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Home My WebLink AboutVAIL VILLAGE FILING 1 BLOCK 5D LOT M O VAIL VILLAGE INN PHASE 4 AKA VAIL PLAZA HOTEL SEBASTIAN CLUB REGISTRATION 2 OF 2Va',t /''ttoqu' [1/'hCI X ' hurfra , lafs lt v D VarY t/rVa7a A'tt PlaseP' hEt? /"rY P,4" ltr:te$ f,ebast,i, Aub P'7rh,eof,o' Pd A ?rlo+ -ot Dw+_ot7T tu (.1"b put*[ t #Wil Wffi-a"r+ n'/ ftr*ctr >tot-of}a-fu& *ofb 75 South Frontage Road Vail, Colorado 81657 970-479-21 00 Filx 970-479-2157 www.ci.vail.co.us W. MichaelClowdus !31!gro_Qngnr Andrews & Ingersoil, LLp122s ltth Street, Suitl zeod Denver, CO 90202 Re: Registration of vair praza Hoter.Resort crub (the "projecf) pursuant toVa il Municipa I code Section 4-48- 1 "i."q. tin"li"gl"trati.in oiJiili,L'f Dear Mike: This letter acknowledges receipt of.the vail Application filed by Developer pursuant tothe Registration ordinance. ine vairAppication coridi"t ot" "'-- (1) TheApplication of Vail Plaza Development, LLC, a Colorado limitedliability company ("Developef), for Registraton anc'Griiiication as a subdivisionDeveloperfiled with the cbtorioo neaiestaie cor-riJon-tt" "cREc"), atong with aregistration binder which includes all of the oocur"niJ anJ inrormation required bythe cREC-(the "CREC Application"). rne uracr<iineo'Joiui,"ntr attached to thebinder reflect amendmenii to the pioject oocuments tnai h"u" occured sinceapprovat of the CREC Appticationi (2) The January 15, 20OS tefter from Lydia Cruz, at the CREC, approvingthe CREC Apptication; (3) A Developer's Slatement which provides certain information requiredby the Registration ordinance not covered by the cnibiegistration. The Town of Vail hereby confirms that the VailApplication satisfies all requirementsof the Registration.ordinanc". ir'ir i"tt", "onstitutes trei iown oi vait,s Requirementregistering the Project and authorizinf ine oner ano sare or duo Ert"t". pursuant to thedocuments inctuded in the VaitAppti;iio;. April5,2005 Very truly yours, ,l^"-3,*ru, George Ruther Chief of Ptanning f,-p ^r"r"""o rnro^ Lrw O Bauu.n,no Spegn Axonews & IncensoLl, LLp taa5 tTrH STREET, SUITE A3OO DENVER, COLORADO AO202.5596 303-e92-2400 FAX:303,296_39S6 WWW- BALLARDSPAH R, COM W. i4IC HAEL CLOWDUS D IRECT DIAL: 3o3,299-73s I PERSONAL FAX| 303-3aa 46s I cLowDus@BALLARDspAHR.coM o FFICES March 9, 2005 George Ruther Town of Vail Chief of Planning 75 S. Frontage Road Vail, Colorado 81657 Re: Registration of Vail Plaza Hotel Resort Club (the '?roject") pursuant to Vail Municipal code Section 4-4P,-r et seq. (the 'Registration ordinance") Dear Ceorge: This letter and the enclosures constitute the Project's Application for Registration pursuant to the Registration Ordinance (the "Vail Application"). The enclosures include: (l) The Application of Yail PIaza Development, LLC, a Colorado limitedliability company ("Developer"), for Registration and Certificatron as a Subdivision Developer filed with the Colorado Real Estate Commission (the "CREC"), along with a registration binder which includes all of the documents and information requirei by the CREC (the "CREC Application"). The blacklined documents attached to the binder reflect amendments to the project documents that have occurred since approval of the CREC Application; (2) The January 15, 2005 letter from LydiaCruz, at the GREC, approving the CREC Applicarion; (3) A Developer's statement which provides cefiain information required bv the Registration Ordinance not covered by the CREC registration. Capitalized terms not defined in this letter or the Developer's Statement are defined in the draft Condominium Declaration for the Vail Plaza Hotel Resort Club (the "Declaration") included in the CREC Application. PHILADELPHIA, PA BALTIMORE, MD SALT LAKE C ITY, UT VOORHEES, NJ WASHINGTON, DC WI LT4IN GTON, DE CO_DOCS_A #156562 v1 George Ruther March 9,2005 Page 2 The draft letter enclosed confirms receipt of this letter and the enclosed documents and your approval of the documents submitted in satisfaction of all Town of Vail reeistration and disclosure requirements for the project. If you have any questions about this letter and the enclosed documents. nlease do not hesitate to contact me. Very truly yours, //./r/-#&*L. W. Michael Clowdus WMC/pd Enclosures cc: J. Matthew Mire, Esq. (w/o encl. via e-mail) Waldir Prado (wio encl. via e-mail) Gwendolyn C. Allen, Esq. (w/o encl.) CO_DOCS_A #156562 v1 MAR-09-2005 02:36PM FR0li4-DlV 0F REAL ESTAo +3038S42 683 T-453 P 00l/0!z F-147 STA|E OF CCLOIUDO REAI ESTATE COMMISSION Dehbie Campagnola, Dieclor Jeff Fosreq OePury Director 19oo Crarit 5L, 58. 600 Denvtr, Colorado 8o203 Telephone t303) 894-2166 FAX (303) 8e+260J Ballard Spahr Andrews & Ingasoll Depatnent of ilgulatorY Agencies Tambor Williams Executive Dlrector January 15,2005 ffiW-.-- Eill owen5 covernor Mike Clowdrs .:ss lin St. sre.23oo Denver, CO. 80202-5596 DearMike: The Colorado Real Est;,rte Conrmission has approved the regisuation for Vail Plaza . Development LLC. and Vail Plaza Hotel Reson Club project located in Eagle County, Colorado- The approva. is for the propergr as included in the Title Commitment numbr:red V500006195.1 datedNovember3,2004.The effbctivedate ofthe apprcvalis January 15, 2005. This lener is authorizatic,n that qnly the contract instnrcren$ as $smitted may be used in sales activities for the abcrve mentioned project unless authorized$leColorado Real E5tate Comrnission. If in the fr.rtrne, there fie any changes in the documents that were submitted with the application, or .irny lis pendens, lawzuits, adv{e orders, judgment, decrec or any new encumbrance is crelrted, tJre developer must uotiff the Commission. The devel3ler is wrdei a continuing obligrrtion to notifo the Commission widrin tea days of any change in the information so submifted,. and a faiLue to do so slrall bd a cause for <lisciplinary acdon- Please mark your calendar, remember thar Subdivision 0ei'elopers Certificates expire'on December 3l followirr.g the date of issuance. The zubdivision certificate needs to be renerved by rhe developer each year, by payment of a renewal fee and by filling out a reneu/al application. The Commission will attempr to send a renewal notice sometiute in November, however rlre developer is respoasible for renewal even rhough a renewal notice may not have been received. Please be advised that it is nor permissible to make sales or leases, nor to advenise or negotiattr; sales or leases from any subdivision regulated ptrsuanr to the Subdivision Developer:s Act unless property registered and renewed each year. Tlrc penglties for selling an unregistered subdivisior! or a subdivision that is not renewed, inctude voidabiliry provrsions for pwchasers and each such sale is a felony. A registration that has expired may be reirx,tated within rwo years after such expiration upon payment of the appropriate reinstarement fee if the applicant meets all of rhe reguiremens of the Subdivision Act. t Should yorL have any qluesdons, please do not hesitare to contact Ine. V/TtrD (303) 694.21t0o e$.833 For The Deaf or Hearing lmpaired 9-?005 02:36PM FROli&'Dlv 0F REAI ESTATE +3038s42683 T-453 p.002/D0z F-T4l i*i ffii'z-uaf':eo z 'ffi #rY'nffi F$ 6,".*rele1E h*i1ii1 ?e?A?BEBqth$'#J ffi,'r* h$ffi t|AR-O 1 ,:-.. 'fi FRO4: PRM Pt-fl'tE N0. :O *.. a9 ms a1!44Ff'1 Pl DEVELOPER'S STATEMENT Vait Plaza De\reb,pffi, LL,C, a Colorado limit€d lirbility ooryql hff€by v€rifir* rhc folbwing dters rcquircd by Scstbru 44A gnd 4 ,lB ofthc Vail Mr,micipal Code. l. Devcloper dges tot idmd to mrkct Club $statcc b blocks to investors (Section 44A- 2.,4,.3.c.). 2. Dcvclopcr dcies oot intcod to provfrle finsrclg to prrchasers of Club Ei*atcs (Scctbn,l- 4AA-/-9-J. 3. Dcrlelop€r docs not curcrtrly ofrcr m cxcbmge ptogrsm in coucstion with the sab of Chb Bstates at tln Proj*r (Sectiod 4-4A-2.8.). 4. D€\i€lopcr o*ioatcs tbp totat cost to corylete fbe Project witl be One l{urdr€d and Ilirty-Ooe Mllion Dolhm ($131,000,000.00) ($cctnon 4-48-3.C. l.). 5. Thc cstilrstcd date br corryL:tion of cofilfircdon of the Project is Decenber, 2006 (Sectiou 4-48-3.C,2.'). 6. Dcvebper has equity fiDds aDd ban gommitilEtrs rlfiich wi[ provfule $ffieicnt fiuds to conrylete corotrucdon of ttrc Projcct (Sectiron 4-48-3.C.3.)- 7. Devclopcr hes entsed ilo a corstnrtion cofi€st with Shaw Coustnrction ftr conshuc{bn of thc Projc* (Scction il-48-3-C.4.)- @JOQ6-A*15066,r Yl 9ru949L169 .l I. I VAIL PT.AZA. DEVEI'PMENT, LLC, A C-obrado hnitsd lhbib aompar4r v LAw OFFrces BaLLqno Spann ANonews d lrucensou_. rzzs t7n srREET, sutrE z3oo DENVER, COLORADO 80202.5596 303-292-2400 FAX: 3O3-as6-3956 LAwyERs@BALt -ARDSpAH R. coM BALiMoRE. MD PhLAoEr-PHrA, PA . SALT LaKE Cfi, UT VooRHEEs. N.J WasHtNGroN, DC WrLMrNcroN, DE November 24.2004 Bv Hand Delivery Colorado Real Estate Commission 1900 Grant St., Suite 600 Denver, CO 80203 Attention: Ms. Lydia Cruz Re: Application of Vail Plaza Development. LLC. a Colorado limited liabilitv company. for Resistration and Certification as a Subdivision Developer (-"Application") Dear Lydia: Enclosed is the Application which includes a copy of an executed Escrow Agreement (the "Escrow Agreement") with Land Title Guarantee Company. Also enclosed with the Application is an annotated copy of the CR-EC Guidelines c.osi-reierencing the CREC's requirements to the specific documents included in the Application package. Please note that we are requesting expedited review of the Application and we hereby certify that the enclosed Application is complete. Our client is anxious to obtain Colorado Real Estate Commission (':CREC') approval to commence marketing and sales activities and to begin entering into binding agreements for the sale of club Estates during the upcoming holiday season. If you have any questions or comments about the Application, please do not hesitate to contact Heidi M. York (303-299-7359) or me at the telephone number above. We look forward to receiving cREC approval of the Escrow Agreement and Application. Sincerely, Z'ry"t W. Michael Clowdus HMY/hc Enclosures cc: CO_DOCS_A #149528 v1 Bn-urno tP' #?Lr:,$'1ff nsor-u LLP oENVER, CO 80202 \ECIFABAN(eORlrD. N./trffiBmu**293t 5/ll ao4 TO THE ORDER OF SEVEN HI,INDRND TIIRTY-NINE DOLLARS AND OO/OO COLORADO REAL ESTATE COI.IMISSION il.00 ? ?8 ll|. OATE I CHECK No rL/22104 7783 AMOUNT $739.00 CHECK NO.007783 r: l0 eDo I I 5r.r: 5 ?8gqoo I ? Lill PLEAS€ DETACH BEFOAE OEPOSITING VENDOR NO.CUSTOMER NO. INVOICE NO.DATE PACK NO.INV- AMOUNT G. L. NO.CLIENT NO.DESCRIPTION 1t2204 .-. - MEMO, LL / 22/ 0t $739.00 096206 APPLICATION FEE FOR DEVELOPER FEE IirnC BAU-ARD SPAHR ANoFEws & tNGERsoLL LLprz5 trTH Sn€ET. SUm 23OO. DETWER CO s@@ .'.- ' ( o VAIL PLAZA DEVELOPMENT, LLC INDEX TO APPLICATION FOR REGISTRATION AND CERTIFICATION AS A SUBDIVISION DEVELOPER I. Annotated Colorado Real Estate Commission Guidelines for Completing a Colorado Subdivision Developer' s Application. II. Application for Registration and Certification as a Subdivision Developer, with the following Exhibits: A. Declaration For Vail plaza Hotel Resort Club B. Association Documents 1. Articlesoflncorporation 2. Bylaws C. Developer'sOrganizationalDocuments l. Good Standing Certificate 2. Articles of Organization D. Deed to Developer E. TBD Title Commitment F. Form Purchase Contract G. Form of Special Warranty Deed H. Disclosure Statement and Budget I. Escrow Agreement for Earnest Money Deposits J. Release Provisions from Deed of Trust K. Amenities Use Agreement L. Management Agreement M. Title Exception Documents l. Right of proprietor of a vein or rode to extract and remove his ore therefrom should the same be found to penetrate or intersect the premiseso CO_DOCS_A #149529 v1 2. 3. as reserved in United states patent recorded July 12, lggg, in Book 4g at Page 475. Right of way for ditches or canals constructed by the authority of the united States as reserved in United States pateni recorded Juiy 12, rg99,inBook 48atPage475. Restrictive covenants which do not contain a forfeiture or reverter clause, but omitting any covenant or restriction based on race, color, rerigion, sex, handicap, familial status or national origin unress and onry to the-extent that said covenant (a) is exempt under chapter 42, Section 3607 ofthe United States code or (b) relates to handicip but does not discriminate ryiltl handicap persons, as contained in instrument recorded August 10, 1962, in Book I 74 at page 179. Reciprocal Easement Agreement between Vail Village Inn, a Colorado corporation, Jamm Ltd., a colorado limited partnership, and vail village Inn Associates, a Colorado general partnership, recorded January 3, 1983 in Book 351 at Page 324. T:f:, conditions and provisions of Agreement recorded September 09, 1983 in Book 367 at page 833. Conveyance of easements between Vail Village Inn, Inc., a Colorado corporation, and F&L Vail Village Inn partnership, a Colorado general partnership, recorded July 10, l9g4 in Book 3gg at page g6l. Declaration of panial vacation of easement in connection with said easement recorded July 25, 1 985 in Book 420 at p age 7 41. Terms, corditions and provisions of declaration of easements and rights recorded February 04, 1988 in Book 47g atpage 377. ]:y.r, conditions and provisions of Declaration Conceming parking Within Special Development District 6 recorded July 10, tSlA in git 388 at Page 856. Terms, conditions and provisions of decraration of easements recorded December 17,1992 in Book 596 at page 90g and as shown on ALTA/ACSM survey prepared July 26,1996 by Eagle Valley Surveying, Inc., Job No. 854-5. Easements, conditions, covenants, restrictions, reservations and notes on the recorded plat of Vail Village First Filing. Easement and right of way as granted to Holy cross Electric Association, Inc., in instrument recorded November lg, 197 | in Book 222 at page 32i, Aa. 5. 6. 8. 9. 7. ll. 10. 12. CO_DOCS_A #149529 vl zurd as shown on the Condominium Map recorded November 19, 1982 in Book 349 at Page 11. 13. Easement granted to Holy Cross Electric Association, Inc., in instrument recorded January 21,1983 in Book 352 atPage 397. 14. Those provisions, covenants and conditions, easements and restrictions, which are a burden to a certain condominium unit, as contained in instrument recorded November 19,1982 in Book 349 atPage 12. 15. Easement befween Village krn Plaza Condominium Association, a Colorado non-profit corporation, Vail Village Inn, Irc., a Colorado corporation, and F & L Vail Village Partnership, a Colorado general partnership, in document recorded July 10, 1984 in Book 388 at Page 862. 16. Easements, conditions, covenants, restrictions, reservations and notes on the recorded Condominium Map of Village Inn Plaza. 17. Utility easement as granted to Holy Cross Electric Association, Inc., in instrument recorded January 21, 1983 in Book 352 at Page 396. 18. Easement Agreement recorded July 10, 1984 in Book 388 at Page 861 in connection with encroachment and roof overhang of Village Inn Plaza Phases I and II onto subject property as shown on Improvement Location Certificate by Eagle Valley Survefng, Inc., Job No. 854-5, dated July 26, 1996. 19. Terms, conditions and provisions of Encroachment and View Agreement recorded December 22, 1989 in Book 520 atPage 167. 20. Terms, conditions and provisions of Easement Agreement recorded April 14,1992 inBook 577 atPage628. 21. Terms, conditions and provisions of Restrictive Covenants recorded April 23,1992 in Book 578 at Page 368 and rerecorded April 30, 1992 in Book 578 at Page 996. 22. Terms, conditions and provisions of Deed of Easement recorded May 18, 1 994 in Book 640 at Paee 621 . CO_DOCS_A #149529 v1 oo o o o GUIDELINES-SUBDIVISION DEVELOPERS Vlh d's New About the Dai/isio n Aurlit Section Me uef s Colorado Reat Estde Commission Colorado Real Estate Commission Licensing and Education DISCLAIMER Online versions of these regulations are the most current versions available. However, these are not the officiatversions. For officiol publications of tho6c and oll Stato ofColorado regulations, ptease consult the Code of Coloracfo Regulations or contact the Colorado Journal at: 717 Seventeenih Street, Suite 1620 Denver, CO 80202 303-292-257s Oct 00 GUIDELINES FOR COMPLETING A GOLORADO SUBgIVISION DEVELOPERS APPLICATION The following guidelines are inlended to clarify som€ of the requiremenls and documentation necessary for certification as a Colorado subdivision developer. The requirements for subdivision certification are contained in : . The Application form for Registration as a Subdivision Develooer r The Colorado Subdivision Act (12-61-part 4 et seq. C.R.S.) o The Colorado Real Estate Commission,s Subdivision Rules Please review the application form, subdivision act and rules and contact the education and licensing sectaon of lhe Commission ar(303) 8942166 if you have questions. Page I of38 I http:/Arvw.dora.state.co.us/real-estate/license/subdiv. htrn APPLICATION lll19/2004 t GUIDELINES.SUBDIVISION DEVELOPERS a a (1-2) Exhibit E Exhibit J 1.) The application fee is not refundable. 2.) lf you do not complete the application process, or fait to provide all the cornpliance items required, or withdraw your application or are denied a certificate, the application fee is nol refundable. 3.) The Commission can cancel an application if informalion is not submitted within 60 days of being requested. ll an application is canceled by the Commission, the application fee is not refundable. OWNERSHIP 1.) Please include with the application, a copy of a current title policy , endorsement brought to date or a TBO ti e commitment indicating that title to the property being registered is vested in the applicant and the condition of that tiUe. Please restrict the title information to only those lots, units or interests that are being registered at this time. 2.) Please send copies of the doculnents lisletj irr tlre tiUe policy or commitment as exceptions to insurance against loss other then those associated with extraction of minerals or easements for utilities. 3.) lf the purchaser's legal access to the subdivision is listed as an exception on the title policy or commitment, please provide an explanation of the cause for the lack of insurable lega' access. 4.) lf the title policy submitted with the application lists as an exception to insurance against loss to the purchaser, all unpoid taxca, assessments ond unrcdccrncd tax galcc; please take the necessary action (endorsement) to have this exceplion deleted or modiRed to except only those taxes for lhe year of closing and thereafter; or include in the application a certificate of taxes due or other proof of payment of taxes. 5.) lf the developer is doing business as an individual pruprielor u parhlersltip utilizirtg a tradename, please include a copy of the Trade Name Affidavit that indicates having been registered with the State Department of Revenue (if applicable) and recorded in the county in which the subdivision is located. 6. Please include with the application, evidence of certification thal each subdivision offered for sale or lease is regrstered or will be registered in accordance wttn stale or local requirements of the state in which each subdivision is located. ENCUMBRANCES 1.) lf the properly is encumbered, and neither the promissory note nor the deed of trust encumbering the property contain http :/Avww.dora.slatc.co.us/real-estate/license/subdiv.htm nil9/2004 Page 2 of38 .l GUIDELTNES-SUBDIVISION DEVELOPERS Exhibit A (Signature Page for Mortgagee's Consent) Exhibit I Section 2; Exhibit F Section A, page 3 any provisions for the purchaser's interest in the subdivision to be released ftom lho underlying encumbrance; then, you will need to anange for: o A.) a recorded letter of agreement refening to the mortgage or deed of trust stating the release provtstons or, o B.) an amendment lo lhe promissory note together with the recgrd_ed notice of such amendment to the promrssory note-. 