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HomeMy WebLinkAboutADM080022s ~- ~,r.` y°.. s ~^ ~ ~ t~ 5~..1 A- '+~~ "' q~l li TY~4f41'~F6'r1IL 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: SUN VAIL GARAGES Application Type: CondThPl ADM Number: ADM080022 Parcel : 2101-063-0202-3 Project Description: Condominium plat to establish each garage space Participants: OWNER LAZIER, ROBERT T. & DIANE J. 10/24/2008 PO BOX 1325 VAIL CO 81658 APPLICANT JAY PETERSON 10/24/2008 108 S FRONTAGE RD VAIL CO 81657 Project Address: 625 N FRONTAGE RD WEST VAIL Location: SUN VAIL GARAGES Legal Description: Lot: 9 Block: 2 Subdivision: VAIL POTATO PATCH Comments: See Conditions BOARD/STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: 11/12/2008 Meeting Date: Conditions: Cond: 8 (PLAN): No changes to these plans may be made without the written consent of Town of Vail staff and/or the appropriate review committee(s). Planner: Warren Campbell DRB Fee Paid: $100.00 y~ :~ ''~~. "' ~~~~~ ~. Application for Administrative Subdivision Plat Review Department of Community Development 75 South Frontage Road, Vail, Colorado 81657 tel; 970.479.2139 fax: 970.479.2452 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 andJor 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 ^ 'Single Family Subdivision Plat $100 Description of the Request: Administrative Plat Correction $100 Condominium/Townhouse Plat $100 ~ 1 Location of the Proposal: Lot:~_Block:_~~ Subdivision: Physical Address: ~~~~ ~ ~F'-~u~-r. ~ Parcel No.: ~ I O L b~ ~ 0~ V ~3 (Contact Eagle Co. Assessor at 970-328-8640 for parcel no.) Zoning: I~'~ ~M t= .~1 ~ _l r--..~D ~ n c\ '' `- ~ --ice '~ Name(s) of Owner(s): Mailing Address: Owner(s) Signature(s): Name of Applicant: Mailing Address: Phone• Lf ~ (B ~ U E1 9 E-mail Address: ~ ~- U ~-. ~ ~ ~ ~~e~ Fax ~~~(~ C1 ~! For Office U e Only: ~~~5 Fee Paid: Check No.: ~ ID~U By: Meeting Date• Admin No.: Z Planner: r Project No.; i F:\cd ev\FORMS\Permits\Planning\Adm inistrative_Actions\Plat r,~ ~r ~ ~l ~,~~~ ~ _ ~I ~~ D ~~~ ~~~~ ~I ~~ ilat_reif.c,~~ '~J~=\ d #, 12/28f(;'5 a TOWN OF VAIL, COLORADO Statement Statement Number: 8080002025 Amount: $100.00 10/24/200801:38 PM Payment Method: Check Init: JLE Notation: 7600 BAILEY & PETERSON ----------------------------------------------------------------------------- Permit No: ADM080022 Type: Administrative Parcel No: 2101-063-0202-3 Site Address: 625 N FRONTAGE RD WEST VAIL Location: SUN VAIL GARAGES 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 ti• .• Jav Peterson From: <choltz@Itgc.com> ~" '~ ~~~' To: <Jkp@vail.net> ~ ~~~~1 ~.~~ `~`~~~~ Sent: Tuesday, September 02, 2008 4:52 PM ~-~m°~•~--°~-6-----M--~ -°-°°--~ ~° Attach: 50023417.1-1-M isc. pdf Subject: .Land Title Delivery (LOT 9, BLOCK 2, VAIL POTATO PATCH,AKA 625 N. FRON)(our 50023417.1) Page 1 of 5 'I ~ Land Titie ~ Guarantee - ~I Company Linked Commitment Delivery Attached is your Land Title commitment for order number 50023417.1 in Adobe AcrobatTM format. See the bottom of this email for installation instructions and more details. For your convenience, 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 -SUN VAIL GARAGE BUILDING CONDOMINIUMS (50023417.1) Your Land Title Guarantee Company Contacts: For Title Assistance: Vail Title Dept. Chad Holtz 108 S FRONTAGE RD W #203 VAIL, CO 81657 Phone:970-476-2251 Fax:970-476-4732 cho_Itz@Itgc,c_o_m Commitment Delivery Parties. _. __ JAY K. PETERSON 108 S. FRONTAGE RD. #39~ d VAIL, CO 81657 Phone:970-476-0092 Entail: jkp@vail.net Sent Via Entail 10/22/2008 Page 2 of 5 Property Address. ~__.. Sun Vail Garage Building Condominiums Vail, CO 81657 County of Eagle, State of Colorado ._ ..._.. Legal Description; UNIT _, SUN VAIL GARAGE BUILDING CONDOMINIUMS, ACCORDING TO THE CONDOMINIUM MAP RECORDED UNDER RECEPTION NO. ', Plat Map(s): V/18 V/18 129527 S/31_A 332[802 229159 A.P.N.(s): R043129 R033809 ', __ Effective Date & Time: August 07, 2008 at 5:00 P.M. ___ __ .Interest; A Fee Simple _ _ _ Seller(s): _ ._ __ ROBERT T. LAZIER AND DIANE J. LAZIER Vesting Deed(s) / (View dates for 24 month Chain of Title): 12-13-1976 .. Buyer{s)/Borrowers{s): ', ', A BUYER TO BE DETERMINED ', _. PraposedTnsured & Coverages: "ALTA" Owner's Policy 06-17-06 $0.00 A BUYER TO BE DETERMINED ___ Estimated Title Fees: ALTA Owners Policy 06-17-06 TBD Total Estimated Title Fees $0.00 Requirements: 10/22/2008 Page 3 of 5 r Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. ', Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to-wit: Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject premises which are due and payable. Item (d) Additional requirements, if any disclosed below: 1. EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF THE TOWN OF VAIL TRANSFER TAX HAVE BEEN SATISFIED. ', ' 2. PARTIAL RELEASE OF DEED OF TRUST DATED DECEMBER 04, 2007 FROM ROBERT T. LAZIER AND DIANE J. LAZIER TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE USE OF U.S. BANK NATIONAL ASSOCIATION ND TO SECURE THE SUM OF $550,000.00 RECORDED DECEMBER 17, 2007, UNDER RECEPTION N0. 200732762.. 3. PARTIAL RELEASE OF DEED OF TRUST DATED FEBRUARY 29, 2008 FROM ROBERT T. LAZIER AND DIANE J. LAZIER TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE USE OF U.S. BANK NATIONAL ASSOCIATION ND TO SECURE THE SUM OF $150,000.00 RECORDED APRIL 11, 2008, UNDER RECEPTION NO. 200807782. 4. WARRANTY DEED FROM ROBERT T. LAZIER AND DIANE J. LAZIER TO A BUYER TO BE DETERMINED CONVEYING SUBJECT PROPERTY. Exceptions: 1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be ascertained ', by an inspection of the Land or that may be asserted by persons in possession of the Land. 2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by the Public Records. 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the Public Records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing 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. 7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the issuance 'thereof; (c) water rights, claims or title to water, whether or not the matters excepted under (a), (b), or (c) are shown by the Public Records. 8. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED JULY 13, 1939, IN BOOK 123 AT PAGE _6__1.7.. 10/22/2008 Page 4 of 5 9. RESTRICTIVE COVENANTS, WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR FEDERAL LAWS, EXCEPT TO THE EXTENT ' THAT SAID COVENANT OR RESTRICTION IS PERMITTED BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED MARCH 05, 1974, IN BOOK 233 AT PAGE 628 AND AS AMENDED IN INSTRUMENT RECORDED SEPTEMBER 24, 1975, IN BOOK 241 AT PAGE 950. 10. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE PLAT OF VAIL/POTATO PATCH RECORDED MARCH 5, 1974 IN BOOK 233 AT PAGE 629. li. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF SUN VAIL GARAGE BUILDING CONDOMINIUMS. pisclasure Statements LAND TITLE GUARANTEE COMPANY and LAND TITLE GUARANTEE COMPANY -GRAND 7UNCTION DISCLOSURE STATEMENTS Note: Pursuant to CRS 10-11-122, notice is hereby given that: A. The subject real property may be located in a special taxing district. B. A Certificate of Taxes Due listing each taxing jurisdiction may be obtained from the County Treasurer's authorized agent. C. The information regarding special districts and the boundaries of such districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder, or the County Assessor. Note: Effective September 1, 1997, CRS 30-30-406 requires that all documents received for recording or filing in the clerk and recorder's office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one half of an inch. The clerk and recorder may refuse to record or file any document that does not conform, except that, the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or filing information at the top margin of the document. Note: Colorado Division of Insurance Regulations 3-5-1, Paragraph C of Article VII requires that "Every title entity shall be responsible for all matters which appear of record prior to the time of recording whenever the title entity conducts the closing and is responsible for recording or ', filing of legal documents resulting from the transaction which was closed". Provided that Land Title Guarantee Company conducts the closing of the insured transaction and is responsible for recording the legal documents from the transaction, exception number 5 will not appear on the Owner's Title Policy and the Lenders Policy when issued. Note: Affirmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of Schedule B, Section 2 of i the Commitment from the Owner's Policy to be issued) upon compliance with the following conditions: A. The land described in Schedule A of this commitment must be a single family residence which includes a condominium or townhouse unit. B. No labor or materials have been furnished by mechanics or material-men for purposes of construction on the land described in Schedule A of this Commitment within the past 6 months. C. The Company must receive an appropriate affidavit indemnifying the Company against un-filed mechanic's and material-men's liens. D. The Company must receive payment of the appropriate premium. E. If there has been construction, improvements or major repairs undertaken on the property to be purchased within six months prior to ', the Date of the Commitment, the requirements to obtain coverage for unrecorded liens will include: disclosure of certain construction '. information; financial information as to the seller, the builder and or the contractor; payment of the appropriate premium fully executed Indemnity Agreements satisfactory to the company, and, any additional requirements as may be necessary after an examination of the ', aforesaid information by the Company. No coverage will be given under any circumstances for labor or material for which the insured has contracted for or agreed to pay. Note: Pursuant to CRS 10-11-123, notice is hereby given: ', ', This notice applies to owner's policy commitments containing a mineral severance instrument exception, or exceptions, in Schedule B, Section 2. 10/22/2008 ' Page 5 of 5 ,. • A. That there is recorded evidence that a mineral estate has been severed, leased, or otherwise conveyed from the surface estate and that there is a substantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal energy in the property; and B. That such mineral estate may include the right to enter and use the property without the surface owner's permission. ', Nothing herein contained will be deemed to obligate the company to provide any of the coverages referred to herein unless the above conditions are fully satisfied. Open the attached pdf version of the commitment to view our PRIVACY POLICY. The above Summary is provided for information purposes only. To the extent that it conflicts 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 ReaderTM If you do not have Adobe Acrobat ReaderTM 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 ©LT Systems, L.L.C. All rights reserved. 10/22/2008 DECLARATION OF SUN VAIL GARAGE BUILDING CONDOMINIUMS TABLE OF CONTENTS ARTICLE 1 SUBMISSION/DEFINED TERMS/ROOF AND UTILITY ASSESSMENT ............... ] Section 1.1 Submission of Real Estate ............................................................................................. l Section 1.2 Defined Terms ...............................................................................................................2 ARTICLE 2 NAMES/DESCRIPTION OF REAL ESTATE .............................................................. 5 Section 2.1 Name and Type .............................................................................................................. 5 Section 2.2 Real Estate ..................................................................................................................... 5 Section 2.3 Utility, Map and Plat Easements .................................................................................... 5 Section 2.4 Utility Reservations ....................................................................................................... 5 Section. 2.5 Easements for the Association and Unit Owners ........................................................... 6 Section 2.6 Emergency Easements ................................................................................................... 6 Section 2.7 Licenses of Common Element Areas ............................................................................. 6 ARTICLE 3 THE ASSOCIATION ..................................................................................................... 6 Section 3.1 Membership ................................................................................................................... 6 Section 3.2 General Purposes and Powers of the Association .......................................................... 6 Section. 3.3 Authority of the Association .......................................................................................... 7 Section 3.4 Specific Powers ..................................................................................................... Section 3.5 Allocated Interests/Allocated Class Interests ................................................................. 7 Section 3.6 .......................................................................... Square Footage of Units ....................... Section 3.7 Indemnification .............................................................................................................. 8 Section. 3.8 Declarant Control ........................................................................................................... 8 ARTICLE 4 UNITS, COMMON ELEMENTS AND LIMITED COMMON ELEMENTS ..............8 Section 4.l Number of Units ............................................................................................................ 8 Section 4.2 Identification of Units/Unit Descriptions ....................................................................... 8 Section 4.3 Unit Boundaries ............................................................................................................. 9 Section 4.4 Unit Maintenance and Covenants of Owners ................................................................9 Section 4.5 Construction of Replacement Roof -Reservation of the Declarant -Roof and Utility Assessment by the Association ..................................................................................... 10 Section 4.6 Association Maintenance ............................................................................................. 1 1 Section 4.7 Maintenance Standards of the Association and Interpretation ..................................... 13 Section 4.8 Common Elements ....................................................................................................... 13 Section 4.9 Limited Coimnon Elements ......................................................................................... l3 Section 4.10 Power to Provide Special Services ............................................................................... 13 Section 4.1 l Unit Owners' Easements of Enjoyment ....................................................................... 14 Section 4.1.2 Delegation of Use ........................................................................................................ 14 Section 4.13 Modifications to Units ................................................................................................. 14 ARTICLE 5 COVENANT FOR COMMON EXPENSE ASSESSMENTS .....................................16 Section 5.1 Creation of Association Lien and Personal Obligation to Pay Common Expense Assessments ................................................................................................................. 16 Section 5.2 Apportionment of Common Expenses .........................................................................17 Section 5.3 Utility Assessments and Utility Billings ......................................................................17 Section 5.4 Annual Assessment/Commencement of Common Expense Assessments/Budgets of the Association ............................................................................................................. 17 Section 5.5 Effect ofNon-Payment of Assessments ....................................................................... 18 Section 5.6 Lien Priority ................................................................................................................. l 8 Section 5.7 Owner's Negligence or Misconduct .............................................................................19 Section 5.8 Initial Funding of the Association ................................................................................ 19 Section 5.9 Assessments Related to Limited Common Elements ................................................... l9 Section 5.10 Association Borrowing ................................................................................................19 ARTICLE 6 RESTRICTIONS ON USE, ALIENATION AND OCCUPANCY .............................19 Section 6.1 Restriction on Ownership, on Retention of Ownership and Upon Resale ...................20 Section 6.2 Use, Occupancy and Use Protections ........................................................................ .. 21 Section 6.3 Termination of the Community and the Declaration ................................................. ..21 Section 6.4 Restrictions and Covenants on Leasing of Units ....................................................... .. 22 Section 6.5 Vehicular Parking, Storage, and Repairs ................................................................... ..22 Section 6.6 Covenants and Prohibition on Damage, Nuisance and. Noise .................................... ..23 Section 6.7 Pets ............................................................................................................................. ..25 Section 6.8 Covenants Related to an Owner's Failure to Maintain a Unit ................................... ..26 Section 6.9 Use of Common Eletnents ......................................................................................... .. 26 Section 6.10 Rubbish, Trash and. Garbage ...................................................................................... ..26 Section 6.11 Nuisances ................................................................................................................... .. 26 Section 6.12 Compliance with Insurance Requirements ................................................................ ..27 Section 6.13 No Unsightliness ........................................................................................................ ..27 Section 6.14 Restriction on. Signs and Advertising Devices ........................................................... ..27 Section 6.15 No Restrictions on Mortgaging of a Unit ................................................................... .. 27 Section 6.16 Storage Restrictions ................................................................................................... .. 27 Section 6.17 Restrictions on Exterior Building Changes, Structural Alterations, Improvements, Penetrations and Cut-Outs ......................................................................................... ..27 Section. 6.18 Rules and Regulations ................................................................................................ ..28 Section 6.19 Declarant's Use/Re-Construction of Roof .................................................................. ..28 ARTICLE 7 INSURANCE/CONDEMNATION ..............................................................................28 Section 7.1 Insurance Requirements ............................................................................................... 28 Section 7.2 Insurance to be Maintained by Owner on Improvements Within the Units and Other Owner Responsibilities ................................................................................................ 30 Section 7.3 General Provisions Concerning Insurance ................................................................... 30 Section 7.4 Deductibles .................................................................................................................. 31 Section 7.5 Insurance Trustee ................................................ Section 7.6 Association Insurance as Primary Coverage ................................................................ 31 Section 7.7 Acceptable Insurance Compa.nies ................................................................................ 31 Section 7.8 Annual Review of Insurance Policies .......................................................................... 32 Section 7.9 Notice of Cancellation ................................................................................................. 32 Section 7.10 Non-liability of Association and Directors .................................................................. 32 Section 7.11 Adjustments by the Association ................................................................................... 32 Section 7.12 Distribution of Condemnation and. Property insurance Proceeds ................................ 32 ARTICLE 8 SPECIAL RIGHTS OF HOLDERS OF FIRST LIEN SECURITY INTERESTS .....32 Section 8.1 Member and Eligible Holder Approval ....................................................................... 32 Section 8.2 Notice of Action ........................................................................................................... 34 Section 8.3 Notice of Objection ......................................................................................................34 Section 8.4 Right to Pay Taxes and Insurance Premiums ...............................................................34 Section 8.5 Financial Statements and Other Documents ................................................................ 35 ARTICLE 9 GENERAL PROViSIONS ...........................................................................................35 Section 9.] Compliance With and Enforcement of Governing Documents ................................... 35 Section 9.2 Severability .................................................................................................................. 36 Section 9.3 Tenn of Declaration ..................................................................................................... 36 Section 9.4 Amendment of Declaration .......................................................................................... 36 Section 9.5 Amendment of Declaration, Map or Plat by Declarant ................................................ 37 Section 9.6 Amendment Required. by Eligible Holders or Agencies .............................................. 38 Section 9.7 Required Consent of Declarant to Amendment ........................................................... 38 Section 9.8 Development Rights and Special Declarant Rights ..................................................... 38 Section 9.9 Additional Reserved Rights/Construction and Access Easements .............................. 39 Section 9.10 Security Disclaimer ...................................................................................................... 40 Section 9.1 l Captions ....................................................................................................................... 40 Section 9.12 Interpretation ................................................................................................................ 40 Section 9.13 Singular Includes the Plural ......................................................................................... 40 Section 9.14 Validity of Amendments .............................................................................................. 40 EXHIBIT A DESCRIPTION OF REAL ESTATE ...........................................................................42 EXHIBIT B ALLOCATED 1NTERESTS ........................................................................................ 43 EXHIBIT C ADDITIONAL EASEMENTS THAT MAY BE ANNEXED .....................................44 DECLARATION OF SUN VAIL GARAGE BUILDING CONDOMINIUMS This Declaration is made on the date hereinafter set forth by Robert T. Lazier and Diane Lazier ("Declarant"). RECITALS A. Declarant is the owner of certain real estate in the County of Eagle, State of Colorado, which is more particularly described as set forth in Exhibit A and which is defined in this Declaration as the Real Estate. B. Declarant desires to create a Condominium Community on all of the Real Estate described in ExhibitA under the name of "Sun Vail Garage Building Condominiums." C. By virtue of this Declaration and. a Map (as defined. below), the Real Estate described. in Exhibit A is designated for separate ownership and uses as allowed by local zoning and as has been and shall remain permissible. D. Portions of the Real Estate described in Exhibit A are to become co-owned by the Unit Owners as Common and Limited. Elements (as these terms are defined below). E. Declarant has caused the "Garage Building Condominium Association, Inc.," a Colorado nonprofit corporation, to be incorporated under the laws of the State of Colorado, as an owners' association, for the purpose of exercising the functions as set forth in this Declaration. ARTICLE 1 SUBMISSION/DEFINED TERMSlROOF AND UTILITY ASSESSMENT Section 1.1 Submission of Real Estate. Declarant declares that all of the Real Estate shall be held or sold, and conveyed subject to the easements, restrictions, covenants and conditions of this Declaration. The Declarant submits the Real Estate described in Exhibit A, all easements, rights and appurtenances thereto, the buildings and improvements erected or to be erected thereon, and such additional easements as may be subsequently added [pursuant to the rights reserved in this Declaration or as allowed for under the Colorado Common Interest Ownership Act, C.R.S. § 38-33.3-101, et seq., as it may be amended from time to time (the "Act")] to the provisions of the Act and to the terms and conditions of this Declaration. In the event the Act is repealed, the Act on the effective date of this Declaration shall remain applicable. Declarant further declares that this Declaration is made for the purpose of protecting the value and desirability of the Real Estate, that this Declaration shall run with the Real Estate and shall be binding on all. parties having any right, title or interest in the Real Estate or any part thereof, their heirs, legal representatives, successors and assigns and shall inure to the benefit of each Unit Owner thereof. Section 1.2 Defined Terms. Each capitalized term in this Declaration or in the Map shall have the meaning specified or as used in the Act, unless otherwise defined in this Declaration: (a) "Act" means the Colorado Common Interest Ownership Act, C.R.S. § 38- 33.3-101, et seq., as it may be amended from time to time. (b) "Agency" or "Agencies" means any generally recognized secondary mortgage market agency or entity, including, but not limited to, the Federal National Mortgage Association (FNMA), the Federal Home Loan Mortgage Corporation (FHLMC or Freddie-Mac), the Governmental National Mortgage Association (GNMA), the Federal Department of Housing and Urban Development (HUD or FHA) or the Veterans Administration (VA). (c) "Assessment" includes all Common Expense or general member Assessments, any class of Assessments (if classes of Owners/Units are created), Lnsurance Assessments, Utility Assessments, and any other expense levied to a Unit pursuant to this Declaration or the Act. (d) "Association" means Garage Building Condominium Association, Inc., a Colorado nonprofit corporation, and its successors. (e) "Common Elements" means the Real Estate within the Community other than the Units, which portion of the Real Estate shall be co-owned by the Owners and shall be as designated. on the Map and in this Declaration. (f) "Common Expense" means any expenditure made a liability received by or on behalf of the all Units/Members, together with any allocations to reserves, other than expenditures relating to insurance and. utilities to the extent such expenditures relate to a particular Unit, a class of Unit or are based on actual usage or classification of such Unit. (g) "Common Expense Assessment" means an Assessment levied for Common Expenses. (h) "Community" means and refers to the Condominium Community of Sun Vail Garage Building Condominiums, which community is a Condominium Community as defined in the Act and which Condominium Community is also a Common Interest Community as defined in the Act. (i) "Declarant" means the Declarant named in this Declaration, any heirs or successors by death of either or both of the individually named Declarants (without a written transfer), and any successor and/or assignee designated by written notice or assignment executed by Declarant and by the transferee and recorded, to the extent any rights or powers reserved to Declarant are transferred or assigned to such transferee. 2 (j) "Declarant Control" means the period of time commencing on the date of recordation of this Declaration and. expiring on the earlier of (1) 60 days after conveyance of 75% of the Units that may be created by Declarant, or (2) 2 years after the last conveyance of a Unit by Declarant in the ordinary course of business; provided, however, that if Declarant Control has not terminated pursuant to the foregoing provisions, Declarant Control shall in any case terminate on the date upon which all property that may be annexed into the Community has become a part of the Community and the last Unit within the Community that can be conveyed by Declarant has been conveyed by Declarant. (k) "Development Rights" or "Special Declarant Rights" means those rights set forth in this Declaration and those rights set forth in the Act. (]) "Director" means any person serving as a member of the Executive Board.. (m) "Eligible Holder" means a holder, insurer or guarantor of a first lien security interest who has delivered. a written notice to the Association containing its name, address, the legal description and the address of the Unit upon which it holds a security interest. (n) "Executive Board" "Board" or "Board of Directors" means the body, regardless of name, designated in this Declaration to act on behalf of the Association. (o) "Governing Documents" means this Declaration, the Map, the Articles of Incorporation, the Bylaws and. any Rules and Regulations of the Association, as all of the foregoing may be amended from time to time. (p) "Insurance Assessment" means an Assessment levied for insurance covering a particular Unit. (q) "Limited Common Elements" means those portions of the Common Elements, if any, designated by Declarant or the Association for the exclusive use of one or more but fewer than all of the Units, or by class, as may be shown on the Map, and including any storage areas. (r) "Map" means the Condominium Map of Sun Vail Garage Building Condominiums, as named or titled. and as recorded, which is an engineering survey (and. any supplements and amendments thereto) of the Community depicting and locating thereon the location of the buildings, the Units and any use designations, the Common Elements, the Limited Common Elements, floors and elevations, and all of the land and improvements thereon, which Map is incorporated herein and made a part of this Declaration by reference. (s) "Member" means and refers to those persons entitled to membership in the Association, as provided in the Bylaws and as set forth herein. Member, where applicable, may also mean a class of Member, if classes are created by the Declarant and/or as the context requires. (t) "Officer" means any person serving as an officer of the Association in accordance with the Bylaws. (u) "Owner" or "Unit Owner" means the Declarant or any other person or entity that owns a Unit. (v) "Party or Parties With Express Rights Under This Declaration" shall include certain. persons who are or may not be an Owner of a Unit in the Sun Vail Garage Building Condominiums but are owners of condominium units created and established under the Sun Vail Declaration and. the owner association operating under the Sun Vail Declaration, These parties have express rights under specific and various provisions of this Declaration. (w) "Real Estate" means the property described in Exhibit A, as that exhibit may be modified by annexation, supplement or amendment of this Declaration, and such additional easements as may be subsequently added, pursuant to the expansion rights reserved in this Declaration, together with all easements, rights, and appurtenances thereto and the buildings and improvements erected or to be erected thereon. All easements and licenses which the Community is subject to as of the date of this Declaration are recited in Exhibit A, as that exhibit may be modified by annexation, supplement or amendment, from time to time. (x) "Rules and Regulations" means any instrument, however denominated, which is adopted. by the Executive Board. for the regulation. and management of the Community, including any amendment to such instruments. (y) "Sun Vail Declaration" shall mean that certain Condominium Declaration for Sun Vail Condominiums recorded in the records of the Clerk and. Recorder of Eagle County, Colorado on July 13, 1979, at Reception No. 184545, as amended and supplemented of record. (z) "Unit" means a physical portion of the Community, designated. for separate ownership, shown as a Unit on the recorded Map for the Community, the boundaries of which are defined in the Map and in this Declaration. (aa) "Utility Assessment" means an Assessment for utilities based on the actual usage of utilities by a particular Unit. (bb) "Utility Systems" has the meaning set forth in the applicable portions of this Declaration. ARTICLE 2 NAMES/DESCRIPTION OF REAL ESTATE Section 2.1 Name and Tvpe. The type of Common Interest Community is a Condominium Community. The name of the Condominium Community is "Sun Vail Garage Building Condominiums." The name of the Association is the "Garage Building Condominium Association, Inc." Section 2.2 Real Estate. The Community is located in the County of Eagle County, State of Colorado. The initial Real Estate of the Community is described in Exhibit A, as that exhibit may be modified by annexation, supplement or amendment, from time to time. All easements and licenses to which the Community is presently subject are recited in Exhibit A, as that exhibit may be modified by annexation, supplement or amendment, from time to time. Additional easements are established in the Act. The Community may be subject to other easements or licenses granted pursuant to this Declaration, or granted by authority reserved in any recorded document or established in the Act. Section 2.3 Utilit~p and Plat Easements. Easements for utilities and other purposes over and across the Units and Common Elements may be as shown upon a recorded plat and on the recorded Map of the Community, and as may be established pursuant to the provisions of this Declaration, or granted by authority reserved. in any recorded. document. The Association or Declarant may grant utility easements through Units, or on an equitable basis. Section 2.4 Utility Reservations. (a) Declarant hereby creates and. reserves to itself, until Declarant has sold the last Unit created. by Declarant to an Owner other than Declarant, and, thereafter, to the Association., a blanket easement upon, across, over and under the Real Estate, the Community and. the Units for access, utilities, drainage and the installation, replacement, repair and maintenance of utilities, including but not limited to water, sewer, waste water treatment and effluent irrigation systems, gas, telephone and other telecommunications systems, electricity, heat and cooling systems, and master television and satellite antenna or cable systems, and any other utility systems as may be desired or provided (collectively, "Utility Systems"). (b) By virtue of this blanket easement, it shall be expressly permissible for Declarant or the Association to erect and maintain the necessary facilities, equipment and appurtenances on the Real Estate and to affix, repair, and maintain landscaping, fencing, water, treated waste water, effluent irrigation and sewer pipes, gas, electric, heat and cooling facilities, telephone and other telecommunications facilities, telephone and television wires, circuits, conduits and meters, and. any other improvements or facilities appurtenant or relating to the Utility Systems. (c) If any utility or quasi-utility company furnishing a service covered by the general easement created. herein requests a specific easement, a separate right and authority to grant such easement upon, across, over or under any part or all of the Real Estate is reserved., provided the easement granted does not conflict with the terms hereof. (d) The easement provided for in this Section shall in no way affect, avoid, extinguish or modify any other recorded easement on the Real Estate. (e) Any damage to any improvement caused by Declarant or the Association in exercising its rights under this Section will be repaired promptly by the entity