act. 635954.14 �� ARTICLE 5 OPERATION, MAINTENANCE AND REPAIR 5.1 Association's Duties. Subject to the provisions of Article 12 and Article 13, the Association has the following rights and responsibilities with respect to the operation, maintenance and repair of the Condominium Project: (a) Maintenance of Common Elements. Except to the extent otherwise provided in Section 5.2,the Association will maintain, repair, replace and restore the Common Elements, and the costs to do so will be included in Common Expenses, except to the extent paid by insurance or condemnation proceeds or by Owners pursuant to Sections 4.6, 9.2(a), 9.2(b), or 9.2(c). The Association may not alter, repair, replace, or maintain the exterior of the Building or any other portion of the Building that is not a part of the Condominium Project. (b) Election to Perform Owners' Duties. The Association may elect to maintain, repair, replace or restore any Unit or Limited Common Element, or portion of either of them,that an Owner is required to maintain, repair, replace or restore pursuant to Section 5.2 if: (i)the Owner has failed, for more than 30 days after notice from the Association, to maintain, repair, replace or restore its Unit or Limited Common Element as required under this Declaration; and (ii)the failure adversely affects the appearance of the Unit or Limited Common Element when viewed from any area outside the Unit or Limited Common Element, or impairs the structural integrity or building systems of any portion of the Property, or has an adverse effect on the use of another Unit or Common Element for its permitted and intended use. If, however, the required maintenance, repair, replacement or restoration cannot be cured because of its nature or scope within the 30-day period, the Association may not perform the repair, maintenance, replacement or restoration so long as such Owner commences performance of its obligations within the 30-day period and diligently completes it. The Owner will pay all costs incurred by the Association in accordance with this Section 5.1(b) upon receiving the Association's demand for � payment. If the Owner fails to make the payment within 30 days of receiving a demand for it, the Association may take whatever lawful action it deems necessary to collect the payment including, without limitation, foreclosing its lien or instituting an action at law or in equity. 5.2 Owners' Duties. Subject to the provisions of Article 12 and Article 13, each Owner will at its expense (i) maintain at all times in good and clean condition, and perform all required repairs, replacements or restorations of its Unit, and any Utility/Service Elements allocated exclusively to the Owner's Unit as a Limited Common Element; (ii) clean and keep in a sanitary condition any Terrace on the outside of its Unit; (iii)perform its responsibilities in a manner that does not unreasonably disturb other Owners or their Permittees; and (iv) promptly report to the Association any defect or need for repairs for which the Association is responsible. No Owner, its tenants or Permittees may alter, repair, replace, or maintain the exterior of the Building or any other portion of the Building that is not a part of the Condominium Project. 5.3 Maintenance Standard. For the benefit of all Owners, each Owner and the Association will perform their respective maintenance and repair obligations under Sections 5.1 and 5.2 in a ' manner consistent with a first-class residential project located in Eagle County, Colorado. �' 635954.14 �V � ARTICLE 6 THE ASSOCIATION AND BOARD 6.1 Formation of the Association; Membershin. The Association will be formed no later than the date the first Unit is conveyed to an Owner other than Declarant. Each Owner is a member of the Association as soon and for so long as it is an Owner. Following a termination of the Condominium Project, the members of the Association will consist of all Owners entitled to share in the distribution of proceeds of a sale of the Property. Membership in the Association automatically terminates when a Person ceases to be an Owner, whether through sale mtestate succession, testamentary disposition, foreclosure or otherwise, and the new Owner automatica y succeeds to that membership in the Association. The Association will recognize a new member upon presentation by a new Owner of satisfactory evidence of the sale, transfer, succession, disposition, foreclosure or other transfer of a Unit. Membership in the Association may not be transferred, pledged or alienated in any way, except to the new Owner upon conveyance of a Unit. Any prohibited transfer is void and will not be recognized by the Association. 6.2 Powers. The Association will serve as the governing body for the Condominium Project and has the responsibilities set forth in this Declaration and the Bylaws. Each Owner, by taking title to a Unit, hereby appoints the Association its duly authorized representative and grants to the Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to exercise the rights of the "Airspace Lot Owner" under the RECA on its behal£ In addition,the Association may, but shall not be obligated to: (a) adopt and amend the Bylaws and Rules, provided that the Bylaws and Rules will not be inconsistent with the RECA,this Declaration or the Act; (b) adopt and amend budgets for revenues, expenditures and reserves and assess and collect any Assessments and any other amounts due from Owners or others to the Association; (c) hire and terminate managing agents and other employees, agents and independent contractors; (d) subject to the other provisions of this Declaration, institute, defend or intervene in litigation or administrative proceedings in its own name only on behalf of itself on matters affecting the Condominium Project; (e) make contracts and incur liabilities; (fl borrow funds to cover Association expenditures and pledge Association assets as security therefor, provided that Common Elements may be subjected to a security interest only pursuant to Section 18.2; (g) regulate the use, maintenance, repair, replacement and modification of the Common Elements; (h) acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property (including, without limitation, one or more Condominiums), provided 635954.14 19 � that Common Elements may be conveyed or subjected to a security interest only pursuant to Section 18.2; (i) impose charges for late payment of Assessments, recover reasonable attorneys' fees and other legal costs for collection of Assessments and other actions to enforce the power of the Association, regardless of whether or not suit was initiated, and, after notice and an opportunity to be heard, levy reasonable fines for violations of this Declaration or the Bylaws or Rules; (j) impose reasonable charges for the preparation and Recording of amendments to this Declaration or statements of unpaid Assessments pursuant to Section 18.4; (k) provide for the indemnification of its officers and members of the Board and maintain directors' and officers' liability insurance; (1) assign its right to future income, including the right to receive Assessments so long as the Association will continue to have sufficient revenue to meet its maintenance obligations under this Declaration; (m) exercise any other powers conferred by this Declaration or the Bylaws; and (n) exercise any other powers necessary and prop:er for the govemance and operation of the Association. This Declaration may not impose any limitations on the powers of the Association to deal with Declarant which are more restrictive than the limitations imposed on the power of the Association to deal with any other Person. 6.3 Budget. (a) Preparation of Budget. The Board will cause a proposed budget for the Association to be prepared and adopted annually, not less than 30 days prior to the beginning of each Fiscal Year of the Association (except that, for the first Fiscal Year of the Association, the Board may adopt the estimated budget prepared by Declarant). The proposed budget will include all of the following: (i) the estimated revenue and expenses (including, without limitation, Common Expenses) of the Association for the subject Fiscal Year, in reasonable detail as to the various categories of revenue and expense; (ii) the current cash balance in the Association's reserve fund for the major repair or replacement of Common Elements, the Association's equipment, furniture and other personal property and for contingencies (including, without limitation, the amount of the deductible under the Association's property insurance policy), which fund must be established, maintained and invested by the Board in accordance with the standards set forth in C.R.S. § 7-128-401 (the "Reserve Fund"); 635954.14 GO � (iii) an estimate of the amount required to be spent during the subject Fiscal Year from the Reserve Fund for the major repair or replacement of Common Elements or the Association's equipment, furniture or other personal property; and (iv) a statement of the amount required to be added to the Reserve Fund during the subject Fiscal Year to cover anticipated withdrawals and adequately address contingencies and anticipated needs in future Fiscal Years. (b) Ratification of Bud�et. Within 90 days after the Board adopts any proposed budget for the Association, the Board will mail, by ordinary first-class mail, or otherwise deliver a summary of the proposed budget to all Owners and will set a date for a meeting of the Owners to consider ratification of the proposed budget. Such meeting will occur within a reasonable time after mailing or other delivery of the summary. The Board will give notice to the Owners of such meeting as provided for in the Bylaws. The budget proposed by the Board does not require approval of the Owners and will be deemed approved by the Owners in the absence of a veto at such noticed meeting of Owners representing 80% of all the Units, whether or not a quorum is present. In the event that the proposed budget is vetoed, the periodic budget last proposed by the Board and not vetoed by the Owners will continue in effect until such time as a subsequent budget proposed by the Board is not vetoed by the Owners. For the first Fiscal Year of the Association, the Board may adopt Declarant's estimated budget for the Association and assess General Assessments pursuant to Section 9.2(a) of this Declaration based on it if the Board submits such budget to the Owners for ratification in accordance with this Section 63(b) within 60 days after adopting it. 6.4 No Master Association• No Delegation of Powers. In no event shall the Association be deemed a "Master Association" under the Act, nor shall the Commercial Project Owner be deemed a "Master Association" under the Act to which some or all of the Association's powers may be delegated. In furtherance thereof, in no event may the Association delegate any of its powers to the Commercial Project Owner. ARTICLE 7 CONSTRUCTION DEFECTS,DISPUTES, DISPUTE RESOLUTION AND LITIGATION 7.1 Testing for Construction Defects. (a) The Association shall not undertake or authorize any testing, including, without limitation, investigative testing, destructive testing or invasive testing of any kind for defects in construction of any Unit or Common Element without first determining, based upon the presence of some readily observable evidence or condition, thai a defect may exist. In making such a determination the Board shall rely on the opinions andlor the conclusions of a qualified expert (e.g., a structural engineer); even in the event such evidence or conditions exist, the Association shall not be obligated to authorize or undertake such testing. (b) In determining whether to authorize such testing, the Board shall be governed by the following considerations: 635954.14 � �� (i) whether the Association's position is strong enough .to justify taking any other or further action; � (ii) whether, although a technical violation may exist or may have occurred, it is of such a material nature as to be objectionable to a reasonable Person or to justify expending the Association's resources; and (iii) whether it is in the Association's best interests, based upon hardship, expense, inconvenience or other reasonable criteria, to pursue the matter further. (iv) Notwithstanding the foregoing, under no circumstances shall the Association authorize such testing as is contemplated under this Section 7.1 unless the nature of the suspected defect is such that: (v) it poses a significant risk to life, health, safety or personal property; and (vi) it threatens or affects the structural integrity, functionality, or performance of the Property (or a portion thereo fl for its intended use. (c) In the event the Board undertakes or authorizes testing for construction defects, then prior to any testing taking place, Declarant and others responsible for the construction shall be entitled to notice of the alleged defect, access to the area of the alleged defect, and an opportunity to inspect the area and repair any defect that is found to exist. Declarant and others responsible for construction shall also be entitled to be present during any testing and may record (via videotape, audio tape, still photographs, or any other recording method) all testing conducted and all alleged defects found. (d) In the event that testing discloses any defects, Declarant and others responsible for construction shall be given a reasonable amount of time, based on the nature and extent of the defect, to repair or correct the condition. If Declarant or others responsible for construction fail to repair or conect the condition, the Board shall have the right, but not the obligation, to proceed with a Claim pursuant to this Article 7 of this Declaration. In determining whether to proceed with such a Claim, the Board shall be governed by the same standards as set forth in Section 7.6 below. 7.2 Consensus for Association Liti a�. Except as provided in this Section 7.2, the Association shall not commence a judicial or administrative proceeding, including without limitation any proceeding required under Section 7.5 below, without: (a)the approval of at least 80% of the Owners; and (b) the affirmative vote of Declarant so long as Declarant owns any Unit. This Section 7.2 shall not apply, however, to: (i) actions brought by the Association to enforce the terms of the RECA, this Declaration, the Bylaws or the Rules (including, without limitation, the foreclosure of liens); (ii)the imposition and collection of assessments; (iii)proceedings involving challenges to ad valorem t�ation; or (iv)counterclaims brought by the Association in proceedings instituted against it. This Section 7.2 shall not be amended unless such amendment is approved by the percentage of votes, and pursuant to the same procedures, necessary to institute proceedings, as provided for herein. � � 635954.14 GG Prior to the Association or any Owner's commencing any judicial or administrative proceeding which arises out of an alleged defects of any Common Element or Unit, Declarant and others responsible for the construction shall have the right to be heard by the Owners and to access, inspect, correct the condition of, or redesign any portion of the Common Elements or the Units, including any improvement as to which a defect is alleged. In addition, the Association or the Owner shall notify the builder who constructed the subject improvement prior to retaining any other expert as an expert witness or for other litigation purposes. 7.3 Alternative Method for Resolvin�Disputes. In accordance with and furtherance of Section 124 of the Act, Declarant, the Association, its officers, directors, and committee members, any Owner, all Persons subject to this Declaration, and any Person not otherwise subject to this Declaration who agrees to submit to this Section 7.3 (each such entity being referred to as a "Bound Party") agree to encourage the amicable resolution of disputes, without the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees to submit those claims, grievances or disputes described in Section 7.4 of this Declaration (collectively, "Claims"), to the procedures set forth in Section 7.5 of this Declaration. 7.4 Claims. Unless specifically exempted below, all Claims arising out of or relating to the interpretation, application or enforcement of this Declaration, or the rights, obligations and duties of any Bound Party under this Declaration, or relating to the design or construction of the Units or the Common Elements shall be subject to the provisions of Section 7.5 of this Declaration. Notwithstanding the above, unless all parties thereto otherwise agree, the following shall not be Claims and shall not be subject to the provisions of Section 7.5 of this Declazation: (a) any suit by the Association against any Bound Party to enforce the provisions of Article 9 of this Declaration(Assessments); (b) any suit by the Association or Declarant to obtain a temporary restraining order or injunction (or equivalent emergency equitable relie fl and such other ancillary relief as the court may deem necessary in order to maintain the status quo and pr�serve the Association's ability to act under and enforce the provisions of Article 4 (Covenants, Conditions and Restrictions); (c) any suit between or among Owners, to the extent such suit asserts a Claim which would constitute a cause of action independent of this Declaration; (d) any suit in which any indispensable party is not a Bound Party; and (e) any suit as to which any applicable statute of limitations, has expired or would expire within 180 days of giving the Notice required by subsection 7.5(a) of this Declaration. With the consent of all parties thereto, any of the above may be submitted to the alternative dispute resolution procedures set forth in Section 7.5. 