2.) lf the frroperty is cnc mhered and the deed of trust or mortgage was recorded prior lo the recording of an ownerl association declaration and or plat (if applicable), please send recorded evidence that the lender has joined in and consenled to me recording of the declaralton and ptat; and has released any common areas or road easements frorn the underlying encumbrance and has restricted their lien to only ihe lols. units or interests. UNCOMPLETED PROJECTS, UTILITIES, ROADS OR AMEN ITIES r 1.) Pursuant to Commission Rule S20, if any of lhe improvements, utilities, roads or amenilies that the developer is obligated, or promising to complele, are not complete al the time of application, the Commission will register such developer only afler reviewing and approving an arrangemenl whorean: o A.) The developer establishes an escrow account and wrilten agreement with an independenl escrow agent whereby all funds received prior to completion of the promised amenities, accommodations, roads, utilities or facilities are held until completion, or, o B.)The developer oDtarns a leter ot credn or a Dond payable to an independent escrow agent or any other financial arrangement, the purpose of which is to ensure completion of lhe promised amenilics. accommodations. roads. utilities or facilities and lo protect the purchaser's interest. . 2.) When a project is not complete at the time of registration and the developer wants final approval and certification in order lo contract with the public for sales of the uncompleted proiect, then the Commission looks to see that there is a arrangcmcnt in placc that ossuras ihe purche66r's intereat6 are protected. (see number 3 below) r 3.) Sometimes, the Commission can approve an application for registration as a subdivider and issue a certificate even though the owner's association has not been formed, lhe declaration creating the common interest community has not been recorded, the plat or map have not been approved or recorded. and the promised amenities, accommodations, rcads. utilities or facilities are nol complete and provisions for compliance with Rule S20 have not been met. o A. In most instances Commission approval and issuance of a cerlificate given the above scenario would depend upon the contract indicating lhat : http:i/www.dora.state.co.uyreal-estate/license/subdiv.htm tvl,9n004 Page 3 of38 o htlp:/iwww.dora.state.co.us/real-estate/license/subdiv.htm tvt9n004 CUIDELINES.SUBDIVIS ION DEVELOPERS Exhibit F, Section B, page 1 Section A, page 3; Exhibit I Exhibits land F I i.) an independent agent is to perform the dosing and, r ii.) all sums received from the purchasers prior to closing and comptetion of the promised amenities, accommodations, roads, ulilities or facilities are to be held in trust by an independent agent and, r iii.) a date by which the promised improvements are to be completed, including contingencies and default orovisions. B.) The contract, or ancillary agreement with the independent agent, should be crafted to fit the c|rcumstances and typically will contiain:r i.) clear instructions that the agent is to perform the closing pursuant to the terms of lhe contract and that no closing is to be accomplished, and no funds disbursed, until: r a.) A plat map has been recorded conlaining the appropriate surveyor.s certiflcation, municipal or county aulhority's stamp and signatures of approval. A copy of which is to be senl to the Commission. r b.) The declaratlon ' creating the common interest community has been recorded. A copy of which is to be sent to lhe Commission for review r c.) The owner's association has been incorporated. A copy of the certificate is to be sent to the Commission. r d.) The project or promised improvements are complete and a certificate of occupancy, or certificale of completion as applicablc has been issued for the promised amenities, accommodations, roads, utilities or facilities or lhere is a signed letter of credit or bond sufficient to assure the completion of the promised utilities, accommodations and roads. . note: A copy of lltc lcttcr of uledit or bond is to be reviewed by the Commission. r note: lf the letter of credil is secured by a deed of trust on the property being registered, the Commission will want to review the 0ocuments tor adequate retease provtstons. r e. ) The escrow agent has received lien waivers from oll tho6c providing materials or labor; or there is a signed letter of credit or bond sufficient to assure paymenl. r f.) The tender'has consenled to the recording of the declaration and plal and has released any common areas or road easements from the underlying encumbrance and has restricled their lien to only the lots. Page 4 of38 I I http://www.dora.slate.co. us/real-estate/l icense/subdiv. htm nn9/2004 GU]DELINES-SUBDIVISION DEVELOPERS N/A Exhibit G r ' lf the property is encumbered and the deed of trust or morlgage was recordecl prior to the recording of an owne/s association declaration and plat. r g.) The purchaser has received a deed to the property conveying title according to lhe terms of the contract, and the purchaser's deed is free and clear of the underlying blanket encumbrance.r ii.) The Commission must review and approve the escrow agreement and will wanl a written acknowledgment from the escrow agent thal the Independent agent has reviewed the agreemenl and will perform the duties of closing agent. RESERVATIONS 1.) Upon approval by the Commission, a developer may utilize "Reservation Agreements" in order to offer the property before approval and during the pendency of the Application process. o The Reservation Agreement must be nonbinding, fully refundable, and any fees paid by a purchaser must be held ,n trusl by an independent third party agent. o There is no standard form of'Reservation Agreemenl", however, the licensing section at (303) 8942166 can send you an example of this type of document. 2.) The Commission will want to review and approve the escrow arrangement and will want a written acknowledgmenl trom the escrow agent that the escrow agent has reviewed the Reservation Agreement and agrees to perform the duties of escrow agent. 3.) By slatute, the Comrnission m€y disapprovc thc form of the documents submitted, and may deny an application for registration until 6uch time as the applicant submits such documents in a form that ts satisfactory to lhe Commission. 4.) Please check with the county or municipality, if appticabte, pr'or to the use of "Reservation Agreements". The county or municipality may have restrictions on the use of these Instruments prior 10 plannlng approval and f lng ot the plat. FORMS o 1.) Include with the application, a copy of the warranty deed you inlend to use to convey title to purchasers including: o A.) The intended language for describing the property ano. Page 5 of38 t http://www.dora.state.co.us/real-estatdlicense/subd iv.htm lut9/2004 GUIDELINES-SUBDIVISION DEVELOPERS Exhibit F Exhibit F, Section 6 B.) The language used for any exceplions lo free and clear title. r Please note that the Real Estate Commission does not have an approved and standard form of wananty deed. CONTRACTS Examples ot vanous conlract forms, dtsclosure documents ano reservation agreements are available upon request. Contact the licensing section at 303-894-21 66. r 1.) The Commission may disapprove lhe form of the documents submitted, and may deny an application for registration until such time as the applicant submits sucn documents in a form that is satisfactory to the Commission.r 2.) Include with the apptication, a sample copy of the contract instrument you intend to use for sales within the subdivision. The contract must include the slatements and disclosures required by Rute S32 and Rute SZ3 (d), (g), (i), 0) and (k). (Ptease see page 6)r 3.)The other dirctosures required by Rute S23 (a), (b), (c) (e), (0, (Sl, (l), (m), (n), (o), and (p) (ptease see page 6) may be contained in a separate documenl appropriately titled (s6e 523 (h)) or, all ot the disclosures may be containeit in the conlract and/or in any contract addendum that is properly refered to in the contract, properly labeled as such, ano atlached to the contract.r 4.) lf you want to use |re Colorado Real Estate Commission standard and approved contract form that was designed for use by Real Estate Brokers for ,,re-sales" of vacant land or condominiums. the form will have lo be modified by using an addendum to the contract. o The standard form does not contain all of the various elements of disclosures required by Rule S23. The stanoard form was not devetoped to conform lo the Subdivision Act but rather for use by real estate brokers for re-sales afler the property has been developed and title passed from the develooer lo lhe individual purchaser. o 5.) lf you use the standard Real Estate Commission approved vacant land contract form # CBS 3995. vou will need to add the mandatory rescission rights requireb'by Rule S23 (d) to paragraph 21 of the standard torm. Also. the standard contract form does not address Rute S23 (b), (c), (e), (h), (i), (m), (n) and the poriion of (g) that sleres a[ Eates wiil be made by brokers and sales persons licensed bv the state oj Colorado unless specifically exempt. All of these elemenls of Rule S23 can be added to an expanded paragraph 2'l of the standard form, or you could, in paragraph 21 of the contract, refer to an anached addendum that could list the various disclosures not specifically provided for in the standard vacant land contract.r 6.) The contract must comply with Rule S32, which states: All developers shall provide a tifle insurance commitment or Page 6 of38 I GUIDELINES-SUBDIVISION DEVELOPERS Exhibit F Section 14(D) other evidence of title approved by the commission within a reasonable trme after execulion of any contract to purchase. Any period of time in excess of ninety (90) days shall be deemed unreasonable for purposes of this rule. This requirement may be waived by the parties in writing if the waiver is made in a conspicuous manner and/or print. The presence of the waiver on the back of a contract shall not be deemed consoicuous. r 7.) The contract Instrument must contain provisions for: o A.) default ol the parties and disDosition of earnest money o 8.) date of closing o C.) type of deed used to convey title to the purchaser o D.) date of completion of any promised facilities, utilities or accommodalions o E.) description of the property to be conveyed o F.)exceplions to the title being conveyed to the ourchaser o G.) reference to any addendum o H.) termination of the contract for lapse of time o l.) purchaser's examination of litle documents o J.) risk of loss (for improved properties) o K,) apportionment or adjustment ot assessments, taxes. fees. DISCLOSURES r 1.)36-35.7 l0 | ( I ) Colorado Revised Statutes r equir es certain disclosure language about special districts to be in EVERY contract for the sale of residential land located in Colorado The disclosure must be included in the contract regardless of whether or not the property is situated in a special districl. The contracl must include the following statement in bold face type in substantially the following form: o SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID 8Y REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERW WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH OISTRICTS MAY BE PLACED AT RISK FOR INCREASED M|LL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEONESS WITHOUT SUCH AN INCREASE IN MILL LEVIES, PURCHASERS SHOULD INVESTIGATE THE DEBT FINANCING REOUIREMENT OF THE AUTHORIZEO GENERAL OBLIGATION INOEBTEONESS OF SUCH DISTRICTS. EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN Exhibit F Section 1(A) Section 7(A) Section 7(B) Section C, page Section 6(A) Section C, page Section 6 Section 8 Section 7(C) 1 1; 9(B) http ://rvww.dora.stale.co. us/real-estate/license/subdiv. htm nt19t2004 Page 7 of38 I I http ://wu,w.dora.slate.co. us/real -estate/license/subdiv.htnr nn9/2004 GUIDELINES-SUBDIVISION DEVELOPERS Exhibit F Section 12 Exhibit H Section 18 SUCH MILL LEVIES. o 2.) In addition, please add the following information regarding special districtrs to the disclosure document. o A.) State in the contract or disclosure documenr. whether or not there are any special districts (melropolitan or developer districts) existing or proposed to which the purchaser may be subject and if so.: r i.) State in the contract or disclosure document. whether or not lhe district has defaulted on any obligations or has filed for bankruptcy or if any such actions are pending. lf so, explain and provtde detaIs. r ii.) State in lhe contracl or disclosure document. whether or not lhe developer is in default on any obligations or payments to the special district. lf so, explain and provide details.r iii.) State in lhe contract or disclosure document the devetoper's responsibility for payment of any special district's fees and taxes. I . 3.) Under a separate, and relatively new (1994), Colorado law (12-0l-Part E et seq. C.R.S.), if $re developet clrg.rges the services ofa Colorado real estate broker, thq broker is obligated lo disclose in writing, to both the developer and to the potenlial buyers. the relationshio the broker will have with lhe seller and buyer. The broker also must disclose the general duties and obligations that the broker has arising from the brokerage relationship. In addition, should the seller, or buyer request information or ask questlons concerning a brokerage relationship not offered by the brokgr pursurnt io lh€ broker's writt€n of{ic€ policy, th€ broker shall provicle a written definition of the brokerage relationships which has been promulgated by the Colorado Real Estate Commission. r A.) The contract should contain a confirmation of the broker's previous disclosure to the buyer regarding the broker's relationship with the parties and a reaffirmation to the buyer that dttFerenl 0rokerage retalionshtps are avaltabte whtcn incluie buyer agency, or transactionbroker. Example: Selling Company Broker Relationship: The Selling Broker, ABC Real Estate Company and its salespersons have oeen engaged as a single and limited agent fol !.he- seLe.f. The Selting BrokerCompany has previously disclosed in writing to the Buyer tnat drnerent relationShips are available which include BuVer Agency, or Transactron-Broker. 4.) Thc discloaurc documcnt nccdg to includo information regarding the significance of any li e exceplion for patented and unpatented mining claims, reservations or exceptions in Oatents for coal, oil, gas and mineral rights. The disclosure should include the following or similar language pursuant to 12-61406(3): THE SURFACE ESTATE MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE SURFACE ESTATE DOES NOT NECESSARILY INCLUDE TRANSFER OF THE MINERAL RIGHTS. THIRD PARTIES MAY Page 8 of38 e GUIDELINES-SUBDIVISION DEVELOPERS HOID INTERESTS IN OIL, GAS, OTHER MINERALS. GEOTHERMAL ENERGY OR WATER ON OR UNDER THE PROPERW. WHICH INTERESTS MAY GIVE THEM RIGHTS TO ENTER AND USE THE PROPERTY.. 5.) Pursuant to 12-61-406(3) lf you are developing a property that N/A was built prior to 1978 you are required to make certain disctosures regarding lead-based paint. The Commission has a disclosure form available the form number is LP45-1-97 the form needs to be referenced in your contract as an a achment if your project fits the description and you need to disclose. RULE S23 DISCLOSURES The purpose of the Commission Rule S-23 disctosures as listed on the following pages, and the disctosures required by 12-6i406 (3) C.R.S., is to give the purchaser adequate information in order to make an informed decision regarding the purchase. The disclosures should be crafted to fit whatever is true regarding the offering. o 1.) Some of the Real Estate Commission Rule S23 disclosures are to be included in the sales contract. Some of the disclosures may be in a SINGLE separate written disclosure document. Each of the Rutes will indicale whether or not the disclosure is to be in the contract or may be in a separate single document.r 2.) The Rulc S23 dioclosurcc orc to bc worded as though they are being made to a purchaser. Each topic of Rule S23 is to be addressed as a complete thought that satisfies the area of disclosure. o 3.) The disclosure cannot be silent regarding a particular iopic and must address the topic in terms of whether or not it applies. For example, a subdivision may not have a property ow||er's assuriidtiun and reco{ded declaration. An examole of the proper disclosure pursuant to Rule S23 (n) for this scenano would be: There is no recorded declarction not has a propedy owner's assoc,al,on been formed . The developer does not contemplate creating an ownels assoclallon. There are however recorded covenants thal you will be given prior to ctosing hat petTan to the reslriclions on the use of the oroDer|v. . 4.) Please note that the written disclosures required by Rule S23 are part of, and are to be included in either the contracl, contract addendum or single disclosure document. The writen disctns res erc lo he inchrded with the application and are lo be approved by the Commission. After approval, the written disclosures are presented to the purchasers as part of the contracting instruments when negoliating a sale. o 5.) The following is an itemized tist ot the elements ol disclosure required by Rule S23 and 12-61406(3) C.R.S. The Commission licensing staff will be verifying that every element of the disclosures are addressed. Every element must be addressed or the document(s) will not be accepted ano the application wrll not be approved until it is in comoliance. http:/iwww.dora.state.co.us/real-estate/license/subdiv.htm OEVELOPER lv19t2004 Page 9 of38 t http:/iwww.dora.state.co.us/rcal-estate/license/subdiv.htm lU19/20u GUIDELINES-SUBDIVISION DEVELOPERS Exhibit H Sections 1 & 2 Exhibit Section Exhibit Section 3(a) Exhibit F Section 5(G) Exhibit H Section 3(b) (2-6) Exhibit H Section 3(b) Rule S23(a) r 1.) Disclose in ihe contract or disclosure document lhe name and address of the developer. . 2.) Disclose in the contract or disclosure document lhe name and address (location) of the subdivision lots or units. example: The name of lhe subdivision is Rocky Mountam Eslates. The subdivision is located in Pitkin County, and is approximatety 25tliles suullt west <tl llp cily of Asperr, Colorcdo. I/rere is Do srrpet address fo which mail can be delivered. post Oftice Boxes are available in Asoen. TYPE OF OWNERSHIP Rule S23(b) . Explain in the contract or disclosure document the type of ownership or occupancy rights being offered to the purcnaser. example: "You (the buyer) wi get tegal title to the propedy you are purchastng at closng according to the terms or the contract and your title will be subject to those lferns /rsted on the tiue commitment as "Exceptions" . The developer will deliver to you at closing, a general w"rrenty dacd givinq ynt legel ti c (fec,smp/e ab.so/ufe) lo the property. The developer will arrange to have your deed delivered to the County CErk for recording immediately after the closino." ACCOMMOOATIONS AND AMENTTIES Rule s23(cl r 1 .) Disclose in lhe contract or disclosure document whelher or not tnere are any ar e ities. An amenity includes such things as a swimming pool, clubhouse, sauna, tenniE court, hol lub, greenbelts, riding Etabl€s and recrealional facilities. Utililies such as water, sewer, electrical, elc. and roads are addressed in S23(m). Nole: lf any of the amenities such as common areas are to be owned by the assocjation (such as in a planned community) and have not been conveyed to the association by the time of tegiskdlio||, llrts appliuirtiun !,vill rlol be approved until lhe dcveroper has deeded the common areas to the association free and clear of encumorance- 2.) lf there are any amenities, provide in the contract or disclosure document a general description of all ameniti€s and accommodations. 3.) The description of the amenities in the contract or ciisclosure document must include the specific amenilies promised. 4.) Disclose in the contract or disclosure document lhe purchasers ownership interest tn such amenities. 5.) Disclose in the contract or disclosure document the F A, B, page 1 H Page l0of38 http://www.dora.state.co. us/real-estate/license/subdiv.htni l1^9t2004 GUIDELINES.SUBDIVISION DEVELOPERS projected completion date of any amenities yet to be construCted. r 6.) lf amenities or accommodations or site imorovemens are being promised, or are an obtigation of the developer, but are not complete. Disclose in the conlract or disclosure document the financial arrangements established to assure completion. (See RULE S20 and UNCOMPLETED PROJECTS on page 2) example: The developer is not offeing any "amenities, within the subdivision. There are a variety of all season rccrcational facilities located within a 50 mile radius of the subdivision that are olen to the public.An "amenity", for purposes of this disclosure, inAudes r-uuh l/li)gs as swinrrtitg pools, tennis cou/.s, riding stablo6, hiking ancl bicycle paths, w,nler snow skiing, lakes, rivers and nationat aic! stale foresfs. example: The amenities that are in place and inctuded with the proJect are a Sauna and Jacuzzi. Upkeep and maintenance of the amenities are paid for out of the annual assessment made upon each unit owner- The Amenities are defined in the Declaration as"general common elements' of the project and are owned in common by all of lhe unit purchasers. Rule S23(d) . 