causing the damage. The foregoing, however, shall not be deemed to render the Association or Declarant liable for any damage caused by any third party, including, without limitation. any utility company. Section 2.5 Easements for the Association and. Unit Owners. Each Unit shall be subject to an easement in favor of the Association (including its agents, employees and. contractors) and to each Unit Owner to allow for their performance of obligations in this Declaration. On exercising this easement right, the party exercising the right shall be responsible for any resulting damages, and. a lien therefore is authorized. and established against that party's property, pursuant to this Declaration. Section 2.6 Emergency Easements. A nonexclusive easement for ingress and egress is hereby granted to all police, sheriff, fire protection, ambulance, and. other similar emergency agencies or persons, now or hereafter servicing the Community, to enter upon any part of the Community in the performance of their duties. Section 2.7 Licenses of Common Element Areas. Portions of the Common Elements, to the extent not designated as Limited Common Elements appurtenant to a Unit or Units, may be licensed by the Executive Board for use for up to 1 year, without the approval of the Owners. Any license of Common Elements for over 1 year shall be subject to Owner approval, as provided for in the Act. ARTICLE 3 THE ASSOCIATION Section 3.l Membership. Every person who is a record Unit Owner of a fee interest in any Unit (subject to the restrictions on ownership set forth in this Declaration) shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Unit. Except for the restrictions on ownership expressly set forth in this Declaration, ownership of such Unit shall be the sole qualification for such. membership. There is initially one class of membership. Additional classes of Members and of membership may be established by the Declarant, pursuant to this Declaration. Section 3.2 General Purposes and Powers of the Association. The Association, through its Executive Board, shall perform functions and. manage the Community as provided in this Declaration so as to protect the value and desirability of the Community and the Units and to further the collective interests of the Owners. Each purchaser of a Unit shall be deemed to have assented to, ratified and approved such management. The Association shall have all power necessary or desirable to effectuate such purposes. Section 3.3 Authority of the Association. The business affairs of the Community shall be managed by the Association. The Association shall be governed. by the Act, this Declaration, the Map, the Association's Articles of Incorporation and Bylaws, and any Rules and Regulations adopted by the Executive Board. The Executive Board may, by written resolution., delegate authority to a manager or managing agent for the Association, provided no such delegation shall relieve the Board of final responsibility. Section 3.4 Specific Powers. The Association shall have the powers, authority and duties as necessary and proper to manage the business and affairs of the Community. Section 3.5 Allocated Interests/Allocated Class Interests. (f) The ownership interests and liability for Common Expenses (and liability for any Assessments by class, if classes of Units/Members area created) are allocated to Units equally. (g) Votes are allocated to Units equally. For voting by class, if any, votes will. be allocated among the class as determined by the Declarant, as set forth in this Declaration or any amendments to this Declaration. (h) 1f Units are combined. pursuant to the provisions of this Declaration and. the Act, the formula set forth above for the allocation of Common Expenses, co- ownership of the Common Elements and/or for voting may be changed by Declarant to a formula based approximately upon the square footage of each Unit. in that event, the new formula, as applicable, shall be used. to reallocate the allocated interests. Any change in the formula by Declarant must occur within 10 years after the recording of this Declaration. (i) The initial Units and their initial allocations are set forth in the attached Exhibit B, as that exhibit may be modified by annexation, amendment and/or supplementation, from time to time. Section 3.6 Square Footage of Units. (a) Declarant has previously disclosed, and hereby discloses again, that there are a number of methods of calculating the square footage of a Unit, and that the basis used, if any, to determine the purchase price of a Unit, or the lease terms of the rental of a Unit, may be based on a method different than the formula for the allocation of interests as set forth in this Declaration. The Owner of the Unit, or the tenant of that Unit, acknowledges the Declarant's prior disclosure, and also acknowledges this disclosure and agrees to and. consents to the method, if any, so utilized to determine the purchase price of a Unit or the lease terms for the rental of a Unit. (b) Declarant does not warrant the accuracy of any prior estimate or calculation of the square footage of a Unit, regardless of method utilized. Each Owner 4 • , and tenant acknowledges that the actual square footage of a Unit, upon completion, will vary from prior estimates and. calculations. Section 3.7 Indemnification. To the full extent permitted by law, each Officer and member of the Executive Board of the Association. shall be and. hereby is indemnified by the Unit Owners and the Association against all expenses and liabilities, including attorneys' fees and expenses, reasonably incurred by or imposed upon them in any proceeding to which they may be a party, or in which they may become involved, by reason of being or having been an Officer or member of the Executive Board. of the Association, or any settlements thereof, whether or not they are an Officer or member of the Executive Board of the Association at the time such expenses are incurred; except in such cases wherein such Officer or member of the Executive Board is adjudged guilty of willful misfeasance in the performance of his or her duties; provided that in the event of a settlement, the indemnification shall apply only when the Executive Board approves such settlement and reimbursement, which approval shall not be unreasonably withheld. Section 3.8 Declarant Control. During Declarant Control, Declarant shall have the reserved power, pursuant to Section 303(5) of the Act, to appoint and. remove Officers and members of the Executive Board. ARTICLE 4 UNITS, COMMON ELEMENTS AND LIMITED COMMON ELEMENTS Section 4.1 Number of Units. The number of Units initially included. in the Community is 15. The initial Units are identified in Exhibit B and in the Map. Section 4.2 identification of Units/Unit Descriptions. (a) General Terms Re ag rdin~~Identification of Units. The identification of each Unit is shown on the Map. Every contract for sale, deed, lease, security interest, will or other legal instrument shall legally describe a Unit by its identifying unit number or letter, followed by the name of the Community, with reference to the Map and the Declaration. (b) Illustrative description. Illustrative descriptions are as follows for the current type of Units in the Community: Garage Building Condominium Unit XX [identification/designation to be inserted], Sun Vail Garage Building Condominiums, according to the Declaration recorded , 20 , at Reception No and the Condominium Map recorded. in Book ,Page of the records of the Clerk and Recorder, County of Eagle, State of Colorado. (c) Declaration and Map. Reference to the Declaration and Map in any instrument shall be deemed to include any supplement(s) or amendment(s) to the 8 Declaration and Map, without specific references thereto. Section 4.3 Unit Boundaries. The following are designated as boundaries of each Unit, as defined below and as depicted on the Map: Each Unit shall contain a combination of dividing vertical planes or walls, a ceiling or horizontal boundary and a floor horizontal boundary. The Unit shall be comprised of all the space situated within these Unit boundaries, based. on the provisions below, and as set forth on the Map. (a} Inclusions. Each Unit includes the spaces and improvements lying within the boundaries described. above, as depicted on the Map. Each Unit also includes the spaces and improvements containing utility meters, all electrical switches, wiring, pipes, ducts, conduits, fire protection, smoke detector and. security systems and communications, television, telephone, other telecommunications, electrical receptacles, boxes and other utilities serving that Unit exclusively. (b) Exclusions. Except when specifically included by other provisions of this Declaration or by the Map, the following are excluded from each Unit: the spaces and improvements lying outside the boundaries described above, exterior street or common lighting, and any chutes, pipes, flues, ducts, wires, conduits, skylights and. other facilities running through or within any interior wall or partition for the purpose of furnishing utility and other services to other Units and the Common Elements. (c) Noncontiguous Portions. Certain Units may include special portions or pieces of equipment, such as air conditioning compressors, utility meters, meter boxes, utility connection structures, air or gas pump and storage facilities and storage portions, which are situated in buildings or structures that are detached from the Unit. Such special equipment or storage portions are a part of the Unit, notwithstanding their non-contiguity with the principal portions. Each Unit includes the spaces and improvements lying within the boundaries described above, and also includes the utilities and utility meters and communications, television, telephone and other telecommunications and electrical receptacles and. boxes serving that Unit exclusively, whether or not in the boundaries or contiguous to the Unit, unless the same are maintained. by a governmental agency or entity or a utility company. The Common Elements are excluded from each Unit and any utilities or other facilities running through or within any Unit for the purpose of furnishing utility and other service to other Units and/or the Common Elements are also excluded. Section 4.4 Unit Maintenance and Covenants of Owner. (a) General Responsibilities. Unit Owners are responsible for the maintenance, repair and replacement of the improvements and properties located within their Unit boundaries which are not specifically the obligation of the Association to maintain, replace and keep in good repair. (b) Windows and Doors. Unit Owners are responsible for the maintenance, repair, replacement and. improvement of exteriors of windows, if any, garage door and any doors of their Unit and garage door and window frames, casings and locks (including caulking of windows) and doorways, door frames and. hardware that are part of the entry system of the Unit. (c) Utilities and Related Improvements. Unit Owners are also responsible for all pipes, lines, ducts, conduits or other apparatus which serve only the Unit (including all electricity, any water or sewer pipes, lines, ducts, conduits, or other apparatus serving only the Unit). (d) Cleanliness Outside of the Unit. The Owners of each Unit shall keep areas adjoining their Units broom clean and reasonably free of ice and trash, unless snow and ice clearing of those areas, and/or Common Element trash and snow or tree clearing, are services offered. by the Association. (e) Good Repair Responsibility• Each Unit, at all times, shall be kept by the Owner in a well maintained, good repair condition, and in a clean, sightly and wholesome condition. (f) Restriction on Disturbances of Others. Each Unit Owner shall perform his or her maintenance, repair, replacement and improvement responsibilities in such manner so as not to unreasonably disturb other persons in other Units. (g) Reporting of Maintenance Needs to the Association. Each Unit Owner shall promptly report to the Association, or its agent, any need for repairs for which the Association is responsible. (h) Storage Restriction. No bicycles, kayaks, sport or recreational equipment, trash, litter, junk, boxes, containers, bottles, cans, implements, machinery, lumber, building materials or any item of personal property found by the Executive Board to be objectionable to the Association shall be permitted to remain exposed upon or within the Common Elements, or any Unit, or upon or within the Limited Common Elements, balcony, patio or deck. of a Unit, or otherwise. (i) Association Authority. The Association, and its agents, shall have the authority to enter, replace, maintain, repair and clean up Units which do not conform to the provisions of this Section, and to charge and collect from the Owners of such Units all reasonable costs related thereto as an Assessment hereunder. Section 4.5 Construction of Replacement Roof -Reservation of the Declarant - "Roof and Utility" Assessment by the Association. Declarant has, for a period of 10 years from the recording of this Declaration, the reserved right to construct a replacement and higher roof over the Units, to improve access to the ilnits, and also with utility chases and utilities as may be added. This is a reserved right and. not an obligation of the Declarant. If the Declarant determines to exercise this reserved right, the construction cost and fees of the Declarant shall be paid to the Declarant by the Association, on a timely basis, from a special "roof and utility" construction assessment to then be imposed by the Association on all Owners. This assessment 10 is to be imposed by the Association on the Owners, pursuant to the teens of this section of the Declaration, without any further budget approvals. Budget approval by all Owners is obtained by virtue of this section of the Declaration. The maximum assessment authorized under this section of the Declaration is the cost of the addition, plus 7% overhead of the Declarant and also plus 7% profit to the Declarant, divided by and allocated to all Units in the Community as provided for in this Declaration. Once imposed, the Association may determine the terms for payment of this "roof and utility" assessment, within a maximum of a 12-month period. Section 4.6 Association Maintenance. (a) Generally and as to a "Roof and Utility" Assessment. The Executive Board of the Association shall determine the specifications, scope, extent, nature and parameters of the Association's maintenance, repair, replacement and improvement responsibilities. The Association shall impose the "roof and utility" assessment allowed for in this Declaration, if the Declarant determines, within the permissible time frame, to replace the roof of the building in which the Units are located. (b) Specific Responsibilities. The Association shall be responsible for: (i) the improvement, maintenance, repair, upkeep, reconstruction, and replacement of the exterior of the building, including the roof (subject to rights of the Declarant to replace the roof and the obligation of the Association to compensate the Declarant for that replacement are provided for in this Declaration); (ii) the improvement, maintenance, repair, upkeep and reconstruction, and replacement of the Common Elements; (iii) the improvement, maintenance, repair, upkeep and reconstruction of any easements to the Community that are not maintained by others; (iv) trash removal, unless the Association determines not to provide common trash removal, and in that event, trash removal shall. be the responsibility of each individual Owner; (v) snow removal, unless the Association determines not to provide common snow removal, and in that event, snow removal shall be the responsibility of each individual Owner; (vi) common utility lines; (vii) for the payment of expenses, if any, which may be incurred by virtue of maintenance, repair or replacement as set forth on the recorded plat and final development plan, agreement with or requirement of any local governmental authority or government authority with jurisdiction; and (viii) for operational expenses of the Association. (c) Association Discretion to Maintain Parts of Units. The Association may elect to maintain certain areas of the individual Units which are on the outside of the buildings such as the outside of garage door and/or windows. (d) Association Emergency Repairs to a Unit. If, during the course of performing its maintenance responsibilities hereunder, the Association discovers that maintenance, repair or replacement is required of an item which is the Owner's responsibility, and such maintenance, repair or replacement must be performed for the Association to properly complete its maintenance project, then the Association may perform such work on behalf of the Owner and at the Owner's sole expense, without prior notice to the Owner, such being deemed an emergency situation hereunder. (e} Owner Negligence and Association Repairs. 