7.5 Mandatorv Procedures. (a) Notice. Any Bound Party having a Claim ("Claimant") against any other Bound Party ("Respondent") (the Claimant and the Respondent are hereinafter referred to individually, 635954.14 �� . as a "Party," or, collectively, as the "Parties") shall notify each Respondent in writing (the "Notice"), stating plainly and concisely (i)the nature of the Claim, including the Persons involved and Respondent's role in the Claim; (ii)the legal basis of the Claim (i.e., the specific authority out of which the Claim arises); (iii)the proposed remedy; and (iv) the fact that Claimant will meet with Respondent to discuss in good faith ways to resolve the Claim. (b) Ne�otiation and Mediation. (i) The Parties shall make every reasonable effort to meet in person and confer for the purpose of resolving the Claim by good faith negotiation. If requested in writing, accompanied by a copy of the Notice, the Board may appoint a representative to assist the Parties in negotiation. (ii) If the Parties do not resolve the Claim within 30 days after the date of the Notice (or within such other period as may be agreed upon by the Parties) ("Termination of Negotiations"), Claimant shall have 30 additional days to submit the Claim to mediation under the auspices of an independent mediation service designated by the Association or, if the Parties otherwise agree, to an independent agency providing dispute resolution services in the Eagle County, Colorado, area. (iii) If Claimant does not submit the Claim to mediation within such time, or does not appear for the mediation, Claimant shall be deemed to have waived the Claim, and Respondent shall, to the fullest extent permissible under Colorado law, be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant. (iv) Any settlement of the Claim through mediation shall be documented in writing by the mediator and signed by the Parties. If the Parties do not settle the Claim within 30 days after submission of the matter to the mediation, or within such other time as determined by the mediator or agreed to by the Parties, the mediator shall issue a notice of termination of the mediation proceedings ("Termination of Mediation"). The Termination of Mediation notice shall set forth that the Parties are at an impasse and the date that mediation was terminated. �; (v) Within five days of the Termination of Mediation, the Claimant shall make a final written settlement demand ("Settlement Demand") to the Respondent, and the Respondent shall make a final written settlement offer ("Settlement Offer") to the Claimant. If the Claimant fails to make a Settlement Demand, Claimant's original Notice shall constitute the Settlement Demand. If the Respondent fails to make a Settlement Offer, Respondent shall be deemed to have made a "zero" or "take nothing" Settlement Offer. (c) �'inal and Binding Arbitration. � � (i) If the Parties do not agree in writing to a settlement of the Claim within �' 15 days of the Termination of Mediation, the Claimant shall have 15 additional days to � submit the Claim to azbitration in accordance with the Rules of Arbitration contained in � � � � 635954.14 G`'� ��'. � Exhibit E or such rules as may be required by the agency providing the arbitrator. If not timely submitted to arbitration or if the Claimant fails to appear for the arbitration proceeding, the Claim shall be deemed abandoned, and Respondent shall, to the fullest extent permissible under Colorado law; be released and discharged from any and all liability to Claimant arising out of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to Persons other than Claimant. (ii) This subsection 7.5(c) is an agreement to arbitrate and is specifically enforceable under the applicable arbitration laws of the State of Colorado. The arbitration award (the "Award") shall, to the fullest extent permissible under Colorado law, be final and binding with no right to appeal, and judgment may be entered upon it in any court of competent jurisdiction to the fullest extent permitted under the laws of the State of Colorado. (d) Allocation of Costs of Resolving Claims. (i) Each Party, including, without limitation, any Owner and the Association, shall share equally all charges rendered by the mediator(s) and all filing fees and costs of conducting the arbitration proceeding ("Post Mediation Costs"). Under no circumstances shall either Party be entitled to recover its Post Mediation Costs, including any attorneys' fees (except as specifically provided under Section 123 of the Act), from the other party. BY TAKING TITLE TO A UNIT AND AS A MEMBER OF THE ASSOCIATION, EACH OWNER ACKNOWLEDGES AND AGREES THAT SUCH OWNER AND THE ASSOCIATION HAVE WAIVED AND SHALL BE DEEMED, to the fullest extent permissible under Colorado law, TO HAVE WAIVED THE RIGHT TO ANY AWARD OF ATTORNEYS' FEES (EXCEPT AS SPECIFICALLY PROVIDED UNDER SECTION 123 OF THE ACT) IN CONNECTION WITH THE ARBITRATION OF A DISPUTE UNDER THIS SECTION 7.5(d). (ii) Any Award which is equal to or more favorable to Claimant than Claimant's Settlement Demand shall add Claimant's Post Mediation Costs to the Award, such costs to be borne equally by all Respondents. Any Award which is equal to or less favorable to Claimant than any Respondent's Settlement Offer shall award to such Respondent its Post Mediation Costs. With respect to any Award which is less favorable to Claimant than Claimant's Settlement Demand yet more favorable to Claimant than Respondent's Settlement Offer, each party shall bear its own Post Mediation Costs. (e) Limitation on Dama�. No party, including, without limitation, any Owner and the Association, shall be entitled to receive any award of damages in connection with the azbitration of a Dispute other than such party's actual damages, and Declarant, the Association and any Owner shall be deemed, to the fullest extent permissible under Colorado law, to have waived their right to receive any damages in a Dispute other than actual damages, including, without limitation, attorneys' fees (except as specifically provided under Section 123 of the Act), special damages, consequential damages, and punitive or exemplary damages. BY TAKING TITLE TO A UNIT AND AS A MEMBER OF THE ASSOCIATION, EACH OWNER KNOWINGLY AND WILLINGLY ACKNOWLEDGES AND AGREES THAT SUCH OWNER AND THE ASSOCIATION HAVE WAIVED AND SHALL BE DEEMED TO HAVE 635954.14 G J �" WAIVED, TO THE FULLEST EXTENT PERMISSIBLE UNDER COLORADO LAW, 1N CONNECTION WITH THE ARBITRATION OF ANY DISPUTE UNDER SECTION 7.5(c), THE RIGHT TO ANY AWARD OF CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, 1NCIDENTAL, OR OTHER NON-COMPENSATORY DAMAGES OR SIMILAR DAMAGES, INCLUDING ALL DAMAGES FOR EMOTIONAL DISTRESS, WHETHER FORESEEABLE OR UNFORESEEABLE AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON (BUT NOT LIMITED TO) CLAIMS ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, VIOLATION OF BUILDING CODES (LOCAL, STATE OR FEDERAL), CONSTRUCTION DEFECTS, MISREPRESENTATION OR NEGLIGENCE OR OTHERWISE. (fl Multi�le Partv Disputes. Multiple party disputes or claims not consolidated or administered as a class action pursuant to the following sentence will be subject to, and will be arbitrated individually. Only with the written request of all parties involved, but not otherwise, the "Arbitrator" (as defined in Exhibit E attached hereto) may: (i) consolidate in a single azbitration proceeding any multiple party claims that are substantially identical, and (ii) arbitrate multiple claims as a class action in accordance with the rules and procedures adopted by Construction Arbitration Services, Inc. ("CAS"). (g) Enforcement of Resolution. If the Parties agree to a resolution of any Claim through negotiation or mediation in accordance with Section 7.5(b) above and any Party thereafter fails to abide by the terms of such agreement, or if any Party fails to comply with an Award, then any other Party may file suit or initiate administrative proceedings to enforce such agreement or Award without the need to again comply with the procedures set forth in this Section 7.5. In such event, the Party taking action to enforce the agreement or Award shall be entitled to recover from the non-complying Party (or if more than one non-complying Party, from all such Parties pro rata) all costs incurred in enforcing such agreement or Award, including, without limitation, attorneys' fees and court costs to the extent specifically provided under Section 123 of the Act. � 7.6 Legal Proceedings. Subject to the provisions of Sections 7.1 through 7.5 of this Declaration, the Association shall have the right, but not the obligation, to institute legal proceedings to enforce all rights under the RECA, this Declaration, the Bylaws and the Rules. The decision to institute legal proceedings by seeking the approval of at least 80% of the Owners pursuant to Section 7.1 of this Declaration, shall be in the sole discretion of the Board and shall be governed by the considerations detailed in Sections 7.1, if applicable. Failure to commence such legal proceedings shall not constitute a waiver of any such rights. ANY LIMITATIONS ON DAMAGES AND ALL WAIVERS OF LIABILITY AND RIGHTS TO AWARDS OF DAMAGES SET FORTI-I IN ANY SECTION OF THIS DECLARATION WITH RESPECT TO OWNERS, INCLUDING, WITHOUT LIMITATION, SECTIONS 7.5(c), 7.5(e) AND 7.5(fl, SHALL APPLY WITH EQUAL FORCE AND EFFECT WITH RESPECT TO THE � ASSOCIATION IN ANY LEGAL PROCEEDINGS 1NSTITUTED BY THE ASSOCIATION � UNDER THIS SECTION 7.6. THE PROVISIONS OF SECTIONS 7.1 THROUGH 7.6 WILL � BE BINDING UPON THE OWNERS AND THE ASSOCIATION TO THE FULLEST �;. EXTENT PERMITTED BY APPLICABLE LAW, AS MAY BE IN EFFECT FROM TIME TO � TIME. 635954.14 �� 7.7 Enforcement of Declaration, Bylaws, and Rules. (a) Sanctions and Self-Help. After notice and an opportunity to be heard as provided in the Bylaws, the Association, acting through the Board or any authorized agent, may: (i) impose sanctions (including, without limitation, reasonable monetary fines) for violations of the RECA, this Declaration, the Bylaws, or the Rules; (ii) exercise self-help to cure any violations of this Declaration, the Bylaws or the Rules that an Owner of Permittee fails or refuses to cure; and (iii) suspend any services it provides to any Owner who is more than 15 days delinquent in paying any Assessment or other charge due to the Association. All of the remedies set forth in this Declaration and the Bylaws shall be cumulative of each other and any other remedies available at law or in equity. If the Association prevails in any action to enforce the � provisions of this Declaration, the Bylaws, or the Rules, it shall be entitled to recover all costs, including, without limitation, attorneys' fees and court costs to the extent specifically provided under Section 123 of the Act), reasonably incurred by it in such action. (b) No Waiver. In no event shall the Association's failure to enforce any covenant, restriction or rule provided for in this Declaration, the Bylaws, or the Rules constitute a waiver of the Association's right to later enforce such provision or any other covenant, restriction or rule. ARTICLE 8 MOLD DISCLOSURE & WAIVER Mold, mildew, fungi, bacteria and microbiologic organisms (collectively, "Mold") are present in soil, air and elsewhere in the environment. Mold can proliferate in various environments, including, among others, damp areas such as bathrooms and within walls and partitions. Certain parties have expressed concerns about the possible adverse effects on human health from exposure to Mold. Due to various reasons, including the varying sensitivities of different individuals to various types of Mold and other contaminants, as of the date of this Declaration, no state or federal standards regarding acceptable levels of exposure to Mold exist. According to the Consumer Product Safety Commission and the American Lung Association, some diseases or illnesses have been linked with biological pollutants in the indoor environment, including some forms of Mold. However, it is believed that many of these conditions may also have causes unrelated to the indoor environment. Therefore, as of the date of this Declaration, it is unknown how many potential health problems relate primarily or exclusively to indoor air quality or Mold. Each Owner, by taking title to a Unit, is advised that Declarant and the Association are not qualified and have not undertaken to evaluate all aspects of this very complex issue. Each Owner, by taking title to a Unit, acknowledges that Declarant and/or the Association have not performed any testing or evaluation of, and make no representations or warranties, express or implied, concerning, the past, current or future presence or absence of Mold in the Unit, in any Common Elements in the vicinity of the Unit, in any other Common Elements within the Property or in the vicinity of the Property, or in the Commercial Project. Declarant and the Association recommend that each Owner, at the Owner's expense, conduct its own investigation and consult with such experts as the Owner deems appropriate regarding the occurrence anci effects of Mold, the potential sensitivity or special risk the Owner, his or her family members, and other individuals who will occupy or use the Unit or any Common Elements in the vicinity of the Unit, may have with respect to Mold, and methods to reduce or limit Mold within the Unit or any Common Elements in the vicinity of the Unit. 635954.14 �� When excessive moisture or water accumulates indoors, Mold growth can and will occur, particularly if the moisture problem remains unaddressed. There is no practical way to eliminate all Mold in an indoor environment. The key to controlling indoor Mold growth is to control moisture. Each Owner, by taking title to a Unit, agrees to maintain the Unit and the Common Elements in the vicinity of the Unit in such a manner as to reduce the potential for increased Mold formation or growth, including, without limitation, keeping dryer and other vents and/or fans clear and functioning, and preventing and repairing plumbing, window and other leaks and sources of moisture. Each Owner, by taking title to a Unit, agrees to make periodic inspections of the Unit, the Common Elements in the vicinity of the Unit, and those portions of the Commercial Project abutting the Unit, for the presence of Mold or conditions which may increase the ability of Mold to propagate within the Unit, within any Common Elements in the vicinity of the Unit, or within those portions of the Commercial Project abutting the Unit, and to monitor the Unit, any Common Elements in the vicinity of the Unit, and those portions of the Commercial Project abutting the Unit, on a continual basis for excessive moisture, water or Mold accumulation. If water or moisture is discovered in or around the Unit, any Common Elements in the vicinity of the Unit, or those portions of the Commercial Project abutting the Unit, the Owner, by taking title to a Unit, agrees to immediately seek to eliminate the source of the water or moisture. Failure to eliminate the source of moisture can result in additional damage and the growth of Mold. Declarant will not be responsible for damages, and each Owner, by taking title to a Unit, hereby waives all rights to damages and subrogation of damages. Each Owner, by taking title to a Unit, agrees, to the fullest extent permissible under Colorado law, to indemnify Declarant, the Association, and the Commercial Project Owner, and hold Declarant, the Association, and the Commercial Project Owner harmless from damages, including in all cases personal injury or property damage, caused by the presence of Mold and/or water or moisture in the Unit or other portions of the Property or the Commercial Project to the extent that the damages are caused by: (i)the Owner's negligence or failure to properly maintain and monitor the Unit, any Common Element in the vicinity of the Unit; or those portions of the Commercial Project abutting the Unit; or (ii) the Owner's failure to promptly take appropriate corrective measures and minimize any damage caused by water or moisture (including, without limitation, failure to promptly notify and engage the help of appropriate professionals or experts). The provisions of this Article 8 will be binding upon the Owners to the fullest extent permitted by applicable law, as may be in effect from time to time. ARTICLE 9 ASSESSMENTS 9.1 General Assessments. Each Unit is subject to assessments for the Unit's Common Allocation of all Common Expenses (the "General Assessments"). General Assessments will commence not later than 60 days after the conveyance of the first Condominium to an Owner other than Declarant. General Assessments will be calculated, paid, adjusted and reconciled in accordance with the following provisions: (a) Bud�et and Pa�ment. The Board will assess General Assessments against each Unit based on the budget adopted by the Board and ratified by the Owners pursuant to Section 6.3. Each Owner is obligated to pay the Association the General Assessments made against such Owner's Unit, and the payment will be due in equal monthly installments on or � before the first day of each month of each Fiscal Year or in another reasonable manner � � 635954.14 �v designated by the Board. The Board's failure to fix the General Assessments prior to the commencement of any Fiscal Year will not be deemed a waiver or modification of any of the provisions of this Declaration or a release of any Owner from its obligation to pay the General Assessments or any installment of them for that Fiscal Year, but the General Assessments fixed for the preceding Fiscal Year will continue until the Board fixes the new General Assessments. (b) Adjustment. If, during any Fiscal Year, the Board determines that the estimated expenses or revenues of the Association, as set forth in the budget upon which the General Assessments were based, are in error for any reason (including, without limitation, nonpayment by any Owner of its General Assessments), then, to the extent the Board estimates that payments of General Assessments during the balance of the Fiscal Year will be inadequate or more than required to meet the Association's obligations intended to be covered by such General Assessments, the Board may amend the budget and increase or decrease the General Assessments for the balance of such Fiscal Year by giving not less than 30 days' prior notice to all Owners. Notwithstanding the previous sentence, however, if any amendments individually or in aggregate with all previous amendments in any Fiscal Year would increase the total General Assessments for a Fiscal Year by more than 10% of the General Assessments called for by the budget previously ratified by the Owners pursuant to Section 6.3, then the Board will submit the amendment for ratification by the Owners pursuant to Section 6.3 before increasing the General Assessments based on the amendment. Without limiting the generality of the foregoing, the Board may, in its sole discretion, install submeters as part of the Utility/Service Elements to measure the amount of water consumed in each Unit and may charge each Unit an amount equal to its proportionate share of water costs incurred by the Association based upon readings of the submeters. (c) Reconciliation. As soon as reasonably possible after the end of each Fiscal Year, the Board will reconcile the actual costs and expenses incurred by the Association during that Fiscal Year against the General Assessments that the Association received and intended to cover the costs and expenses. To the extent that any Owner has paid more than its proper share of the costs and expenses, the Board may either(i) refund the overpayment to the Owner; (ii)credit the overpayment against the Owner's General Assessments for the next Fiscal Year; or (iii) deposit the overpayment into the Reserve Fund if overpayments were received from all Owners in proportion to each Owner's Common Allocation. To the extent any Owner has underpaid its share of the costs and expenses, the Board may either (A) demand in writing that the Owner pay the amount of the underpayment of General Assessments to the Association within a time period specified by the Board, but not less than 30 days after the Board gives its demand to the Owner; or(B) include the underpayment in the Owner's General Assessments for the next Fiscal Year. 9.2 �ecial Assessments. The Association may levy from time to time one or more special assessments ("Special Assessments") for the purpose of defraying in whole or in part the cost of any construction, restoration, unexpected repair or replacement of a capital