1.) Include in the contract, immediately prior to the purchaser's signature line, the purchasers right of rescission statement in BOLD PRINT as follows: ExhibitF,'t:",",rTii:::"yi::l?;?!;ltl"i'.f,!il*,li,f:[f::;:r2Xi,,Pasez {itlxirli[:r;r;wi{f,ltx*:,r:ri::",:;r, tetegram when tilled for tansmrcsron, and if by hand deliiery, when delivercd to the seller's place of busjness. This right otrescissron cannot be waived. Upon such right of rescission having been exercised, the seller of '#::fftr:: ; ::x ::'::: ;22 :,,:i:::::; ff:: ;:iiyin seve n d avs RIGHT OF RESCISSION JUDGMENTS ANO AOMINISTRATIVE ORDERS Rule S23{e) Exhibit H Section 6 1 -) Disclose in the contract or disclosure document whether or nol lhere are any iudgments or administrative orders rssusd against the DEVELoPER, which are material to the subdivision plan and; 2.) Disclose in the contract or disclosure document whether or not there are any judgments or administrative orders issued against the HoMEowNERS ASSOCtATtoN, which are material to the subdivisjon plan and; 3.) Disclose in the contract or disclosure document whether Page ll of38 t" http ://www.dora.state.co.us/real -estate/license/subdiv.htm nfi9t2004 GUIDELINES-SUBDIVISION DEVELOPERS Rule 523(f) Exhibit H Section 5 Exhibit H Section 7 Exhibit F, page 2 Exhibit H (lntroductory Paragraph) Exhibit F Section 1(A) or nol there are an judgments or administrative orders issued against lhe MANAGTNG ENTlTy, which are material to the subdivision plan: if so provide a general description. SPECI,AL ASSESSMENTS 1 .) lnclude in the contract or disclosure documenl a sEtement as to whether or not there are any taxes or special assessments, exasting or proposed to which the purchaser may be subject or which are unpaid AT THE TIME OF CO_NTMCTING. inctuding obligations to speciat taxing authorities and owner's associalions. LICENSED BROKERS Rule 523(g) . 1.) lndude in the disclosure documenl or contract a staternenl lhat: A// sales wilhin Cotorado wi be made by brokes and sarespersons Iicensed by the State of Colorado unless specifically exempted pursuant to C.R.S. 12-61-101(4). r 2.) The sales contract must provide a place for disclosure of the name of the real estale brokerage firm and;r 3.) Provide a place in the conlract, for disclosure of the name of the sales agent acting tor the developer. OISCLAIMER Rule S23(h) o l.) When a document othellhan the contract or an addendum to the contract is used to make anv of the disclosures required in Rule S23, the followin! statement must appear in botd pnnt on the tirst page ot the document preceding the disclosure: THE STATE OF COLORADO HAS NOT PREPARED OR ISSUED THIS DOCUMENT NOR HAS IT PASSED ON THE MERITS OF THE SUBDIVISION DESCRIBED HEREIN. DEPOSITS AND PAYMENTS Rule S23(i) r 1.) The conlract must contain a stalemenl that: 2ll funds paid by the purchaser prior to detivery af deed witt be held in trust by the licensed rcal estate broker named in the contrad, o?: . 2.) lf the funds are not held by a licensed real estate broker. then the contract musl contain a clear statement specifically Page 12 of38 t o http ://rvww.dora.state.co_uyreal-estate/license/subdiv.htrn nil9t2004 GUIDELINES-SUBDIVIS]ON DEVELOPERS Exhibit F Section 7(B) Exhibit F Section 7(A) Exhibit F Section 6(4) setting forth who such funds shall be delivered to, and:r 3.) The contract must conlain a clear statement specifically setting forth when such delivery will occur, and;. 4.) The contract must contain a clear statement specifically setling forth the developer,s use of said funds, and:r 5.) The contract must contain a clear siatement soecificallv setting forlh whether or not there is any restnction on the use of such funds by the developer. DELIVERY OF DEED Rule S23fi) r 1 .) The Contract must include a statement that: "lmmediately foltowing the date of closing the purchaser's deed witl be delivered to the County Clerk and Recarder,s office for recording." e 2.) OR, the contract may contain a clear statement specificalty setting forth WHEN such detivery (to the clerk and recorder) will occur which shall be no later then sixty days after closing. For the purposes of this Rule, the daib of closing is defined as the date the purchaser has either paid the full cash purchase price or has made partial cash paymsnt and executed a promissory note or oth€r evid€nce of indebtedness for the batance (See Rule S30 below) Rule S30 o (a) Unless sale is by means of an installment contract the delivery of deed ( for recording ) shall be made within sixty days after ctosing. For the purposes of this Rule, the date ofal (U) closing is defined as the date the purchaser has either oaid the fu cash purchase price or has made partial cash payment and executed o promissory notc or olhcr cvidcncc of indebledness for the batance (This musl be disclosed in the contract). . (b) lf sale is by means of an installment contract. the delivery of deed (for recording) sha be made within sixty days after complelron of payments. A conhact which requires the execution of a promissory note or other evidence of indebtedness that accrues interest and/or reguires payments prior 10 the recording of a deed shall be deemed to be an instatlment contract pursuant to 12_61_403(3)(g) C.R.S. and Commission Rute S23. TITLE POLICY Rule 523(k) r 1 .) The conlract must contain a statement that: "A title insurance policy, at no expense lo the purchasel wilt be delivered to the purchaser withln sixty days foltowing recording of the warranty deed", Page l3 of38 http://www.dora.state.co. uVreal-estate/license/subdiv.htm nil9t2404 GUIDELINES.STIBDIVISION DEVELOPERS Exhibit F Section 6(4) Exhibit F Section 6(A) NiA . 2.) unless specifically agreed to the contrary in the contract. (See Rule S31 betow) Rule S31 . The contract should contain provisions for an abstract or title insurance policy to be delivered to the purchaser within a reasonable time (60 days) after closing. Any period of time exceeding sixty days shatl be deemed unreasonable for purposes of this rule. o The parties may conlract to eliminate this requirement, but such waiver must be in writing in the CONTRACT and in a CONSpTCUOUS MANNER AND/OR pRtNT. The presence of waiver on the back of a contracl shall not be deemed conspicuous for purposes of this rule. Rule S32 and 12-61 -406 (3) C.R.S. . All developers shall provide in the contract. provisions for a title insurance commitment or other evidence of tifle approved by the Commission to be delivered to the purchaser within a reasonable tame after execution of any controct lo purohacc. Any pcriod of .timc in cxoccc of ninoty (90) days shalt be deemed unreasonable for purDoses of this rule. This requirement may be waived by the parties In writing if the waiver is made in a CONSPICUOUS manner, andlor print in the contract. The presence of the waiver on the back of a contract shall not be deemed conspicuous for purposes of this rule. TNSTALLMENT LAND CONTRACT (CONTRACT FOR OEED) For purpo6e6 of Commiesion Rute S23 (L), the Commission defines a "contract for deed'or "installment land contract" as a contract which requires the execution of a promissory nole or other evidence of indebtgdness that accrues interest and. or requires payments prior to the recording o{ a deed. The following disclosures are to be made only when an installment larrd ur.l lract is uscd. Rule s23(L)(i) r 1 .) The contract must disclose whether or not the ourchaser's deed is escrowed wilh an jndependent escrow agent, and if so the name and address of the escrow aoent: Rule S23(L)(ii) r 1.) The contract or disclosure documenl must list the amount of any existing encumbrance(s), andr 2.) The contract or disclosure document must list the name and address of the encumbrance(s),and; o 3.) The conditions, if any, under which a purchaser may cure a default caused by nonpayment; Rule S23(L)(iii) Page l4 of38 http://www.dora.state.co. us/real-estate/license/subdiv.htm nlt9t2004 GUIDELINES.SUBDIVIS ION DEVELOPERS r 1.) The contract or disclosure document musl contain a clear statement that a default on any underlying encumbrance(s) could resull in the loss of the purchaser's entire interest in Property; and Rule 523(LXiv) o 1.) The contract or disclosure document must contain a clear statement advising the purchaser to record the installment conract. Rule s23(L)(v) r 1.) Pursuant to 12-61-403 (3Xe)C.R.S., the contract or disclosure document must set forth the terms of the agreement by which the owner of any blanket encumbrance against the project agrees that its rights and the rights of its successors or assigns in the project sha be subordinate to the rights of purchasers, or any other trust, escrow or lelease arrangement which fully protects the purchasers' interesl in the project. (These agreements or other "escrow, anangements must be submitted to the commission for revrew) 38-35-126 C.R.S. For purposes cf 38-35-126 C.R.S.. a contract for deed or installment land contract means a contract for the sale of real properly which provides that the purchaser shall assume possession of the real property and the rights and responsibilities of ownership of lhe real properly, but that the deed to such real property will not be delivered to the purchaser for at least one hundred and eighty days followino the lalest execution date on the conkact for deed and not until the purchaser has met certain conditions such as payment of the full conlract price or a specified portion thereof- . 1.) Pursuant to 38-35-126 C.R.S. An instaltment tand contract or contract for deed shall include Drovisions for: o A.) Destgnation of the publtc trustee ot the county wherein the real property is located to act as escrow agent for lhe monthly payment by the purchaser of the monthly prorational property tax obtigation on such propeny. o B.) The payment to the pubtic trustee of the seller's obligation at closing for the cunent year's property taxes. c C.) The payment, by the purchaser, of the truslee s $75.00 fee once each year in April.. 2.) These provrsions shall conltnue un l the deed to such property is delivered to the purchaser and recorded. o 3.) 38-3$-126 C.R.S. does allow for the trustee to designate an alternate escrow agent. please review the statute and ccntact the county public trustee for informatton.r 4.) In addition, the sratute 38-35-126(2) C.R.S. requires a seller (developer) to file a written notice ot transfer with the county treasurer and offers purchasers certain rights to void the sales contract. lt states in part, that..Within ninety days of executing and delivering a contracl for deed to real Page l5 of38 hnp:/iww*'.dora.state.co. us/real-estate/l icense/subdiv.htm lllt912004 CUIDELINES.SUBDIVISION DEVELOPERS property, the seller shall file with lhe county treasurer of the county wherein the real property is located a written notice of transfer by contract for deed to reat property. Such notice shall include the name and legal address of the Seller, the name and legal address of the purchaser, a legal description of the real property, the date upon which the conhact foi deed to real property was executed and delivered. and the dale or conditions upon which the deed to the real property will be delivered to the purchaser, absent defautt. In additi6rr, within ninety days of executing and delivering the contract for Oced lu real pruperty, lhe seller shall lile a real estate hansfer declaration with the county assessor of the county wherein the property is located, pursuant to the provisions of section 39-1 4-.|02. C.R.S. 5.) The buyer shall have the option of voiding any contract for deed to real property which fails to designate the public trustee as escrow agent for deposit of property tax moneys or for which no writlen notice is filed with the countv treasurer's offlce of the county assessor's office. Upon voidance of such contract, the buyer shall be enti ed to the return of all payments made on lhe contract. with statutorv interest as delined in section 5-12-102.C.R.S.. and reasonable atlorney fees and costs. This avoidance right shall expire on the date seven years after the latest exeCullon dale on the contract for deed to real property unless exercised prior to such date." 6.) 38-35-126 C.R.S. allows for exemption from most of the abov€ orovisions if: o A.) The subject properly is not divided into parcels less then one acre. o B.) The developer (seller) pays the property tax or submits a bond or letter of credit within 30 days of the mailing of the notice of taxes due and prior to seeking reimbursement from the ourchaser. o c.) lhe oevetoper compltes with lhe notice ot transfer mentioned in 38-35-1 26f2)C.R.S. Please review the statules and contact me county publlc treasurer for further information. The Real Estate Cotrtr issiorr staff will tcvie\,v Llrc uonhasl lot compliaflce with the provisions of 38-35-126 C.R.S. UTILITIES . ACCESS AND USE Rule S23(m) and 12-61-406(3) The purpose of Commission Rule S23 (m), as the fo owing examples indlcate, is to give the purchaser adequale information in order to make an informed decision regarding the material facts pertaining to the use of the property. The disctosures should be crailed to fit whatever is true regarding lhe provisions for and availability of roads and utilities as well as the allowed use of the property. The disclosures must include a statement regarding whether or not the installation and maintenance of roads and utilities are to be an expense of lhe developer, lhe purchaser or a third party. Much of the informalion pertaining to counly regulations and water rights can be acquired by contacting the counly zoning, health, planning, and building departments and the Colorado Division of Water Resources. Page 16 of38 I GUIDELINES-SUBDIVISION DEVELOPERS Exhibit H Section 8 r 1 .) The contract or disclosure document must include a statemenl regarding the provisions for and availability of LEGAL access to the subdivisron. example: Legal 4ccess to the southem boundary of the subdivision is by an easement for County Road #1 15. . 2.) The contract or disclosure document must include a statement regarding the provisions for and availability of LEGAL ircucss wiLllirr l.lte subdivisiorr. example: Legal Access Mfhin fhe subdivrslon ls by easement doscribed and granted on the racorded plat. r i.) The conlract or disclosure document must include a statement regarding the PROVISTONS FOR and AVAILABILIW of ROADS lo the subdivision . example: County Road # XXX teads to the southern boundary of the subdivision and is a paved two lane road. The road is maintained by the county and is open yearround. e 4.) The conlract or disclosure document must include a statement regarding the PROVISIONS FOR and AVAILABILITY of ROADS within the subdivision as well as ownership of thc roodc and who is roeponsible for the road marntenance. example: The roads w hin the subdivision are in place and are complete. The roads within the subdivision abut a poftion of every lot. The rcads are XX feet wide with a 6" compacted crushed surtace- There is a culve ditch on each side of lhs road. The rcaos are pnva@ and arc Open yei tuur!U. TIte todds ate cor6tru6ted on the recorded easements and arc maintained, including snow removal, by the ownet's associat/bn. You (the purchaser) are responsible for construction and maintenance of lhe drivewav onto your lol. You will have to install a 24" culved pipe and driveway reflector markers when you install a diveway. Note: lf lhe roads within the subdivision are to be owned by trle association and have not been conveyed to the association by the time of registratjon, the application will not be approved until the developer has deeded the roads to the association free and clear of encumbrance. r 5 ) The cnniracf nr disclosure document must include a statement regarding the PROVISIONS FOR and AVAILABILITY of SEWAGE DISPOSAL. example: The developer is not providing a sewage d,spos al system. lf you (the purchaser) build a habitable structure on the propeny, you will be responsible for incuffing the costs of obtaining a permit from the county and installing a sewage septic vautt and teach system thal meets the minimum standards of the County Heallh Depanment. The County Health Depaftment generclly witl approve lhe use of septic vaults and teaching fields (dependent upon soil percolation tests) or aerobic systems within the subdivision. lf youl lot cannot pass the county percolation tests,lhe cosfs for a altemative sewage (aerobic) treatment plan wilt increase. The http ://wwrv.dora.state.co. u s/real -estate/l icenseisubdi v.htm n/19t2004 Page l7 of38 o GUIDELINES.SUBDIVISION DEVELOPERS cleveloper does not wanant the cosl, county acceptance or resutts otsoT tssts associated with sewage treatment. . 6.) The contract or disclosure document must include a slatement regarding the pROV|SIONS FOR and AVAILABILITY OF WATER. example: The developer is not providing potable water. lf you buitd a habitable structure and desire potabte water, you (the purchaseQ dre rcsponsiblc for incuring thc cost of obtoining a water well permil from the Colorado Division of Water Resources /303-g66- 3587) and for drilling the well and installing a equipmenl necessary to remove the water. The cost witt rcnge based on a per faot charg; by local companies to dfi the wel! shaft and instal! pumps andpiping depending on the depth of the wel!. The devetoper does not warrant the quantity or guatity of water or the probability of successfully finding water or the associated costs. r 7.) The contract or disclosure documenl must include a statement regarding PROVTSTONS FOR and AVAILABILIry OF TELEPHONE, example: Telephone serr,ice within the subdivision is not curren y available and the developer rb nof respons,b le for providing Elepnone seryice. Telephone seruice cable is located along the west boundary of the subdivision and can be brought into the subdivision dnd to an individual lot at the expense ofthe tot owner (s). For information on expense and availability contact the XXX telephone company at (XXX)XXXXXXX. . 8.) The contract or disclosure document must include a statement regarding the PROVTSTONS FOR and AVAILABILITY OF ELECTRICITY, example: The developer has arranged for electrical sewice lines to be installed in an easement adjacent to each lot within the project. The electrlcal servlce llnes arc not itt place dt this I ne attd wi not be in place at the time of closrng. Ihe developer has signed an agreemenl with the rural electric associalion and has Nepaid the costs for inslallation of a XXX Volt. slngle phase overhead oower /,ne extensions. All lines are to be completed by XXX x, tgxx unress delayed by any of the condilions that are conlained in the written agreement with the runl electric assoc,'al,on. The electdcal sevice and distribution hom the lot line lo any habitable structure you build is your (the purchaser's] expense. The line extension wilt altow a maximum of XXX volts / XXX amp seruice to each lot. r 9.) The contract or disclosure document must include a stalement regarding PROVTSTONS FOR and AVA|LABILtTy OF GAS. example.'A centralized system for piped natural gas seruice wilhin the subdivision is not available and the developer is not responsible for providing such a gas ser'vice. Propane gas utilizing an individual tank storage system ts available within the subdivision at your (the purchaser's) expense. For information on expense and availabilitv of propane gas contact the XXX gas company at (XX0XXXXXXX o 10.) The contract or disclosure documenl must include a I http ://www.dora.state.co. uyreal-eslate/license/subdiv.hrm lvt9n004 Page l8 of38 http ://www.dora.state.co.us/real -estate/license/subdiv.htm nn9/2004 GUIDELINES-SUBDIVISION DEVELOPERS Exhibit H Section 9 Exhibit F Section 10(L) statement regarding pROVIStONS FOR and AVA|LABtLtTy OF OTHER PROMISED FACILITIES.. 