1f the Board determines that the need for maintenance or repair of the Common Elements is caused through the willful or negligent act of any Owner, or occupant or their family, guests, lessees, or invitees, then the Association may assess the cost of any such maintenance, repair or replacement against the Owner's or occupant's Unit, and such cost shall become the personal obligation. of the Owner, a lien against the Unit, and. shall be collected as provided herein for the collection of assessments. (f) incidental Damages to a Unit ~ Other Association Repairs. The Association shall repair incidental damage to any Unit resulting from performance of work that is the responsibility of the Association. As finish levels can have varying degrees, such repairs will be complete only to the extent of being "paint-ready." Such repair and subsequent cleaning shall be performed based on a reasonableness standard. In performing its responsibilities hereunder, the Association shall have the authority to delegate to such persons, firms or corporations of its choice, such duties as are approved by the Board of Directors. (g) Limitation on Association Liability. The Association shall not be liable for injury or damage to person or property caused by the elements or by the Owner of any Unit, or any other person, or resulting from any utility, rain, snow or ice which may leak or flow from any portion of the Common Elements or from any pipe, drain, conduit, appliance or equipment which the Association is responsible to maintain hereunder, except for injuries or damages arising after the Owner of a Unit has put the Association on notice of a specific leak or flow from any portion of the Common Elements and the Association has failed to exercise due care to correct the leak or flow within a reasonable time thereafter. The Association shall not be liable to any Owner, or any Owners occupant, guest or family for any damage or injury caused in whole or in part by the Association's failure to discharge its responsibilities under the Article where such damage or injury is not a foreseeable, natural result of the Association's failure to discharge its responsibilities. No diminution or abatement of assessments shall be claimed or allowed by reason of any alleged failure of the Association to take some action or perform some function required to be taken or performed by the Association 12 under this Declaration, or for inconvenience or discomfort arising from the making of repairs or improvements which are the responsibility of the Association, or from. any action taken by the Association to comply with any law, ordinance, or with any order or directive of any municipal or other governmental authority. Section 4.7 Maintenance Standards of the Association and Interpretation.. The maintenance standards and the enforcement thereof and the interpretation of maintenance obligations under this Declaration may vary from one term of the Board to another term of the Board. These variances shall not constitute a waiver by the Board of the right to adopt and enforce maintenance standards under this Article. No decision or interpretation by the Board shall constitute a binding precedent with respect to subsequent decisions or interpretations of the Board. Section 4.8 Common Elements. The Real Estate described in this Declaration and in the Map is the initial Common Elements. Portions of any Common Elements may be designated as a part of a Unit or as a Limited Common Element to a Unit. Portions of Units may become Common Elements or Limited Common Elements, pursuant to rights reserved elsewhere in this Declaration. Section 4.9 Limited. Common Elements. The following portions of the Common Elements are Limited Common Elements assigned to the Units as stated: (a) If a chute, flue, pipe, duct, wire, conduit, bearing wall, bearing column or other fixture lies partially within and partially outside the designated. boundaries of a Unit, the portion serving only the Unit is a Limited Common Element, allocated solely to the Unit, the use of which is limited to that Unit and any portion serving more than one Unit is a Limited Common Element to those Units and. any portion serving only the Common Elements is a part of the Common Elements. (b) Any improvements within the Community, including garage doors, exterior doors and windows or other fixtures designed to serve less than all Units, whether located inside or outside the boundaries of the Unit, are Limited Common Elements allocated exclusively to the Unit or Units that they are designed to serve and. their use is limited to that Unit or Units. (c) Stoops, steps and walls above door openings at the entrances, which provide access to less than all Units, the use of which is limited to the Units to which they provide access are Limited Common Elements to those Units. (d) Utility areas, the use of which is limited to a Unit or Units, are Limited Common Elements to that Unit or those Units. Section 4.10 Power to Provide Special Services. The Association shall have the power to provide services to 1 or more, but less than all, Owners, on an independent negotiated fee basis. 13 Section 4.11. Unit Owners' Easements of Enjoyment. (a) Every Unit Owner shall have a right and easement access to their Unit and of enjoyment in and to any Common Elements and such easement shall be appurtenant to and shall pass with the title to every Unit, subject to the following provisions: (i) The right of the Association (exercised through the Executive Board) to promulgate and publish Rules and. Regulations with which each Unit Owner and their tenants, invitees, licensees and guests shall strictly comply. (ii) The right, power and authority of the Association (exercised through the Executive Board) to grant any easement, right-of--way, license, lease, dedication, transfer or conveyance or grant of any similar interest affecting the Common Elements, to the extent permitted by the Act and/or the Bylaws. (iii) The right of the Association (exercised through the Executive Board) to close or limit the use of the Common Elements while maintaining, repairing and making replacements in the Common Elements. (iv) The Development Rights and Special Declarant Rights of Declarant reserved in this Declaration. (b) The Association shall not have the right to suspend the voting rights of a Unit Owner for any period during which any Assessment against such Owner's Unit remains unpaid, or for any infraction of this Declaration, or any Rules and Regulations of the Association. Section 4.12 Delegation of Use. Any Unit Owner may delegate their right of enjoyment to the Common Elements and facilities to the members of their family, their tenants and guests. Section 4.13 Modifications to Units. (a) Adjoining Units/Alterations of Units without a Change in Allocated Interests or Boundaries of a Unit. Owners shall have the right, with written approval from the Board, and subject to the provisions of this Article, after acquiring an adjoining Unit, to remove or alter any intervening partition or create apertures therein, even if the partition in whole or in part is a Common Element, all as provided. for in this Section, provided the alterations and modifications do not impair the structural integrity, electrical systems, mechanical systems, utilities, lessen the support of any portion of the Community. (b) Agreement MayBe Required bathe Association. The Board of the Association may require the Owner's written agreement (in the form required by the Association) providing for the following: 14 (i) for the Owner to be responsible, now and/or in the future, for any structural deficiencies or problems, electrical deficiencies or problems, mechanical structural integrity, electrical systems, utility or mechanical deficiencies or problems or problems associated with a lessening of support of any portion of the Community, or for violations of any of the provisions of this Article, all as may reasonably be determined by the Association; (ii) for the Owner's agreement to be responsible for ongoing maintenance, repair, replacement and. improvement of any or all of the proposed additions/modifications of the Owner. The Association may require Owners to be responsible for all or some of the maintenance, repair, replacement and improvement of the proposed modifications; (iii) for the Owner's payment of the fees and. costs of the Association, together with a deposit against fees and costs which the Association will incur in reviewing and effectuating the application, in an amount reasonably estimated by the Board, in advance of any billing for costs and expenses of the Association; (iv) for reasonable advance notice by the Owner for the work to be performed, from the Owner or from the Owner's contractor; and. Board. (v) satisfaction of all conditions as may be reasonably imposed by the (b) Boundar~nges/Combination of Existing Units/Alterations of Units with a Requested Change in Allocated Interests or the Boundaries of a Unit. (i) Unit Combinations and Boundary Changes. Subject to the provisions of this Section, and pursuant to the procedures described in section 38- 33.3-217 of the Act, boundaries between adjoining Units may be changed, and existing Units may be combined, after application. to the Association by the Owners of those Units and written approval by the Association, acting solely through the member(s) of the Board. Yet, if classes are created, the written approval by the Association shall be required only and solely through the applicable class member(s) of the Board. (ii) Re-subdivision of Combined Units. If two or more Units have been combined into one Unit that combined Unit may be subsequently re- subdivided, after application to and approval by the Association, acting solely through the Board. Units may not be subdivided smaller than the original Units as created by the Declarant, without approval of at least 67% of the Owners. (iii) Additional Limitations, Conditions and Covenants. No relocation of boundaries between adjoining Units shall be effected without the necessary amendments to the Declaration and Map, as provided for in this Article with those 15 amendments, executed and recorded by the Association, pursuant to section 38- 33.3-217 of the Act, and as provided for in this Section of the Declaration. (iv) Application Agreement Required. and Approval Requirements. The Owners of the Units, as the applicant, must submit an application to the Association, which must be approved by the Association. The approval is required before the Owner proceeds, including all of the criteria forth above, including the following additional items (if application process is used above) and including an agreement with the Association, including the items set forth above: (A) Reallocations. The proposed reallocation of interests, if any, which may include a re-allocation of Common Expense liability, to account for an increase in size to the Unit or Units of the Owner, if sought by the applicant or required by the Association; and (B) Forms of Amendments. The proposed form for amendments to this Declaration, including the Map, as may be necessary to show the altered. boundaries, and their dimensions and identification. (v) Reply and Communication. The Association shall reply to all submittals of plans made in accordance with this Article in writing within 60 days after receipt. In the event the Association fails to take any action on submitted plans and specifications within 60 days after the Association has received the plans and specifications, approval shall be deemed denied. Yet, the Owner shall have a right of appeal to the Association. All communications and submittals shall be addressed to the Association at such address as is the registered address for the Association as maintained with the office of the Colorado Secretary of State. (vi) Maintenance Responsibilities. For all modifications made to a Unit by an Owner, whether made under the authority and with the approvals under this Article, or whether made previously or without approvals required under this Article, the Owner shall be responsible for maintenance, repair and replacement of all modifications unless the Association expressly assumes any of those responsibilities in writing. (vii) Fees anal Costs. Owners shall be obligated to pay all fees and costs incurred by the Association in reviewing and effectuating an Owner's application, whether by deposit, or subsequent invoice from the Association. ARTICLE 5 COVENANT FOR COMMON EXPENSE ASSESSMENTS Section 5.1 Creation of Association Lien and Personal Obligation to Pay Common Expense Assessments. Declarant, for each Unit, shall be deemed to covenant and agree, and each Unit Owner, by acceptance of a deed therefore, whether or not it shall be so expressed in 16 any such deed or other conveyance, shall be deemed. to covenant and. agree to pay to the Association annual Common Expense Assessments, any designated class of Assessment, (if classes of Owners/Units are created), Insurance Assessments (assessed in proportion to risk), Utility Assessments (assessed in proportion to usage), the "roof and utility" assessment as allowed for in this Declaration and such other Assessments as are imposed by the Association. Such Assessments, including fees, charges, late charges, attorney fees, fines and interest charged by the Association shall be the personal obligation of the Unit Owner of such Unit from and after the time when the Assessment or other items charged by the Association become or fall due. The Association annual Common Expense Assessments and such other Assessments as are imposed by the Association, including fees, charges, late charges, attorney fees, fines and interest charged by the Association, shall be a charge on each Unit and shall be a continuing lien upon the Unit against which each such Assessment or charge is made. If any Assessment is payable in installments, the fu11 amount of the Assessment is a lien from the time the first installment becomes due. The personal obligation to pay any past due sums due the Association shall not pass to a successor in title unless expressly assumed by them and approved by the Executive Board. No Unit Owner may become exempt from liability for payment of the Common Expense Assessments or other Association charges by waiver of the use or enjoyment of the Common Elements or by abandonment of the Unit against which the Common Expense Assessments are made. All Assessments and other Association charges shall be payable in the amounts specified in the levy thereof, and no offsets or reduction thereof shall be permitted for any reason including, without limitation, any claim that the Association or the Executive Board is not properly exercising its duties and powers under this Declaration. Section 5.2 Apportionment of Common Expenses. Except as provided in this Declaration, all Common Expense Assessments shall be assessed against all Units in accordance with formulas for liability for the Common Expenses as set forth in this Declaration. Section 5.3 Utility Assessments and. Utility Billings. Electric and any other utilities for the building may be are metered and billed for the entire building, and are not, initially, metered separately per Unit. Utilities shall be billed in the name of one of the Unit Owners or the Association, and. shall then be divided proportionately between all of the Unit Owners relative to the square footage of ownership, or as determined by the Association relative to proportionate use. The Association shall have the right to meter or submeter any utility. Individually or separately metered utilities shall be billed in the name of on of the Unit Owners and shall be the sole responsibility of each individual Unit Owner, Section 5.4 Annual Assessment/Commencement of Common Expense Assessments/Bud~?ets of the Association. The Common Expense Assessment may be made on an annual basis against all Units and shall be based upon the Association's advance budgets of the cash requirements needed by it to provide for the administration and performance of its duties during such Assessment year. If classes are created., then additional budgets shall then be permissible, with one as a general budget and with separate budgets for each class of Owner/Unit. Each budget shall be submitted to the Unit Owners entitled to vote on it for ratification pursuant to Section 303(4) of the Act and as set forth in the Bylaws, as the Bylaws may be amended from time to time; except s to the "roof and utility" assessment, as provided for elsewhere in this Declaration. Any budget may be vetoed by votes of Owners representing a 17 majority of the total votes in the Association, or class, as the case may be. If any budget is vetoed, the prior existing budget shall continue in effect. Common Expense Assessments and Assessments by class shall be due and payable in monthly, quarterly, or annual installments, or in any other manner, as determined by the Executive Board. Assessments may begin on the first day of the month in which conveyance of the first Unit to a Unit Owner other than Declarant occurs. The omission or failure of the Executive Board to levy the Assessment for any period shall not be deemed a waiver, modification or a release of the Unit Owners from their obligation to pay. Section 5.5 Effect of Non-Payment of Assessments. Any Assessment or other Association charge provided for in this Declaration, or any monthly or other installment thereof, which is not fully paid within 10 days after the due date thereof, as established by the Executive Board, shall bear interest at the rate established by the Executive Board, on a per annum basis from the due date, and the Association may assess a reasonable late charge thereon as determined by the Executive Board. Failure to make payment within 60 days of the due date thereof shall cause the total amount of such Unit Owner's Common Expense Assessment for the remainder of that fiscal year to become immediately due and payable at the option of the Executive Board. Further, the Association may bring an action at law or in equity, or both, against any Unit Owner personally obligated to pay such overdue Assessments or other Association charges, or monthly or other installments thereof, and may also proceed to foreclose its lien. against such Unit Owner's Unit. An action at law or in equity by the Association against a Unit Owner to recover a money judgment for unpaid Assessments or other Association charges, or monthly or other installments thereof, may be commenced and pursued by the Association without foreclosing, or in any way waiving, the Association's lien therefore. Foreclosure or attempted foreclosure by the Association of its lien. shall not be deemed to estop or otherwise preclude the Association from thereafter again foreclosing or attempting to foreclose its lien for any subsequent Assessment or other Association charges, or monthly or other installments thereof, which are not fully paid when due. The Association shall have the power and right to bid on or purchase any Unit at foreclosure or other legal sale, and to acquire and hold., lease, mortgage, vote the Association votes appurtenant to ownership of a Unit convey or otherwise deal with the same. If a foreclosure action is filed to foreclose any Assessment lien, and a Unit Owner abandons or leaves vacant such Owner's Unit, the Executive Board may take possession and rent such Unit or apply for the appointment of a receiver for the Unit without prior notice to the Unit Owner. The rights of the Association shall be expressly subordinate to the rights of any holder of a first lien security interest as set forth in its deed of trust or mortgage (including any assignment of rents), to the extent permitted under the Act. Section 5.6 Lien Priority. The lien of the Association under this Article is prior to all other liens and encumbrances on a Unit except: (l) liens and encumbrances recorded before the recordation of the Declaration; (2) a first lien security interest on the Unit (except as allowed by the Act with regard to the limited lien priority allowed to the Association); and. (3) liens for real estate taxes and other governmental assessments or charges against the Unit. This Section does not affect the priority of mechanics' or material men's liens. The lien of the Association under this Article