improvement, making any "Capital Payment" required under the RECA, or for carrying out the other responsibilities of the Association in accordance with this Declaration. Each Special Assessment will be allocated among the Units in accordance with the provisions Sections 9.2(a) through 9.2(e). Each Owner will pay all Special Assessments assessed against the Owner's Unit. Special Assessments will be paid at the time(s) and in the manner(for example, by lump sum payment or 635954.14 "� in installments) reasonably determined by the Board. The Board may require that Special Assessments be paid before the subject services or materials are provided. (a) General Benefit Expenses. If the Association incurs any costs or expenses that benefit all Units ("General Benefit Expenses"), then the Board, in its discretion, will assess the General Benefit Expenses as a Special Assessment against each Unit in amount equal to the General Benefit Expense times such Unit's Common Allocation. The Board may assess Special Assessments for General Benefit Expenses without the approval of the Owners. (b) Limited Benefit Expenses. If the Association incurs any costs or expenses that solely benefit one or more Units but less than all Units (such as, for example, the costs of repairing a utility line that serves only one or two Units but no others) ("Limited Benefit Expenses"), then the Board, in its reasonable discretion,will assess the Limited Benefit Expenses as a Special Assessment against the Unit or Units benefited by such Limited Benefit Expenses as follows: any Limited Benefit Expenses incurred for the benefit of only one Unit will be assessed solely to that Unit; and any Limited Benefit Expenses incurred for the benefit of two or more Units will, unless the Owners of all benefited Units otherwise agree to a different proportion, be assessed against each benefited Unit in proportion to the ratio of the Unit's Common Allocation to the sum of the Common Allocations of all benefited Units. The Board may assess Special Assessments for Limited Benefit Expenses without the approval of the Owners. (c) Reimbursable Expenses. If the Association incurs any costs or expenses as a result of or in connection with (i) an increase in any insurance premium for which an Owner is responsible pursuant to Section 4.4 or 11.1(a); (ii) subject to Section 11.4, the willful misconduct or negligence or violation of any law, this Declaration, the Bylaws or the Rules by an Owner or its Permittees; or (iii) subject to Sections 4.8 and 5.1(b), bringing an Owner or the Owner's Unit into compliance with the provisions of this Declaration (including, without limitation, Sections 4.6 and 5.2) or any other document governing the Condominium Project; then, in each such event, the Boazd will assess the costs and expenses ("Reimbursable Expenses") as a Special Assessment against the Owner's Unit. The Board may assess Special Assessments for Reimbursable Expenses without the approval of the Owners. (d) Restoration Deficit. If following any damage, destruction or Taking of the Common Elements, or any portion of them, the total costs of performing any restoration of the Common Elements required by this Declaration or the Act exceeds the amount of the insurance proceeds, condemnation award or other funds available for the cost of restoration (such as funds in the Reserve Fund), then the Board may assess Special Assessments to cover the deficit (a "Restoration Deficit"). The Board will assess against each Unit its Common Allocation of the Special Assessments for a Restoration Deficit. The Board may assess Special Assessments for a Restoration Deficit without the approval of the Owners. (e) Voluntarv Capital Expenses. Provided the requisite number of Owners petition the Board as provided below, the Board may make Special Assessments for the purpose of paying Voluntary Capital Expenses. "Voluntary Capital Expenses" may include any costs and expenses of any capital improvement to the Common Elements, including all design, construction and associated financing costs, except for (i) costs incurred in order to reduce Common Expenses (which costs will be included in Common Expenses); (ii) costs required to be � 635954.14 � �0 � incurred to cause the Condominium Project to comply with applicable law (which costs will be included in Common Expenses); and (iii) costs that constitute all or any part of a Restoration Deficit. Any petition before the Association (or Owners) to make a Special Assessment for Voluntary Capital Expenses must include provisions describing in detail the proposed improvements to be made and whether all of the Units, or one or more but less than all of the Units, will be subject to the Special Assessment. If less than all of the Units will be subject to such Special Assessment, the proposal will also include provisions describing which Units will be subject to such Special Assessment and the manner in which the total amount of the Special Assessment will be allocated among the Units subject to it. In order to approve any Special Assessment for Voluntary Capital Expenses, the Board must be presented with a petition signed by owners representing (A) 67% of the votes in the Association if all of the Units will be subject to the Special Assessment; or (B) 100% of the votes in the Association that are allocated to the Units that will be subject to the Special Assessment if less than all of the Units will be subject to the Special Assessment. If the petition presented to the Board contains the requisite number of signatures, the Board will (subject to any approval right it has over the design of such proposed improvements pursuant to this Declaration) assess the total amount of a Special Assessment for Voluntary Capital Expenses against (1) all of the Units, if all of the Units are subject to the Special Assessment pursuant to the approved proposal, by allocating to each Unit its Common Allocation of the total amount; or(2) the Units subject to the Special Assessment(if less than all) pursuant to the approved petition, by allocating to each the portion of the Special Assessment specified in the approved petition. 9.3 Transfer Assessment. (a) General. Subject to the limitations of this Section 9.3 and in order to provide funds to offset the obligation for "Capital Payments" otherwise due from the Association pursuant to the RECA, there is hereby imposed on the terms and conditions set forth below and due to the Association a real estate transfer assessment in an amount equal to 1% of the Actual Value of such Unit (a "Transfer Assessment") upon the Transfer of any Unit. The Transfer Assessment is imposed not as a penalty and not as a tax, but as a means of providing funds to offset the obligation for "Capital Payments" otherwise due from the Association under the RECA. (b) Definitions. (i) Transfer. For the purposes of this Section 9.3, "Transfer" shall be defined as any conveyance, assignment, lease, or other transfer of beneficial ownership of any Unit, whether occurring in one transaction or a series of related transactions, including but not limited to (A)the conveyance of fee simple title to an Unit; (B)the transfer of more than 50% of the outstanding shares of the voting stock of a corporation which, directly or indirectly, owns any Unit; and (C)the transfer of more than 50% of the interest in net profits or net losses of any partnership, limited liability company, joint venture or other entity which, directly or indirectly, owns any Unit. "Transfer" shall not mean or include the transactions excluded under Section 9.3(c). (ii) Transferee. For purposes of this Section 9.3, "Transferee" means and includes all parties to whom any interest passes by a Transfer, and each party included in 635954.14 �1 the term "Transferee" shall have joint and several liability for all obligations of the Transferee under this Section 9.3. (iii) Actual Value. For purposes of this Section 9.3, in the case of a Transfer that is in all respects a bona fide sale, "Actual Value" of the Unit subjected to Transfer shall be the Consideration given for the Transfer; in the case of a Transfer that is a lease or is otherwise not in all respects a bona fide sale, "Actual Value" of Unit subjected to Transfer shall be determined by the Association. A Transferee may make written objection to the Association's determination within 15 days after the Association has given notice of such determination, in which event the Association will obtain an appraisal, at the Transferee's sole expense, from a real estate appraiser of good reputation, who is qualified to perform appraisals in Colorado, who is familiar with Eagle County real estate values, and who will be selected by the Association, in the Association's sole and absolute discretion. The appraisal so obtained shall be binding on both the Association and the Transferee. The above provisions to the contrary notwithstanding, where a Transferee does not make a full report of a Transfer within 15 days after the time required by this Section 9.3 for making such report, the Transferee shall be deemed to have waived all right of objection concerning Actual Value, and the Association's determination of Actual Value shall be binding. (iv) Consideration. For purposes of this Section 9.3, "Consideration" means and includes the total of money paid and the fair market value of any property delivered, or contracted to be paid or delivered, in return for the Transfer of any Units, and includes any money or property paid or delivered to obtain a contract right to purchase any Unit, and the amount of any note, contract indebtedness (including without limitation, obligations which could be characterized as contingent land gain), or rental payment reserved in connection with such Transfer, whether or not secured by any lien, mortgage, or other encumbrance, given to secure the transfer price, or any part thereof, or remaining unpaid on the property at the time of Transfer, whether or not assumed by the Transferee. The term "Consideration" does not include the amount of any outstanding lien or encumbrance for taxes, special benefits or improvements, in favor of the United States, the state of Colorado, or a municipal or quasi-municipal governmental corporation or district. (c) Exclusions. The Transfer Assessment shall not apply to any of the following transactions, except to the extent that they are used for the purpose of avoiding the Transfer Assessment: (i) Any Transfer by Declarant to an initial purchaser of any Unit; (ii) Any Transfer to the United States, or any agency or instrumentality thereof, the state of Colorado, any county, city and county, municipality, district or other political subdivision of the state of Colorado; €: (iii) Any Transfer, whether outright or in trust, that is for the benefit of the � transferor or his or her relatives, but only if there is no more than nominal Consideration � for the Transfer. For the purposes of this exclusion, the relatives of a transferor shall � 635954.14 �� include all lineal descendants of any grandparent of the transferor, and the spouses of the descendants. Any person's stepchildren and adopted children shall be recognized as descendants of that person for all purposes of this exclusion. For the purposes of this exclusion, a distribution from a trust shall be treated as a Transfer made by the grantors of the trust, in the proportions of their respective total contributions to the trust; (iv) Any Transfer arising solely from the termination of a joint tenancy or the partition of property held under common ownership, except to the extent that additional Consideration is paid in connection therewith; (v) Any Transfer or change of interest by reason of death, whether provided for in a will, trust or decree of distribution; (vi) Any Transfer made (A)by a majority-owned subsidiary to its parent corporation or by a parent corporation to its majority-owned subsidiary, or between majority-owned subsidiaries of a common parent corporation, in each case for no Consideration other than issuance, cancellation or surrender of the subsidiary's stock; or (B) by a partner, member or a joint venturer to a partnership, limited liability company or a joint venture in which the partner, member or joint venturer has not less than a 50% interest, or by a partnership, limited liability company or joint venture to a partner, member or joint venturer holding not less than a 50% interest in such partnership, limited liability company or joint venture, in each case for no Consideration other than the issuance, cancellation or surrender of the partnership, limited liability company or joint venture interests, as appropriate; or(C)by a corporation to its shareholders, in connection with the liquidation of such corporation or other distribution of property or dividend in kind to shareholders, if the Unit is transferred generally�ro rata to its shareholders and no Consideration is paid other than the cancellation of such corporation's stock, or (D) by a partnership, limited liability company or a joint venture to its partners, members or joint venturers, in connection with a liquidation of the partnership, limited liability company or joint venture or other distribution of property to the partners, members or joint venturers, if the Unit is transferred generally pro rata to its partners, members or joint venturers and no Consideration is paid other than the cancellation of the partners', members' or joint venturers' interests; or (E)to a corporation, partnership, limited liability company, joint venture or other association or organization where such entity is owned in its entirety by the persons transferring the Unit and such persons have the same relative interests in the Transferee as they had in the Unit or portion thereof immediately prior to such Transfer, and no Consideration is paid other than the issuance of each such persons' respective stock or other ownership interests in the Transferee; or (F)by any person(s) or entity(ies) to any other person(s) or entity(ies), whether in a single transaction or a series of transactions where the transferor(s) and the Transferee(s) are and remain under common ownership and control as determined by the Association in its sole discretion; provided, however, that no such Transfer or series of transactions shall be exempt unless the Association finds that such Transfer or series of transactions (1) is for no Consideration other than the issuance, cancellation or surrender of stock or other ownership interest in the transferor or Transferee, as appropriate, (2) is not inconsistent with the intent and meaning of this Section 9.3, and (3) is for a valid business purpose and is not for the purpose of avoiding the obligation to pay the Transfer Assessment. For purposes of this 635954.14 3 3 Section 9.3, a Transfer shall be deemed to be without Consideration if (x)the only Consideration is a book entry made in connection with an intercompany transaction in accordance with generally accepted accounting principles, or (y) no person or entity which does not own a direct or indirect equity interest in the Unit immediately prior to the Transfer becomes the owner of a direct or indirect equity interest in any Unit (an "Equity Owner") by virtue of the Transfer, and the aggregate interest immediately prior to the Transfer of all Equity Owners whose equity interest is increased on account of the Transfer does not increase by more than 20% (out of the total 100% equity interest in any Unit), and no individual is entitled to receive directly or indirectly any Consideration in connection with the Transfer. (vii) Any Transfer made solely for the purpose of confirming, correcting, modifying or supplementing a Transfer previously recorded, making minor boundary adjustments, removing clouds on titles, or granting easements,rights-of-way or licenses; (viii) Any Transfer pursuant to any decree or order of a court of record determining or vesting title, including a final order awarding title pursuant to a condemnation proceeding, but only where such decree or order would otherwise have the effect of causing the occurrence of a second assessable Transfer in a series of transactions which includes only one effective Transfer of the right to use or enjoyment of a Unit; (ix) Any lease of a Unit for a period of less than 30 years (or assignment or transfer of any interest in any such lease); (x) Any Transfer solely of minerals or interests in minerals; (xi) Any Transfer to secure a debt or other obligation or to release property which is security for a debt or other obligation, including Transfers in connection with foreclosure of a deed of trust or mortgage or Transfers in connection with a deed given in lieu of foreclosure; (xii) The subsequent Transfer(s) of any Unit involved in a "tax free" or "tax deferred" trade under the Internal Revenue Code wherein the interim owner acquires property for the sole purpose of reselling that property within 30 days after the trade. In these cases, the first Transfer of title is subject to the Transfer Assessment and � subsequent Transfers will only be exempt as long as the Transfer Assessment has been � paid in connection with the first Transfer of the Unit in such exchange; (xiii) The Transfer of any Unit to an organization which is exempt from federal income taacation under Section 501(c)(3) of the Internal Revenue Code, as amended (or any comparable statute), provided that the Association specifically approves such exemption in each particular case; xiv An Transfer made b a co oration or other enti , for Consideration, � � ) Y Y 1P tY (1)to any other corporation or entity which owns 100% of its equity securities (a "Holding Company"), or (2)to a corporation or entity whose stock or other equity securities are owned, directly or indirectly, 100% by such Holding Company; � � �; 635954.14 34 (xv) Any Transfer from a partially owned direct or indirect subsidiary corporation to its direct or indirect parent corporation where Consideration is paid for, or in connectiori with, such Transfer; however, unless such Transfer is otherwise exempt, such exemption shall apply only to the extent of the direct or indirect beneficial interest of the Transferee in the transferor immediately prior to the Transfer. For example, if corporation A owns 60% of corporation B, and corporation B owns 100% of corporation C and corporation C conveys a Unit to corporation A for $2,000,000, 60% of consideration paid for such Transfer would be exempt and a Transfer Assessment would be payable only on$800,000 (i.e., 40%of the $2,000,000 consideration); and (xvi) The consecutive Transfer of a Unit wherein the interim owner acquires the Unit for the sole purpose of immediately reconveying the Unit, but only to the extent there is no Consideration to the interim owner and such interim owner receives no right to use or enjoyment of the Unit, provided the Association specifically approves such exemption in each particular case. To the extent that Consideration is paid to, or for the benefit of, the interim owner, the additional Consideration shall be a Transfer subject to the Transfer Assessment. In these cases, the first Transfer is subject to the Transfer Assessment and subsequent Transfers will only be exempt as long as a Transfer Assessment has been paid in connection with the first Transfer of the Unit in such consecutive transaction and only to the extent there is no Consideration to the interim owner. In connection with considering any request for an exemption under this Section 9.3(c), the Association may require the applicant to submit true and correct copies of all relevant documents relating to the Transfer and an opinion of the applicant's counsel (such opinion and counsel to be reasonably acceptable to the Association) setting forth all relevant facts regarding the Transfer, stating that in their opinion the transaction is exempt under this Section 9.3(c), and setting forth the basis for such opinion. (d) Payment and Reports. The Transfer Assessment shall be due and payable by the Transferee to the Association at the time of the Transfer giving rise to such Transfer Assessment. With such payment, the Transferee shall make a written report to the Association on forms prescribed by the Association, fully describing the Transfer and setting forth the true, complete and actual Consideration for the Transfer, the names of the parties thereto, the legal description of the Unit transferred, and such other information as the Association may reasonably require. 