11 .) Pursuant to 12-61-406(3)C.R.S., include in the coniract or the disclosure document a statemenl regarding the perrnissrbte use of the property based on the county ZONING REGULATIONS. example: The county planning and zoning depaftment hasjurisdiction over the use of the propedy. ihe development is zoned"agricultunl and other use' which includes residen{ia! use. Amongother rcstriclions, this zoning does not a ow the permanent use of mobile homes You should contacl the county for information regarding restnclions on the use of the tand. r 12.) Include in the contract or the disclosure documenl a statement regarding the permissible types of habitable structures thal are allowed on the property based on the county zoning, fire and BUILDING REGULATIONS. example: The county building depadment has jurisdiction over the construction of any building. tf you want lo build a habitabte st(ucture, o.r any structure, you will first have to apply for a buitdingpermit, satisfy code and buitding requirements and pay the fees.. t n.e bwtdng permtt apptication to the County may inciude, among other requiremenls, a so,ls investigation of the propefty. Varyingloil conditions exist wtthin the subdivision. padicular soil conditions rery ire varying constnrction tcchniques. Se/rer has not causedprelin'tinary soils repods to be prepared for the subdivisbn. you should contact lhe county building depaftment fot information peftaining to buitding structures. r Note: The following are examples of disclosures relative to a developer who is providing roads and utilities. (A) Roads and Utilities. Purchaser acknowledges and agrees that the utilities and roads are not yet built or in ptace in the planneo c-ommunily known es Dakola Subdivision. Se//er agroes to use good faith reasonable efforls to subsfantia y complete construction of 1i1pnvate roads over the easements as described on the recorded plat map as "Private Roads," or Dakota Coutt and Dakota Drive. on or about July 1. 1996; and, (ti) the nstattaton to the lot t,nes oi water lines and sewet lines for seruice from the Midva ey Metropolitan Dislrict, electic lines, phone lines, natural gas lines and cable TV lines, on or about May 1 , 1995 wilh the exception of misce aneous items, including the raw irrigation water delivery system, which Seller agrees lo use good faith reasonable efforts to camplele on or about August t, 7995. Se//er sh alt peiorm th,s work as sbl forth inlne SuDd,yrs/on Improvements specificatlons. purcnaser ack.nowledges and agrees thaf Se/rer has reseved the right to place utility easements where necessary or advisabte; howevei, in no cvcnt shall tlility ca.scrncnts encroach upon any buildinl envelopes. and that Seller shall have license to enter any parcet oriot as necessary for work on installation of all inhastructure. Se,/er, at rits sole cost and exp ense, shall be responsrb/e for building the roaos, and for extending the utility lines as is provided hercin. ln the event, however, Seller is unable to complete this construction in a timev manner due to acts of God, defaults of contractors or subcontractors or materialsmen, or other causes bevond the control of Seller, the dale for completion of such work shall-be accordingty extended. ,After these utilities are actually constructed, purchaser Page l9 of38 GUIDELINES-SUBDIVISION DEVELOPERS sia// be respons ible to pay lor any costs of connectlio n, tap fees or construction costs incwrcd by Purchaser in tapping into or connecting inlo thesa utilities. Seller shall maintain the right to store and stockpile dift on any Lot within Dakota Subdivision during the construction of roads and utilities; provided, however. that it the owner of the Lot is building a house at the time of the construction of the road or utililies, the stockpiting will not be done in a manner which would inlerfere with the house construction. This ioht to stockpite and store did shall survive the closing, and shai be a burden which runs with the land until Septembet l, 1995, at which 0me sad nght sna expre. (B) Water and Sewer Fees. Purchaser acknowtedoes that there wilt be a tap fee also known 6s a syslem devetopmeni fee required by the Midvalley Metropolitan District fot water and sewer hookup or connection, as well as ongoing service fees, which Purchaser shall pay. (C) Special Taxing Districts. Ihrs nol,be ,s given in compliance with Colorado Senate 8i 143, Section 3A+5.7-1A, effective as of July 1 , 1992- "Special taxing districts may be subject to generat obligation rndebledness that is paid by rcvenues Noduced hom annual tax levies on the taxable property within such drbtricts. Propctly owners in such districts may be placed at risk for increased mill levies and excessive tax burdens to suppott the seNicing of such debt where circumstances aise resulting in the inability of such a district to discharge such indebtedness without sucn an Increase in mi levies. Purcl,asers shouk! htvesliuitle ll'lJ debl financing requirements of the authorized general obtigation indebtedness ofsuch disfricts sewicing such indebtedness, and the potenlial for an increase in such mill levies." The Prcpefty is affected by the Midvalley Metropolitan Distict. This diskict has not default on any of its obligations, nor has it filed for bankruptcy, nor are any such actions pending. The Se er is not in default on any obligaliun ot payttenls to the Rocky Mountain Metrgpolitdn District- (D) Garfie,d County. Purchaser acknowledges that Purchaser must oblain, at Purchasef s experse, a building permit from lhe Gafield County before Purchaser may build on the Propefty. Such permit may not be issued until on or about April 1 , 1995. (F) Design Committee. Purchaser acknowledges that all conslruction on each lot shall be subject to approval by the Atchitectural Committee pursuant lo the Master Declaration of Protective Covenants for Dakota Subdivision and Eaate Dakota SuDd,V,s/bn. (F) Soil. The building permit application to Gadield County may include, afi2ong other requiremenls, a soi/s ,nyest gation of the Prcpedy. Vatying soil conditions exist within the Prope y. Particutar soil conditions require varying construction techniques. Ser/e/ has caused preliminary soils repons b be prepared for ne subdlvtston by Grcat Westem, lnc., consulting geolechnical engineers of which Purchaser has received a summary for its rcview and which Purchaser acknowledges is preliminary only, and cannot be relied upon by Purchaser for construction on the Propefty. Copies of such sor'rs reporls are available for Purchaser's inspection during regular Dusrness hours at the office of Seller. o 13.) Include in the contract or the disclosure document a statement regarding whether or not a survey of each lot, site http:/iwww.dora.state.co.us/real-estatdlicense/subdiv.htm 1Vt9t2004 Page 20 of38 l" http://www.dora.state.co.us/real-estate/license/subdiv.htm n^9t2004 GUTDELINES-SUBDIVISION DEVELOPERS Exhibit H Section I Exhibit H Section 10 Exhibit H Section 13 or hact offered for sale has been made and whether survey monuments are in place exampte: The developer has had the subdrvls ion suweyed and a subdivision plat map has been recoded. Each tot within the subdivision has been monumenled at the comers and any angtes. OWNER'S ASSOC]ATIONS Rule S23(n) & 12-61-400(3)C.R.S. (1-3) Exhibit H Section 13 The contract or disclosure document must include a statemenl indicating whether or not thc 6ubdivision ic or will be a common interest community, and if not, Whether il is a limited expense planned community created pursuant to section 38-33.33-116 C.R.S. Rule 523(n){i) r The contract or disclosure documenl must include a statemenl indicating whether or not m€mbership in a homeowner's association is mandatory. Rule 523(n)(ii) & 12-61-406(3)C.R.s. r 1.) The contract or disclosure document must include a statement indicating an estimate of association dues and fees which are the responsibitity of the PURCHASER. o 2.) The contract or disclosure document must include a statement indicating whether or nol the DEVELOPER is responsible for paying association duEs and fees. Rule S23(n)(iii) o The contraet or disclosure documenl must inclLde a description of the services provided by the association. Rule S23(n)(iv) r 1 .) The contract or disclosure document must include a slatement indicating whether or not the devetoper has voting control of the association. o 2.) The contract or disclosure document must include a statement indicating the manner in which the developer control can or wlll be transterred. Rule s23(n)(v) & 12-61-406(3)C.R.S. 1 .) The contract or disclosure document must include a statement ind,cating whether or not lhe developer has any financial inlerest in, or will potentially derive any income or profil from such association, 2.) -fhe contracl or disclosure document must include a statement indicating whether or not the developer has a right to borrow or authorize borrowing from the association. 3.) The contract or disclosure document must include a Exhibit F Section E, page 1; Exhibit H Section 11 Exhibit H Section 13 Exhibit H Section 13 Page 2l of38 I GUIDELINES.SUBDIVISION DEVELOPERS Exhibit H Section 11 statement indicating whether or not it is the develooer. unit owner, Board of Directors or their employee, or an independent contractor that controls or disburses the funds of the associalion. o 4.) The Colorado Common lnterest Ownershio Act became effective July I , 1 992 and establishes that any nonpaymenr of association dues or fees created after July l, 19g2 becomes a priority lien on the lot or unit thal need not be recorded in order to be perfected and is not extinguished by lhe transfer of ownership from a seller to a buver and ts foreclosed in the same manner as a mongagd. thts provtston applies to all common interest ownershiD communilies WHETHER OR NOT they were created before or after .,rury.1,1992. The stalute 38-33.3-316 (8) C.R.S., states, Ihe assocratjon shal/ fumish to a unit owner or such unn ownefs designee or to a hotder of a security interesl or ls designee upon wriften requesl, delivered perconally or by cedilied mail, frsf c/ass posfag e prepaid, retum receipt, to lhe associatlon's registered agent, a witten statement setting fotlh the amount of unpard assessrnents cunen y levied agarnsf such owner's unit. The statement shall be furnished within foufteen calendar days after receipt of the request and is binding on tfie assoc,af,br, the executive board, and every unil owner. lf no statement is furnished to the unit owner or holder of a security interest or their designee, delivered personally or by ceflified mai!, ,trst c/ass posfage prepaid, relum receipt requesled, lo lhe inquiring pafty, then lhc ossociotion shotl hcvo no right to essed a priorily lbn upon the unit for unpaid assessments which were due as of the date of ltrc request. . A.) Unless exempt pursuanl to tifle 38 article 33.3, of the Colorado Common lnterest Ownership Act, please add the following or similar language to your disclosure document or conlract: The seller (developer), in every anlract for sale, sha provide to the purclnser, the wriften staler']ent of assessrnents pursudnt to 30- 33.3316 18) C.R.S. TIMESHARES, CONDOMINIUM CONVERSIONS, UNDIVIDED INTERESTS . No time share estates shall be created with respect to any condominium unit except pursuant to provisions in the project Instruments expressly permitting the creation of such estates. 38-33-111 C R.S.r The purpose of Commission Rule SZ3 as the lollowing examples indicate, is to give the purchaser adequate information in order to make an informed decision. The discloaur€s chould be craftsd to fit whatev€r is true regarding the provisions for and avaitability of roads and utililies as well as the allowed use of the properly. The following are examples of disclosure language relative to timeshares and condominium conversions o Rule S23(m) and 12-61-406(3) Page 22 of38 tul9n004 t http://www.dora.state.co. us/real -estate/l icense/subdiv.htm n/19/2004 GUIDELINES.SUBDI VISION DEVELOPERS Exhibit H Section 8 Exhibit H Sections 3(a),4 Exhibit H Section 3(a) Example: Gas, electrical, phone, water and sewer service are complete and available within the project. These services are nor separately metered for each unit. The cost for these services is an overall expense of the assoctation and each purchaser pays a portion of the cosl as part of the monthly dues. Each unit ii separately wired for television "cable,'. The television ,cable,, service (if desired) and line maintenance is the expense and res9onsibility of the indivrdual unit owner. There is an on-site laundrv ficilitv which is a common element in which each purchaser owns an undrvided common intefest. The laundry facility is leased lo xyz company who provldes lne Coln operated washing machines and clol.lles drye,s. . In addition, pursuant to 12-6.|406 (3) C.R.S. please indude ir) tlle dasclusute duuutt|c t a Etdte[tet]t regarding wl.]ethcr of there is a central heating and air-conditioning systems or whether or not the units have individual heat and air- conditioning systems. Please include whether or not lhere has been an inspection of the heating and air-conditioning systems by a qualified engineer, the results of the insoection including the evaluation of useful tife. Example: The developer has had the central hot water heating system inspected by XYZ mechanical engineering company. The en9rneer's report concludes that the system is in arleqrtate c.rinditinn and that it has a useful remaining life of 30 years with routine marntenance and repairs. A copy of the inspection report is available for review upon request. The project does not have a cenlral atr-condtttonlng system Pursuant to 12-61-406 (3) C.R-S. In addition to the disclosures in Rule 523 items (a) through (n), lF sales are to be madE from a time share project as defined in 12-61-401(4), or a condominium conversion as defined in 12-61-40i (3XbXlXA) the following disclosurEs n€6d to be added to the contract or the disclosure document:, Rule 523(o)(i) o 1 .) The contract or disclosure document must include a statement Indicating the quantity and identifying numbers of tinte slrate units, ut uurrdurIriniu|ll couversion units, or undivided interests in the project; Example: There are 25 individual 2 bedroom condominium units in lhe project numbered 101 through 125 and, therc are 10 one bedroom condominium units in the project numbered 210 lhtough 220. The units numbercd 1A1 hrough 125 are located in a two story building called Aspen I and units numbered 210 through ZZO arc located in a two story building called Aspen ll. 2.) The conlract or dlsclosure document must Inctude a stalement indicating the length of time share interests in each unit, or use periods for undivided interests. Exafnple: The length of interest being offered is a Seyen Conseculive Day period beginning 4:00 P.M. Saturday unti! 10:00 A.M. the following Saturday. 3.) The contract or disclosure document must include a statement indicating the number of time share interests in each unll, or use periods for undivided interests. Page 23 of38 o http://wrvw.dora.state.co.us/real-estate/license/subdiv.htm 1vr9t2004 CUIDELINES-S UBDIVISION DEVELOPERS Exhibit H Section 14, 3(b) Exhibit F Section E, page 1; Exhibit H Sections 11, 12 & Budget Example: Each condominium unit contains g0 Seven Consecutive Day use Periods and 2 seven day perids that are designated as common elements and are set aside for maintenance. r 4.) The contract or disclosure document musl include a statement explaining the time share periods conStituting the t,me share plan; or undivided interests. Example: The Seven Consecutive Day time share periods consisf oflntowol No. 1 which is the seven day period commencing on the 19th Saturday of each calendat year. tnleNat No. 2 is tie seven day period next succeeding in each such year. Additbnal intevals up to and including Intewal No. 32 are computed in a like manner. Rule 523(o)(ii.) o 1 .) The conlract or disclosure document must include a statemenl disclosing the name and business address of the managing entity under the time share plan, or the condominium conversion, or the offering of undivided inlerests. . 2.) The contract or disclosure document musl include a dcsc.ription of the services thal the manaoing entity will provide. r 3.) The contract or disclosure document must include a statement as to whether or not the developer has any financial interest in or will potentiatty Cerivi any income or profit from such managing entity, r 4.) The conlract or disclosure documenl musl include a stalement disclosing the manner, if any, by which the PURCHASERS may change the managing entity. o 5.) The contracl or disclosure document must include a stetement disclosino the manner, if any. by which the purchasers may transfer the conlrol of the managing entity.. 6.) The contract or disclosure document must inciude a statement disclosing the manner, if any, by which the DEVELOPER may change the managing entity. o 7.) The conlract or disclosure document must include a statement disclosing the manner, if any. by which the DEVELOPER moy tronsfcr lhc control of tho mcnaging entity. Rule S23(o)(iii.) . 1 .) The contract or disclosure document must include an estimate of the dues. which are the responsibility of the DUrchaser r 2.) The contract or disclosure document must include an 1 q estimale of the maintenance fees which are the responsibility| \i, ol the purchaser. see note o 3.) The contract or disclosure document must Include an eslimate of the real property laxes which are lhe responsibility of the purchaser. see note o 4.) The contract or disclosure document must include an estimate of other similar periodic expenses which are lhe responsibility of lhe purchaser. see note o Note: The disclosure document can refer to a budget sheet as an exhibit and satisfu the above items. Page 24 of38 lrttp ://wrvrv.dora.state.co.us/real -estate/license/subdiv.htm 11t19t2004 CUIDELINES.SUBD]VISION DEVELOPERS Exhibit H Section 16 Exhibit H Section 17 r 5.) The contract or disclosure document must include a general stalement of the conditions under which futrrre changes or addilions in the purchaser's dues and fees mav be tmposed. . 6.) The contract or disclosure document must include a statement as to whether or not a maintenance reserve fund HAS BEEN estabtished and if not:. 7.) The contract or disclosure document must include a statement as to whelher or not a maintenance reserve fund WILL RF estal"rlishcd: . 8.) The contract or disclosure document must include a statement disclosing the manner in which such reserye fund is financed if not cash funded;. g.) The contract or disclosure documenl must include a statement disclosing any outstanding obligations in favor of the reserve fund; r '10.) The contract or disclosure document must include a statement disclosing any outstanding obligations against the reserve fundt r 11.) The contract or disclosure document must include a stalement disclosing whether or not the developer has a right to borrow from the fund;r 12.) The contract or disclosure document must include a statement disclosing whether or not the developer can authorize borrowing from the fund;. 13. ) The contract or disclosure document must include a slaremenr regardtng the method ol periodic accounting which will be provrded to the purchaser: Rule S23(oXiv.) . The contracl or disclosure document must include a description of any insurancc coverag€ provided for th6 benefit of ourchasers: Rule S23(oXv.) r The contract or disclosure document must include a statement that Mechanic.s Lien Law mav authorize enforcement of a lien by selling the entire time share unit or undivided interest ownership of real property .r Pursuanl lo 12-51-406 (3) C.R.S. ptease include in the disclosure document for a condominium conversion a statement regarding whelher or not there is a central heating and air conditioning system for the project as a common clemenl. or whether or not the units contain individual heating and air conditioning units. Please include whether or nol there has been an inspection of the heating and air conditioning system by a qualified party, the resulls of the Inspection inctudtng any evaluation of usefut life and reptacement costs. TIME SHARE USE In addilion to lhe disctosures in items (a) through (o), of S23 listect above, if sales are to be made from a time share USE oroiect as defined in 124?401(4) C.R.S., the fo owing needs tobeadded to the drsclosure document or the contract. Page 25 of38 l_ http://www.dora.state.co. us/real-estate/license/subdiv.htm t1/19/2004 GUIDELINES-SUBDIVISION DEVELOPERS N/A Rule S-23(p) (i.) e The specific lerm of the contract lo use and what will happen to a purchase/s interest upon termination of said contract: Rule S-23(p) (ii.) . A stiatement as to the effect a voluntary sate, by the developer to a third party, will have on the contractual rights of timeshare owners: Rule s-23(p) (iii. ) . A statemenl that an involuntary kansfer by bankruptcy of the developer may have a negalive effecl on the rights of the timeshare owners; and Rule S-23ip) (iv.) . A staternent that a Federal lax lien could be enforced against the developer by compelling the sale of the entire time snare proiect. Rule S-17(d) . 