is not subject to the provision of any homestead. exemption as allowed under state or federal law. Sale or transfer of any Unit shall not affect the lien for Assessments or other Association charges except that sale or transfer of any Unit pursuant to foreclosure of any first 18 lien security interest, or any proceeding in lieu thereof, including deed in lieu of foreclosure, or cancellation or forfeiture shall only extinguish the lien for Assessments or other Association charges as provided by applicable state law. No such sale, transfer, foreclosure, or any proceeding in lieu thereof, including deed in lieu of foreclosure, nor cancellation or forfeiture shall relieve any Unit from continuing liability for any Assessment or other Association charges thereafter becoming due, nor from the lien therefore. Section 5.7 Owner's Negligence or Misconduct. In the event that the need for maintenance, repair, or replacement of the Common Elements, or any portion thereof, is caused through or by the negligent or willful act or omission or misconduct of an Owner, or the Owner's agents, employees, guests, customers, or invitees, then the expenses, costs, and. fees incurred by the Association for such maintenance, repair, or replacement shall be a personal obligation of such Owner. If such expenses, costs and fees incurred by the Association are not repaid to the Association within 7 days after the Association shall have given notice to the Owner of such expenses, costs, and fees, then the failure to so repay shall be a default by the Owner under the provisions of this Declaration. Such expenses, costs, and fees shall automatically become a default Assessment determined and. levied against such Unit, and the Association may proceed in accordance with the provisions of this Article. Section 5.8 lnitial Funding of the Association. The Declarant, on behalf of the Association, shall establish an initial or working capital fund to meet unforeseen expenditures or to purchase any additional equipment or services. Anon-refundable contribution to the fund of the Association shall be collected from the initial purchaser or each Unit in the amount of 6 months of Assessments charged to such Unit. Section 5.9 Assessments Related to Limited Common Elements. In the event a Common Expense is associated with the maintenance, repair or replacement of a Limited Common Element, those Common Expenses may be assessed equally against the Units to which the Limited Common Element is assigned. Section 5.10 Association Borrowing. The Association shall have the power to assign its right to future income, including the right to assign. its right to receive Assessments, but only upon the affirmative vote of at least 67% of each class of the Unit Owners, which Owners must be in good standing, present in person or by proxy, at a duly constituted meeting called for that purpose. ARTICLE 6 RESTRICTIONS ON USE, ALIENATION AND OCCUPANCY All Real Estate within the Community shall be held., used. and enjoyed subject to the following limitations and restrictions. The strict application of the following limitations and restrictions in any specific case (except as to restrictions on ownership) may be modified or waived, in whole or in part, by the Executive Board or by an appropriate committee (subject to review by the Executive Board) if such strict application would be unreasonable or unduly harsh under the circumstances. Any such modification or waiver must be in writing or must be contained in written guidelines or rules. 19 The following use restrictions are also subject to the Development Rights and Special Declarant Rights reserved by Declarant. Section 6.1 Restriction on Ownership on Retention of Ownership and Upon Resale. (a) No Unit designated. as a "G" Unit (on Exhibit B) may be owned, in whole or in part, or retained and held, or conveyed or sold to any person other than: (i) an Owner of a "Sun Vail" condominium unit created and established. under the Sun Vail Declaration (as defined in this Declaration); or (ii) the owners association created, established and operating under the Sun Vail Declaration; or (iii) the Association identified and defined in this Declaration; or (vi) Declarant, or the heirs of or successors of either of or both of the individuals named. as the Declarant. (b) Once an owner of a Sun Vail condominium unit has acquired a G-Unit, that Owner may convey their G-Unit to any of the persons identified and allowed as an Owner under this Section of the Declaration; or, that Owner may convey their G-Unit, along with the Sun Vail condominium unit, to a new owner. An Owner of a G-Unit may not retain ownership of a G-Unit without also retaining ownership of a Sun Vail condominium unit. The title of these separate condominium units (one a G-Unit and the other a Sun Vail condominium unit) must be held in the same Owner. (c) Any conveyance or claimed or apparent ownership interest of a person, other than allowed for above, may be treated as void and may be voided by the Association, by the Declarant, by the owner association operating under the Sun Vail Declaration, or by the town of Vail, through enforcement of the above covenants and restrictions. (d) The provisions of this Section may not be amended without the consent of the Town of Vail. (e) 1f Declarant, or the Declarant's heirs, successors or assignees, determine that a reasonable market for purchase and ownership of the G-Units (as identified in Exhibit B) does not exist, and with the approval of the Town of Vail, and with the approval or consent or vote of at least 50% of the Owners of G-Units, the restrictions on ownership contained in this Section of the Declaration may be amended by the Declarant, or by the Declarant's heirs, successors or assignees. Any amendment under this authority must be made and recorded. 20 Section 6.2 Use, Occupancy and Use Protections. (a) Garage Uses Allowed.. Use of Units designated as "G" Units (as set forth on Exhibit B) shall be limited for pri~mari(y garage uses or ski or other storage and shall not be unreasonably regulated or governed by the Association. (b) Non-conforming Uses and/or Grandfathered Uses. Occupied offices and non-conforming uses of any "G" Unit shall not be a violation of this Declaration or any other law (as among Owners), and these non-conforming office uses shall be limited to the following Units: Units G-l, G-2 and G-3 and Units G-14 and G-l5. (c) Non-conforming; Uses Not Protected from Action by Local Government. A]] Owners acknowledge that local government may he able to restrict or prevent occupancy and/or commercial and other non-conforming uses of any Unit, in its sole discretion. However, no Owner or `Party With Express Rights Under This Declaration' shall have a right or authority to prevent any of the non-conforming uses expressly addressed in this Declaration (above) or by complaint to any other authority. All Unit Owners and. `Parties With Express Rights Under This Declaration' acknowledge and agree to the terms of this section; as well as the Declaration in whole, upon contract for purchase and also upon obtaining any ownership interest to a Unit. (d) Local Zoning_and Covenants Related to Zoning. Subject to the provisions of this Section, Units within the Community shall be used only for purposes allowed by the local zoning codes and as the Real Estate has been used, which uses remain permissible. Section 6.3 Termination of the Community and the Declaration. (a) The Community and this Declaration may be terminated by the affirmative vote and approval of all persons required to terminate the Condominium Community established under the Sun Vail Declaration; provided. further: (i) that each Unit Owner in this Community is to receive the then fair market value of their Unit or an equivalent interest, as reasonably determined, in any new common interest community as may be created on the Real Estate subject to this Declaration and. on the property subject to the Sun Vail Declaration; and (ii) that this termination right shall also require the consent and approval of the Declarant or the heirs of the Declarant, during the period of Declarant control. (b) After the period of Declarant Control, the Community and this Declaration may be terminated by the affirmative vote and approval of all persons required to terminate the condominium community established under the Sun Vail Declaration, provided further that each Unit Owner in this Community is to receive the then fair 21 market value of their Unit or an equivalent interest, as reasonably determined, in any new common interest community as may be created on the Real Estate subject to this Declaration, and on the property subject to the Sun Vail Declaration. (c) As to the Community and this Declaration, the termination document must provide that ali of the Common Elements of this Community and all of the Units of this Community must be sold following termination. lf, pursuant to the termination document, any part of the Real Estate in this Community is to be sold following termination, the termination document must set forth the minimum terms of the sale. The proceeds of any such sale of any part of the Real Estate, together with the assets of the Association, shall be deemed to be and are held by the Association as trustee for Unit Owners and holders of liens on the Units, as their interests appear of record. (d) The terms of this Declaration, as set forth in this Section, shall be treated as the terms of the agreement of Unit Owners to terminate (as required under Section 21.8(2) of the Act), so that no further vote or agreement is required from the Owners of Units subject to this Declaration to evidence the termination or ratification thereof, provided the provisions of paragraphs (a) or (b), and. Paragraph (c), above are strictly complied with by all parties. (e) The termination of this Community and the Declaration shall be effective upon the recordation in the office of the Clerk and Recorder of County of Eagle, State of Colorado of a certificate setting forth the termination and certifying that the termination has been approved as set forth above, and is in compliance with the terms set forth above. Section 6.4 Restrictions and Covenants on Leasing of Units. All Unit Owners who rent to a tenant shall comply with the applicable restrictions of the Declaration. Additionally, all Unit Owners who rent to a tenant shall: provide the tenant with a copy of any Rules and Regulations; include in the lease agreement a provision that the tenant has been given said copies, has read and understood., and. agrees to abide by the Rules and Regulations as well as applicable parts of this Declaration; notify the Board of Directors in writing that the unit is tenant-occupied, giving the name(s), address and phone number of the occupants, and provide to the Management Agent and/or the Board the name of any agent retained by the Unit Owner to manage the unit for him/her. Note: The Unit Owner is responsible at all times for the enforcement of the covenants with the tenant and other Rules or established. guidelines. Section 6.5 Vehicular Parkings Storage, and Repairs. (a) Subject to the Development Rights of Declarant and the Association, vehicular parking upon the Common Elements shall be regulated by the Executive Board. (b) Common Element parking or other areas, if any, may be subject to designation of individual spaces as Limited Common Elements appurtenant to certain designated Units. Parking designated as visitor or guest parking, if any, shall not be used by anyone other than visitors or guests of Owners or tenants. 22 (c) Designated. parking spaces, if any (designated as either a part of a Unit, a Limited Common Element or as a part of Common Elements}, are restricted to use as access or as a parking space for vehicles. (d) No activity such as, but not limited to, maintenance, repair, rebuilding, dismantling, repainting, or servicing of any kind of vehicle, trailer or boat, may be performed or conducted within the Community; except within enclosed garages. (e) The Rules and. Regulations of the Association may govern the types of vehicles that may be parked. or stored within the Community (outside of enclosed garages). (f) Parking in fire lanes (as designated. by the Association or as designated by local government or a local fire protection authority) shall not be permitted. (g) Parking in alleys or other ways or lanes is prohibited, except to load or unload in lanes designated for such purpose if such activity does not exceed. 10 minutes in duration at any one time. Section 6.6 Covenants and Prohibitions on Damage, Nuisance and. Noise. (a) Without the prior written consent of the Board of Directors, nothing shall be done or kept in a Unit or with the Condominium Community, or any part thereof, that would increase the rate of insurance on or for the Condominium Community or any Unit or part thereof, which would be in violation of any statute, rule, ordinance, regulation, permit or other validly imposed requirements of any governmental body, or which would increase the Common Expenses. (b) The Units are in close proximity to one another, resulting in the sharing of common walls, floors and ceilings. As a result, noise and vibration may be detectable between Units or between Units and the Common Elements. Therefore, an Owner or occupant shall not conduct activities within a Unit or use a Unit in a manner that interferes with or causes disruption to the use and quiet enjoyment of another Unit by its respective Owner and occupant. (c) Furthermore, noxious, destructive, offensive or unsanitary activity shall not be carried on upon or within the Condominium Community or any Unit. No Owner or Occupant may use or allow the use of the Unit or any portion of the Condominium Community at any time, in any way, which may endanger the health or property of other occupants, unreasonably annoy, disturb or cause embarrassment or discomfort to other Owners or occupants, or, in the Board's discretion, constitute a nuisance. The intention of this provision. is to grant the Association and aggrieved. Owners and occupants a right of redress for actions, activities or conduct which unreasonably disturbs or impairs the peaceful and safe enjoyment of the Condominium Community or any Unit. 23 (d) In regard to the above covenants and restrictions, specific unauthorized and. unreasonable annoyances or disturbances shall. include, but not be limited to, the following: (i) any fighting, screaming, shouting, excessively loud talking, whistling, or playing of music or television, raucous behavior or insobriety either outside of a Unit at any time or within a Unit if such conduct can be heard in the normal course of activities in any other Units}; (ii) the use of any alarm, equipment, or device, mechanical or otherwise, which creates or produces excessively loud sounds or any vibrations either outside of a Unit at any time or within a Unit if such sounds can be heard or vibrations felt in the normal course of activities in any other Unit(s); (iii) any threatening or intimidating conduct towards any occupant, guest or pet at or within the Condominium Community; (iv) any conduct which, in the Board's reasonable discretion, creates any danger or risk of injury to others or damage to property at or of the Condominium Community or which creates any threat to health or safety of any other occupant or pet; (v) any excessively loud play activities either outside of a Unit at any time or within a Unit if such conduct can be heard in the normal course of activities in any other Unit(s); (vi) any conduct which creates any noxious or offensive odor either outside of a Unit at any time or within a Unit if such. odors can be detected. in the normal course of activities in any other Unit(s); (vii) any incessant or excessive pet noises, including dog barking, if such conduct can be heard in the normal. course of activities in any other Unit(s); (viii) any construction or similar activities in a Unit that can be heard in other Units between the hours of 9:00 p.m. and 7:30 a.m.; or (ix) any similar action or activity outside of a Unit, or which occurs inside a Unit but which interferes with the peaceful use and enjoyment of other Units or the Common Elements by any other Owner, members of his or her family, guests, invitees, or occupants of his or her Unit. (e) Nothing in this Declaration shall. be construed to affect the rights of an aggrieved Owner or occupant to proceed. individually against a violator hereof for relief from interference with his or her property or personal rights, and the Board may, in its discretion, require aggrieved individuals to seek redress personally for interference with their personal property rights before the Association intervenes and commences 24 enforcement action hereunder. No claim for any loss, damage or otherwise shall exist by an aggrieved Owner or occup~nt against the Association for failure to enforce the provisions hereof if the aggrie~ed Owner or occupant has not personally pursued all available remedies against the'violator for redress provided under Colorado law. (f) No Owner, occuupant or agent of such Owner or occupant shall do any work which, in the Board's re~ onable opinion, would jeopardize the soundness or safety of the Condominium Community or any structure thereon, would reduce the value thereof, or would impair any e',asement or other interest in the Condominium Community, without prior written consent bf the Board or all Association members. (g) No damage to br waste of the Common Elements, or any part thereof, shall be permitted by any Owner or any occupant, guest or invitee of any Owner. Each Owner and occupant shall indemnify and hold the Association and the other Owners harmless against all loss to the Association or other Owners resulting from any such damage or waste caused by such Owner or occupant, or the Owner's or occupant's guest or invitee. Section 6.7 Pets. (a) No Owner or occupant may keep any animals other than a reasonable number of generally recognized household pets on any portion of the Condominium Community, as determined in the discretion of the Board. (b) The Board of Ihirectors may adopt rules and regulations defining a reasonable number of pets anc~ generally recognized household pets. (c) No Owner or of cupant may keep, breed. or maintain any pet for any commercial purpose. (d) No structure fo,'r the care, housing, or confinement of any pet shall be constructed or maintained on ~ny part of the Common Elements, including Limited Common Elements. i (e) Dogs must be finder the physical control of a responsible person at all times while on the Common dements. (f) Feces left by p~ts upon the Common Elements or in Units, including the pet owner's Unit, must be rerrloved promptly by the owner of the pet or the person responsible for the pet. (g) The Board ma require that any pet which, in the Board's opinion, endangers the health of any 0, ner or occupant or creates a nuisance or unreasonable disturbance, be permanently r~moved from the Condominium Community upon ten days written notice. 