9.4 Working Capital Fund. To provide the Association with sufficient working capital to cover the cost of unforeseen expenditures or to purchase any additional equipment or services, an initial "Working Capital Fund" will be established in an amount equal to three months worth of general Assessments per Unit. For each Unit, the contribution to the Working Capital Fund is due on the closing of the sale of the Unit to an Owner other than Declarant. Such contributions will be made by the Owner that purchases the Unit from Declazant at the closing of the Owner's purchase of its Unit. Amounts contributed to the Working Capital Fund do not constitute advance payments of General Assessments and are not refundable. 9.5 Pavment of Assessments• Notice and Acceleration. Each Owner will pay all General Assessments, Special Assessments and Transfer Assessments (collectively, "Assessments") 635954.14 �� assessed against such Owner's Unit by the Board in accordance with the terms of this Declaration. Each Assessment is a separate, distinct and personal debt and obligation of the Owner against whose Unit the Assessment is assessed. All Assessments are payable in full without offset for any reason whatsoever. Each Owner's obligation to pay Assessments is entirely independent of any obligation of the Association to the Owner or of Declarant or any other Owner to that Owner. Any Assessment or installment of an Assessment not paid within 15 days after it becomes due is delinquent. If an Assessment or installment of an Assessment is delinquent, the Association may recover all of the following (collectively, the "Delinquency Costs"): (a) interest from the date due at the rate established from time to time by the Board (but not to exceed 21% per year); (b) late charges and other monetary penalties imposed by the Association pursuant to this Declaration and the Act; and (c) all collection and enforcement costs, including reasonable attorneys' fees, incurred by the Association. 9.6 Enforcement of Assessments. The amount of any delinquent Assessments (including any installments whose due dates are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs may be enforced against the Owner liable for them in either or both of the following ways (to the extent permitted by law or regulation), at the option of the Board: (a) Suit. The Association may bring a suit or suits at law to enforce the Owner's obligation to pay a delinquent Assessment (including any installments whose due dates are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs. Each action will be brought in the name of the Association. Any judgment rendered in the action in favor of the Association will include a sum for reasonable attorneys' fees and costs incurred by the Association in bringing the action against the defaulting Owner. Upon full satisfaction of the judgment, the Association, by one of its officers, will execute and deliver to the judgment debtor an appropriate satisfaction of the judgment. (b) Lien and Foreclosure. Assessments (including any installments whose due dates are accelerated by the Board pursuant to Section 9.5) and associated Delinquency Costs constitute a lien on the Units against which they are assessed from the date due. The lien is subject to the provisions of Section 316 of the Act. If an Assessment is delinquent, if the Association gives a notice concerning the delinquency that substantially complies with the provisions of Section 9.5, and if the delinquent Assessment is not paid in full by the due date specified in the notice, then the Association may foreclose the lien securing the Assessment, any installments whose due dates are accelerated by the Board pursuant to Section 9.5, and any associated Delinquency Costs in accordance with the laws of the State of Colorado, subject, however, to the protection afforded First Mortgagees pursuant to Section 18.3(b). 9.7 Disputes and Records. Any Owner or an Owner's authorized representative may inspect the books and records of the Association during business hours upon reasonable prior notice. If an Owner disputes the amount of any Assessment against its Unit and is unable to resolve the issue through an inspection of the Association's books and records, the Owner will pay in a timely manner the full amount of the disputed Assessment until, if ever, it is finally determined that the amount is incorrect (in which case the Association will promptly refund any � �. overpayment). If the Owner fails to pay the disputed Assessment while the dispute is pending, the Association may immediately pursue any of its remedies for the failure (including, without � 635954.14 3 6 limitation, suit against the Owner andlor foreclosure of its Unit) and the pendency of the dispute resolution proceeding is not a bar or defense to any actions by the Association. 9.8 Owners not Exempt from Liability. No Owner is exempt from liability for payment of Assessments by waiver of the use or enjoyment of any of the Common Elements, by abandonment of its Unit, or otherwise. 9.9 Declarant's ResponsibilitY for Assessments. Until the Association levies Assessments, Declarant will pay the Association's costs and expenses. After Assessments commence as provided in Section 9.1 Declarant's obligations for Assessments may be satisfied in the form of cash or by "in kind" contributions of services or materials to the Association, or by any combination of these. ARTICLE 10 ALTERATIONS 10.1 Permitted Unit Alterations. An Owner may, subject to the terms and provisions of this Article 10, construct an alteration or improvement to its Unit (a "Permitted Unit Alteration") that: (a) does not, either during construction or after completion, impair the structural stability, or building systems of, including, without limitation, any acoustical separation assemblies or other components designated to mitigate the transmission of sound through walls and other physical separations, or diminish the support of any portion of the Project Structure or impair the Project Service Elements; (b) does not, during construction, substantially and unreasonably impair the use of any Common Element by any Owner or Permittee entitled to use that Common Element; (c) does not, during construction, substantially and unreasonably impair the use of any portion of the Commercial Project or otherwise adversely affect the Commercial Project; (d) does not, during construction, change the appearance of or otherwise adversely affect the Common Elements; (e) does not, after completion, change the appearance of or otherwise adversely affect the Common Elements; and (fl does not, after completion, affect the appearance of the Condominium Project or the Commercial Project, when viewed fram any area outside the altered Unit. At least 30 days prior to the cominencement of construction, an Owner intending to perform a Permitted Unit Alteration will provide plans and specifications for the Permitted Unit Alteration to the Board. Any change, addition, alteration or improvement of any Unit that does not constitute a Permitted Unit Alteration is prohibited (unless otherwise permitted pursuant to this Article 10) and may be enjoined by the Association or any aggrieved Owner, subject to the provisions of Section 4.8. 635954.14 �7 10.2 Boundarv Relocation. Except as provided in Section 2.5, the Owner(s) of one or more adjoining Unit(s) may make a Boundary Relocation affecting the Unit(s) owned by the Owner(s) in accordance with this Section 10.2. The Owner(s) of the Unit(s) directly affected by any proposed Boundary Relocation will make an application to the Board for the Boundary Relocation, signed by those Owner(s), which includes the following: (a) plans and specifications for the proposed Boundary Relocation in the level of detail required by the Board showing all walls, doors and other improvements that will be demolished or constructed(if any); (b) evidence sufficient to the Board (which evidence may include, if applicable, reports of licensed architects or structural or mechanical engineers) that the proposed Boundary Relocation will comply with the requirements of Sections 10.1(a)through 10.1(fl; (c) evidence sufficient to demonstrate to the Board that the proposed Boundary Relocation will comply with a`ll applicable laws (including, without limitation, zoning, subdivision and building codes), and either that the proposed Boundary Relocation will not violate the terms of any Security for an Obligation encumbering the affected Unit(s) or that the respective Security Holder(s) have approved the proposed Boundary Relocation; (d) the proposed reallocation of interests, if any, such as reallocation of Common Allocations, or any other rights or responsibilities allocated among the Units pursuant to this Declazation (which reallocation must be based on the same formulas as set forth in this Declaration for the allocations being changed); (e) a form of proposed amendment to this Declaration (including the Map) sufficient to show the altered boundaries of the affected Unit(s), their dimensions and identifying numbers and the reallocation of interests, if any, proposed pursuant to Section 10.2(d); (fl a deposit against attorneys' fees and costs which the Board may incur in reviewing and effectuating the application, in an amount reasonably estimated by the Board; and (g) other information as the Board may reasonably request. When the Board determines that the submitted application satisfies the requirements of Sections 10.2(a) through 10.2(g), it will consider the proposed application and vote whether to approve it. If the proposed Boundaxy Relocation and related amendment are approved by the affirmative vote of at least two-thirds of the members of the Board, the Board will cause the amendment to be signed by the president or another authorized officer of the Association, acknowledged and Recorded. The Owner(s) requesting a Boundary Relocation will pay all costs and expenses incurred by the Board or the Association in connection with the Boundary Relocation. 10.3 Connection of Adjoinin�Units. � � (a) Two adjoining Units may be connected without combining those Units into a �' single Unit, so that each connected Unit will retain its separate identity, identifying number, and �' Common Allocation (a "Unit Connection"), if the Board approves the Unit Connection in � � 635954.14 �O �� accordance with the following provisions. The Owner of the Units to be connected pursuant to a proposed Unit Connection will make an application to the Board for the Unit Connection, signed by the Owner, which (i) identifies the Units to be connected; (ii) specifies, in such detail as required by the Board, all demolition or construction necessary to create the connecting opening(s) in the wall between the Units to be connected (the "Shared Area"); and (iii) includes any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Connection if all of the following conditions are satisfied: (i) the Units to be connected by a proposed Unit Connection are owned by the same Owner; (ii) sufficient evidence is presented to the Board that the proposed Unit Connection (A) will comply with all applicable laws (including, without limitation, zoning and building codes); and (B) either will not violate the terms of any Security for an Obligation encumbering the Unit(s) or has been approved by the respective Security Holder(s); (iii)the creation of the Shared Area will not impair or adversely affect (A)the Project Structure; (B) any Easement or right granted pursuant to this Declaration; or (C) any Common Element, other than the wall(s) dividing the Units to be connected, which is or are to be demolished to create the Shaz�d Area; and (iv)the Owner of the Units to be connected agrees to such other conditions imposed by the Board (which may include, without limitation, a requirement that construction and demolition work relating to the proposed Unit Connection be commenced and completed within a reasonable time). (c) If the Board approves an application for a Unit Connection, then it will concurrently redesignate the Shared Area from a General Common Element to a Limited Common Element. Upon redesignation, the Shared Area will be allocated to the two Units connected pursuant to the Unit Connection. Upon approval of a Unit Connection, the Board will cause a statement executed by the president or another authorized officer of the Association to be Recorded that (i) identifies the two Units connected by the Unit Connection; (ii) gives notice that those Units are the subject of an approved Unit Connection pursuant to this Declaration; ' (iii) gives notice that those Units may not be conveyed apart from one another until the Board approves a Unit Disconnection (as defined below in Section 10.4(a)) regarding those Units; and (iv) specifies any conditions imposed by the Board pursuant to Section 10.3(b). From and after the Recording of the statement, the Units described in it may not be conveyed apart from one another and any attempt to do so is void and of no force or effect until the Board approves a Unit Disconnection regarding those Units. The Owner requesting a Unit Connection will pay all costs and expenses incurred by the Board or the Association in connection with the Unit Connection. 10.4 Unit Disconnection. (a) Subject to the provisions of this Section 10.4, the Board may disconnect Units connected pursuant to a Unit Connection (a "Unit Disconnection") if (i)the Owner of the connected Units makes an application requesting that the connected Units be disconnected and satisfies any conditions imposed by the Board regarding the proposed Unit Disconnection; or (ii)the Owner of the connected Units fails to satisfy the conditions imposed by the Board pursuant to Section 10.3(b). An application made pursuant to clause (i) above will be signed by the Owner; identify the Units to be disconnected; specify, in such detail as required by the Board, all demolition or construction necessary to replace the wall dividing the Units to be disconnected 635954.14 �� that existed between the Units before the creation of the Shared Area; and include any other information reasonably requested by the Board. (b) The Board will approve an application for a Unit Disconnection if all of the following conditions are satisfied: (i) sufficient evidence is presented to the Board that the proposed Unit Disconnection will comply with all applicable laws (including, without limitation, zoning and building codes); (ii) sufficient evidence is presented to the Board either that the proposed Unit Disconnection will not violate the terms of any Security for an Obligation encumbering the Unit(s) or that the respective Security Holder(s) has ar have approved the � proposed Unit Disconnection; (iii)the replacement of the wall at the Shared Area will not impair or adversely affect (A)the Project Structure; (B) any Easement or right granted pursuant to this Declaration, or (C) any Common Element other than the wall dividing the Units to be disconnected which is or are to be constructed; and (iv) any conditions imposed by the Board concerning the proposed Unit Disconnection. (c) If the Board approves a Unit Disconnection, it will concurrently redesignate the Shared Area of the connected Units from a Limited Common Element to a General Common Element and cause a statement executed by the president or another authorized officer of the Association to be Recorded that (i) identifies the Units to be disconnected by the Unit Disconnection; (ii) gives notice that those Units are no longer the subject of a Unit Connection (and, therefore, may thereafter be conveyed separately); and (iii) specifies any conditions imposed by the Board pursuant to Section 10.4(b) that must be satisfied before the Unit Connection is effective. Within the time period specified by the Board (which time period will not exceed 60 days from the date of Board approval of a Unit Disconnection), the Owner of the Units to be disconnected will replace at its cost and expense the wall that existed between the Units before the creation of the Shared Area. The Owner will pay all costs and expenses incurred by the Board or the Association relating to the Unit Disconnection. $` 10.5 Construction. Any Owner(s) performing any construction or demolition work relating to a Permitted Unit Alteration, a Boundary Relocation, a Unit Connection or a Unit Disconnection (any of which is referred to in this Section 10.5 as an "Alteration") will comply with the following additional provisions: (a) such Owner(s) will obtain all necessary permits and governmental authorizations for the Alteration; (b) such Owner(s) will comply with the Rules when constructing the Alteration; (c) the Alteration and the construction of it will comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants, as evidenced by a final Certificate of Occupancy; (d) prior to commencing any construction, such Owner(s) will provide the Board with evidence sufficient to demonstrate that the insurance required to be maintained by such Owner(s) pursuant to Section 11.2 is in full force and effect and that the contractor performing the work maintains worker's compensation insurance in the amount required by law and contractor's �' liability insurance with the limits the Board reasonably requires; 635954.14 40 ��. . �'.��.,�. (e) such Owner(s) will cause the Alteration to be constructed and completed diligently, in a good and workmanlike manner, and free and clear of all mechanics' and materialmen's liens and other claims or liens; (fl during the construction process, such Owner(s) will, to the extent consistent with good construction practice, keep the area affected in a safe, neat and clean condition and will coordinate all construction work with the operator of the Commercial Project; (g) such Owner(s) will minimize any impact from the construction process on other Units,the Common Elements, and the Commercial Project; (h) such Owner(s) will perform the Alteration work, or cause the work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on the Condominium Project or on the Commercial Project; (i) such Owner(s) will reimburse the Association for all costs incurred by the Association in connection with the Alteration; such as the increase in costs of trash removal due to the performance of the Alteration work; and (j) such Owner(s) will pay or cause to be paid all costs of design and construction of the Alteration. 