1.) In compliance with 12-61-403(3Xe) C.R.S., a subdivision developer of time share USE pro.iects sha submit to the Commission a "Nondisturbance Agreement" by which the holder of a blanket encumbrance against the project agrees that its rights in the time share USE proJect shall be subordinate to the rights of lhe purchasers.. 2.) The nondisturbance agreemenl necds to reference and arnend the blanket encumbrance and must be recorded. The non disturbance agreement must provide that, the holder of the note or blanket encumbrance as well as any successors and assagns, and any person who acquires the propert, through foreclosure or by deed in lieu of foreclosure of the blanket encumbranc€, shall take the time share use project subject to the rights of purchasers. r 3.) Every nondisturbance agreement shall contain the covenant of the holder of the blanket encumbrance that such person or any other person acquaring through such blanket encumbrance shell not use or cause the time share use project to be used in a manner which would prevent the purchasers from using and occupying the time share use proJect ln a manner contemplated by the time share use ljlan.o 4.) In lieu of a nondisturbance agreement, the Real Estate Commission will approve a trust or escrow arrangement which fully protects the purchasers, interest in the project as contemptated by 12-61-403 (3Xe)C.R.S.. VACATION CLUBS Rule S-23(q) (effective January 1, 1995) lf time shares, as defined in 12,61-40j(4), are lo be sold from a subdivision which (1 ) contains two or more component sites situated at different geographic locations or governed by separate Page 26 of38 I GUIDELINES-SUBDIVISION DEVELOPERS sets of declaralions. by-taws or equivalent documents and (2) doesnol include, subject to agreed upon rules and conditions. aguaranteed, recurring right of use or occupancy at a stngle componenl site: . (i.) For each component site, the jnformation and disctosures required by rule S-23(a) through (p)i . (ii.) A generat description of the subdivisioni. (iii.) For each term of usage or interest offered tor sale. the total annual numbcr of available daily use periods \ /ithin the entire subdivision and within each component site for that term, regardless of whether such use periods are offered to a purchaser bV days, weeks, poinls or otherwise, and a calculatton represented on a chart or grid showing each component site's annual daily use periods as a percentage of lhe entire subdtvision's annual daily use periods; e (iv.) A clear description in the sales contract of the interest and term of usage being purchased and a definite date of termination of the purchaser's interesl in the subdivision. which date will be not later than the lerminalion date of the subdivision's interest in a specifically identified component site: r (v.) A clear disclosure and description of any component sile whjch is not lega y guaranteed to be avattabte for the purchaser's use, subject to lhe by-laws and rules of lhe subdivision, for the full term of the purchaser's usage interest: o (vi.) The system and method in place to assure maintenance of no more than a one-to-one ratio of purchasers, use rights to the number of total use rights in the subdivision for each term of usage being offered for sale, including provisions for compensatton to purchasers resulting from destruction of the component site or loss of use righls to any component site;. (vii.) Whclher lhe developer maintains any type of cesuolty insurance for the component sites in addition to that maintained by the site owners association or other interested parties, including the manner of disposition of any proceeds of such insurance resulting trom the destruction or loss of use r'ghts to any Component site; r (viii.) A description of the systern or program by which a purcnaser oblalns a recurrlng rtght to use and occupy accommodations and facilities in any component site through use of a reservation system or otherwise, including any restrictions on such rights or any melhod by which a purchaser is denied an equal right with all other users to obtain the use of any accommodalion in the subdivision;r (ix.) A descriptlon of the management and ownership of such reservation system or program, whether througn lhe developer, an owners associalion, a club or otherwise. includang the purchaser's direct or Indirect ownershio interest or rights of control in slch reservation system:r (x.) Whether the developer, club or association which controls the reservation system or any other person has or is granted any interest in unsold, non-reserved or unused use rights and whether the developer, club, association or other person may employ such righls to compete with purchasers for use of accommodations in the subdivision or any component site and, if so, the nature and sDecifics of those rights, including the circumstance under which they may be employed; http://www-dora.state.co. us/real-estate/license/subdiv.htm lL^9/20M Page 27 of38 I GUlDELINES-SUBDIVISION DEVELOPERS . (xi.) The method and frequency of accounting for any income derived from unsold, non-reserved or unused use rionts in which the purchaser, either direc y or indirecfly, hajan interest: o (xii.) The system and method in place, including business interruplion insurance or bonding, to provide secure back_uo or replacemenl of the reservation system in the event of Interruption, dlscontinuance or failure;r (xiii.) The amount and detaits of any component site, reservalion system or other periodic expense reeuired to bepaid by a purchaser, the name of the person or entity to which such payments sha be made, and the method by which the purchaser shall receive a regular periodic accounflng for suGh payntents; r (xiv.) lf component site expenses are includecl in those perlodic peyments made by a purchaser, a statement for each component site from the owners association or other responsible agency acknowledging that payment of such expenses as taxes, tnsurance, dues and assessments are current and are being made in the name of the subdivision:o (xv.) Evidence that an escrow system with an indeoendent escrow agent ts in place for receipl and disbursemenl of all moneys collected from purchasers that are necessary to pay such cxpcnsca oo toxcc, insuroncc and common expens€g and assessments owing to component site owners associalions or others or a clear description of the method by which such funds will be paid, collected, held, disbursed and accounted for: r (xvi.) A clear statement in the sales contract as to whether a purchaser's rights, interests or terms of usage for any component site within the subdivision can subsequenfly be modified from those terms originally represenled and a descriptron of the method by which such modificalion may occur; r (xvii.) lf the subdivision documents allow additions or subslitutions of accommodations or component sites, a clear descriplion of the purchaser's rights and obligations concernlng such addt ons or substitutions and Ltte trteutou Uy which such additions or substrlutions will comolv with the provistons of lhis rule, r (xviii.)A clear description of any eristing incidental benefits or amenities which are available lo the purchaser at the time of sale but to which the purchaser has no guaranteed right of recurring use or enjoyment during the purchaser's full term of inleresl in lhe subdivision. Rule S-17(d) . 1.) In comptiance with i2-61-403(3)(e) C.R.S., a subdivision developer of time share USE projects shall submit lo the Commission a "Nondigturboncc Agrccmcntn by which tho holder of a blanket encumbrance againsl the project agrees that its rights in the time share USE project shall be subordinate to the rights of the purchasers. o 2.)The nondisturbance agreement needs lo reference ano amend the blanket encumbrance and must be recorded. The non dtsturbance agreement must provide that, lhe holder of the note or blankel encumbrance as well as any successors ano asstgns, and any person who acquires the property through foreclosure or by deed in lieu of foreclosure of the http ://rv*,w.dora.state.co. uslreal-estate/licensc/subdiv.htm 1l/t9t2004 Page 28 of38 http :i/www.dora. state.co.us/real-estale/li cense/subdiv. htm lvt9n004 GUIDELINES-SUBDIVISION DEVELOPERS blanket encumbrance, shall take the time share use project subject to the rights of purchasers. o 3.) Every nondisturbance agreement shall contain the covenant of the holder of the blanket encumbrance that such person or any olner person acquiring lhrough such blanket encumbrance shall not use or cause lhe time share use project to be used in a manner which would orevent the purchasers from using and OCCupying the time share use projecl in a manner conlemplated by the time share use plan. o 4.) In lieu of a nondisturbance agreement, the Real Estate Commiss'on will approve a trust or escrow arrangement which fully protects the purchasers' interest in the oroiect as contemplated by 1 2-61-403 (3Xe)C.R.S.. EXCHANGE PROGRAMS . A time share developer shall disclose to the oublicN/A WHETHER OR NOTATIME SHARE PLANINVOLVES AN EXCHANGE PROGRAM and if so, shall disclose and detiver to prospective purchasers, a separate wrilten document containing the following items a through k of Rule S24. Such document may be provided by the exchange company. Rule S-24 (a) r The name and the business address of the exchanoe company; Rule s-24 (b) o Whether the purchaser's contract with the exchange program is separate and distinct from the purchaser's conlract with time share d€velopcr; Rule S-24 (c) . Whether the purchaser's participation in the exchange program is dependent upon the developer,s continued affihation wlth tne exchange prooram: Rule S-24 (d) . Whether or not the purchaser's participation in the exchange program rs votuntary; Rule S-24 {e) o The specific terms and conditions of the ourchaser's conlractual relattonship with lhe exchange program and the procedure by which changes, if any, may be made in lhe terms and conditions of such contractual relationshio: Rule S-24 (f) . The procedure of applying for and affecting changes; Rule S-24 (o) Page 29 of38 I GUIDELINES-SUBDIVlSION DEVELOPERS . A complete description of all limitations, restrictions, accrual nghts, or priorities employed in the operation of the exchange program, including but not limited to limitations on exchanges based on seasonability, unit size, or levels of occupancy; ind if lhe limitations, restriclions or pnorities are not apolieo uniformly by the exchange programt a complete description of the manner of their application; Rule S-24 (h) . Whether exchanges are arranged on a spaceavailable basis or whether guarantees of fulfillment of specific requests for exchanges are made by the exchanging company: Rule S-24 (i) . Whether and under what conditions, a purchaser may, in dealing with the exchange program lose the use and occupancy of the time share period in any properly applied for exchange without being offered substitute accommodations by the exchange program: Rule S-24 fi) . The fees for participation in the exchange program, whelher the fee€ may bs altered and th€ method of any alteringi Rule S-24 (k) . The name and localion of each accommodation or faciiity, including the time sharing plans participating in the exchange program. CONDOMINIUM CONVERSION 3833-112. Notification to residential tenants. N/A o ('1 ) A cteveloper who converts an existing multipleunit dwelling into condominium units upon recording of the declaration shall notify each residential tenant of the dwelling of such conversion. r (2) Such notice shall be in writing and shall be sent by certified or registered mail, postage prepaid, and return receipt provided. Notice is complete upon mailing to the tenant at the lenant's last known address. Notice may also be made by delivery in person to the tenant of a copy of such wrilten notice, in which evenl notice is complete upon such delivery. r (3) Said notice consfltutes the no ce to terminate lhe tenancy as provided by seclion 1 3-40-107, C.R.S.; except that no residential lenancy shall be terminated prior to the expiralion date of the existing lease agreement, if any, unless consented to by both the tenant and lhe devetoper. lf the term of the lease has less than ninety days remaining when notification is mailed or delivered, as the case may be, or if there is no written lease agreement, residential tenancy may not be terminaled by the developer less than ninety days after the date the notice is mailed or delivered, as the case http ://www.dora.state.co.us/real-estater,liccnse/subdiv.htm n/19t2004 Page 30 of 38 http ://wwu,.dora.state.co.us/rcal-estate/license/subdiv.htm lt/19t2004 GUIDELINES-SUBDIVISION DEVELOPERS may be, to the tenant unless consenled to by both the tenanl an{t the devetoper. The retum receipt shall be prima facie evidence of receipt of notice. lf the term of the lease has less than nineiy days remaining when notification is mailed or delivered, as the case may be. the tenant may hold over for the remainder of said ninetyday period under the same terms and conditions of the lease agreemenl if the tenant makes tirnely rental paymenls and performs other conditions of the rease agreement. . (4) The tenancy may be terminated within the ninety days prescribed in subsection (3) of this section upon agreement by the tenant In consideration of the payment of all moving expenses by the developer or for such other consideration as mutually agreed upon. Such tenanry may also be termineted wilhin the ninety days prescribed in subsection (3) of this section upon failure by the tenant to make timely rental or rease paymenls. r (5) Any person who appties for a residential tenancy after the recording of the declaration shall be informed of this recording at lhe time of application, and any leases executed after such recording may provrde for termination within less than ninety days provided that the terms of the lease conspicuously disclose the intention to convert the property conta,ning the leased premises lo condominium ownership. COLORADO COMMON INTEREST OWNERSHIP ACT APPLICABILITY . The Colorado Common Interest Ownership Act (CCIOA) appiies to all 'common interest communities" (see definitions) created within Cotorado on or after July 1 , 1992. (see Exceptions listed bctowxNote: most states havc adopted a similar law) o Effcctivc July I , 1992 The Colorado Common Own€rship Act supersedes the old Condominium Acl in relationship to lhe creation of condominium regimes. The provisions of sections 38-33-1 10 to 38-33-1 1 3 C.R.S. pertaining to time share shall remain in effect for all common interest communities. . The Colorado Common Interest Ownership Act (CCIOA) applies to any covenant, declaration or any recorded inslrumenls including, but not limited to, plats and maps wherein a lot or unit owner has some asoect of common own€rship of real property other lhen their own specific lot nr unit.(see Exceptions listed below) r The Colorado Common Inlerest Ownership Act is also applicable when a lot or unit owner is obligated to pay taxes or insurance or maintenance on any real property other then lheir own lot or unit.(see Exceptions listed betow) i The Commission licensing section stafi can answer Page 3l of38 http://www.dora.state.co. us/real -estatc/liccnsc/subdiv.htm lt/19/2004 CUIDELINES-SUBDIVISION DEVELOPERS questions and provide clarification from the registration prospective however the staff is not quatitied to give legal advice. Please contacl an anorney for legal intefrretrati-ons, opinions, construction and applicability oi The Cotorado Common Interest Ownershio Act. The Real Estate Commission will review the association project documents for compliance with the partial provisions of the act listed after the sections on Exceptions and Definitions. EXCEPTIONS lf a "planned community" created in thjs state on or after Julv 1, 1992 contains no more than ten units and is not subject to any future development rights by the declarant, it is subject only to sections 38-33.3-105, 38-33.3-106, and 38-3i.3- 107 of CCIOA, unless the declaration provides that the entire article is applicable, or; lf a "plcnned community" providee, in ite declaralion, that th€ annual average common expense liability of each unit restricted to res;dential purposes, exclusive of optional user fees and any insurance premiums paid by the association, may not exceed lhree hundred dollars, it is subject only to sections 38&#1 50;33.3-i05, 38-33.3-106. and 38-33.3-.|07, unless the dectaration provides thal the entire article is aDolicable. Note: These above excepiions apply only to "planned Communitres'. A leasehold interest in a unit of less than forty years including renewal oplions does nol meet the definition of "common interest community". The period of the teasehold interest, Incrudtng renewat options. is measured from the date the initial term commences. The Colorado Common Interest Ownership Act does not apply to common interest communities located outside of Colorado. The state that the property exists in may have a 0rm ar t3w. The Real Estate Commission staff will review the associationproJect documents for compliance with lhe following parlial provisions and prohibitions of the Colorado Common Interest Ownership Act as indicated by a box. ASSESSMENTS AND BUDGETS . 1.) Except as expressly provided. provisions of CCIOA may no^t.be varied by agreemenl, and the rights confened by CCIOA may not be waived. 3B-33.3-i04 Page 32 of38 t http ://www.dora.statc.co. us/real -estate/license/subdiv.htm lvl9l2004 GUIDELINES-STJtsDIVISION DEVELOPERS o 2.) A declarant may not act under a power of attorney or use any other device to evade the limitations or prohibitions of CCIOA or the declaralion. o 3.) The declarant is treated as the owner of any unit to which allocated Interests have been allocated pursuant lo section 38-33.3-207 until that unil has been conveyed to another person, who may or may not be a declarant under this article. (see deRnition of 'unit owner") o 4.) The allocations may not discriminate in favor of units owned by the decterant nr an affiliale of the declarant 3g_ JJ,J-IU / | 5.) Until the association makes a common expense assessment, the declarant shall pay all common expenses. 38-33.3-315 . 6.) Each unit owner is liable for assessments made aoainst such owner's unit during the period of ownershio of su-ch unn. 38-33.3-315 e 7.) The declaration may not impose limitations on the Dower of the association to deal with the declarant that are more restrictive than the limitations imposed on the power of the association to deat with olher persons. 3g-33.3-302. 8.) Except for minor variations due to the roundino of lgqcjlons or percentages, the sum of the co..on-"*p"nr" liabilities and, in a condominium, the sum ot the undiviOeO interests rn the common elements allocated at any time to all the units shall each equal one if stated as ftactions or one hundred p€rcent if stat€d as percentages. 39-33.L207. 9.) In a condominium, the declaration must allocate to each unit a fraction or percentage of the common expenses of the association. 38-33.3-207(1 Xa)e 10.) In a condominium, the declaration must allocate to each unit a fraction or percentage of undivided jnterests in the common elements. 38-33.3-207o 11.) In a condominium, the dectaratton musl state tne formulas used to establish the allocations of interests. 3g- 33.3-207 o '12.) In a planncd community, thc dcclarotion musl ollocate t0 each unit a fraction or percentage of the common expenses of the association. 38-33.3-207r 13.) ln a planned community. lhe declaralion must state the formulas used to eslablish the allocations of interests. 3g- 33.3-207 r 14.) In a cooperative, the declaration must state the ownershtp interest in the association. a fraction or percentage of lhe common expenses of the association and a portion of the votes jn lhe association. 