25 (h) 1f the Owner or occupant fails to comply with such notice, the Board may remove the pet and/or obtain a court order requiring the Owner or occupant to do so. (1) Any Owner or occupant who keeps or maintains any pet upon the Condominium Community shall be deemed. to have agreed to indemnify and hold the Association, its directors, Officers, and agents free and harmless from any loss,. claim or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Condominium Community. Section 6.8 Covenants Related to an Owner's Failure to Maintain a Unit. (a) if the Board of Directors determines that any Owner has failed or refused to discharge properly his or her obligation with regard to the maintenance, repair, or replacement of items for which he or she is responsible hereunder, then, the Association shall give the Owner written notice of the Owner's failure or refusal and of the Association's right to provide necessary maintenance, repair, or replacement at the Owner's sole cost and. expense. The notice shall set forth with reasonable particularity the maintenance, repair, or replacement deemed necessary by the Board of Directors. (b) Unless the Board of Directors determines that an emergency exists, the Owner shall have 30 days (or such shorter time as the Board may determine), within which to complete maintenance or repair, or if the maintenance or repair is not capable of completion within such time period, to commence replacement or repair within ten days. if the Board determines that: 1) an emergency exists; or 2) that an Owner has not complied with the demand given by the Association as herein provided; then the Association may provide any such maintenance, repair, or replacement at the Owner's sole cost and expense, and such costs shall be added to and become a part of the assessment to which such Owner is subject, shall become and be the personal obligation of the Owner and a lien against the Unit, and shall be collected as provided herein for the collection of assessments. Section 6.9 Use of Common Elements. There shall be no obstruction of the Common Elements, nor shall anything be kept or stored on any part of the Common Elements without the prior written approval of the Executive Board. Nothing shall be altered. on, constructed in, or removed from the Common Elements without the prior written approval of the Executive Board. Section 6.10 Rubbish, Trash and. Garbage. All rubbish, trash, -and garbage shall be regularly removed from the unit and shall not be allowed to accumulate therein. No garbage or trash shall be placed on the Common Elements or Limited Common Elements outside the Unit, temporarily or otherwise, except in trash cans located in the trash enclosure area. Rubbish, trash, and garbage shall be disposed of in appropriate sealed bags and either placed in the trash cans or proper receptacles designated by the Board for collection or removed from the Condominium Community. Section 6.11 Nuisances. No nuisance shall be permitted within the Community, nor any use, activity or practice which is reasonably the source of annoyance or embarrassment to, or 26 which reasonably offends or disturbs, any Unit Owner or which may unreasonably interfere with the peaceful enjoyment or possession or the proper use of a Unit or Common Element or Limited Common Element, or any portion of the Community by Unit Owners. Further, no immoral, improper, offensive or unlawful use shall be permitted within the Community or any portion thereof. All valid laws, ordinances and. regulations of all governmental bodies having jurisdiction over the Community or a portion thereof shall be observed. As used herein, the term "nuisance" shall not include any activities of Declarant or its assignees which are reasonably necessary to the development and construction of improvements within the Community. Section 6.1.2 Compliance with Insurance Requirements. Except as may be approved in writing by the Executive Board, nothing shall be done or kept on the Community which may result in a material increase in the rates of insurance or would. result in the cancellation of any insurance maintained by the Association. Section 6.13 No Unsightliness. All unsightly conditions, structures, facilities, equipment, objects and conditions shall be enclosed within a.n approved. structure. Section 6.14 Restriction on Suns and Advertising Devices. (a) No sign, poster, billboard, advertising device or display of any kind shall be erected or maintained anywhere within the Community by Unit Owners, except such sign or signs as may be allowed by state or federal law, or as may be approved in writing by the Association through the Executive Board. (b) Units used or occupied as offices shall have the right, subject to the initial approval of the Declarant, then after the Declarant's rights have expired subject to approval by the Executive Board, acting solely through any office class member(s) of the Board, or if there is no such class, then through the Board., to install and maintain one or more exterior signs. (c) Signs of or for Units used or occupied for office purposes shall be adequately and professionally maintained by the Owner of that Unit or their agent. Section 6.15 No Restrictions on Mortgaging of a Unit. There are no restrictions on the right of the Unit Owners to mortgage or otherwise encumber their Unit. There is no requirement for the use of a specific lending institution or particular type of lender. Section 6.l 6 Storage Restrictions. Areas outside of a Unit may not be used as storage areas. Section 6.17 Restrictions on Exterior Building Changes, Structural Alterations, Improvements Penetrations and Cut-Outs. No change to the exterior of the building, structural alterations to any Unit or to any Common or Limited Common Elements shall be done by any Owner, without the prior written approval of the Association through the Executive Board. This restriction extends to and includes a restriction on penetrations or cut-outs into Common Elements walls or portions of the Community. No improvement to any Unit or to the Common 27 or Limited Common Elements or to any landscaping shall be constructed, erected, placed or installed. within the Community, unless complete plans and specifications therefore shall have been ftrst submitted. to and approved iri writing by the Association (as provided for above) acting through the Executive Board. The process for seeking approval from the Executive Board shall be set forth in the Rules and Regulations of the Association. Section 6.1.8 Rules and Regulations. In furtherance of the provisions of this Declaration, Rules and Regulations concerning and governing the Community or any portion thereof may be adopted, amended, or repealed, from time to time, by the Executive Board, or its successors and assigns. The Executive Board may establish and enforce penalties or ftnes for the infraction thereof and take any other remedial action the Executive Board may deem necessary and proper for such purpose. Section 6.19 Declarant's Use/Re-Construction of Roof. Notwithstanding anything to the contrary contained in this Declaration, it shall be expressly permissible for Declarant, its assigns, employees and agents, to perform such reasonable activities, and to maintain upon portions of the Community such facilities as are reasonably necessary or incidental to the sale of Units or the development of the Community, specifically including, without limiting the generality of the foregoing, the re-construction or replacement of the roof over the Units as provided in other parts of this Declaration. ARTICLE 7 INSURANCE/CONDEMNATION Section 7.1 insurance Requirements. Commencing not later than the time of the first conveyance of a Unit to a person other than Declarant, t11e Association shall maintain the following types of insurance to the extent that such insurance is reasonably available, considering the availability, cost and. risk coverage provided by such insurance, and the cost of such coverage shall be paid by the Association as a Common Expense, unless assessed to the Units and Owners based on risk. Notwithstanding any of the specific insurance requirements contained in this Article, the Association may also consider, in determining the types and amounts of insurance it needs to obtain, the then-existing requirements of the Agencies with respect to their insurance, guaranty, or purchase of mortgages: (a) Common Property or Casualty Insurance/Bare Walls. A policy of property insurance generally or sometimes known as "bare walls" covering all insurable improvements located within the Community (including the Units, but not including the finished interior surfaces of the walls, floors and ceilings in the Units, or furniture and other personal property supplied or installed by Owners), except for land, foundation, excavation and other matters normally excluded from coverage, in an amount not less than the full insurable replacement cost of the insured property less applicable deductibles at the time the insurance is purchased and at each renewal date. Such policy shall also contain a "Replacement Cost Endorsement" providing that any claim will be settled on a full replacement cost basis without deduction for depreciation, and include an "Inflation Guard Endorsement," an "Agreed Amount Endorsement," a "Construction Code Endorsement," a "Demolition Cost Endorsement," a "Contingent Liability from 28 Operation of Building Laws Endorsement," an "Increased Cost of Construction Endorsement" and a "Steam Boiler and Machinery Coverage Endorsement" with minimum coverage per accident equal to the lesser of $5,000,000 or the insurable value of the building in which the machinery is located. The Association will also purchase endorsements and/or coverage on personal property owned by the Association, including fixtures and building service equipment, furnishings, common personal property and supplies. Such insurance shall afford protection against at least loss or damage by fire and. other perils normally covered by the standard extended coverage endorsement, and such other risks as shall customarily be covered with respect to projects similar in construction, location and use, including all perils normally covered by the standard "all risk" endorsement, where such is available. (b) Liability Insurance. A comprehensive policy of general liability insurance against claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements and. covering public liability or claims of liability for injury to persons and/or property, and death of any person or persons. Such liability insurance shall, to the extent reasonably obtainable, (i) have limits of not less than $1,000,000 per person and. $1,000,000 per occurrence; (ii) insure the Board of Directors, the Association and its officers, and their respective employees, agents and all persons acting as agents; (iii) include the Owners as additional insureds, but only for claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements; (iv) cover claims of one or more insured parties against other insured parties; and (v) be written on an occurrence basis. (c) Fidelity Insurance. A policy providing comprehensive fidelity coverage or fidelity bonds to protect against dishonest acts on the part of Officers, Directors, trustees and employees of the Association and all others who handle or are responsible for handling funds of the Association, in an amount at least equal to the estimated maximum amount of funds, including reserves, in the custody of the Association, its Officers, Directors, trustees and employees at any given time. Such coverage shall name the Association as an obligee and shall contain waivers of any defense based upon the exclusion of persons who serve without compensation from any definition of "employee" or similar term. (d) Directors and Officers Liability Insurance. A policy to protect Directors and Officers of the Association from personal liability in relation to their duties and responsibilities in acting as directors and officers on behalf of the Association. (e) Worker's Compensation and Employer's Liability Insurance. Worker's compensation and employer's liability insurance and all other similar insurance with respect to the employees, if any, of the Association, in the amounts and forms as may be required by law. (f) Other Insurance. The Association may obtain insurance against such other risks, of similar or dissimilar nature, including flood insurance, as the Executive Board shall deem appropriate, to the extent that such coverage is reasonably available. 29 Section 7.2 Insurance to be Maintained. by Owner on Improvements Within the Units and Other Owner Responsibilities. (a) Insurance coverage on all betterments and improvements installed in a Unit or by a Unit Owner, including finished interior surfaces of the walls, floors and ceilings in a Unit or Units, including all improvements added to the "core and shell" boundary, shall be maintained by each Unit Owner, unless expressly covered under the Association's property insurance, at the express direction of, and in the discretion of, the Association. (b) Furnishings, appliances and other items of personal property belonging to an Owner, and public or liability coverage within each Unit, shall be maintained by the Owner of each Unit. (c) Policies of insurance maintained. by an Owner shall contain an express waiver of any right of subrogation by the insurance company against the Association and all of the other Owners. If this waiver is not expressly included. in the insurance policy or policies of an Owner, a waiver shall be deemed a part of that policy, or policies, by virtue of this Declaration. Further, in support of this waive, each Owner is deemed. to waive and have, by virtue of ownership of a Unit, waived any rights of subrogation against the Association or any other Owner. (d) Certificates evidencing the insurance coverage required of Owners by this Section shall be submitted to the Association within 30 days of request by the Association. (e) The amount of any insurance coverage required. of Owners in this Section shall not limit an Owner's liability for indemnification of the Association. Section 7.3 General. Provisions Concerning Insurance. All policies of insurance carried by the Association pursuant to this Declaration shall provide that (i) each Owner is an insured person under the policy with respect to liability arising out of such Owner's interest in the Common Elements or membership in the Association; (ii) the insurer waives its rights of subrogation under the policy against the Association, each Owner, and any person claiming by, through, or under such Owner or any director, agent or employee of the foregoing; (iii) no act or omission by any Owner, unless acting within the scope of such Owner's authority on behalf of the Association, will void the policy or be a condition to recovery under the policy; and (iv) if at the time of a loss under the policy, there is other insurance in the name of an Owner covering the same risk covered by the policy, the Association's policy shall be the primary insurance. An insurer that has issued an insurance policy for the insurance described in this Declaration shall issue certificates or memoranda of insurance to the Association and, upon request, to any Unit Owner or holder of a security interest to whom a certificate or memorandum of insurance has been issued., at their respective last known addresses. Each such policy shall contain a standard noncontributory mortgagee's clause in favor of each Eligible Holder and. a provision that it cannot be canceled 30 or materially altered. by either the insured or the insurance company until 30 days' prior written notice thereof is given to the insured and each Eligible Holder, insurer or guarantor of a mortgage. The Association shall furnish a certified copy or duplicate original of each such policy or renewal thereof, with proof of premium payment and a certificate identifying the interest of the Owner in question, to any party in interest, including Eligible Holders, upon request. The liability insurance policy required in this Declaration shall insure the Executive Board, the Association, any managing agent and their respective officers, employees, agents and all other persons acting as agents. Declarant and its members shall be included as additional insureds, but only for claims and liabilities arising in connection with the ownership, existence, use or management of the Common Elements. Section 7.4 Deductibles. No policy of insurance of which the Association or its designee is the beneficiary shall include a deductible clause in an amount which is greater than the lesser of $10,000 or I % of the face amount of the policy or as determined. by the Executive Board, in its sole discretion. Any loss falling within the deductible portion of such policy may be a Common Expense shared by all the Owners; or, in the proper instance, may be the expense of one or more Unit Owners, as the Executive Board reasonably determines, in which even the Association may assess such loss as an Assessment against such Owners and such Owners' Units, subject to all provisions of this Declaration applicable to such Assessments. Section 7.5 Insurance Trustee. The Board. of Directors shall have authority to authorize an insurance trustee to assist and consult with it and/or act as its agent and attorney-in- fact for one or more of the following purposes: to purchase and maintain the insurance required under this Declaration, to negotiate and compromise settlement of losses under any insurance, and to collect the proceeds from any insurance, hold. such proceed's in trust for the Owners and Eligible Holders as their interests may appear and dispose of such proceeds as provided in this Declaration and in the Act. Section 7.6 Association Insurance as Primary Coverage. If at the time of any loss under any policy which is in the name of the Association, there is other insurance in the name of any Owner and. such Owner's policy covers the same property or loss, or any portion thereof, which is covered by the Association's policy, such Association policy shall be primary insurance not contributing with any of such other insurance. An Owner shall be liable to the Association for the amount of any diminution of insurance proceeds to the Association as a result of policies of insurance of such Owner, provided that if such amounts are not paid to the Association within 10 days after the Association shall have given notice to the Owner of the total amounts, from time to time, then the failure to so repay shall automatically become an Assessment determined and levied against such Unit and Owner. Section 7.7 Acceptable Insurance Companies. The Association shall not obtain any policy where (i) under the terms of the insurance company's charter, bylaws, or policy, contributions or assessments may be made against a mortgagor or the mortgagee's designee or (ii) under the terms ofthe carrier's charter, bylaws or policy, loss payments are contingent upon action by the carrier's executive board, policy holders or members, or (iii) the policy includes any limiting clauses (other than insurance conditions) which could prevent mortgagees or any Owner from collecting insurance proceeds. 