10.6 Alteration of Common Elements. (a) Except to the extent permitted in connection with an approved Boundary Relocation, Unit Connection or Unit Disconnection, and except as otherwise provided in Section 5.2, no Owner or Owner's Permittee may construct anything upon, remove anything from, or alter any of the Common Elements, or paint, decorate or landscape any portion of the Common Elements. (b) The Association may construct an alteration or improvement to a Common Element(a"Common Alteration") if(i)the Common Alteration does not permanently impair the structural stability or building systems of or lessen the support of any portion of the Condominium Project (provided, however, that any impairment will not be deemed permanent if it is susceptible of being cured and will be cured by the proposed Common Alteration); (ii)the Common Alteration does not have a materially adverse effect, either during construction or upon completion, upon the use of any Unit or Common Element for its permitted purposes (unless the Owner of the affected Unit consents in writing to the Common Alteration); and (iii)the cost of the Common Alteration constitutes a Common Expense and a budget that includes such cost is ratified by the Owners pursuant to Section 6.3, or the cost of the Common Alteration constitutes a Voluntary Capital Expense and a Special Assessment is approved pursuant to Section 9.2(e). The Association will comply with the provisions of Section 10.5 (except Section 10.5(i)) in constructing any Common Alteration, as if the Association were an Owner. 10.7 Alterations by Declarant. Nothing in this Article 10 restricts or prohibits Declarant from making any alteration or improvement that Declarant has reserved the right to make pursuant to 635954.14 �� Section 2.8(b) or 2.8(c). The provisions of this Article 10 do not apply to any alteration or improvement made by Declarant pursuant to Section 2.8(b) or 2.8(c). ARTICLE 11 INSURANCE 1 l.l Association's Insurance. The Association has the following responsibilities with respect to insurance and, except as otherwise expressly provided in this Declaration, the cost of all insurance maintained by the Association under this Section 11.1 will be included in Common Expenses. (a) Property Insurance. The Association will obtain and maintain property insurance in amounts, against risks, and containing provisions as the Board reasonably determines from time to time. At a minimum, the Association's insurance will insure against all risks of direct physical loss for 100% of the full replacement cost (at the time the insurance is purchased and at the renewal date) of(1) the Units, but not the finished interior surfaces of the walls, floors and ceilings of the Units or the improvements or betterments installed in the Units; (2) the Common Elements and all fixtures, improvements and alterations situated on or constituting a part of the ''` Common Elements; and (3) any personal property of the Association situated in the Common � Elements or used in the operation or maintenance of the Common Elements. The Association's insurance may exclude land, excavations, foundations and other items normally excluded from property policies and may provide for a deductible in an amount not to exceed a reasonable and prudent amount as determined by the Board. The Association's property insurance will be maintained in the name of the Association, for the use and benefit of all Owners, who shall be named as additional insureds, and Security Holders, who may be named as additional insureds, as their interests may appear. To the extent available such property insurance also will (i) contain no provisions by which the insurer may impose a so-called "co-insurance" penalty; (ii)permit a waiver of claims by the Association, and provide for a waiver of subrogation rights by the insurer as to claims, against each Owner and the members of the Owner's household; (iii) be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner carries; (iv) provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if ; the proper party(ies) elect(s) not to restore the damage in accordance with the provisions of this � Declaration or the Act; (v)provide that no act or omission by any Owner, unless acting within � the scope of the Owner's authority on behalf of the Association, voids the policy or is a condition to recovery under the policy; (vi)provide that it may not be canceled, nor may coverage be reduced, without 30 days prior notice to the Association and all additional insureds named in the policy; and (vii) include so-called "inflation guard," "building ordinance or law" "steam boiler and machinery coverage" endorsements. If, as a result of any improvements or alterations made to or concerning a Unit by its Owner, the premium for the Association's property insurance policy is increased to an amount exceeding what the premium would have been if the Owner had not made the improvements or alterations, the Board may assess the amount of the increase in premium against the Owner's Condominium as a Reimbursable Expense pursuant to � Section 9.2(c). � � (b) Liability Insurance. The Association will obtain and maintain Comprehensive F Liability Insurance for bodily injury and property damage for the benefit of the Association and 635954.14 42 �'� its officers, directors, agents and employees in amounts and with coverage as determined from time to time by the Board. All Owners shall be named as additional insureds for claims and liabilities arising in connection with the ownership, use or management of the Common Elements. Such liability insurance will have a combined single occurrence limit of not less than $5,000,000 and, to the extent available on reasonable terms, will (i)be on a commercial general liability form; (ii) contain a "severability of interest" or "cross-liability" endorsement which precludes the insurer from denying the claim of any named or additional insured due to the negligent acts, errors or omissions of any other named or additional insured; (iii) contain a waiver of subrogation by the insurer as to claims against the Association, its directors, officers, employees and agents, Owners and members of their households, and Declarant; (iv)be written as a primary policy, not contributing with and not supplemental to any coverage that any Owner may carry; (v)provide that no act or omission by any Owner, unless acting within the scope of such Owner's authority on behalf of the Association, voids the policy or is a condition to recovery under the policy; (vi) insure all of the named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation, use, ownership or maintenance of the Common Elements; and (vii)provide that it may not be canceled, nor may coverage be reduced, without 45 days' prior notice to the Association and all additional insureds named in the policy. The liability insurance required to be maintained under this Section 11.1(b) will not include coverage for any liability arising out of the operation, use, ownership or maintenance of any Unit. (c) Worker's Com�ensation and Emplover's Liabilitv. The Association will obtain and maintain worker's compensation and employer's liability insurance as determined from time to time by the Board. At a minimum, the Association will maintain such insurance in amounts and with coverages required by applicable law. (d) Automobile Insurance. If the Association operates owned, hired or non-owned vehicles, the Association will obtain and maintain comprehensive automobile liability insurance at a limit of liability of not less than$500,000 for combined bodily injury and property damage. (e) Directors' and Officers' Insurance. The Association will obtain and maintain directors' and officers' liability coverage in the amount it determines from time to time. (fl Fidelity Insurance. The Association will obtain and maintain fidelity insurance covering losses resulting from dishonest or fraudulent acts committed by the Association's directors, officers, managing agents, trustees, employees or volunteers who manage the funds collected and held for the benefit of the Association. The policy will name the Association as the insured, (or obligee) include a provision requiring at least 30 days' written notice to the Association before any cancellation of, or material modification in, the policy, and provide coverage in an amount equal to at least three months' General Assessments against all Units, based on the General Assessments most recently approved by the Board. If the Association engages a managing agent that handles funds of the Association, the managing agent will also maintain fidelity insurance satisfying the foregoing requirements of this Section 11.1(fl and the Act and provide evidence of the coverage to the Board. (g) Other Insurance. The Association may obtain and maintain other insurance as the Board, from time to time, deems appropriate to protect the Association or the Owners. 635954.14 43 (h) Licensed Insurers. All policies of insurance required to be maintained by the Association will be placed with insurers licensed in the State of Colorado. The carrier shall be required to provide to the Board at the inception of the policies and on each anniversary date, a summary that includes a description of the type of policy, the coverage and limits of coverage, the amount of annual premium and the policy renewal dates. If obtainable without additional expense, the licensed insurance broker or agent shall certify that the policy complies with and satisfies the requirements of the section. 11.2 Owners' Insurance. Each Owner has the following responsibilities with respect to insurance: (a) Propertv Insurance. Each Owner will maintain at its expense (or will cause its Permittee to maintain at its expense) property insurance upon the Owner's Unit to the extent not covered by the Association's insurance under Section 11.1(a) and all personal property and fixtures within the Owner's Unit, in such amounts, against such risks, and containing such provisions as the Owner may reasonably determine from time to time. Such property insurance will (i)permit a waiver of claims by the Owner, and provide for a waiver of subrogation rights by the insurer as to claims, against the Association, its directors, officers, employees and agents, the other Owners and the members of such Owners' household; (ii)be written as a primary policy, not contributing with and not supplemental to any coverage that the Association carries; and (iii)provide that, notwithstanding any provision that gives the insurer an option to restore damage in lieu of making a cash settlement, the option may not be exercised if the proper party(ies) elect not to restore the damage in accordance with the provisions of this Declaration or the Act. All insurance carried under this Section 11.2(a)will provide that it may not be canceled, nor may coverage be reduced, without 30 days' prior notice to the Association and, notwithstanding that each Owner may select the amount and type of such insurance, for purposes � of the waiver of claims set forth in Section 11.4, each Owner is deemed to have elected to obtain such insurance on a 100% replacement cost basis. (b) Liabilitv Insurance. Each Owner will maintain at its expense bodily injury and property damage liability insurance for the benefit of the Owner and any additional insured it names, in amounts and with coverage as are from time to time customarily maintained by prudent owners of similar property; provided that such liability insurance will (i)have a combined single occurrence limit of not less than $500,000; (ii) be written as a primary policy, not contributing with and supplemental to any coverage that the Association or another Owner carries; (iii) insure all of the named and additional insured parties against liability for negligence resulting in death, bodily injury or property damage arising out of or in connection with the operation, use, ownership or maintenance of the Owner's Unit; and (iv) contain a waiver of subrogation by the insurer as to claims against the Association, its directors, officers, employees and agents, owners and members of their households, and Declarant. (c) Other Insurance. Each Owner may obtain additional insurance, at its own expense, affording personal property, condominium assessment, loss of rents, personal liability and any other coverage obtainable, to the extent and in the amount the Owner deems necessary to protect its interests. Any such insurance will contain waivers pursuant to Section 11.4 and will provide that it is without contribution as against the insurance maintained by the ' �. Association. 635954.14 44 (d) Assi�nment of Proceeds. If a casualty loss is sustained and there is a reduction in the amount of proceeds that would otherwise be payable under any policy of insurance carried by the Association due to the existence of any insurance carried by an Owner or Permittee, that Owner or the Owner of the Permittee's Unit is liable to the Association to the extent of the reduction and will pay the amount of the reduction to the Association upon demand; such Owner also hereby assigns the proceeds of its insurance, to the extent of such reduction, to the Association. 11.3 Certificates of Insurance; Notices of Unavailabilitv. Each Owner will provide to the Association at the closing of the purchase of its Unit and•no less than 10 days subsequent to expiration of any coverage, certificate(s) of insurance evidencing the insurance required to be carried under Sections 11.2(a) and 11.2(b). The Association will provide each Owner certificates of insurance evidencing the insurance required to be carried by the Association under Sections 11.1(a) and 11.1(b) and naming each Owner as an additional insured under such policies. If the insurance described in Sections 11.1(a) and 11.1(b) is not reasonably available, or if any policy of such insurance is canceled or not renewed and the Association does not obtain a replacement policy for it, the Association promptly will give notice of the fact to all Owners. 11.4 Waiver of Claims. The Association will make no claim against any Owner or the members of the Owner's household, for any loss, damage, injury or liability, no Owner will make any claim against the Association, its directors, officers, employees or agents, or any other Owner or member of such Owner's household for any property loss or damage to property, and all such claims are hereby waived, to the extent that the loss, damage, injury or liability is or would be covered by any insurance policy that is required under this Declaration (a) to be maintained by or for the benefit of the waiving Person (assuming in the case of property insurance policies that such insurance policy is maintained on a 100% replacement cost basis), and (b)to provide for a waiver of subrogation rights by the insurer. For purposes of this Section 11.4, the deductible or self-insured retention amount under any property insurance policy required to be, or in fact, maintained by a waiving Person is deemed to be covered by the policy so that, in addition to waiving claims for amounts in excess of the deductible or self-insured retention (up to the covered limits, or deemed covered limits, of the policy), the waiving Person waives all claims for amounts within the deductible or self-insured retention. 11.5 Proceeds. Except as provided in Section 11.2(d), the Association has no claim to and each Owner may receive all proceeds of any insurance policy maintained by such Owner. The Board is solely responsible for adjustment of any losses under insurance policies maintained by the Association and is hereby irrevocably appointed the agent of all Owners, Security Holders and other Persons having an interest in the Condominium Project for purposes of adjusting all claims arising under insurance policies maintained by the Association and executing and delivering releases when claims are paid. The Association shall receive all proceeds of any insurance policy maintained by the Association, except other insured parties under liability insurance policies will be entitled to proceeds arising out of their insured losses. The Association will hold any proceeds of any property insurance it maintains in trust for the for the Owners and Security Holders. The Board will disburse the proceeds of any property insurance relating to damage to any Unit or Common Element in accordance with Section 12.2. 635954.14 45 � ARTICLE 12 CASUALTY 12.1 Casualtv. If any Unit or Common Element is damaged or destroyed by fire or other casualty (a "Casualty"), this Article 12 sha11 apply, subject to the terms of the RECA. Promptly after any Casualty occurs, the Board will obtain at least two bids from licensed contractors for the full and lawful repair and restoration of all damaged Units and Common Elements. Upon receiving the bids and after sufficient discussions with the adjuster for the Association's insurer, the Board will notify the Owners of the amounts of the bids, the probable amount of insurance proceeds and other funds (such as funds in the Reserve Account) that aze available for restoration, and whether, based on that information, the Board believes a Restoration Deficit will result if the Owners elect to fully restore all damaged Units and Common Elements. In the notice, the Board will also call a meeting of the Owners to vote on the question of whether to fully restore all damaged Units and Common Elements. The Association will fully restore the damaged Units and Common Elements to their condition prior to the Casualty and as required by law, and the Board will promptly enter into construction contracts and proceed with the restoration work, unless at the meeting: (a) The Condominium Project is terminated pursuant to Article 14; or (b) At least 67% of all Owners, including the Owner of any Unit whose boundaries will be changed or the use or enjoyment of which will be prevented or materially impaired as a result of not fully restoring all damaged Units and Common Elements, vote (i) not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project; (ii)to approve plans and specifications for a limited restoration that will restore the damaged area to a condition compatible with the remainder of the Condominium Project and that may include, without limitation, demolition, restoration or alteration of all or part of any damaged Unit or Common Element; and (iii)to adopt, if applicable, an amendment to this Declaration (including the Map) to reflect the conversion of all or part of one or more damaged Unit(s) to Common Elements or of all or part of one or more damaged Common Element(s) to one or more Unit(s) and the corresponding reallocation of the Common Allocations allocated to the Units pursuant to this Declaration (which reallocation will be based on the same formula set forth in this Declaration for determining the Common Allocations). If the Condominium Project is terminated, the Association will perform limited restoration of the Units and Common Elements as necessary to return them to a safe, lawful and saleable condition. If the Owners vote not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project, the Association will perform the limited restoration and Record the amendment to this Declaration, if any, approved by the requisite number of ` Owners pursuant to Section 12.1(b). If, however, the Owners elect to fully restore all damaged Units and Common Elements, the Board will assess a Special Assessment pursuant to Section 9.2(d)to the extent necessary to cover any Restoration Deficit. 