3g-33.3-207 VOTING r 1.) A dccloront moy not utilizc cumulative or clo86 voting for the purpose of evading any limjtation imposed on declarant by CCIOA. 38-33.3-207 . 2.) Units may not constitute a class because they are owned by a declarant. 38-33.3-207 . 3-) ln a condominium, the declaration or bylaws must allocate to each unil a fraction or percenlage of a portion of the votes in lhe association. 38-33.3-207(1 )(a). 4.) In a planned community, the declaration or bylaws must allocate to each unit a portion of the votes in the association. Page 33 of35 I CUIDELINES-SUBDIV]SION DEVELOPERS 38-33.3-207( 1 Xc) CREATION OF COMMON INTEREST COMMUNTTIES A common interesl community may be created pursuant to CCIOA onry oy; r 1.) Recording a declaration executed in the same manner as a deed 38-33.3-201 o 2.) ln a cooperatrve, by conveytng the reat estate sublec! 10 thal declaration to the association. 3g-33.3-201r 3. ) The declaration musl be recorded in every county in which any portion of the common intercst communitv is located.3S-33.3-201 . 4.)A speciat declarant right created or reserved under CCIOA may be transferred only by an instrument evidencing the transfer recorded in every county in which any portion of lhe common interest community is located. The instrument is not effective unless executed by the transferee. 3g-33.3-304. 5.) No common interest community is created until the plal or map for the common interest community is recorded. 3g- 33.3-201(1 ) o 6.) ln a common intcrcat community with horizontcl untt boundaries. a declaration, or an amendment to a declaration. crealing or addlng units shall include a certificate of complelaon executed by an independent licensed or registered engineer, surveyor, or architect staling that all structural components of all buildrngs containang or compnsing any units thereby created are substantially completed. 38-33.3-201 (2) CONTENTS OF THE DECLARATION. The declaration must conlain: . 1.) The name of the common interest community and the association. 38-33.3-205( 1 Xa)o 2-) A statement that the common interest community is a condominium, cooperative, or planned community. 38-33.3- 205(1 Xa). 3.) The name of everycounty in which any part of the comrnon interesr community is situated. 3B-33.3-20S(i Xb)r 4.) A legally sufficient description of the reai estate included in the common interest community. 3B-33.3-205(1 )(c)o 5.) A statement of the maximum number of units that the declarant reserves the fight to create.38-33.3-205. 6.) A descriptron of any development rights and other special declarant rights reserved by the declarant,3g-33.3-205(1 Xh)o A.) A legally suflicient description of the real estare ro which each of those rights applies and o B.) a time limit within which each of those rights must be exercised. 38-33.3-205. 7.)P.ovislons for a declarant's easemenl through the common elemenls as may be reasonably necessary for the purpose of discharging a declarant,s obligations or exercising special declarant rights, whether arising under this article or reserved in the dectaration. 38-33.3-205( 1Xn) and 3g_33.3_ 216(1 ) http :/rwww.dora.stale.co.us//real-estate/l icense/subdiv.htm lU19/2004 Page 34 of38 http ://rvww. dora.state.co. us/real-estatei I iccnse/subdiv. htm 1t/19t2004 GUIDELINES-SUBDIVISION DEVELOPERS . 8.) Reasonable provisions concerning the manner in which notice of mallers affecting the common interest communitv may be given to unit owners by the association or other u;it owners. 38-33,3-205(1 Xo)o 9.) A declarant may maintain sales offices, manaoemenl offices, and models in the common rnterest comm]unity only if the declaration so provides and specifies the rights of! declarant with regard to the number, srze, location, and relocation thereof. 3B-33.3-2 t 5 and 3g-33.3_205(1 )(n)r 10 ) In a CONDOMINItJM. the declaration must allocale to each unlt a fraction or percentage of the common expenses of the assocratron. 38-33.3-202(1 Xa )r 11.) In a CONDOMINtUM, the declaration must a ocate to each unit a fraclion or percentage of undivided interests In tne common elements. 3S-33.3-207o 12.) In a CONDOM|NIUM, the dectaration must state the formulas used to establish lhe allocations of interests. 3g- 33.3-207 r 13.) ln a CONDOMtNIUM. the declaration or bylaws must allocate lo each unit a fraction or percentage of a portion of the votes in lhe associarion. 38-33.3-207(1 )(a)r 14.) In a PLANNED COMMUNITY, the declaration must allocate to each unit a fraction or percentage of the common expenses of the association_ 38-33.3-207 o 15.) ln a PLANNED COMMUNITy, the declaration must state the formulas used to establish the allocations of interests, 30-33.3-207 r 16.) ln a PLANNED COMMUNtTy. a description of any real estate that ts or must become comrnon elements. 3g-33.3_ r 17.) In a PLANNED COMMUNITy, subject to the provisions of lhe declaration and the ability of the association to regulate and convey or encumber the common elements as set forlh in sections 38-33.3-302 (1) (t) and 3S33.3312, lhe unil owners have an easemenl: o A.) In the common elements for the purpose of access to their unitg: and o B.) To use lhe common elements and all other real estate thal must become common elements for all other purposes. 38-33.3-21 6r 18.) In a PLANNED COMMUNITY, the declaration or bytaws must allocate to each unit a portion of the voles in the associalion. 38-33.3-207( 1 Xc)r 19-) In a COOPERATIVE, the declaration must slate the ownership interest in the association, a fraction or percentage of the common expenses of the association ano a portion of thc votcs in thc oooociation. 3g 33.3 207 LEASEHOLD COMMON INTEREST COMMUNITIES o 1.) Any lease, the expiration or termination of which mav terminate the common interest community or reduce its size, mus: be recorded. 38-33.3-206. o 2.) In a leasehold condominium or leasehold olanned community, the declaration must contain the signature of each lessor of any such lease in order for the provisions of this section to be effective. 38-33.3-206. o 3.) The (leasehold interest) declaration must state: Page 35 ofi8 http://wrvw.dora.state.co.us/real-estate/l icense/subdiv.htm 1ln9/2004 GUIDELINES.SUBDIVISION DEVELOPERS o A.) The recording data for the leasei o B.) The date on which the lease is scheduted to exprre; o C.) A lega y sufficient description ofthe real estate subject to the lease: o D.) Any rights of the unit owners lo redeem the reversion and the manner whereby lhose fights may be exercised or state that they do not have those rights; 3833.3206. o E.) Arry rights of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease or state that they do not have those riqhts; and o F.)Any rights of the unit owners lo renew the lease and the conditions of any renewal or state that they do not have those riohts. OWNERS' ASSOCIA,TIONS o 1.) A unit owners' association shall be organized no later than the date the first unit in the common inleresl communitv is conveyed to a purchaser. 38-33.3-301. 2.) The declaration nlay not impose limitations on the power of lhe association to deal with the declarant that are more restrictive than the limitations imposed on the power of the association to deal with other persons. 38-33.3-302(2). 3.) The executive board may not act on behalf of the associalion to amend the declaration, o A.) to terminate the common interest community, or o B.) to etect rnembers of the executive board or o C.) determine the qualifications, powers and duties, or o D.) terms of office of executive board members. but the executive board may fill vacancies in its membership for the unexpired porlion of any term. 39_ 33.3-303(3) . 4.) Regardlcss of thc period of declarant control provided in lhe declaration, a perrod of declarant control terminates no later than either: c A )sixty days after conveyance of sevenlyfive percent of lhe units that may be created to unil owners other than a declarant; o B.) two years after the last conveyance of a unit by the dectarant in the ordinary course of business, or o C.) two years after any right to add new units was last exercised. 38-33.3-303 BYLAWS Tlre trylaws uf tlte association nrust providc: 1,) The number of rnembers of the executive board and; 3g- 33.3-306 o A.) The tittes of the officers of the association. 3g- 33.3-306( 1 Xa) 2.) Election by the executive board of a president, a treasurer, a secretary, and any other officers of the assocration the bylaws specify. 38-33.3-306(1 Xb) Page 36 of38 I GUIDELINES.SUBDIVISION DEVELOPERS o 3.) The qualifications, powers and duties, and terms of offrce of, and: o A.) manner of electing and removing, executive board members and officers. o B.)and the manner of filting vacancies. 38_33.3_306 (1Xc) r 4.) Which, if any, of its powers the executive board or officers may delegate to other persons or to a managing agent. 3g_ 33.3-306(1 Xd). 5.) Which of its officers may prcparc, cxccute, certif/, ond record amendments to the declaration on behalf of the association; and 38-33.3-306( 1 )(e). 6 ) A method for amending the bylaws. 3g_33.3_306(1X0o 7.) The bylaws of the assoclation shall require the followino of an assocration with thlrty or more units that delegates powers of the executive board of officers relating to collection, deposit, transfer. or disbursement of ;ssociation funds to other persons or to a managing agent: o A.) That the other persons or managing agenl maintain fidelity insurance coverage or a bond in en amount nol less lhan fifty thousand dollars or such higher amount as lhe executive board may require; o B.) That the other persons or managing agenl maintain all funds and accounts of the association separate from the funds and accounts of other associations managed by lhe other persons or managing ageflt a d rrrai tain all reser ve accourrts of each associalion so managed separate from prorational accounts of the association: o C.) That an annual accounting for association funds and a financial statement be prepared and presented to the assocjation by the managing agent, a public accountant, or a cerlified public accountant. 3g_33.3_ 30n(3)(a) INSURANCE r 1.) lf any unit owner or employee of an associalion with thiny or more units controls or disburses funds of the common intcrcat community, the ossociation must obtain and marntain, to the extent reasonably available, fidelily insurance. Coverage shall nol be less in aggregate lhan two months' current assessments plus reserves, as calculated from the current budget of the associalion.r 2.) Any person employed as an independent conlractor by an association with thirty or more units for the purposes of la|laging a conlmon irllercsl community must obtain and maintain fidelity insurance in an amount not less than the amounl specified in subsection (10) of 3g-33.3-313, untess the association names such person as an insured employee in- a contracl of fidelity insurance, pursuanl to subsectionjtO; of lhis section. PLATS o '1.) No common interest community is created until lhe plat and/or map for the common interest communiv is recorded. 38-33 3-201 . 2.) Plats and maps are a parl of the declaration and are http :/iwrvw.dora. st atc. co.uslrcal-estate/l icense/subdi v. hrm |/19t2004 Page 37 of38 GUIDELINES.SUBDIVISION DEVELOPERS Privacy Statement I Disclaimer TcUl nlkl A5s'stdr(E. E-Marl lnlormatron Technotogy SectOn Revrsed September 16, 2004 € noneil', i()-; _atP.LqvE? | required for all 'common interest communities. except cooperatives. 38-33.3-209 3.) Each plat and map must be clear and legible and contain a certification that the plat or map contains all the information required by CCIOA. 38-33.3-209 4.) In addition to meeting the requiremenls of a land survev plat as set forth in section 38-St-102, each plat must show: o A.) A legally sufficient description of any real estate subject to development rights, labeled to identify the righls applicable lrj each par.nl: o B.) To the extent feasible, a legally sufficient description of all easements serving or burdening any portion of the common interest community: o C.) A legally sufficient description of any real estate in which the unit owners will own only an eslate for years, labeled as "leasehold real estate":39-33.3_2Og o D.) Any certification of a plat or map required by CCIOA must be rnade by a registered tand surveyor. This page was last updated on 06/18/2004 Federal Home Page ll State Home page ll Department Home page Division Home Page ll Top of page E-Mail the Division of Real Estate 1900 Grant Street, Suile 600 Denver, CO 80203 {303} 894-2J66 or {3031 891-2185 - phono ll03) 894-2583 " Far Ralty Color.do | | tY lEngllsh ll spantshl. Votce, VCg. ASCtt, STS Asslslance N!flrbursl Page 38 of38I ht tp :i/www.dora.st.ate.co.us/real-cstatc/license/subdiv.htm n^9/2004 oo o o o I [ff* ]ff i:';ffiXl il:: li 'fiT',i'S.:l il:j'#j,':tTi:,:fl " not rctundabre rhe correct ree ir received in the commission ornce E n ORIGINAL APPLICATION FEE SUPPLEMENTAL APPLTCATION FEE $739.00 $243.00 APPLICATION FOR REGISTRATION AIID CERTIFICATION AS A SUBDIVISION DEVELOPER MAKE CHECKS PAYABLE TO: Colorado Real Estate Commission or c.R.E.C. In compliance with Title l2' Article 61, pan 4, c.R-s. and commission Rure^s,.application is hereby made to the colorado Real Estate commission1""1,",|i:ni:ifl*'[';"#;ffi",S*;1i:**f#]li" *p*" "rirr,s'appricaiion,'ir,"]orro*ing,t"r.n'.no u," -J. unaer penarty or RETURN TO: Division of Real Estate 1900 Grant Streer, Suite 600 Denver CO 80203 Phone # (303) 894-2t66 l. Name ofAuthorized person (lf a partnership, Conorarion SS# 650-34-6153 (Required by24-34-107 C.R.S.) phone (970\ 47G5622 Resident Address fi"*i*:f,:Lleveloper, a X Resident - Non-Resident, intends ro act as (check onry one): (Trade Name, rf any) I A Partnership (Name of partnershipj I' the authorized person named above,.am a general partner ofrhe parmership and have been authonzed to complete this applicationon behalfofrhe partnership. -_ yes - No I A Corporation - Phone 2. l' (Name of Corporation) I,.the authorized person named above, am an officer and.ior a director of theDirectors ro complete rhis application on behalf of rhe Co;;r;n. yes I, the authonzed person named behalfofthe limired Iiability co. aDove, arn a manager of the limited liability co. and have beenX Yes _No Corporation and have been authorized by the Board of -No Phone (970t 47GS6Z2 authorized to complete this application on 5. ::ffi3|,f,fi" "'the subdivisron Developer, wherever situare: (lf principal office is changed, immediare notice must be made to the l2 Vail Road. Suite 200 (city) (srte)- (zie) other than the principal olfice above, list all colorado offices where business will be conducred: (lfnone, snte',none.,,) None (Sn..t aa CO_DOCS_A #149257 vl State the names' resident and business addresses of all persons or "..,1:r,l_e9al .":tj:, financially inrerested in rhe business of rhe developer asprincipal' partner' officer' director, socklolder, or mefi; r;ifyr"g * to each hisor her capacity and titre. owners ofless than twenty-fourpercent need not be included' except that when more th* on! *fu*ion owns stock in the developer, stockhorders o*ning more than renpercent ofthe toral stock in all such corporation, ,t u U" ii"iuai t"l (S*.r eaar. (capacity & Tirle) lausinGTTa.".s; (% ownenhipl (b) (Sneer Address)(City)(Stare)(zip) (Capacrry & Tirle.;(Business Address)(7o Ownership) (c) (Sneet Address)(ciry)(State)(zip) (Capacity & Tirle)(Business Address)(% Ownership) Date: Date: Licensed Salesperson in Has the authorized person, developer, or any-ofthe financially interested persons lised above in Number 6 ever been licensed as a subdivisiondeveloper, real estare broker or rear estare saresperson in iioiJJo o, *o,her jurisdiction? - Yes X No' (lf yes to either, submit details in a separate reporr accompanying this application.) Has such license ever been denied, disciplined, denied renewal, revoked, suspended, censured, or the subjed ofa consent agreemenl or thcsubject ofa current investigation? No lf yes, submit the following: I' A signed, written statement including name ofagency, dates, nature ofalleged infiaction and disposrrron. II. Supporting documenm including: a. A copy ofthe onginal charges or complaint against you. b. A copy ofany agency order or orher notification oflhe action taken. c. A confirmation ofthe currenl status ofthe license, cenification or registration. }]i[*,.1f::il*i"qj::li"zed Person is or has been licensed are registered in anv capacity conceming the salc or devetopmenr or Registered Subdivider in Date: Date: Date: t }?ff,thti::?'lJjl*:::iubdivision Developer has been licensed or regisrered in any capaciry conceming the sare ordeveropmenr of real Registered Subdivider in Licensed Broker in 9. Licensed Salesperson in None lo: to: 10. f:;11r.:l] :l_1" f"ilowing (Do not inctudc misdemeanor tramc viotatioos.)wllnln me last ten years' has the authonzed person, developei, direcrors, o{ficirs or any financially interested person listed in number 6 beea:(a) Yes - No X (tnitial one) convicted or pleaded Nolo contenders to a felony, or theft related offense?(b) Yes - No-x- (lnirial one) Agreed to a defered prosecurion or a deferred judgment o any felony, or theft rclated offanse?(c) Yes - No-L - (rnitiar one) charged with any ferony, or rhefl related peny offense. 'If 1ou answer yes to either a' b,-or c above, you must list below the nature ofeach charge or conviction. you must also obtain and submitthe adderdum to the application for Registration ana certirrcation-"s "l"lai"n- iii"ilper, commission form REC-SAA-97. Failure tosubmil the supplemental information t.quired by fo.m nrC-san-sz ,tilr rr"p""J p.".trin-j ofyour application. CO_DOCS_A #14957 vl Nature of charge or convictiont IL Have there been any sates from the property prior to registration? _yes X No List all licensed rear estate marketing companies thar wilr be conducting sales activities. Fgrcre!!,!Le___Name Phone 3260 E. Meolewood AveTge Ljttleton. CO g0l2l (Address) Name and address oflegal Counsel, ifany. (rrrm Name) leno_"yN"r*h (Lorrespondence Address) (E-Marl Addressl (303) 392-46s1 (Fax Number) I, W. Michael Clowdus, the above named aftomey represenring the above named developrer hereby cenify to the following:fuL' ttitiel ft,*ff"ffi"#ttomey is licensed to practice in the Srare of colorado, having colorado supreme courr Atrorney 4Jrt cnxiil The developer is duly qualified, validly existing and in good sanding in the srare of colorado and in the state in which thedeveloper if organized, if other than colorado. lst"t" *! ti*atilns to this cenification on a separate sheet ) b!/(ftf toiti^l The owners association is a golorxd-q. !.onolofit corqo.ration.(insert type of organization and state of organization of the :T"::"T"',"j',"illll:'v":::l'l$::tiary exrs-rng ana inlot sranding in rr," si"t" oicol"ooJ.-ri" i.in]f;iii;#;was organized by the filing of Articles of lncoruoratio-n on 2004 (insen dale) in the Stare ofColorado. /zltt,rClnitizll 12. t3. The owners associadon has not been organized as of the date of submission of this applicarion. The developer intends toorganize the owners association by the filing of A-rticles of Incorporation (state rhe type of organizational docurnens rhatwill be. used to legally organize the o*n.o Lrfri6iftifoi"*ber l, 2006, or prior ro rhe conveyance of rhe first uni!(state the approximare date on which the owners associaiion will be organized.) The declaration of protecdve covenants and plat map have been recorded in all counties as required by the cotoradoownership Interesl Act ("ccloA-),.and are in iull .oniptl-"" trurt ccloA. (stare any limitations ro this certification on aseparate sheer.) Sce attached Schedule I 14. ANSWERTHEQUESTIONSBELOW El yt' E No Do you undenrand that you may not offer the property for sale or sell pnor to registration? E ytt fJ No Do you understand that unless otherwise exempted, a subdivision developer is required to use licensed real e$arc brokersand salespersons? El y"' fl No Have you read and do you understand the Registration and certification of suMivision Developer,s statute (c.R.s. Title 12,Article 6l, pan 4.) and the Commission Rules pursuant ther€to? E yt' E No Do pu undershnd that a SuMivision Develoler's certificate expires on December 3l following the date of issuance and arcgruest for renewal on the form supplied by the commission must be made prior to that datc, ac-companied by the statutory El v"s I No Do you understand that if you do not renew on or before December 3 In of any year, you may not se subdivided land untilyou are rginstaled? 