31 Section 7.8 Annual Review of Insurance Policies. The Executive Board shall review the insurance carried by and on behalf of the Association at least annually for the purpose of determining the amount of insurance required pursuant to the provisions of this Article. Section 7.9 Notice of Cancellation. If any insurance required by this Article to be obtained by the Association is not reasonably available or is canceled or not renewed without a replacement policy having been obtained, the Association shall promptly cause notice of that fact to be hand delivered or sent by prepaid first-class mail to all Owners. Section 7.10 Non-liability of Association and. Directors. Notwithstanding the duty of the Association to obtain insurance coverage, as stated herein, neither the Association nor any Director shall be liable to any Owner, mortgagee or other person if any risks or hazards are not covered by insurance, or if the appropriate insurance is not obtained because such insurance coverage is not reasonably obtainable on the Association's behalf, or if the amount of insurance is not adequate, and it shall be the responsibility of each Owner or other person to ascertain the coverage and protection afforded by the Association's insurance and. to procure and pay for such additional insurance coverage and protection as the Owner or such other person may desire, provided that Owners shall, in any event, be required to obtain the insurance specified in this Declaration. Section 7.11 Adjustments by the Association. Any loss covered by an insurance policy required to be obtained by the Association pursuant to this Declaration shall be adjusted by the Association, and. the insurance proceeds shall be payable to the Association and not to any holder of a first lien security interest. The Association shall hold insurance proceeds in trust for the Association, the Unit Owners and the holders of first lien security interests as their interests may appear. The proceeds must be distributed first for the repair or restoration of the damaged property, and the Association, Unit Owners and holders of first lien security interests are not entitled to receive payment of any portion of the proceeds unless there is a surplus of proceeds after the damaged property has been completely repaired or restored, and. unless the Executive Board has determined not to set aside surplus proceeds as a reserve for future repairs. Section 7.l 2 Distribution of Condemnation and. Property Insurance Proceeds. In the event proceeds of condemnation or property insurance become available for distribution to Unit Owners, the Association shall make such distribution in accordance with the respective interests of the Unit Owners as they appear of record and pursuant to the Act. ARTICLE 8 SPECIAL RIGHTS OF HOLDERS OF FIRST LIEN SECURITY INTERESTS Section 8.1 Member and. Eligible Holder Approval. Subject to the rights of Declarant provided for in this Declaration, but notwithstanding any other provisions of this Declaration to the contrary, the Association shall not: (a) unless it has obtained the prior written consent of Members holding at least 67% of the votes in the Association and the approval of at least 67% of the Eligible 32 Holders (based on one vote for each first mortgage): (i) seek to abandon or terminate the Community, whether by act or omission, except for (A) abandonment or termination provided by law in the case of substantial destruction by fire or other casualty; or (B) in the case of a taking by condemnation or eminent domain; or (C) for amendments to this Declaration, the Articles of Incorporation or Bylaws of the Association made as a result of destruction, damage or condemnation of the Real Estate or the improvements; (ii) except as may otherwise be permitted in this Declaration, change the rights or obligations of any Owner or applicable to any Unit for the purpose o£ (A} levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards; or (B) determining the share of ownership of each Unit in the Common Elements; (iii) by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Elements (excluding the granting of permits, licenses and easements as permitted in this Declaration); (iv) partition or subdivide any Unit; or (v) use hazard insurance proceeds for losses to any of the Real Estate for any purpose other than in accordance with the procedures set forth in this Declaration. (b) unless it has obtained the prior written consent of Members holding at least 67% of the votes in the Association and the approval of at least 67% of the Eligible Holders (based on one vote for each trst mortgage), add or amend any material provisions of this Declaration or of the Articles of Incorporation or Bylaws of the Association which establish, provide for, govern or regulate any of the following, provided that such additions or amendments shall not be considered material if they are for the purpose of correcting technical errors or for clarification only: (i) voting rights; (ii) Assessments, liens or the priority of liens; (iii) reserves for maintenance, repair and replacement of Common Elements; (iv) responsibility for maintenance and. repair of any portion of the Community; (v) reallocation of interests in the Common Elements, or rights to use of the Common Elements; (vi) boundaries of any Unit, except as otherwise contemplated in this Declaration; (vii) expansion or contraction of the Community or the addition, annexation or withdrawal of property to or from the Community; (viii) insurance, including but not limited. to fdelity bonds; 33 (ix) leasing of Units; (x) imposition of any restriction on the right of any Owner to sell or transfer such Owner's Unit; (xi) any decision by the Association to assume self-management of the Association., when professional management has previously been required by this Declaration or by any Eligible Holder; (xii) any restoration or repair of the Real Estate, after a partial condemnation or damage due to an insurable hazard, other than substantially in accordance with this Declaration, the Articles of Incorporation and Bylaws of the Association; (xiii) any action to terminate the legal status of the Community after substantial destruction or condemnation; or (xiv) any provisions which are for the express benefit of Eligible Holders. Section 8.2 Notice of Action. Upon written request therefor, an Eligible Holder shall be entitled to timely written notice of: (a) any condemnation or casualty loss which affects a material portion of the Community or any Unit subject to a first mortgage held, insured or guaranteed by such Eligible Holder; (b) any delinquency in the payment of Assessments or other Association charges by the Owner of the Unit subject to a first mortgage held, insured or guaranteed by such Eligible Holder or any other default by such Owner in any obligation under the Governing Documents of which the Association has actual knowledge, when such delinquency or default remains uncured for a period of 60 days; (c) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; or (d) any proposed action which would. require the consent of a specified percentage of Eligible Holders as provided in this Article. Section 8.3 Notice of Objection. Unless an Eligible Holder entitled to consent to certain amendments or actions as provided in this Article provides to the Secretary of the Association written notice of its objection, if any, to the proposed amendment or action within ] 5 days after its receipt of notice of the proposal, such Eligible Holder will be deemed conclusively to have approved of the proposed amendment or other action. Section 8.4 Right to Pay Taxes and Insurance Premiums. Any Eligible Holder shall be entitled. to pay any taxes or other charges which are in default and. which may or have become a lien against a Unit or any of the Common Elements and may pay any overdue premiums on hazard insurance policies or secure new hazard insurance coverage for the Common Elements or Units if hazard insurance has not otherwise been obtained by the Association, and the Eligible 34 Holder making such payments shall be entitled. to immediate reimbursement therefore from the Association. Section 8.5 Financial Statements and Other Documents. The Association shall maintain copies of the Governing Documents and. all amendments thereto, as well as the Association's books, records and financial statements available for inspection by the Owners and by Eligible Holders. These materials will be made available by advance arrangement during ordinary business hours. The Association shall not be required to prepare audited financial statements, provided., however, that any Eligible Holder may have audited financial statements prepared at its expense. ARTICLE 9 GENERAL PROVISIONS Section 9.1 Compliance With and Enforcement of Governing Documents. (a) Every Owner and occupant of a Unit shall comply with the applicable provisions of the Governing Documents. (b) The Association, acting through the Executive Board, may enforce all applicable provisions of the Governing Documents and may impose sanctions for violation thereof. Such sanctions may include, without limitation: (i) imposition of reasonable monetary fines, after notice and opportunity for a hearing, which fine shall constitute a lien upon the violator's Unit (in the event that any occupant, guest, or invitee of a Unit violates the Governing Documents and a fine is imposed, the frne shall first be assessed against the violator; provided., however, if the fine is not paid by the violator within the time period set by the Executive Board, the Owner shall pay the fine upon notice from the Executive Board); (ii) suspension of any services provided by the Association to an Owner or the Owner's Unit if the Owner is more than 30 days delinquent in paying any Assessment or other charge owed to the Association; (iii) exercise of self-help or action to abate any violation of the Governing Documents in anon-emergency situation; (iv) requiring an Owner, at the Owner's expense, to remove any structure or improvement on such Owner's Unit in violation of the Governing Documents and to restore the Unit to its previous condition and, upon failure of the Owner to do so, the Executive Board. or its designee shall have the right to enter the property, remove the violation and restore the property to substantially the same condition as previously existed and any such action shall not be deemed a trespass; and 35 (v) levy of specific Assessments to cover costs incurred by the Association to bring a Unit into compliance with the Governing Documents. (c) In addition, the Association, acting through the Executive Board, may take the following enforcement procedures to ensure compliance with the Governing Documents: (i) exercise of self-help in any emergency situation (specifically including, but not limited. to, the towing of vehicles that are in violation of any parking rules and regulations); and/or (ii) institution of suit at law or in equity to enjoin any violation or to recover monetary damages or both. (d) All remedies set forth in the Governing Documents shall be cumulative of any remedies available at law or in equity. In any action to enforce the Governing Documents, the prevailing party shall be entitled to recover all costs, including, without limitation, attorneys fees and court costs reasonably incurred in such action. (e) The decision to pursue enforcement action in any particular case shall be left to the Executive Board's discretion, except that the Executive Board shall not be arbitrary or capricious in taking enforcement action. Section 9.2 Severability. Each of the provisions of this Declaration shall be deemed independent and. severable. If any provision of this Declaration or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of this Declaration which can be given effect without the invalid provisions or applications. Section 9.3 Tenn of Declaration. The covenants and restrictions of this Declaration shall run with and bind the land in perpetuity. Section 9.4 Amendment of Declaration. (a) Except as otherwise expressly provided. in this Declaration, and as provided below, and except during the period. of Declarant Control, and subject to provisions elsewhere contained in this Declaration requiring the consent of Declarant or others, any provision, covenant, condition, restriction or equitable servitude contained in this Declaration may be amended or repealed., at any time and from time to time, upon approval of at least 67% of the total number of votes of the Members of the Association entitled to be cast, and with the required approval of at least 67% of each class of Members, if classes have been created. (b) The authority in this Declaration to amend this Declaration does not extend to: 36 (i) terms or provisions for the express benefit of or as a right of the Declarant or the Declarant's heirs, successors or assignees, without the written consent of those parties; or (ii) terms or provisions for the express benefit of owners of condominium units created and established by the Sun Vail Declaration or the owners association operating under the Sun Vail Declaration, without the written consent of either the owners association operating under the Sun Vail Declaration, or the written consent of 67% of the owners of condominium units as were created and established under the Sun Vail Declaration; or (iii) terms or provisions for the express benefit of the Town of Vail, without the written consent of the Town of Vail. (c) Terms and provisions of this Declaration for the express benefit of owners of condominium units that were created and established by the Sun Vail Declaration or the owners association operating under the Sun Vai] Declaration may be amended or repealed, at any time, and from time to time, upon the approval of (i) at least 67% or the total number of votes of the Members of the Association entitled to be cast, and with the approval of at least 67% of each class of Members, if classes have been created; and at least 67% of the total number of votes of the owners of condominium units as were created and established under the Sun Vail Declaration; or (ii) at least 67% of the total votes of the Members of the Association (with one vote for each Condominium Unit) and of the owners of condominium units as were created and established under the Sun Vail Declaration (with one vote for each condominium unit), with votes among these parties allocated equally. (d) Any amendment or repeal shall be effective upon the recordation in the office of the Clerk and Recorder of the County of Eagle, State of Colorado of a certificate setting forth the amendment in full and certifying that the amendment has been approved pursuant and consistent with the above terms of this Declaration, or as may otherwise be allowed by state law. Section 9.5 Amendment of Declaration, Map or Plat by Declarant. (a) If Declarant shall determine that any amendments to this Declaration or the Map shall be necessary in order to make non-material changes (as reasonably determined by Declarant, in Declarant's sole discretion) such as for the correction of a technical, clerical or typographical error or clarification of a statement or for any changes to property not yet part of the Community; then, subject to the terms of this section, Declarant shall have the right and power to make and execute any such amendments without obtaining the approval of any Unit Owners, Eligible Holders, the owners of units 37 as created and established under the Sun Vail Declaration or the owners association operating under that declaration, or any other person. (b) Each such amendment of this Declaration shall be made, if at all, by Declarant prior to the expiration of 10 years from the date this Declaration is recorded. (c) In furtherance of the foregoing, a power coupled with an interest is hereby reserved and granted to Declarant to make or consent to an amendment under this section on behalf of each Unit Owner, Eligible Holder, the owners of units as created and established under the Sun Vail Declaration or the owners association operating under that declaration, or any other person. Each deed, security interest, other evidence of obligation or other instrument affecting a Unit and the acceptance thereof shall be deemed to be a grant and acknowledgment of, and consent to the reservation of, the power of Declarant to make, execute and record an amendment under this section. Section 9.6 Amendment Required by Eligible Holders or Agencies. Prior to the expiration of 10 years after recording of this Declaration, any provision., covenant, condition, restriction or equitable servitude contained in this Declaration which an Eligible Holder requests be amended or repealed or which an Agency has an underwriting standard or requirement or preference for a term that is not then a part of this Declaration, then the Declarant may amend or repeal the appropriate provisions of the Declaration. After the right of the Declarant has expired for this amendment or repeal of provisions o this Declaration, this right may be exercised by the Association. Any such amendment or repeal shall be effective upon the recordation in the office of the Clerk and Recorder of County of Eagle, State of Colorado of a certificate setting forth the amendment or repeal in full. Section 9.7 Required Consent of Declarant to Amendment. Notwithstanding any other provision in this Declaration to the contrary, any proposed amendment or repeal of any provision of this Declaration reserving rights or for the benefit of Declarant or their heirs or successors, shall not be effective unless Declarant