12.2 Disposition of Insurance Proceeds. All proceeds of property insurance received by or disbursed to the Association in connection with a Casualty will be applied first to the full or �: limited restoration of the damaged Units and Common Elements, as provided in Section 12.1 and �' � 635954.14 � 46 then, if any insurance proceeds remain after the full or limited restoration, the excess proceeds will be paid to the Owners, subject to the rights of their Security Holders, as follows: (a) if the Owners elect not to fully restore all damaged Units and Common Elements and to terminate the Condominium Project pursuant to Article 14, then each Owner will be paid its Unit's Termination Allocation of the excess proceeds pursuant to Section 14.3; (b) if the Owners elect not to fully restore all damaged Units and Common Elements and not to terminate the Condominium Project, then any of such excess proceeds attributable to any damaged Units that are not restored or to any Common Elements that are not restored and were necessary for the use and enjoyment of any Units that are not fully restored will be paid to the Owners of these Units to the extent of the insurance coverage allocated to those Units or Common Elements, and each Owner will be paid its Unit's Common Allocation of the remainder of the excess proceeds, if any; or (c) if the Owners elect to fully restore all damaged Units and Common Elements, then each Owner will be paid its Unit's Common Allocation of the excess proceeds. 12.3 Manner of Restoration. The restoration of any Unit or Common Element under this Article 12 is subject to the following requirements: (a) Plans. Except in the case of a limited restoration in accordance with Section 12.1(b), the restoration will be completed in accordance with the as-built plans and specifications of the Unit or Common Element immediately prior to the damage. (b) Requirements. The Association will: (i) obtain all necessary permits and governmental authorizations for the restoration; (ii) comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants; (iii) perform the restoration in a diligent, good and workmanlike manner, free and clear of all mechanics' and materialmen's liens and other claims; (iv) during the construction process, to the extent required by good construction practices,keep the area affected thereby in a safe, neat and clean condition; (v) minimize any impact from the construction process on other Units or Common Elements or other portions of the Condominium Project or the Commercial Project; and (vi) perform any restoration or construction work, or cause such work to be performed, in a manner that maintains harmonious labor relations and does not interfere unreasonably with or delay the work of any other contractors then working anywhere on the Condominium Project or the Commercial Project. 635954.14 �� : (c) Coordination bv Association. The Association has full authority and responsibility to coordinate the manner of completion and scheduling of any restoration under this Article 12 to ensure the completion of the restoration in an efficient manner. Each Owner will cooperate and cause its contractors and agents to cooperate in the Association's coordination of any restoration. As used in this Article 12, a "restoration" will include any repair, replacement, restoration, reconstruction, construction or demolition required as a result of any damage or destruction. 12.4 No Abatement. Each Unit will continue to be subject to Assessments following any damage to or destruction of any portion of the Condominium Project, without abatement or modification as a result of the damage or destruction. ARTICLE 13 CONDEMNATION 13.1 Takin� of Condominiums. If all or a part of any Unit or the use of, but not title to, any Limited Common Element allocated to the Unit, is taken by the exercise of the power of eminent domain or is conveyed in lieu of such exercise (collectively, "Taking"), the Owner of the Unit is solely responsible for negotiating with the condemning authority concerning the award for the Taking and may receive the award after the liens of all Security Holders on the affected Unit or portion of it are satisfied or otherwise discharged. If only part of a Unit is acquired by a Taking, the Owner of the Unit is responsible for restoring the Unit as necessary to return the Unit to a safe and lawful condition that does not adversely affect the use or enjoyment of the other Units or Common Elements or detract from the general character or appearance of the Condominium Project. The plans and specifications for the restoration are subject to the Board's prior approval. The restoration will be completed in accordance with the approved plans and specifications and the provisions of Section 12.3(b), as if the Owner of the Unit to be restored were the Association. If a condemning authority acquires by a Taking all or a part of one or more Units in such a manner that such Unit(s) is or are no longer subject to this Declaration, then the Association will consider and pass, pursuant to Article 16, an amendment to this Declaration revising the Common Allocation of each of the remaining Units, and, if necessary, the allocation of any Limited Common Element previously allocated to the Unit(s) that is or are no longer subject to this Declaration. 13.2 Takin� of Common Elements. A "Common Element Taking" means any Taking by which a condemning authority acquires title to any Common Element. The Board is solely responsible for negotiating, and may negotiate with the condemning authority on behalf of all Owners concerning, the amount of the award for any Common Element Taking, and the Board's acceptance of an award is binding on all Owners. If a Common Element Taking occurs, the Association is responsible for restoring the remaining Common Elements as necessary to return them to a safe and lawful condition that does not adversely affect the use or enjoyment of the Units or other Common Elements or detract from the general character or appearance of the Condominium Project. If the net award (i.e., net of costs of collection) received by the Association from any Common Element Taking exceeds the amount actually incurred by it in connection with any required restoration of the Common Elements, the Association will pay or credit each Owner with its Unit's Termination Allocation of the excess condemnation award, as �� if the award resulted from a sale of the Condominium Project pursuant to Section 14.2;provided, � �' p � 635954.14 40 . ��. �g i;, � however, that the valuation date used to determine the fair market value of each Unit pursuant to Section 14.3 for purposes of determining the Termination Allocations will be the date immediately preceding the earlier of the date that title or the date that possession is transferred to the condemning authority in connection with the Common Element Taking. If the net amount of the award so received is insufficient to effect such restoration, the Board may assess a Special Assessment to cover the Restoration Deficit in accordance with Section 9.2(d). ARTICLE 14 TERMINATION 14.1 Termination Agreement. The Condominium Project may be t�rminated only pursuant to a written agreement to terminate executed and acknowledged (or ratified and acknowledged in writing) by the Owners of Units to which 67% of the votes in the Association are allocated (a "Termination Agreement"). A Termination Agreement is effective when (a)the requisite number of Owners have executed and acknowledged it or a ratification of it, and (b)the Termination Agreement and all ratifications, if any, are Recorded. A Termination Agreement will state a date after which it is automatically void unless it is effective by that date. A Termination Agreement will also state that, when it becomes effective, the Condominium Project is deemed terminated and the Association will sell the Condominium Project, including all Units and Common Elements, on behalf of all Owners, upon terms and conditions of sale approved by the Board,provided that those terms will be at least as favorable as the minimum terms set forth in the Termination Agreement. 14.2 Sale of Condominium Project. When a Termination Agreement becomes effective, the Condominium Project is deemed terminated, the Association will sell the entire Condominium Project(i.e., all Units and all Common Elements) for the benefit of the Owners, and the resulting sales proceeds will be allocated in accordance with Section 14.3. Upon approval of a Termination Agreement, (a) each Owner (including dissenting Owners) is deemed to grant the Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to sell the Condominium Project for the benefit of the Owners, and (b) accordingly, the Association has full and complete authority, right and power to make, execute and deliver any contract, deed or other instrument necessary and appropriate to accomplish that purpose. Notwithstanding the termination of the Condominium Project, the Association (and its officers and the Board) will continue to exist and hold office, respectively, with all of its and their powers specified in this Declaration and the Bylaws (including, without limitation, the power to impose Assessments) until the Condominium Project is sold and all proceeds (i.e., sales proceeds and, if applicable, insurance proceeds or condemnation proceeds) are distributed. Unless otherwise specified in the Termination Agreement or otherwise precluded by law, until a sale of the Condominium Project is concluded, each Owner has an exclusive right to occupy its former Unit and remains liable for all Assessments and other obligations imposed on the Owner pursuant to this Declazation. 14.3 Proceeds. The Association will pay to each Owner its Unit's Termination Allocation of the net proceeds of the sale of the Condominium Project following termination of the Condominium Project (together with any insurance proceeds or condemnation proceeds). However, no payment will be made to an Owner until all liens on its Condominium are paid out of the Owner's share of the proceeds, in the order of priority of such liens. A Unit's 635954.14 �l "Termination Allocation" means the percentage obtained by dividing the fair market value of the Condominium of which the Units is a part by the total fair market values of all of the Condominiums. The valuation date used in determining the fair market value of each Condominium is the date immediately prior to the date the Termination Agreement becomes effective (or, if the termination is attributable to a Casualty where the Owners elect to terminate the Condominium Project pursuant to Section 12.1, the valuation date is the date immediately prior to the date on which the Casualty occurred). The fair market value of each Condominium as of the appropriate valuation date will be determined by one or more independent appraisers selected by the Board. The Association will distribute to the Owners the values determined by the independent appraisers. Those values are final and binding on all Owners for purposes of establishing the Termination Allocations unless within 30 days after distribution they are disapproved in writing by the Owners of Units to which at least 25% of the votes in the Association are allocated. ARTICLE 15 TOTAL CASUALTY UNDER RECA By taking title to a Unit, each Owner acknowledges and agrees that pursuant to the RECA, in connection with any "Total Casualty" (as defined in the RECA) affecting the Commercial Project, the Commercial Project Owner may elect to forgo any restorations and repairs and to raze or otherwise abandon the Commercial Project. In such event, the provisions of Section 11 of the RECA shall apply. As provided for in the RECA, within 30 days of a Total Casualty, the Owners must elect whether or not to convey the Property to the Commercial Project Owner. Any decision to convey the Property to the Commercial Project by the Owners must be evidenced by a written agreement executed by Owners of Units to which at least 67% of the votes in the Association are allocated. Upon execution of such agreement by the requisite number of Owners, each Owner, including dissenting Owners, is deemed to grant the Association, acting through its officers under the authority of the Board, an irrevocable power of attorney, coupled with an interest, to convey the Condominium Project to the Commercial Project Owner in accordance with the terms of the RECA and, accordingly, the Association has the full and complete authority, right and power to make, execute and deliver any contract, deed or other instrument necessary or appropriate to accomplish that purpose. Any insurance proceeds received by the Association on behalf of the Owners from the Commercial Project Owner or its insurance carrier pursuant to Section 11 of the RECA shall be distributed to the Owners by the Association in accordance with their respective Termination Allocations, as determined in accordance with the procedures set forth in Section 14.3, except that the valuation date used in determining the fair market value of each Condominium is the date immediately prior to the"Total Casualty." ARTICLE 16 AMENDMENT 16.1 Required Votes. (a) Declarant, without the vote or consent of the Board or the Owners, may amend this Declaration or the Ma to correct clerical,typographical or technical errors. � P � � �; 635954.14 S� �: (b) Declarant, without the vote or consent of the Board or the Owners, may amend the Declaration to comply with the requirements, standards or guidelines of recognized secondary mortgage markets, the U.S. Department of Housing and Urban Development, the Federal Housing Administration, the Veteran's Administration, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association or the Federal National Mortgage Association. (c) Amendments to this Declaration contemplated by Sections 10.2 and 13.1 may be made by the Board on behalf of the Association and do not require the approval of the Owners. Amendments to this Declaration contemplated by Sections 2.8(a), 2.8(c), and 2.8(g) may be � made by Declarant and do not require the approval of the Owners. (d) Except as otherwise expressly permitted�under this Declaration and the Act, any amendment to this Declaration that increases the Special Declarant Rights, increases the m�imum number of Units, or changes the boundaries of any Unit or the allocated interests of any Unit, requires the vote or agreement of the Owners of Units to which at least 67% of the votes in the Association are allocated, including 67% of the votes allocated to Units not owned by Declarant. (e) Except as otherwise expressly permitted under the Act, any amendment to this Declaration that changes the uses to which any Unit is restricted requires the vote or agreement of the Owners of Units to which at least 67% of the votes in the Association are allocated. (fl Any amendment to this Declaration that changes a specific clause or provision prescribing a certain percentage of affirmative votes or written consents for action to be taken under that clause or provision, requires the affirmative vote oF written consent of those Owners of Units to which at least that percentage (as prescribed in that clause or provision) of the votes in the Association are allocated. (g) Any amendment to this Declaration made during the Declarant Control Period affecting a right that Declarant may exercise during that period or any amendment to this Declaration made during the Declarant Development Period affecting a right that Declarant may exercise during that period requires the written approval of Declarant in each case. (h) Except as provided in Sections 16.1(a) through Section 16.1(g), this Declazation (including the Map) may be amended by the affirmative vote or written consent of the Owners of Units to which more than 50% of the votes in the Association are allocated. 16.2 Amendin,g Documents. Except for any amendment that by the terms of this Declaration may be and is duly executed, acknowledged and Recorded by Declarant or by or on behalf of the Board, an amendment to this Declaration is effective only when all of the following events occur: (a) Approved Writin�. The amendment is reduced to a writing that is approved (by affirmative vote or written consent) by the Owners of Units to which at least the applicable required percentage of votes in the Association are allocated. 