4orplhirial CO_DOCS_A #149257 vl t E y"' El No Are there any liens or unpaid coun judgmenrc filed againsr rhe suMivision Deveroper at the present time? (rf yes, submitdetails on separare sheet.) fl ytt El No Are there any lawsuits filed against the subdivision Developer which affect rhe tirle of rhe suMivided property? (lf yes,submit details on a separate sheet.) El yt' fl No Do 1ou understand that each subdivision develo-per shall have a conrinuing dury ro disclose any lis pendens or lawsurt filedagainst the suMivision developer within thiny (j0) days affer its recording"or ii*,". or pro.ess: E yt' D No Do you understand that each subdivision developer shall have a continuing duty ro disclose to the Real Estate commission ilJ, #$fi:TrtJtrce"on a suMivision registered in the oflice of thetotorado Real Esrate commissioi wltrin rtrirry Type of Subdivision being regisrered: Check appropnate box:15. a tr tr D (a) (b) Condominium conversions Cooperative Housing projecr Time-share (Fee) Time-share (Use) I Raw Ground I Leasehold time share Name of subdivision(r), Address (Locarion) of project: Located intheCountyoe Stare of(c) Number of units or lots: 50 Size of fractional interests or lors; Fractional lnterest in Club Units as (d) Who holds legal rirle? Developer t (e) List the name ofeach subdivision and the identifting number ofeach unit or lot being regisrered: see sttached schedule t (0 The developer's inrerest js evrdenced by a/an (check one): E Spe"ial Warranty Deed I Installment Land Contracr I Option to purchaseE Orher (explain) (g) Has or will each sile, lor or unit be surveyed before sale or lease? X yes No lfNo' explain when this wi be done or how the propeny wili be rdenrified for each ourchaser(h) Answer the following: l. Has a plat ofthis subdivision been recorded? X yes -_ No Rec.# 2' Has a plat ofthis subdivision been approved by the counry or municipality in which it is located? x yes 3. Ifnor, when will this be done? No l6' The subdivision Developer must submit with this application, a copy ofthe sales conrracl and disclosure document that contains the wriftendisclosuresrequiredbvRules-z:'s-z+anJii-iii6er:li;.n.s.'i^irecommissionhasior,nut"t"a"r.tofguiderinesrob€usedasacheckrist tohelp in completing this application. If you do not have a set ofguidelines yo, "un.oiru.i ,i,e commission staffto obtain acopy, ordownload a coPY fiom our homepage. the co,nmirsion pion. nr.b., is 8gi-2l66our homepage is ur bgslryEderagrtg.cg.r,g'ga!= NOTtCf, lf the applicant subdivision developer is the owner of or becomes the owner of additional real property, fiom which sales or leases are intended, a"supplemental Application for Registration * " suuaiuiri* i.""rop.r" ror-.urii";;;ilr;;, *"h, and written notice of approvar ftom thelolorado Real Estate commission recerved u"rot" -y J.r oi ieise activrty is conducted. CO_DOCS_A #149257 v1 47.DrocuMENTATloN MUsr BE SUPPLTED oF THE FoLt c,wtNG: (rqq EAr,t* REvtEw pLBAsE suBMrr AppLtcATroN ANDALL DocuMENrsrwo H.LE prrNc'Eo ix..i'iir srt6'iix aouxo rourrn)(r) lfthc +plkrne is I corpcerc dcwlopcr, e copy of thc ccnific{r! of Authority !o & businccs h drc su ofcolorado or r crtrifica. ofIrdporsrk"' issuGd by thc Sccrory of Srni fo *. Srar of C"l-rlo nr,rsr'rccoag'ry rh;tpi*li;(b) If ttrc devclopcr of r $bdivilion it a litnilcd FrtncrdriB proof of rcginruion in eccrrdencc vi6 rac and lcel roquirurnu ud e copylijlltff;n-tt ot'imircd psftictship, or "irin*a oii'irrroiry iii *tr. o. cor;J" s.-;i.fis"" shar eorpary thc " (c) lftbc dcYcloP'r ir r litfrcd li.bility co, p.oofoffilirg Aniclca oforgenizerion widr thc colondo Sccctrry ofsEtr or r copy ofthcCctificde of Authority. (d) Codcs of r rccordcd dctd or o$q docunrnrs cvidcrring thc darclopc/s trtlc or other btertsl in thc qrbdivi3ion AND AN up T0DATE TIrLE COMMITMENT' FOLICY-- t po.r "uoiJ ntd opinior. or oorcr.tiacncc acccporh to thc commi$ion docrrrEtingthe conditior of srch tirlc or intErcd. trriae r iiiLxJE i'ioiiia lo p,rru,* or @ior eg.recrncnl the dc,/GloFnrlrs lilc ca.rowdoqrn:ntg cscrowing !al6 procccds until rfic ecwtopcr oilri oit "trc or o.rir- *ir -a .i.., rtr. to tlx prrchascrs or othcraccs?bblc arnngflncnl (c) sanplc coprcs of cmFacts of salc' no6, dccd!, $c disclolurts cquircd by Rulc s-23, end othcr hgel docuna r FtParcd by th€dcvclopcr or atl tnomcy rcprcscnting rhc dsvclopcr which arc ro bc ugcd ro cffcctuatc ir" srf. - f""L -- (f) lf thct! i3 s bhnkd cncumbrrroc upon the-tillc of$c aubdivisi$, or rny othcr o\*ncr|hip, tc|scholl or coarrrctud inlc'rd tisl corlddefeat all possassory or owncnhip ;gfrc of a p"trt"r"r, " *py #,ha ino*,rrnc .roting rrch licm, arcumbrur6, '' inucsts, withdatcs as b thc rccoding rtong witt docrrrrEntary avi&ncc $* rny bcncfrciary, rmq$""-;;r;;i acoo ottruc or ary ooxrholdcrof such owncrship, le&'*otd, or conrrecfual inrrcsr sill rclL any lot m timshare frorn thc blmka arclrnbrance or, herslMindcd it's intcrcsl in thc suHividrn to t* lne,ta or-i n r*"t* irt r'.r .""uu.rr.o *i *irl-ii-g.n*ot -"cptruc to $c ,-alcstrlc cffmission thst protccl3 d|c rigtts Of thc puldrss€r. (g) Rccordcd copics of tccotH 6varsB, l€corfu dcctrradms, bllawr, rnd arltl€s of bclr?oradon of my lrdorync, a sinrilorassocrstion rhat has bcen fofrrEd. Thc rccordcd capics rnusr bar thc recording infornution.'(h) A srbdivisior dcrelopcr wlro reccivcr crsh or nceivrtks from e nrchary for .r unconplccd polxr. mud submit copics ofen cscrsr,atrccmcnt, with an irdcpcndcnt csctow agent'. whcrcby atl funds and cccivrblcs rec;*i o"- iuii-ilr uc hcld parding conplcionof pomilcd atnctitics ud inerovcnmn or, rtr; q1.aoncr ol"l* r r.i* "i--gri;;J.;dilT;i*.p.,6-, "o"-r.g, *anYlthcr linancial rrnngcrHrt' dlc putposc of whidr ii to cnsnc conqrlaion of thc promi,ir i*".iJ.fur, inprovcnrcnrs rnd (i) copics of rccordcd srbdivisim phq lond sunrey or represartatimal maF bcaring thc rccording informadm. 0) whcr' |n lBleltrEl' la'|d cm|'afl 13 urcd, rhc conrtcr r,,rtsr providc abr tsr F),,,Errr !o thc publlc rru$Es Flt.$rrt !o 3&rt-126 ci,s. ! DECLARE UNDER, PENALry OF PERJURY tN THEMADE IN THIS APPL'CATION ARE TRUE AND COMPI (lf_a-corporuion, parrrcr$ip (lr limil.d hstitity co., lrrbrlrty co. to sign this docunurt.) Tho abovc opplicatioa ho bccn _ op?,ro!.cd) FOR T1IE REAL ESTATE COMMISSION qlqol,tD DEGREE puRsuANT TO t8-&503 C.RS., THAT TflE STATEMENTSE}E TO THE BEST OF MY KNOWLEDCE\, ,.?'z signeturc ffi/panr signing lrr,ra bc authorizdon bchalf of thc crporalon, ponrcrebip or limicd (diapgrovcd) BY: DATE Print nanr of luthorizcrl pcrson The Project is not yet complete l{th" Developer intends to enter into preconstruction purchase and saleagreements for Club Estates at the Project (in the form attached under Tab F). The Deciaration and Map will berecorded in all sounties required-by CCIoA prior to closing under any preconstruction purchase and saleagrcement' The Declaration and Map will bi in full compliance witlr-iCloA, subject to any insuustantiatfailure to comply with c9IoA, wiich pursuant to c.R.s. $ 38-33.3-203(4) would not render title to units, Tl:* and Common Elements in thaProject unmarketable or otherwise affect the units, interests andLommon Elements- Item I5: Item 13: SCITEDTJLE I Vail Plaza Hotel Resort Club Club Unit No. 60lP 405 602P 409 603P 410 604P 412 606P 439 607P MO 505P 502 506P 507 408P 605 503P 207 504P 2t2 202 307 203 312 218 334 301 342 302 427 303 435 318 515 345 52r 346 527 347 406P 348 407P 401 44lP 402 442P 403 50rP CO-DOCS_A #149257 v1 oo o o o CONDOMINIUM DECLARATION FORTHE VAIL PLAZA HOTEL RESORT CLUB CO_DOCS_A #152626 vl I Table of Contents CO_DOCS_A #152626 vl l-Section 2.37. ,,Management Agreement" ............................. 6Section 2.38. ..Management Unit".. ................ 6Section 2.39. ,,Managing Agent"..... ...............6Section 2.40_ .,Occupant"............... ................. 6Section 2.41. ,.Owner".................. ..................6 Section 2.42. ,.parking Unit" ............ .........,....7 Section 2.43. ,,percentage Interesf' ...-...-........7 Section 2.44. ,,pei,od of Declarant Controf, ........................ 7Section 2.45. ..person,'..............,.. ..._............... 7Section 2.46. ,,planof Club Ownership".. ............................ 7Section 2-47. ,,plat, Section 2.48. ,,property'............... .................. 7Section 2.49. .,Real Estate,'.......... ...................7 Section 2.50. ..Records" .................. -...............7Section 2.51. ,.Residential Unit"... ..........-.-..._.7 Section 2.52. ..Restaurant Unit"....... ...............7 Section 2.53. ,.Rules and Regulations,'................ ..............-..7 Section 2.54. .,security Interest',.... ................. g Section 2.55. .,Service Unit".......... ................. g Section 2.56. ,.Spa Unit"............. .................... g Section 2.57. ,.Special Declarant Rights',......... .................... g Section 2.58. "special Development District 6................... ....................... g Section 2.59. ..Unit" ................. g Section 2.60. .,Vail plaza Club" or..C1ub"...... ..................... 9Section 2.61- ,,yail plaza penthouse Unit,'........ ................... 9Section 2.62. *Withdrawn propertt',.................... ................ 9 ARTICLE 3 DIVISION OF PROJECT INTO CONDOMINruM OWNERSHIP........................ 9Section 3.1. Division Into Condominium Units. ................9 Section 3.2. Delineation of Unit Boundaries. ..................... 9Section 3.3. Inseparability of Condominium Unit....... ............................. 9Section 3.4. Non-partitionability of Common Elements. ....................... l0Section 3.5. Alterations and Subdivision of Units; Relocation of Boundaries Berween Adjoining Units............. ................. l0 ARTICLE 4 ALLOCATED INTERESTS................. ....................... l0Section 4.1. Allocation of Interests.... ......... l0Section 4.2. Formulae for the Allocation of Interests................... ..-....... l0Section 4.3. Rounding Convention. ............ l lSection 4.4. Effective Date of Reallocation.......... ............ l l ARTICLE 5 COMMERCIAL, RESTAURANT, SPA, CONVENTION, CATERING K]TCHEN, AND LOADING LINITS .,.......,..12Section 5.1 . permitted Uses. ............ ........... lzSection 5.2. Rules and Regulations... ..........12 Section 5.3. Commercial Activities. ...........I2 I CO_DOCS_A #152626 vl ARTICLE 6 PARKING TJNIT ............ Section 6.1. permitted Uses............. Section 6.2. parking Unit Operation and Limitations................... ARTICLE 7 CONDOMINruM MAP ARTICLE 8 LEGAL DESCRIPTION AND TAXATION OF UNITS Section 8.1 . Conhacts to Convey Entered into prior to Recording of Condominium Declaration and Map........ section 8.2. contracts to convey and conveyances Subsequent to Recording of Declaration and Map....... Section 8.3- conveyance Deerned to Describe an Undivided Interest in Common Elements....... Section 8.4. Separate Tax Assessments............... ARTICLE 9 TINIT OWNERS' PROPERry RIGHTS IN COMMON ELEMENTS Section 9.1. Common Elernents....... Section 9.2. Limited Common Elernents. ARTICLE 1O MEMBERSHIP AND VOTING RICHTS IN ASSOCIATION........................... I5Section 10.1. Association Membership. .................. ........... 15Section 10.2. Voting Rights and Meetings. ........................ 16Section 10.3. Meeting to Approve Annual Budget.......... ............-............ l6Section 10.4. Unit Owne$' and Association's Addresses for Notices...-....................... l7Section 10.5. Transferlnformation -............... 17Section 10.6. Declarant Control of the Association.............. .................... l7Section 10.7. Required Election of Unit Owners......... ....... lgSection 10.8. Removal of Members of the Board of Directors. ............... lgSection 10.9. Requirements for Turnover of Declarant ControI......... ...... lg ARTICLE I I ASSOCTATION POWERS AND DUTIES....... ........20Section 11.1. Association Management Duties. ................. 20Section 11.2. Association powers. .-.......,......2O Section I1.3. Actions by Board of Directors.. ....................22 Section 1 1.4. Board of Directors Meetings....... ..................22 Section 11.5. Right to Notice and Hearing. ........................22 Section I1.6. Payments to Working Capital Account........ .......................23 Section I 1.7. Class of Me,nbership. .................. ................. 23Section 11.8. Reserved powers: Directions to Board of Directors.. ..-......24 ARTICLE 12 ASSESSMENTS............ ......................24 Section 12.1. CommencementofAnnualAssessments. ....-.....-................24 Section 12.2. fuinual Assessments. ..............24 Section 12.3. Apportionment of Annual Assessments. .......25 Section 12.4. Special Assessments. ..............25 Section 12.5. Due Dates for Assessment payrnents...... ...... 25Section 12.6. Default Assessments t2 t2 l2 l3 14 t4 l5 l5 l5 l5 14 t4 I CO_DOCS_A #152626 v1 lll Section 12.7. Covenant of personal Obligation for Assessments.................... ......-........26Section 12.8. Lien forAssessments; Assignment of Rents. .....................26 Section 12.9. Remedies for Nonpayment of Assessments............... .........26 Section 12.10. purchaser's Liabilityfor Assessments................... ............. 27Section 12.11. Waiver of Homestead Exemption; Subordination of Association's Lien for Assessments. .............27Section 12.12. Statement of Status of Assessments................... ............-....2g Section 12.13. Liens. ...............2g ARTICLE 13 MAINTENANCE RESPONSIBILIry........... ..........2gSection 13.1. Unit Owner's Rights and Duties with Respect to Interiors.... ...................29 Section 13.2. Responsibility of the Unit Owner............_......... ................29 Section 13.3. Unit Owner's Negligence. ......2gSection 13.4. Responsibilityof the Association. ................ 30 ARTICLE 14 MECHANICS'LIENS ........................30 Section 14.1. Mechanics'Liens. ...................30 Section 14.2. Enforcernent by the Association. .................. 30 ARTICLE 15 USE RESTRICTIONS................ .........30Section 15.1. Use ofUnits. ........................... 30Section 15.2. Use of Common Elements. ........................... 30Section 15-3' Prohibition of Inqeases in lnsurable Risks and Certain Activities. ......... 3lSection 15.4. Stmchual Alterations and Exterior Appearanc€. ................ 3lSection 15.5. pet and Use Restrictions. ........31Section 15.6. Limit on Timesharing. ...............-.. .......-........32Section 15.7. Reshiction on Signs............. ......................... 32Section 15.8. Commercial Operation................. ...-.-...........32Section 15.9. Restrictions on Use of parking and Storage Areas. ........... .......................32 Section 15.10. Restrictions Not Applicable to Owner ofihe Hotel Unit.......................... 33Section l5.l L District Documents. ........._...... 33Section 15.12. Restrictions on Employee Housing Unit............... .............. 33 ARTICLE 16 EASEMENTS................... ...................34Section 16.1. Easement of Enjoyment.................... ............34Section 16.2. Delegation of Use. ..................34 Section 16.3. Recorded Easements ................34Section 16.4' Easements over Management unit, Senice unit, and conventionunit' ...............34Section 16.5. Easements for Encroachments. ..................... 34Section 16.6. Utility Easements. ................... 35Section 16.7. Emergency Access Easement. ...................... 35Section 16.8. Maintenance Easernent ............ 35section l6-9. Easements of Access for Repair, Maintenance, and Emergencies. .......... 35Section 16. 10. pedeshian Easements Section 16. I I . Ea-sements Deernecl Created......... ................. 36Section 16.12. Easernent for Warranty Work............ ........... 36 ivCO*DOCS_A #152626 v1 Section 16.13. Reserved Easernent of Hotel Unit Owner.. ......................... 36 ARTICLE 17 SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVEDRICHTS .....,........36 Section 17.1. Special Declarant Rights........... ....................36 Section 17.2. Additional Reserved Rights.......... ................ 3E Section l7-3- Limitations on Special Declarant Rights and Additional ReservedRights. ...............38 Section 17.4. Interference with Special Declarant Rights. ....................... 3g Section 17.5. Rights Transferable.. ............... 38 ARTICLE18RESERVATIONOFDEVELOPMENTRIGHTS ..........................39 Section 18.1. Development and Withdrawal Rights........... ......................39 Section 18.2. Amendment of Declaration................ ........... 39Section 18.3. Supplernent to the Map..-........... ............._..... 39 Section 18.4. lnterpretation.............. .............39 Section 18.5. Maximum Number of Units........ ..................40 Section 18.6. Construction Easement. ................... ............. 40 Section 18.7. Reciprocal Easements .............. 40 Section 18.8. Termination of Expansion and Development Rights................................4l Section 18.9. Interference With Expansion or Development Rights.............................. 4l Section 18. 10. Transfer of Expansion or Development Rights. .._................................... 4t ARTICLE 19 rNSURANCE................. ......................41 Section 19.1. Coverage ............41 Section 19.2. Required provisions. ... ............ 42Section 19.3. Adjustrnent of Claims .............. 43Section 19.4. Copies of policies. ..............,...43 ARTICLE 20 RESTORATION UPON DAMAGE OR DESTRUCTrON..................................43 Section 20.1 . Duty to Restore. ...................... 43 Section 20.2. Cost. ............... ,14 Section 20.3. Plans. ........-......44 Section 20.4. Replacernent of Less Than Entire property. -......................44 Section 20.5. lnsurance proceeds... ...............44 Section 20.6. Certificates by the Board of Directors. .............. ................. 45 Section 20.7. Certificates by Attorneys or Title Insurance Companies.......................... 45 ARTICLE 2l CONDEMNATION......... ....................45 ARTICLE 22 MORTGAGEE PROTECTIONS ........45 Section 22.1. Introduction.............. ..,............45 Section 22.2. Percentage of First Mortgagees. ...................45 Section 22.3. Notice of Actions. Section 22.4. Consent Required....... ............. 46 Section 22.5. Notice of Objection.- ...............46 Section 22.6. First Mortgagees' Rights........... ....................46 CO_DOCS_A #152626 v1 I Section 22.7. Limitations on First Mortgagee's Rights. ..........---..............47 Section 22.8. Special Declarant Rights........... .........-..........47 ARTICLE 23 DURATION oF covENANTS; AMENDMENT AND TERMINATION.........42 Section 23.1. Term. ....,..........47Section23.2. AmendmentofDeclaration............. ..............47 Section 23.3. Amendment by Declarant ........ 4g Section 23.4. Amendment of Other Goveming Documents. ....................4g Section 23.5. Execution of Amendments; Expenses ...........4g Section 23.6. Interpretation................ ...........4g Section 23.7. When Modifications permitted...... ...............49 Section 23.8. Recording of Amendments. .............. .....-......49 Section 23.9. Rights of Eligible First Mortgagees................ ....................49 Section 23.10. Termination of the Condominium project. .........................49 ARTICLE 24VAILPLAZACLUB........... ................49 section 24.1. submission of Residential units to the vail plaza club...........................49 Section 24.2- Definrtions............... ................50 Section 24-3. Submission of Residential Unit to club ownership.... ....... 5r Section 24.4. Conveyance by purchaser.......-.......... ........... 51 Section 24.5. Description of a Club Estate. ........................ 5lSection 24.6. Administration and Management................. ................._.....52 Section 24-7. Pawers and Duties of the Association with Respect to clubEstates' ..............52 Section 24.8. Club Assessment... ..................53 Section 24.9. Acceptance; Enforconent; Indannification. ......................55 Section 24.10. cross use Easements pertainingto Floating club Estates....................... 56 Section 24.1 1 . Resale Restriction. ......._.......... 57Section 24.l2.Wuver of Resale Reskiction... ..................-.. 