or their heirs or successors, if any, have given written consent to such amendment or repeal, which consent may be evidenced by the execution of a certificate of amendment or repeal. The foregoing requirement for consent to any amendment or repeal shall terminate 10 years after the recording of this Declaration, or upon conveyance of 100% of the Units to Unit Owners other than Declarant or other than to an heir or successor to either of the individually named Declarants, whichever occurs first. Section 9.8 Development Rights and Special Declarant Rights. (a) Declarant reserves, through ] 0 years after the recording of this Declaration, the following Development Rights and Special Declarant Rights: (i) The right to add or annex easements, including access easements, described in attached Exhibit C, or as otherwise may be or become available. (ii) Except for Units not then owned by Declarant (for which the consent of that Owner would be required.), to relocate boundaries between 38 adjoining Units, enlarge Units, enlarge the Common Elements or complete or make improvements, as allowed by the terms of this Declaration and/or as the same may be indicated on the Map or on plats filed. of record or filed with the Declaration; including the right to create or construct additional Common Elements and Limited Common Elements, and to convert Units into Common Elements; (iii) The right to make amendments to this Declaration or the other Governing Documents to meet or comply with any requirements of any lender to an Owner; (iv) The right to exercise any development rights reserved or allowed to the Declarant in this Declaration or in the Act; (v) The right to merge or consolidate the Community with another condominium community; (vi) The right to appoint or remove any officer of the Association or any Director during Declarant Control; (vii) The right to exercise any additional reserved right created by any other provision of this Declaration; and (viii) The right to amend. this Declaration or the Map in connection with the exercise of any development right. (b) The consent of Unit Owners or holders of security interests shall not be required for exercise of any reserved rights, and Declarant or its assignees may proceed without limitation at its or their sole option, unless the right is expressly limited by the terms of this Declaration. Declarant or its assignees may exercise any reserved rights on all or any portion of the property in whatever order determined.. Declarant or its assignees shall not be obligated to exercise any reserved rights or to the roof of the building in which the Units are located.. Section 9.9 Additional Reserved Rights/Construction Easement and Access Easements. In addition to the rights set forth above, Declarant and its assignees expressly reserve the right to perform construction, warranty work and repairs, and. to store materials in secure areas, in Units and in Common Elements, and. the right to control such construction, work and. repairs and the right of access thereto, until completion. All work may be performed without the consent or approval of any Unit Owner or holder of a security interest. Declarant and its assignees have such an easement through. the Common Elements as may be reasonably necessary for such construction, warranty work and repairs and for exercising any other reserved rights in this Declaration. Such easement includes, but is not limited. to, the right to excavate and to construct underground utility lines, pipes, wires, ducts, conduits, and. other facilities across the Real Estate. Declarant and its successors and assigns shall also have an access easement to and from any real property accessible through the Community. 39 Section 9.10 Security Disclaimer. The Association or the Declarant may, but shall not be required to, from time to time, provide measures or take actions which directly or indirectly improve security on the Condominium Community; however, each Owner, for himself or herself and his or her tenants, guests, licensees, and invitees, acknowledges and agrees that the Association is not a provider of security and neither the Association nor the Declarant shall have a duty to provide security on or for the Condominium Community. Furthermore, neither the Association nor the Declarant guarantees that non-Unit Owners and non-occupants will not gain access to the Property and commit criminal acts on the Property nor does the Association or the Declarant guarantee that criminal acts on the Property will not be committed by other Unit Owners or occupants. It shall be the responsibility of each Owner to protect his or her person and property and all responsibility to provide such security shall lie solely with each Unit Owner. Neither the Association. nor the Declarant shall be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of measures undertaken.. Section 9.11 Captions. All captions and titles used in this Declaration are intended solely for convenience of reference and shall not enlarge, limit or otherwise affect that which is set forth in any paragraph, section or article hereof. Section 9.12 Interpretation. The provisions of this Declaration shall be liberally construed to effectuate their purposes of creating a uniform plan for the development of the Units and of promoting and effectuating the fundamental concepts as set forth in the recitals of this Declaration. This Declaration shall be construed and governed under the laws of the State of Colorado. Section 9.13 Singular Includes the Plural. Unless the context otherwise requires, the singular shall include the plural, and the plural shall include the singular, and each gender referral shall be deemed to include the masculine, feminine and. neuter. Section 9.14 Validity of Amendments. As provided by the Act, any action to challenge the validity of an amendment of this Declaration must be brought within one year after the amendment is recorded in the real property records of County of Eagle, Colorado. Bui IN WITNESS THEREOF, Declarant has caused. this Declaration of Sun Vail Garage d' Condominiums to b cuted by its duly authorized agents this of ~ ~~ ~ -~dy ~20~~ ~~Dn7~ 7 Diane J. Lazier 40 STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing Declaration was acknowledged before me on this ~~~ day of ,'~~ m.~~~ , 20~by Robert T. Lazier. Witness my hand and official seal. '"` ~.'.`:%•~.~'~,"$ My Commission expires: ~(Sts~ .i;:~' °~ '~~ ~ ~. STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing Declaration was acknowledged. before me on this 1 ~~ day of ~ 20~by Diane J. Lazier. Witness my hand and official. seal. My Commission expires~~,Y~-6~.~ 41 EXHIBIT A DESCRIPTION OF REAL ESTATE The initial Real Estate subject to this Declaration is described as follows: THAT PART OF LOT 9, BLOCK 2, VAIL/POTATO PATCH, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 233 AT PAGE 629 IN THE OFFICE OF THE EAGLE COUNTY, COLORADO, CLERK AND RECORDER (CLERK'S RECORDS), ALSO SHOWN AS AN EXCEPTED PARCEL ON THE SECOND SUPPLEMENTAL CONDOMINIUM MAP FOR SUN VAIL CONDOMINIUMS RECORDED IN THE CLERK'S RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT WHENCE THE SOUTHEAST CORNER OF SAID SECOND SUPPLEMENTAL CONDOMINIUM MAP BEARS S 17 DEGREES 23 MINUTES 18 SECONDS E 84.19 FEET DISTANT; THENCE N 25 DEGREES 27 MINUTES 14 SECONDS W 30.20 FEET; THENCE N 64 DEGREES 32 MINUTES 46 SECONDS E 160.35 FEET; THENCE S 25 DEGREES 27 MINUTES 14 SECONDS E 30.20 FEET; THENCE S 64 DEGREES 32 MINUTES 46 SECONDS W 160.35 FEET TO THE POINT OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO; subject to the following easements and interests of record: 1. Unpatented mining claims, reservations or exceptions in patents, or an act authorizing the issuance thereof; water rights, and claims or title to water. 2. United States Patent, recorded .Tuly 13, 1939, in Book 1.23 at Page 617. 3. Instrument, recorded March 5, 1.974, in Book 233 at Page 628 4. Instrument, recorded September 24, 1975, in Book 241 at Page 950. 5. Plat of Vail/Potato Patch, recorded March 5, 1974 in Book 233 at Page 629. 6. Other documents and interests of record. 42 EXHIBIT B ALLOCATED INTERESTS Building Unit # and Designatio n Percentage Interest in the Common Elements and Common Expenses for Each Unit Votes Allocated to each Unit Garage Building 1 G-1 1/15 1 Garage Building 1 G-2 1/l5 1 Garage Building l G-3 l/15 1 Garage Building 1 G-4 1/15 1 Garage Building 1 G-5 1/15 1 Garage Building l G-6 ]/15 1 Garage Building 1 G-7 U15 l Garage Building 1 G-8 1/15 1 Garage Building 1 G-9 1115 ] Garage Building 1 G-10 l/15 1 Garage Building 1 G-11 1/l5 1 Garage Building 1 G-l2 1/15 1 Garage Building 1 G-13 l/15 1 Garage Building 1 G-14 1/15 1 Garage Building 1 G-15 1/l5 1 TOTAL: l 15 100"/0 15 43 EXHIBIT C ADDITIONAL EASEMENTS THAT MAY BE ANNEXED Any easements to or for the benefit of the Community, subject to easements and interests of record, provided the owner of that easement or property consents. 44 AFTER RECORDING RETURN TO: Orten Cavanagh Richmond & Holmes, LLC 1301 Washington Suite 350 Golden, CO 80401 W:1Clients -Developer\Lazier\Sun Vail Garage Building Condominiums\Draft Documents\Declaration, draft I O.DOC 45 mag ~~~~ ~v~.<. ~ki~ ~' P n z ~~ ~ ao o~ o ~ ti ~s c i oho x zl 3; ~ ~s y o 03>>3~0 z~ „~ go 7 ( " o"~R~g •~ ~ r~ ~o ~ ~ °I N~ a g ~ of °I ~ ,~~g~a~~° a$ ~sx~o °3, ~ o _ ! vi >~ _ '-' ~ j I I' - 4 .'. °r3o 03 ~ I -` ~3 ~a I i' RI 33 °o$ a i 1 I~_ 1 u.~I 3^..nR~~u _ N~ ~~=aa °3 ~ I ~ - I i s B I °I ~~ - jT I I ~ I ~ 141 j' 'T s~;_ ~N° E5°a. -~ '~ o 12 j j i I i i - j °30' ~v ~S I j I _ _: I j I i I _ a2 I I j j ~ I I °i I c3"'6u• .' l i ~ aI 3 I I I I 1 R~~ Q I ~ 03 I I I ~ -3 ~ j II Ii ~ o~,Qe p~ o==-- _ I I ~ o I I I o, °°~ s~ l i I • I i ° ! 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C I } 'L.. ~ w ~ j .L'ZZ ,LZL C I- Z ~ ~~ ~ f .LZZ ~ ,CZZ $~ ,LZL ' f yZ 4 ~ , w~ 1 O H~ rI O f~ W F"~1 M H~~ `H ~/J V ,` ~^ o° d y O ~~ ~~ r~ ~./ 1 f"~+ r M~ J A Professional Corporation WOLF & ASSOCIATES Attorneys and Counsellors at Lazy 953 South Frontage Road West Suite 222, Vail Professional Building Vail, Colorado 81657 Voice 970.476.8865 Facsimile 970.476.0446 Offices in Eagle and Summit Counties December 17, 2008 Via E-Mail And First-Class Mail Mr. George Ruher Community Development Director Town of Vail 75 South Frontage Road Vail, CO 81657 Re: Sun Vail Garage Building Condominiums Dear George: Daniel F. Wolf E-Mail: dwolf~a,vail.net Cpp~, My firm represents the Sun Vail Condominium Association (the "Association"). I am writing to express the Association's great dissatisfaction with the manner in which your office reviewed and approved the Sun Vail Garage Building Condominiums (the "Garage") without any notice to or input from the Association, despite the Association's request, and further to regacst that the Association's concerns and interests no~.~v be addressed. As you know, the Garage building is an island surrounded on all sides by Sun Vail, and is located in the parking lot for Sun Vail Phases II and III basically adjacent to the Sun Vail pool area and close to the Sun Vail buildings. The Garage building is used exclusively for commercial uses while Sun Vail is used primarily for residential use. The Garage parcel was created and reserved as part of and simultaneous with the creation of Sun Vail Phase III by the same owner/developer, Robert and Diane Lazier. For these and many other reasons, Sun Vail and the Garage building have always been and remain inextricably connected, and any change to the Garage building will directly affect Sun Vail. The Association learned that the Laziers or their representatives had contacted your office about possibly converting the Garage building into condominiums. The Association had a number of serious concerns about that conversion and towards that end in the early summer the manager of Sun Vail, Dale Bugby, contacted and spoke with members of your office, including Warren Campbell, about those concerns. Mr. Bugby received assurances from your staff that such conversion of the Garage building would not be approved without notice to, and the Mr. George Ruther December 17, 2008 Page 2 involvement of the Association. Mr. Bugby confirmed this in his letter of July 15, 2008 (copy attached) to Mr. Campbell in which he restated and enumerated some of the Association's specific objections to and concerns with the possible conversion of the Garage building. In October this year the Laziers apparently made formal application to the Town for approval of the Condominium Map for the Garage. Your office did not provide notice to the Association that such application was pending nor seek input from the Association despite assurance that it would do both. Staff proceeded to review and approve the Condominium Map for the Garage without any notice to or input from the Association. The Association similarly did not receive notice of the approval and only learned of it by chance weeks later thereby prejudicing and effectively denying its right to appeal that approval. Even more disturbing, we have learned that in connection with the Laziers' application you engaged in private back-room discussions with counsel for the Laziers about issues involving Sun Vail, including provisions in the Garage condominium declaration that directly impact and deal with Sun Vail. It appears both you and the Laziers' counsel were well aware and understood that Sun Vail would be directly impacted by and .had concerns with the conversion of the Garage building which concerns needed to be addressed. However, you did not bother to invite the Association to participate in your discussions even though its interest would be directly impacted. In view of all of the foregoing including your and your staff's knowledge of the Association's serious concerns about the conversion of the Garage building, it was improper and questionable for your staff to decide to proceed with only administrative review and approval of the Garage Condominium Map pursuant to Section 13-6-1 of the Town Code, instead of requiring more rigorous and fuller review and approval pursuant to Section 13-7-5 and the applicable subdivision sections. Importantly, that fuller review would have afforded the As~ocia±ion notice and an opportunity to be heard on the Laziers' application -the very things the Association had requested from staff. As you know, Section 13-6-1 does not require that condominium plats receive administrative review and approval. Instead it appears to be up to staff to decide whether to proceed under that Section with administrative review and approval, or under the fuller subdivision review procedure. Staff chose administrative review and approval and thereby denied the Association an opportunity to be heard on the Laziers' proposal and to appeal the administrator's approval of that proposal. As a result the Condominium Map and Declaration for the Garage do little to resolve the concerns of the Association. Those concerns and issues include the following: Mr. George Ruther December 17, 2008 Page 3 1. Fractionalization of the ownership of the Garage building thereby complicating and impeding cooperation between the Association and the Garage building owner; 2. Garage units could be sold to non-Sun Vail owners without notice to or approval of the Association; 3. The Declaration could be amended so as to adversely affect Sun Vail without notice to or approval of Sun Vail, including the current ownership restriction in Section 6.1 of the Declaration; 4. Impeding possible redevelopment of Sun Vail; 5. Access issues; 6. Parking issues, including that the Garage parcel lacks sufficient room for vehicles to park outside of the Garage building resulting in Garage users parking illegally on Sun Vail property; 7. Lack of facilities (including no bathrooms, water and garbage receptacles) for the Garage; and 8. Encroachment onto Sun Vail property. We request your assistance and support in fully addressing and resolving these issues. In the short-term, we specifically request that the Town provide the Association with written assurance that it will not consent to any amendment to the Declaration or Map for the Garage without first providing the Association notice of and any opportunity to be heard. We further request that the Garage be required to undergo review pursuant to Section 13-7-5 of the Town Code. Thank you in advance for your consideration and assistance. Sincerely, WOLF 8G ASSOCIATES, P.C. ~~~~~~ ,~ Daniel F. Wolf Mr. George Ruther December 17, 2008 Page 4 DFW/jc cc. Board of Directors, Sun Vail Condominium Association Dale Bugby Stan Zemler, Town Manager Town Council Jay Peterson, Esq. July 15, 2008 Warren Campbell Head Planner Town of Vail 75 S. Frontage Road Vail, CO 81657 Re: Sun Vail Condominiums Dear Warren: The Sun Vail Condominium Association (SVGA) is concerned about a potential change in use of the Lazier garage building located at Sun Vail. Robert Lazier owns a parcel of land that is an island located in the middle of the condominium complex. He has expressed an interest in changing the use of that property to a condominium garage development. Although I have spoken to you and other members of your staff regarding Lazier's comments about changing that use, the members of the SVGA Board of Directors wanted me to formally put in writing our opposition to any plans that Lazier may submit. My understanding is that Lazier has not made any submittal to change the use or subdivide the property at this time. Your staff has also assured me that no change in use would be allowed without SVGA approval. If at some point in the future he decides to request a change the following concerns will need to be resolved: 1. The parcel of land does not have proper egress easements for access across our SVGA property. 2. The parcel of land does not have proper building setback requirements for the existing garage building and actually encroaches on to SVGA property at the Northwest end. 3. The parcel of land does not have easements for parking cars in our lot nor does it have exterior room to park cars on his parcel except inside the garage building itself. 4. The parcel of land does not have access or easements to any restrooms, water or sewer. 5. Subdividing the parcel for sale would be a change in the use and affect the parking ratios previously approved by the Town of Vail for SVGA. 6. Lazier has received unjust enrichment from the use of his parcel without compensation to SVGA for maintenance and easements on and around his parcel since the time of construction in the mid 80s. Sincerely, Dale Bugby Property Manager for SVGA President/GM Email dbugbyna.vailresortrentals.com Web www.vailresortrentals.com