635954.14 51 (b) Certificate by Association. A written certificate, executed and acknowledged by the president or any other authorized officer of the Association, is attached to the written amendment which states that the amendment was approved by the applicable required percentage of Owners pursuant to Section 16.1. (c) Recordin�. The approved written amendment described in Section 16.2(a) and the certificate described in Section 16.2(b) are Recorded. (d) Presumption of Validity. After an amendment to this Declaration is Recorded, a presumption exists that all votes and approvals regarding the amendment were duly obtained and satisfy the requirements of this Declaration. The presumption may be rebutted by an action commenced within one year from the date the amendment is Recorded; in the absence of an � action commenced within the one-year period,the presumption is deemed conclusive. �' ARTICLE 17 OWNER'S ACKNOWLEDGMENTS AND WAIVERS 17.1 Owner's Acknowled�ents. (a) Mounta.in Activities. The Condominium Project is located adjacent to skiing facilities and recreational areas (the "Mountain Recreational Areas"). The Mountain Recreational Areas are expected to generate an unpredictable amount of visible, audible and � odorous impacts and disturbances from activities relating to the construction, operation, use and maintenance of the Mountain Recreational Areas (the "Mountain Activities"). The Mountain Activities include, without limitation: (i) movement and operation of passenger vehicles (including, without limitation, buses, vans and other vehicles transporting passengers over � adjacent streets and over, araund and through the Mountain Recreational Areas), commercial vehicles, and construction vehicles and equipment; (ii) activities relating to the construction, operation and maintenance of roads, trails, ski trails, skiways and other facilities relating to the Mountain Recreational Areas (including, without limitation, tree cutting and clearing, grading and earth moving and other construction activities, construction, operation and maintenance of access roads, snow-making equipment, chairlifts, gondolas, busses or other transportation systems, operation of vehicles and equipment relating to trash removal, snow removal, snow � grooming, and over-the-snow or over-the-terrain transportation purposes, and operation of safety and supervision vehicles); (iii) activities relating to the use of the Mountain Recreational Areas (including, without limitation, skiing, snow-boarding, ski-patrol activities, and other over-the-snow activities, hiking, horseback riding, bicycling and other recreational activities); � (iv) ski racing and organized events and competitions relating to the activities described in �; clause(iii) above; (v) concerts, fireworks displays, and other performances and special events; (vi)restaurants, clubs, restrooms and other public use faeilities; (vii) public access to adjacent U.S. Forest Service lands; (viii) public parking facilities and the traffic related thereto; (ix) and other activities permitted by law. The Mountain Activities may occur during daytime and nighttime. � � (b) Construction Activities. The Condominium Project is located in an axea that is � subject to or near ongoing construction activities relating to the development of adjacent � properties and the Mountain Recreational Areas (the "Construction Activities"). The �' a � � 635954.14 52 � � �' Construction Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Construction Activities may include, without limitation: (i) construction traffic (including, without limitation, construction vehicles, equipment and vehicles used or owned by Declarant, adjacent landowners, and the employees, agents and contractors of either of them; and (ii) construction activities (including, without limitation, grading, excavation, clearing, site work and construction of 'indoor and outdoor improvements) relating to the Condominium Project, the Commercial Project, nearby properties, or the Mountain Recreational Areas. (c) Commercial Activities. A variety of commercial activities are and will be conducted nearby and adjacent to the Condominium Project (the "Commercial Activities"). The Commercial Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Commercial Activities may include, without limitation: (i)operation of full-service hotel(s) and health spa(s) with associated swimming pool(s) and other outdoor recreational facilities and an underground parking facility; (ii) meetings, conferences, banquets and other group events; (iii) sales and rentals of clothing, skis, ski-related equipment, other over-the-snow equipment, bicycles, and other recreational equipment; (iv) sales of tickets for chairlifts, gondolas, other transportation systems, and other activities and events conducted on the Mountain Recreational Areas; (v) indoor and outdoor restaurant and bar operations (including, without limitation, the sale of food and alcoholic and non-alcoholic beverages for consumption on and immediately adjacent to the Property and at other locations) and preparation of hot and cold food (through the use of barbecue grills, fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities on and immediately adjacent to the Property; (vi) sales of services relating to skiing, other over-the-snow activities, and other recreational activities (including, without limitation, tuning, w�ing, repairing, mounting of bindings on, renting, storing and transporting skis, snowboards and similar equipment, ski schools and other forms of individual and group lessons, tours and excursions); (vii)public use of the Property for access to the Mountain Recreational Areas, vehicle passenger drop-off and pick-up, locker room, changing room, rest room and lounge purposes in designated areas, and short-term clothing and equipment storage; (viii)parking activities (including, without limitation, activities reiating to valet parking or parking relating to adjacent properties); (ix) the installation, operation and maintenance of illuminated and non-illuminated signage; (x) concerts and other outdoor and indoor entertainment, performances and special events, including, without limitation, Octoberfest and similaz festivals and art fairs; and (xi) any other uses or activities permitted by law. The Commercial Activities may occur during daytime and nighttime. (d) Waiver and Release. Each Owner, by taking title to a Unit, acknowledges that the Mountain Activities, Construction Activities and Commercial Activities, and the impacts and disturbances generated by them, may occur in and around the Condominium Project. No Owner may assert or claim any violation of this Declaration based on the existence or occurrence of the Mountain Activities, Construction Activities and Commercial Activities, or impacts and disturbances generated by them. Each Owner, by taking title to a Unit, forever waives and releases any actions or claims the Owner and its successors and assigns may have against Declarant, the operator(s) of the Mountain Recreation Areas, and their successors and assigns which in any way arise out of the impacts and disturbances generated from the Mountain Activities, Construction Activities or Commercial Activities except any such activities, impacts 635954.14 ✓� • ' or disturbances that are, or result from, in whole or in part, a violation of applicable law or the gross negligence or willful misconduct of the operators of the Mountain Recreation Area or their successors or assigns. Each Owner, by taking title to a Unit, acknowledges and agrees that its Unit and the Project are located in a geologically sensitive area that may be subject to rock slides. 17.2 Lift Tickets and Other Fees. By taking title to a Unit, each Owner acknowledges that no right is created or arises from ownership of a Unit or membership in the Association, either(a)to use the Mountain Recreational Areas (including, without limitation, the Vail Mountain ski area), or(b)to any waiver or discount of the prices charged for lift tickets or other fees charged to users of the Mountain Recreational Areas. Any right that any Owner acquires to use the Mountain Recreational Areas may be created or arise, if at all, only through a separate agreement with or license granted by the owners or operators of the Mountain Recreational Areas and is not derived in any way through ownership of a Unit or membership in the Association. 17.3 Disclaimer. Declarant makes no representations, covenants or warranties to any Owner concerning, the nature, scope, schedule or continuation of the Commercial Activities or activities operated or conducted in or relating to the Mountain Recreational Areas (including, without limitation, the Vail ski area). By taking title to a Unit, each Owner acknowledges that (a)the activities may be discontinued from time to time or permanently after the date of this Declaration; (b) the activities may not be operated or conducted during the same hours, days or months as any schedule in effect or contemplated on the date of this Declaration; (c)the activities may be conducted during more hours (during both daytime and nighttime), days, and months than any schedule in effect or contemplated on the date of this Declaration; and (d)more activities may be operated or conducted in the Mountain Recreational Areas than occur or are contemplated on the date of this Declaration. 17.4 No View Easement. Notwithstanding anything contained in this Declaration to the contrary, each Owner, by taking title to a Unit, acknowledges and agrees that there is no easement or other right, express or implied, for the benefit of any Owner or its Unit for light, view or air included in or created by this Declaration or as a result of ownership of the Unit. 17.5 Securi . NEITHER THE ASSOCIATION, THE COMMERCIAL PROJECT OWNER, DECLARANT, OR ITS AFFILIATES SHALL IN ANY WAY BE CONSIDERED INSURERS OR GUARANTORS OF SECURITY WITHIN THE CONDOMINIUM PROJECT, AND NEITHER THE ASSOCIATION, THE COMMERCIAL PROJECT OWNER, DECLARANT, OR ITS AFFILIATES SHALL BE HELD LIABLE FOR ANY LOSS OR DAMAGE BY REASON OF FAILURE TO PROVIDE ADEQUATE SECURITY, INEFFECTIVENESS OF SECURITY MEASURES UNDERTAKEN, OR ACTS OF THIRD PARTIES. ALL OWNERS, TENANTS, GUESTS, AND 1NVITEES OF ANY OWNER, AS APPLICABLE, ACKNOWLEDGE THAT THE ASSOCIATION, THE COMMERCIAL PROJECT OWNER, DECLARANT, OR ITS AFFILIATES ARE NOT INSURERS AND THAT EACH OWNER, TENANT, GUEST, AND INVITEE ASSUMES ALL RISK OF LOSS OR DAMAGE TO PERSONS, TO UNITS, AND TO THE CONTENTS OF UNITS, AND FURTHER ACKNOWLEDGE THAT THE ASSOCIATION, THE COMMERCIAL PROJECT OWNER, DECLARANT, OR ITS AFFILIATES HAVE MADE NO REPRESENTATIONS OR � WARRANTIES, NOR HAS ANY OWNER, TENANT, GUEST, OR INVITEE RELIED UPON 635954.14 54 ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, RELATIVE TO ANY SECURITY MEASURES RECOMMENDED OR UNDERTAKEN. 17.6 Inspection by Others• Waiver of Post Inspection Liability. It is hereby expressly understood and agreed by Declarant and by any Owner upon taking title to a Unit that Declarant relies upon governmental inspectors and other qualified subcontractors and tradesmen to inspect the construction of the Units and the Common Elements in order to verify compliance with construction plans and with any and all building code requirements applicable to residential construction. Declarant and each Owner further expressly understand and agree that, with respect to the Units and the Common Elements, upon compliance with the inspections required by the local building department and the issuance of a certificate of occupancy by the responsible governmental agency, Declarant shall be deemed to have used its best efforts to construct such Units and Common Elements in compliance with the construction plans and all applicable building code requirements. EACH OWNER, BY TAKING TITLE TO A i1NIT, HEREBY KNOWINGLY AND WILLINGLY WAIVES, TO THE FULLEST EXTENT PERMISSIBLE UNDER COLORADO LAW, AS AGAINST DECLARANT AND ITS AFFILIATES ANY AND ALL DEMANDS, CLAIMS, ACTIONS AND CAUSES OF ACTION, AND ALL LIABILITY, LOSSES, DAMAGES, COSTS OR EXPENSES THAT HAVE BEEN OR MAY BE 1NCURRED IN ASSOCIATION THEREWITH, INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXEMPLARY DAMAGES, WHICH ARISE FROM OR ARE RELATED TO ANY NONCOMPLIANCE OF THE UNITS OR THE COMMON ELEMENTS WITH CONSTRUCTION PLANS OR BUILDING CODE REQUIREMENTS, WHICH NONCOMPLIANCE IS DISCOVERED AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR, RESPECTIVELY, SUCH UNITS OR COMMON ELEMENTS; AND ANY SUCH NONCOMPLIANCE SHALL BE DEEMED UNINTENTIONAL WITH RESPECT TO DECLARANT. EACH OWNER, TO THE FULLEST EXTENT PERMISSIBLE UNDER COLORADO LAW, HEREBY ACCEPTS, AND ASSUMES THE RISK OF ANY AND ALL DAMAGE OR DEFECTS OF OR TO EACH OF THE UNITS AND THE COMMON ELEMENTS, THE DISCOVERY OF WHICH IS MADE AFTER THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY FOR, RESPECTIVELY, SUCH UNITS OR SUCH COMMON ELEMENTS, EXCEPT TO THE EXTENT THAT SUCH OWNER MAY HAVE A CLAIM THEREFOR AGAINST ANY PARTY OTHER THAN DECLAR.ANT OR ITS AFFILIATES. 17.7 Drainage and Soils Condition. (a) Acknowledgment. THE SOILS WITHIN COLORADO CONSIST OF BOTH EXPANSIVE SOILS AND LOW-DENSITY SOILS WHICH MAY ADVERSELY AFFECT THE INTEGRITY OF A UNIT OR A COMMON ELEMENT IF SUCH UNIT OR COMMON ELEMENT IS NOT PROPERLY MAINTAINED. EXPANSIVE SOILS CONTAIN CLAY MINERALS WHICH HAVE THE CHARACTERISTIC OF CHANGING VOLUME WITH THE ADDITION OR SUBTRACTION OF MOISTURE, THEREBY RESULTING IN SWELLING AND/OR SHRINKING SOILS. THE ADDITION OF MOISTURE TO LOW-DENSITY SOILS CAUSES A RE-ALIGNMENT OF SOIL GRAINS, THEREBY RESULTING IN CONSOLIDATION AND/OR COLLAPSE OF THE SOILS. 63 5954.14 �� . . (b) Waiver of Liability of Declarant. BY TAKING TITLE TO A UNIT, EACH OWNER ACKNOWLEDGES AND AGREES THAT SUCH OWNER HAS WAIVED AND SHALL BE DEEMED TO HAVE WAIVED, TO THE FULLEST EXTENT PERMISSIBLE UNDER COLORADO LAW, THE RIGHT TO ANY AWARD OF DAMAGES AGAINST DECLARANT, ITS MANAGERS, MEMBERS, EMPLOYEES OR AGENTS FOR ANY LOSS OR DAMAGE TO ANY PORTION OF THE UNIT OR THE COMMON ELEMENTS CAUSED BY, RESULTING FROM OR IN ANY WAY CONNECTED WITH SOIL CONDITIONS ON OR UNDER ANY COMMON ELEMENTS, 1NCLUDING SPECIFICALLY THE PRESENCE OF EXPANSIVE SOILS AND R.ADON GAS. ARTICLE 18 CONVEYANCING AND ENCUMBRANCING 18.1 Units. Any conveyance of a Unit includes an undivided interest in the Common Elements allocated to the Unit under this Declaration, regardless of whether the undivided interest is specifically described in the conveyance. A description of any Unit that sets forth (a)the identifying number of the Unit, (b)the name of the Condominium Project, (c)the date of recording and the recording data of this Declaration in the Records, and (d)the county in which the Condominium Project is located is, if included in an otherwise proper instrument, sufFicient for all purposes to sell, convey, transfer, encumber or otherwise affect not only the Unit but also the entire Condominium. A Person who becomes an Owner will promptly notify the Association of its ownership of a Unit. An Owner may encumber its Unit as it sees fit, subject to the provisions of this Declaration. Any conveyance, encumbrance, judicial sale or other transfer, voluntary or involuntary, of an individual interest in the Common Elements will be void unless the Unit to which that interest is allocated is also transferred. 18.2 Common Elements. Except as otherwise provided in Article 14 with respect to the termination of the Condominium Project, the Common Elements or portions of them may be conveyed or subjected to a lien or security interest by the Association in accordance with Section 312 of the Act, with the written approval of Owners of Units to which are allocated 67% of the votes in the Association, including 67% of the votes allocated to Units not owned by Declarant. The conveyance or encumbrance does not affect the priority or validity of pre-existing encumbrances. Any net proceeds of the sale of a Common Element pursuant to this Section 18.2 will be distributed to the Owners in accordance with Article 13, as if the proceeds are an award paid as a result of the condemnation of the Common Element. 18.3 Transferee Liabilitv. (a) General. If any Unit is voluntarily or involuntarily transferred to any Person, the transferee of the Unit (the "New Owner") is liable for all Assessments or Assessment installments against the Unit beginning as of the time of transfer;provided that the New Owner's interest in the Unit is subject to the Association's lien for any unpaid Assessments as of the date of the transfer pursuant to this Declaration. (b) First Mort�a�e Foreclosure. Any First Mortgage is subject to the Association's lien, and any First Mortgagee acquiring title to a Condominium through foreclosure of a First Mortgage is liable, for any unpaid Assessments (i) which are delinquent at the time the First 635954.14 56 s , Mortgage is Recorded, or (ii)which become due after the First Mortgage is Recorded to the extent of an amount equal to Assessments based on a budget adopted by the Board and ratified by the Owners pursuant to Section 6.3 that would have become due during the six-month period immediately before the Association or any Person holding a lien senior to any part of the Association's lien commences an action or a nonjudicial foreclosure either to enforce or extinguish the lien. (c) Reallocation. Without releasing the transferor from any liability for any unpaid Assessments, any unpaid portion of an Assessment which is not a lien by operation of Section 18.3(b) is part of the Common Expenses and collectible from all Owners liable for Common Expenses, including a Transferee or a First Mortgagee acquiring title to a Unit through foreclosure of a First Mortgage. 18.4 Estoppel Certificates. Within 14 days after receiving a written request from any Owner, Security Holder or a designee of either of them, delivered personally or by certified mail, first-class postage prepaid, return receipt requested, to the Association's registered agent, the Association will furnish to the requesting party, by personal delivery or by certified mail, first-class postage prepaid, return receipt requested, an estoppel certificate executed by an officer of the Association and addressed to the requesting party, stating any then unpaid Assessments due from the requesting Owner or the Owner of the Unit encumbered by the requesting Security Holder's Security for an Obligation, or stating that there are no unpaid Assessments due from such Owner, as the case may be. An estoppel certificate furnished by the Association pursuant to this Section 18.4 is binding on the Association, the Board and every Owner. Such Owner's Unit shall not be subject to a lien for any unpaid Assessments against the Unit to the extent that(a)the lien arises before the date of the certificate and the amount of the lien exceeds any unpaid amounts stated in the certificate, or (b}if the Association does not furnish an estoppel certificate pursuant to this Section 18.4, the unpaid Assessments are due as of the date of the request. The Association may charge the Owner of any Unit for which such an estoppel certificate is furnished, and the Owner will pay, a reasonable fee for the preparation of the estoppel certificate in an amount determined by the Board from time to time. ARTICLE 19 GENERAL PROVISIONS 19.1 The Act; Severabilitv. The Condominium Project and this Declazation will not be subject to the provisions of any amendment to or replacement of the Act which becomes effective after the date of Recording of this Declaration, unless the provisions of the amendment or replacement are expressly made binding upon existing condominiums. However, the Association may elect to subject the Condominium Project to any amendment or replacement by the affirmative vote of all Owners who would be required to approve an amendment to this Declaration pursuant to Section 16.1 concerning the subject matter contained in the amendment to or replacement of the Act. If any of the terms, conditions, provisions, sections or clauses of this Declaration conflict with any provision of the Act, the provisions of the Act control unless the Act permits this Declaration to override the Act, in which event this Declaration controls. The invalidity of any covenant, restriction, condition, limitation or provision of this Declaration or the application of any of them to any person or circumstance will not impair or affect in any manner the validity, 635954.14 5 7 . . , . enforceability or effect of the rest of this Declaration, or the application of any covenant, restriction, condition, limitation or provision to any other person or circumstances. 19.2 Interpretation of Declaration. The provisions of this Declaration will be liberally �` construed to effect its purpose of creating a uniform plan for the ownership and operation of a first-class Condominium Project. Whenever appropriate, singular terms may be read as plural, plural terms may be read as singular, and the neuter gender may be read as the feminine or masculine gender. The titles, headings and captions used throughout this Declaration are for convenience only and may not be used to construe this Declaration or any part of it. 19.3 Notices. Except for notices concerning meetings of the Association or the Board, which will be given in the manner provided in the Bylaws, any notices required or permitted under this Declaration or the Bylaws to be given to any Owner, the Association, the Board or any Security Holder will be sent by certified mail, first-class postage prepaid, return receipt requested, to the intended recipient at, in the case of notices to an Owner, the address of such Owner at its Unit; in �' the case of notiees to the Association or the Board, the address of the Association's registered agent; or in the case of notices to a Security Holder, the address most recently given to the Association by notice from such Person. All notices are deemed given and received three business days after mailed as provided in the previous sentence. Any Owner or Security Holder may change its address for purposes of notice by notice to the Association in accordance with this Section 19.3. The Association or the Board may change its address for purposes of notice by notice to all Owners in accordance with this Section 19.3. Any such change of address is effective five days after the required notice is given. �' ,: 19.4 Partition. The Common Elements are not subject to partition. Any purported � conveyance, encumbrance, judicial sale or other voluntary or involuntary transfer of an undivided interest in the Common Elements made sepazately from the Unit to which that interest � is allocated is void. Nothing in this Section 19.4 prevents the sale or encumbrance of all or a portion of the Common Elements in accordance with Section 18.2. � 19.5 Assignment of Special Declarant Ri�hts. Declarant may assign any or all of the Special Declarant Rights in accordance with Section 304 of the Act. � 19.6 Taacation of Units. Upon Recording this Declaration, Declarant will deliver a copy of it � to the assessor of Eagle County in accordance with Section 105(2) of the Act. Each Unit, together with its Common Allocation of the Common Elements, constitutes a separate parcel for purposes of real estate assessment and ta�cation. The Common Elements will be assessed against each Unit in accordance with the Unit's Common Allocation and may not be separately assessed or taxed. � [Balance of Page Intentionally Left Blank] �< � � � , � € � [ 635954.I4 S O � . , IN WITNESS WHEREOF, Declarant has executed this Declaration. DECLARANT: ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, as Managing Member By: DRAFT Keith Fernandez, President STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing Declaration was acknowledged before me this day of , 200_, by Keith Fernandez as President of Vail Resorts Development Company, a Colorado corporation, as Managing Member of Arrabelle at Vail Square, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: Notary Public 635954.14 �� . � • JOINDER OF LIENOR The undersigned, the beneficiary under that certain deed of trust dated January 31, 2006, and recorded February 1, 2006, at Reception No. 200602695 in the office of the Clerk and Recorder for Eagle County, Colorado, as the same may be amended or supplemented from time to time (the "Deed of Trust"), which Deed of Trust encumbers the Property, hereby consents to and approves this Condominium Declaration for Arrabelle at Vail Square Residential Condominiums and the Map, and does hereby agree that the lien of the Deed of Trust is and shall be subordinate and inferior to the easements, covenants, conditions, restrictions and other terms established or disclosed by this Declaration and the Map, none of which shall be extinguished, limited or affected to any extent by any foreclosure of the Deed of Trust; provided, however, that the lien of the Deed of Trust, as a lien recorded prior to the recordation of this Declaration and the Map, and pursuant to C.R.S. § 38-33.3-316(2)(a)(I), has and shall continue to have priority over the lien for Assessments, including, without limitation, rights of foreclosure associated therewith, established in favor of the Association under this Declaration. (Initially capitalized terms used but not defined in this Joinder shall have the meanings therefor set forth in the other terms of this Declaration.) U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent B : DRAFT Name: � Title: � STATE OF COLORADO ) ) ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200_, by as � of U.S. Bank National Association, as Administrative Agent. Witness my hand and official seal. My commission expires: �, � �' � Notary Public � �, �, � � �; � � � ;; ,, 635954.14 60 �� . � , � , EXHIBIT A THE PROPERTY Airspace Lots A, B, C, D, E and F, Condominium Plat of Vail Square, a Resubdivision of Lot 1, Lionshead Sixth Filing, Town of Vail, County of Eagle, State of Colorado, recorded in the real property records of Eagle County, Colorado on , 200_ at Reception No. 635954.14 A-1 � . � ' � EXHIBIT B COMMON ALLOCATIONS Unit Measured Area Common Allocation 201 217 229 243 255 259 272 274 282 284 287 301 329 330 343 355 368 372 374 382 384 387 408 414 422 429 430 443 444 455 460 461 468 472 476 482 484 487 � 508 514 � 522 � � 635954.14 ll'� � ' � . 529 530 543 555 560 561 568 572 576 582 587 608 614 617 622 629 630 642 643 655 661 668 672 682 755 TOTAL 635954.14 �-� • �'` � \ � i EXHIBIT C YEAR ROUND PARKING RIGHTS Unit Number of Year Round Parkin Ri hts 201 1 282 1 284 1 301 1 329 1 355 1 382 1 384 1 429 1 430 1 455 1 484 1 529 1 530 1 543 1 555 1 629 1 630 1 642 1 643 1 655 1 668 1 672 1 682 1 755 1 TOTAL 25 � �: � �: � �. � � �?: �: � 635954.14 ��l � � � � • � , , EXHIBIT D OTHER RECORDED EASEMENTS AND , LICENSES AFFECTING THE PROPERTY 1. Real property taxes and assessments for the year 2007 and subsequent years. 2. All building, zoning and other applicable laws and regulations of the Town of Vail and any other governmental entity with jurisdiction over the Project. 3. All federal, state or local laws, ordinances, rules, regulations, covenants and rights-of- way, whether or not recorded in the real property records of Eagle County, Colorado. 4. Taxes, assessments, fees or charges, if any, resulting from the inclusion of the Project in any special district, whether presently existing or hereafter formed. 5. Any defects in or objections to or matters affecting title to the Project caused by Grantee or anyone claiming by,through or under Grantee. 6. Any condition that is open and obvious on the ground or which a survey would disclose. 7. Any facts, rights, interests or claims thereof, not shown by the public records but that could be ascertained by an inspection of the Unit or Project or that may be asserted by persons in possession of the Project(but excluding leases or tenancies of the Unit). 8. Easements, or claims thereof, not shown by the public records. 9. Any encroachment, encumbrance, violation, vacation or adverse circumstance affecting the title that would be disclosed by an accurate and complete survey of the Project and not shown by the public records. 10. Water rights, claims or title to water, whether or not shown by the public records. 11. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, iN BOOK 48 AT PAGE 503 AND IN UNITED STATES PATENT RECORDED SEPTEMBER 04, 1923, 1N BOOK 93 AT PAGE 98. 12. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND NLY 13, 19391N BOOK 123 AT PAGE 617. 13. TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT AND VAULT AGREEMENT RECORDED MARCH 23, 2001 AT RECEPTION NO. 752849. 635954.14 E-1 - � • t i , , c 14. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES AS ESTABLISHED OR SHOWN ON THE PLAT OF LIONSHEAD SIXTH FILING RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937664. NOTE: ACKNOWLEDGMENT OF SATISFACTION OF TERMINATION CONDITIONS RECORDED JANUARY 6, 2006 AS RECEPTION NO. 200600396. 15. TERMS, CONDITIONS AND PROVISIONS OF LIONSHEAD CORE PROTECTIVE COVENANTS AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937603. 16. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE DEVELOPMENT AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937604 AND AMENDMENT THERETO RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937605 AND PARTIAL DISCHARGE AND R.ATIFICATION RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937676 AND ACKNOWLEDGMENT RE: EASEMENT TERMS RECORDED NOVEMBER 21, 2005 RECEPTION NO. 937674. 17. TERMS, CONDITIONS AND PROVISIONS OF OPERATING COVENANT AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937675. 18. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE LICENSE AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937673. [Note—if delegated to owner of record of new Arrabel[e Square Lot 1, this may be deleted.J 19. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO LION SQUARE CONDOMINIUM ASSOCIATIONS RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937647. 20. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937648. _ 21. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937649. 22. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE)RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937652 AND AGREEMENT WITH HOLY CROSS ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937653. 23. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937654. � 24. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937655. �, 635954.14 E-2 � � � � 25. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937656. 26. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937667 AND AGREEMENT WITH HOLY CROSS ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937668. 27. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (SERVICE AND EMERGENCY ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937672. 28. TERMS, CONDITIONS AND PROVISIONS OF AND MATTERS DISCLOSED IN COVENANT GOVERNiNG EASEMENTS RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937677. 29. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937632. 30. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937635. 31. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (TUNNEL ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937644. 32. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT(SURFACE ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937645. 33. TERMS, CONDITIONS AND PROVISIONS OF APPARATUS MOVEMENT AGREEMENT RECORDED JANUARY 23, 2006 AT RECEPTION NO. 20061649. 34. TERMS, CONDITIONS AND PROVISIONS OF DENSITY ALLOCATION AGREEMENT RECORDED , 200_AT RECEPTION NO. 35. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT(PUBLIC PEDESTRIAN ACCESS)RECORDED , 200_AT RECEPTION NO. 36. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (PUBLIC TURNAROUND ACCESS) RECORDED , 200_AT RECEPTION NO. 37. TERMS, CONDITIONS AND PROVISIONS OF LOADING/DELIVERY EASEMENT AGREEMENT RECORDED , 200_AT RECEPTION NO. 635954.14 - �� , t � � i , ti � 38. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS, NOTES AND OTHER TERMS, CONDITIONS AND PROVISIONS AS ESTABLISHED OR SHOWN ON THE CONDOMINIUM PLAT FOR VAIL SQUARE, A RESUBDIVISION OF LOT 1, LIONSHEAD SIXTH FILING, RECORDED , 200_AT RECEPTION NO. 39. TERMS, CONDITIONS AND PROVISIONS OF RECIPROCAL EASEMENTS AND COVENANTS AGREEMENT RECORDED , 200_AT RECEPTION NO. 40. TERMS, CONDITIONS AND PROVISIONS OF CONDOMINIUM DECLARATION FOR ARR.ABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS RECORDED , 200_AT RECEPTION NO. 41. EA5EMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS, � NOTES AND OTHER TERMS, CONDITIONS AND PROVISIONS AS ESTABLISHED OR SHOWN ON THE CONDOMINIUM PLAT FOR ARRABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS RECORDED , 200_AT RECEPTION NO. [Note — Bike Path Easement to be inserted here, if applicable, but may not affect Arrabe[le Square Lot 1 anyway.J [Note—Skier Drop-off Agreement to be inserted here, if applicable, but may not affect Arrabelle Square Lot 1 anyway.J (References herein to the "Project" include the Condominium Project and Commercial Project.) � � � 635954.14 �-� R � ` � EXHIBIT E ARBITRATION RULES Claimant shall submit a Claim to arbitration under these Arbitration Rules by giving written notice to all other Parties stating plainly and concisely the nature of the Claim, the remedy sought and Claimant's submission of the Claim to arbitration("Arbitration Notice"). 1. Any arbitration conducted under these Rules and in connection with any Claim arising out of or relating to the interpretation, application, or enforcement of the Declaration, or relating to the design or construction of the Common Elements, shall conform with and be subject to the rules and procedures adopted and routinely applied by Construction Arbitration Services, Inc. ("CAS"). 2. The Parties shall select a panel of arbitrators (the "Panel") as follows ("Party Appointed Arbitrators"): all of the Claimants shall agree upon one Party Appointed Arbitrator, and all the Respondents shall agree upon one Party Appointed Arbitrator. The Party Appointed Arbitrators shall, by agreement, select one Additional arbitrator ("Additional"). 3. If the Panel is not selected under Rule 1 within 45 days from the date of the Arbitration Notice, any party may notify the nearest chapter of The Community Associations Institute, for any dispute arising under the Declaration, the Bylaw, or the Rules, or CAS for any dispute relating to the design or construction of improvements on the Common Elements, which shall appoint one Additional ("Appointed Additional") and shall notify the Appointed Additional and all Parties in writing of such appointment. The Appointed Additional shall thereafter be the sole arbitrator and any Party Appointed Arbitrators or their designees shall have no further duties involving the arbitration proceedings. 4. No Person may serve as an Additio�al in any arbitration in which that Person has any financial or personal interest in the result of the arbitration. Any Person designated as a Additional or Appointed Additional shall immediately disclose in writing to all Parties any circumstance likely to affect impartiality, including any bias or financial or personal interest in the outcome of the arbitration ("Bias Disclosure"). If any Party objects to the service of any Additional or Appointed Additional after receipt of that Additional's Bias Disclosure, such Additional or Appointed Additional shall be replaced in the same manner in which that Additional or Appointed Additional was selected. 5. The Appointed Additional or Additional, as the case may be ("Arbitrator") shall fix the date, time and place for the hearing. The place of the hearing shall be at a place mutually agreed to by the parties. In fixing the date of the hearing, or in continuing a hearing, the Arbitrator shall take into consideration the amount of time reasonably required to determine Claimant's damages accurately. 6, Any Party may be represented by an attorney or other authorized representative throughout the arbitration proceedings. In the event the Respondent fails to participate in the arbitration proceeding, the Arbitrator may not enter an Award by default, but shall hear Claimant's case and decide accordingly. 635954.14 1-� r' � � ` r � 7. All Persons who, in the judgment of the Arbitrator, have a direct interest in the arbitration are entitled to attend hearings. The Arbitrator shall determine any relevant legal issues, including whether all indispensable parties are Bound Parties or whether the claim is barred by the statute of limitations. 8. The hearing shall be conducted in whatever manner will, in the Arbitrator's judgment, most fairly and expeditiously permit the full presentation of the evidence and arguments of the Parties. The Arbitrator may issue such orders as it deems necessary to safeguard rights of the Parties in the dispute without prejudice to the rights of the Parties or the final determination of the dispute. 9. Notwithstanding the foregoing, multiple party disputes or claims not consolidated or administered as a class action pursuant to the following sentence will be subject to, and will be arbitrated individually. Only with the written request of all parties involved, but not otherwise, the Arbitrator may: (i) consolidate in a single arbitration proceeding any multiple party claims that are substantially identical, and (ii) arbitrate multiple claims as a class action in accordance with the rules and procedures adopted by CAS. 10. If the Arbitrator decides that it has insufficient expertise to determine a relevant issue raised during arbitration, the Arbitrator may retain the services of an independent expert who will assist the Arbitrator in making the necessary determination. The scope of such professional's assistance shall be determined by the Arbitrator in the Arbitrator's discretion. Such independent professional must not have any bias or financial or personal interest in the outcome of the arbitration, and shall immediately notify the Parties of any such bias or interest by delivering a Bias Disclosure to the Parties. If any Party objects to the service of any professional after receipt of a Bias Disclosure, such professional shall be replaced by another independent licensed professional selected by the Arbitrator. 11. No formal discovery shall be conducted in the absence of order of the Arbitrator or express written agreement among all the Parties. The only evidence to be presented at the hearing shall be that which is disclosed to all Parties at least 30 days prior to the hearing; provided, however, no Party shall deliberately withhold or refuse to disclose any evidence which is relevant and material to the Claim, and is not otherwise privileged. The Parties may offer such . evidence as is relevant and material to the Claim, and shall produce such additional evidence as the Arbitrator may deem necessary to an understanding and determination of the Claim. The Arbitrator shall be the sole judge of the relevance and materiality of any evidence offered, and conformity to the legal rules of evidence shall not be necessary. The Arbitrator shall be authorized, but not required, to administer oaths to witnesses. 12. The Arbitrator shall declare the hearings closed when satisfied the record � � is complete. 13. There will be no post hearing briefs. � 14. The Award shall be rendered immediately following the close of the � hearing, if possible, and no later than 14 days from the close of the hearing, unless otherwise � �; agreed by the Parties. The Award shall be in writing, shall be signed by the Arbitrator and �;: � �: �: 635954.14 F'2 �"� � � � � r . acknowledged before a notary public. If the Arbitrator believes an opinion is necessary, it shall be in summary form. 15. Except with respect to awards of attorneys' fee and expenses only to the extent specifically provided under Section 123 of the Act, no party shall be entitled to receive any award of damages in connection with the arbitration of a Dispute other than such party's actual damages. All parties to an arbitration conducted under these Rules shall, to the fullest extent permissible under Colorado law, be deemed to have waived their right to receive any damages other than actual damages, including, without limitation, special damages, consequential damages, and punitive or exemplary damages. Each Party agrees to accept as legal delivery of the Award the deposit of a true copy in the mail addressed to that Party or its attorney at the address communicated to the Arbitrator at the hearing. 635954.14 �-