5gSection 24.13. Purpose of Resale Restriction.... ...................5g ARTICLE 25 MISCELLANEOUS ......58 Section 25.1. EnforcemenVArbitration................ ............... 5g Section 25.2. Notices ....-..........62 Section 25.3. Nonwaiver................. ...........-..62 Section 25.4. Severability. .............. ..............62 Section 25-5. Number and Gender... ............. 63Section 25.6. Captions. ................ .......,......... 63Section 25.7. Conflicts in Legal Documents. .....................63 Section 25.8. Vesting of lnterests. ................63 Section 25.9. Choice of Law. ......... ............... 63Section 25.10. Third party 8eneficiary............... ..................63 vtCO_DOCS_A #152626 vl t Exhibit A Exhibit B Exhibit B-l Exhibit C Exhibit D Exhibit D-l CO_DOCS_A #152626 vl vll I CONDOMINIUM DECLARATION FOR VAIL PLAZA HOTEL RESORT CLUB THIS CONDOMINruM DECLARATION FOR VAIL PLAZA HOTEL RESORTCLUB, a condominium (the "Declaratior" ), dated _, 200_, shall be effective uponrecordation and is made by Vail Plaza Development, Lrc, a coto.aOo iimited liability **p*y("Desb&!S). Declarant is the owner of certain real property in Eagle County, Colo;ado, ;o;particularly described on Exhibit A attached hereto and intorporatedlerein byiiis reference (ttre"PlQpertt'). Declarant hereby makes the following grants, submissions, and declarations: ARTICLE T IMPOSITION OF COVENANTS . Section 1.1' Pumose. The purpose of this Declaration is to create a condominiumproject known as the Vail Plaza Hotel Resort Club, a condominium (the..eeldsgi4ignq_hj_eg!,, or "&qies!")' by submittil8 the Property to the condominium for* of *orft[-*a-*"pursuant to the Colorado Common Interest Ownership Act, Article 33.3, Title 38f ColoradoRevised statutes, as amended and supplemented from iime to time (the ..Ag',), to establish auniform plan for the development of the Project, including the sale and ownership of timespaninterests in the Units, and operation of the Restaurant Unit, Spa Unit, Serrrice Unii, ConventionUnit, Catering Kitchen Unit, Loading Unit, Management Unlt, Residential Units, Commercial Units, and Parking Unit as provided herein. , Section 1.2' Intention of Declarant. Declarant desires to protect the value anddesirability of the Condominium Project, to further a plan for the improvernent, sale andownership of the Units and Club Estates in the Condominium Project, to create a harmonious andattractive development and to promote and safeguard the health, comfort, safety, convenience, and welfare of the owners of units and club Estates in the condominium project. . Section 1.3. Condqminium Declaration. To accomplish the purposes and intentionsrecited above, Declarant hereby submits the Property, together with all improvements, appurtenances' and facilities relating to or located on the Property now and in thi future, tocondominium ownership under the Act, and hereby imposes upon all of tn" f.op."ty tt "covenants, conditions, restrictions, easements, reservations, rights-of-way, and other piovisionsof this Declaration, and Declarant hereby declares that ali oi*t" rtop"rty shall be held, sold,conveyed, encumbered, leased, rented, occupied, and improved subjeci to the provisions ofthisDeclaration. Section 1.4. Covenants Runnine With the Land. All provisions of this Declarationshall be deemed to be covenants running witt ttre tana, or ^ "q,rltubl" servitudes, as the casemay be. The benefits, burdens, and other provisions contained in this Declaration shall bebinding upon and shall inure to the benefit o1 Declarant, all Unit Owners, all Owners of ClubEstates, and -their respective heirs, executors, administrators, personal representatives, successors, and assigns. l' CO_DOCS_A #152626 vl t ARTICLE 2 DEFINITIONS The following words, when used in this Declaration, shall have the meanings desigratedbelow unless the context expressly requires otherwise: Section 2.1. "Act" means the Colorado Common lnterest Ownership Act as defined inARTICLE t hereof- In the event the Act is repealed, the Act, on the effective date of thisDeclaration, shall remain applicable to this Declaration. ., . ^ Section2-2. "Additional Improvements" has the meaning set forth in Section lg.l ofIrus ueclaratron. Section 2'3. "Allocated Interests" means the undivided interest in the CommonElements and the Common Expense Liability and the votes in the Association allocated to eachof the Units in the condominium Project. The formulae used to establish the Allocated Interestsare described in ARTICLE 4. The Allocated Interests for each Unit are set forth on Exhibit Battached hereto and incorporated herein by this reference. Section 2.4. "Articles of lncorDoration" means the Articles of Incorporation of the VailPlaza condominium Association, rnc., filed with the colorado secretary of state. Section 2.5. "Assessments" means the annual, special and default Assessments leviedpursuant to this Declaration. Section 2.6. "Association" means the Vail Plaza Condominium Association, Inc., aColorado nonprofit corporation, and its successors and assigns. . - Section 2.7. "Board of Directors" means the goveming body of the Association, asprovided in this Declaration and in the Articles of Incorpioration ird elaws of the Associatiorq and defined as the "Board of Managers" in the Act. Section 2.8. "Budset" has the meaning set forth in Section 10.3 of this Declaration. - section 2.9- "lylays" means any instruments, however denominated, which areadopted by the Association for the regulation and managernent of the Association, incluaing theamendments thereto. - Section2.l0. "Cajering Kitchen Unit" means a Unit designated in this Declaration asthe "caterhg Kitchen Unit" with th" p."fi'* *K" on the Map. Redrences to units shall includethe Catering Kitchen Unit unless the context would prohibii or unless this Declaration expresslyprovides otherwise. Section 2. I I . "Class" has the meaning set forth in Section I I .7 of this Declaration. Section 2.12. "Commerqial Activities" has the meaning set forth in ARTICLE 5 of thisDeclaration. CO_DOCS_A #152626 v1 l. o Secfion 2.13- "Commercial Unit" means any Unit designated with the prefix ..e" on theMap or desigrrated as a "gqlqnlergiql-Un[" in this Declaration-for business or commercial uses,including Commqcial Activities. Section 2.14. "Committee" means a Committee established by the Board of Directors inaccordance with this Declaration and the Bylaws. - Section2.l5. "Common Elanents" means all of the Condominium Project, other thanthe Units, but including, without limiting the generality of the foregoing, the following componentsl (a) the Property; and (b) the Improvernents (including, but not by way of rimitation, thefoundations, columns, girders, beams, supports, perimeter and supporting walls, n "pt"*,chimneys, flues, chimney c.hases, roofs, pati,os, decks, balconi"., *ildorr,lobbies, vestibutes,entrances and exits, exterior doors and windows, and the mechanical installations of theImprovements consisting of the equipment and materials making up any central services such aspower' light, gas, hot and cold water, sewer, cable televisio=n, and heating and cenhal airconditioning which exist for use by one or more of the Unit owners, including the pipes, vents,ducts, flues, cable conduits, wires, telephone wire, and other similarutility inatallations used inconnection therewith) and the areas designated on the Map as including those installations, trashrooms and storage rooms, elevators and stairs except for thi units; and - (c) the yards, sidewalks, walkways, paths, grass, shrubbery, trees, planters, driveways, roadways, landscaping gardens, and relatld ficilitieJupon the property; and - (d) the- pumps, tanks, motors, fans, storm drainage structures, compressors,ducts, atrd, in general, all apparatus, installations, and equipment oithe Improvements existin!for use of one or more of the Unit Owners; and (e) in. general, all other parts of the Condominium Project designated byDeclarant as Common Elements and existing for the use of one or more of theUnit Owners. The Common Elements shall be owned by, the Unit Owners, each Unit owner having anundivided interest in the common Elements as allocated in Exhibit Ii. Section 2.16. "Common Expenses" means expenditures made or liabilities incurred byor on behalf of the Association, together with any allocations to reserves, including, withoutlimiting the generality of the foregoing, the following itons: - (a) expenses of administration, insurance, operation, and management, repairor replacement of the Common Elernents except to the extent such repairs and replacementrare responsibilities of a Unit Owner as provided in this Declaration; o) expenses declared common Expenses by the provisions of thisDeclaration or the Bylaws; CO_DOCS_A #152626 vl (c) all sums lawfully assessed against the Units by the Board of Directors: upon as Common Expenses by the mernbers of the(d) expenses agreed Association; and (e) expenses provided to be paid pursuant to any Management Agreement. -- Section 2.17. "Common Expenses Liabilitt''means the liability for Common Expensesallocate.d to each Unit pursuant to ttrls peckration. Section2.l8. "Cgndo$i4ium Documents" means the basic documents creating andgoverning the Condominium Project, including -ut not limited to, this Declaration, the Articlesof Incorporation and B{1ws, $e.Map, ana any procedures, Rules and Regulations, or policiesrelating to the Condominium Project adopted under such documents by the Association or theBoard of Directors. Section2.l9. "Condpminium Mao" or "Map" means that part of this Declaration that !tn1"tt all or any portion of the Condo*i*u- e.iot in three dimensions, is executed by theDeclarant and is recorded in the Records. A Map ani a Plat may be combined in one instrument. F u Yu!' a "Florizq$al Bquqdar.v" means a plane of elevation ielative to a described benchmarkthat defines either a lower or upper dimension of a Unit such that the real estate respectivelybelow or above the defined plane is not part of the Unit. In a Map, a. yertlS{_Boundgry, *"*5the defined limit of a unit that is not a Hbrizontal Boundary orurai unir Section 2.20. "Condominium Proiect" or "Project" means the tern as defined inARTICLE t hereof. The Cordominium Projeci includes areas used for commercial purposes,amenities for hotel guests and Club Estate Owners, restaurants, a loading areq hotel tacitities, aparking area" and Residential Units for use by certain employees of the [pper Eagle Valley, tireowner of the Vail Plaza Penthouse unit, hoiel guests, and tle owners of btut E-states ^ "*or" specifically described in this Declaration. , section2.21- "condominium Unit" means the fee simple interest intogether wittr the undivided interest in the common Elernents appurtenant allocated in Exhibit B. Section 2.22. "Convention Unit" means a Unit designated in this Declaration as the"Convention Unif' with the prefix "B" on the Map. Refeiences to Units shall include the !,fT:" Unit unless the context would prohibit oiunless this Declaration expressly providesotnerwrse- . Section2-23. "cgstg of Enforcement" means all monetary fees, fines, late charges,interest, expenses' costs, including receiver's and appraiser's fees, and reasonable attomeys, feesand disbursements, including legal assistants' fees, incurred by the Association in connectionwith the collection of Assessments or in connection with the enforcement of the terms,conditions and obligations of the Condominium Documenrs. and to a Unit, to the Unit, as CO_DOCS_A #152626 v1 o section 2.24- "Deolarant" means vail plaza Development, LLC, a colorado limitedliability company' and its successors and assigns, * rp".ifi"d'in a recorded instrumentdescribing those rights ofthe Declarant kansfenedlo the sucoessor or assignee. . Section 2.25. "Declaration" means this Declaration, together with any supplernent oramendment to this Declaration, and any other recorded instrument howevsr denominated thatexercises a Development Right, executed by Declarant and recorded in the Records. The term"Declaration" includes all Maps and Plats recorded with this Declaration and all amendments tothis Declaration and supplanents to the Maps and Plats without specific reference thereto. - - Section2-26. "Deed" means each initial Special Warranty Deed recorded after the datehereof by which Declarant conveys a Unit or a Club Estate. , Section 2.27. '?eyelopmgnt Riehts" means all of the expansion rights, withdrawalrights and development rights set forth in ARTICLE l8 of this Declaration, and in the Act. Section2'28. "Dispute" has the meaning set forth in Secfion 25-l ofthis Declaration.Section 25.1 also sets forth additional definitions relating to Disputes. Section 2.29. "Elieible First Mortgaeee" means a First Mortgagee that has notified theAssociation in writing of its name and addresi and status as a First tvto-rtlagee and has requestedthat it receive notices provided for in ARTICLE 22 entitled ..Mortgagee protections,,. - Section 2.30. "Emproyee Housinq unit" means the unit designated as the . &splqlaggHousine Unit" with the prefix'E'on tt" vup to be used *.pJ"it"a in Section 15.12.References to Units shall include the Employee Housing Unit unless the context would prohibitor this Declaration expressly provides otherwise. - Section2.3l. "First Mortgagee" means a holder of a Security Interest in a Unit or a ClubEstate that has priority over all other security Interests in the unit or club Estate. Section 2.32. "Hotel Unit" means the Unit designated as a . HS!g!_JniI,, in thisDeclaration with the prefix "H" on the Map. References tJ units shall include the Hotel unitunless the context would prohibit or unless this Declaration expressly provides otherwise. - Section2.33' "Improvement(.s)" means the building(s) (including all fixtures andimprovernents contained within it) located on the Property in wirich'units or common Elementsare located. - section 2.34. "Umited Common Elements" means those parts of the Common Elernentsthat are limited to and reserved fot th" ot" in "*rrection with on" o, *or", but fewer than all, ofthe units' without limiting the foregoing the Limited Common Elernents shall include anybalcony, deck, patio, courtyard or porch appurtenant to and accessible only from a unit, ;ishutters, awnings, window boxes, doorsQs, hallways, lobbies, entryways, stoops, porch,balcony or patio designated or desigred to ;erve a single Unit but located outside the Unit,sboundaries, maid/maintenance closets, laundry facilities,-storage spaces, and ski lockers outsideUnits designated as Limited Common Elements in this Declaru:tion o, on the Map, if any. rianfchute, flue, duct, wire, conduit, bearing wall, bearing column or other fixture lies partialiy within CO_DOCS_A #152626 v1 I and partially outside the designated boundaries of a Unit, any portion thereof serving that Unit isa Limited Common Element allo-cated solely to that Uni! *d -y portion thereof Jerving more lhan o1e Unit or any portion of the Common Elernsnts is a part' of the Common Elernents.Limited Common Elements also include any portion of the Common Elements allocated by thisDeclaration or on the Map as Limited Common Elements. All Limited Common Elements shallbe used in connection with the appurtenant Unit(s) to the exclusion of the use thereof by theother Owners, -except by invitation. Subject to the Association's overall responsibility formaintenance of the Limited Common Elernents, each Owner shall be responsible for routine maintenance and care of the walls, ceilings and floors of any patio or balcony or of any otherLimited Common Elements appurtenant to and accessible only from t}re Owner's Unit, and forkeeping the same in a good, clean, sanitary, and attractiv" condition. No reference to Limited Common Elements need be made in any instnrment of conveyance or encumbrance in order to convey or encumber the Limited Common Elements appurtenant to a unit. Section 2.35- "Loading Unit" means a Unit desigrrated in this Declaration as the*Loading Unit" with a prefix of "L" on the Map. Referencei to Units shall include the LoadingUnit unless the context would prohibit or unless this Declaration expressly provides otherwise. Section 2.36. "Maioritv of Owners" means a majority (or any greater percentage thatmay be specifically required for a particular action oi authorization by the terms of tnitDeclaration) of the total voting power of the members of the Association. Section 2.37. "Management Apreeqreirt" means any contract or arrangement enteredinto for purposes of discharging the responsibilities of the Board of Directors relative to theoperation, maintenance, and managernent of the condominium project. Section 2.38. "Management Unit" means a Unit designated in this Declaration as the'Maoecemgg!_Llls!" with the prefix ..lv[" on the Map. Refeiences to Units shall include theManagernent Unit unless the context would prohibit or this Declaration expressly provides otherwise. Section 2.39' "Managinq Aqent" means a person, firm, corporation or other entity employed or engaged as an independent contractor pwsuant to a Management Agreernent toperform managernent seryices for the Association. Section 2.40. "Occupant" means any member of a Unit Owner's family or a UnitOwner's guests, invitees, servants, tenants, employees, or licensees who occupy a Unit or are onthe Common Elements for any period of time,-or any other person who occupies a Unit or is onthe Common Elernents for any period of time. Section 2.41. "Ownef' means the Declarant or any other person who owns record title toa Unit or Club Estate (including a contract seller, bui excluding a contract purchaser) butexcluding any Person having a Security Irterest in a Unit or Club Estate unless such person hasacquired record title to the Unit or Club Estate pursuant to foreclosure or any proce€dings in lieuofforeclosure. I CO_DOCS_A #152626 vl Section 2.42. "Parkine Unit" means a Unit designated in this Declaration as the"ParkinglU!4" with the prefix '!" on the Map. References to units shall include ttr" p*r.irg Unit unless the context would prohibit or unless this Declaration expressly provides. Section 2'43. "Percentage lnterest" has the meaning set forth in Section 4.2 of thisDeclaration. Section 2.44. '?efiod of Declarant Conhol" means the maximum period of time definedand limited by the Act and Section 10.6 of this Declaration during which the Declarant ma5 atits option, control the Association. Section 2.45. "Person" means an individual, association, partnership, limited liability companyr corporation, trust, governmental agency, political subdivision ot otho legal entity orany combination thereof. Section 2.46' "Plarr qf Club Ownership" means the systan of mutual use rights andmutual obligations established by this Declaration as set forth in ARTICLE 24. - Section2.47. "P-l{"_means that part of a Declaration that is a land survey plat as setforth in Section 38-5 l - l 02, Colorado Revised Statutes, as amended, depicts all or any portion ofthe Condominium Project in two dimensions, is executed by the Declarant, and is recorded in the Records. section 2.48. "Propertt''means the real property described on Exhibit A. . Section 2.49- "Real Estatg" means any leasehold or other estate or interest in, over, orunder land, including structures, fixtures, and bther improvements and interests that, by custom,usage or law, pass with the conv€yance ofland though not described in the contract of sale orinstrument of conveyance. Real Estate includes parcels with or without Horizontal Boundaries and spaces that may be filled with air or water. Section 2.50. "Records" means the Office of the Clerk and Recorder in Eagle County,Colorado, and in every county in which any portion of the Condominium project is located. Section 2-51. "Residential Unit" means any Unit designated as a "Regldential Un4" witha prefix of '!", "E', 'Y', or "9" on the Map or desigrated as a Residential Unit in thisDeclaration. Residential Units includes club Units (..F"), tie Employee Housing unit (..E ), theVail Plaza Penthouse Unit ("V'), and the Hotel Unit ("u;1. neferen;es to Units;hall include theResidential Units unless the context would prohibit or uniess this Declaration expressly provides otherwise. Section 2.52. "Restaurant Unit" means a Unit designated in this Declaration as the"Restaurant Unit" with the prefix "R" on the Map. References to Units shall include theRestaurant Unit unless the context would prohibit or unless this Declaration expressly provides. . Section 2.53' "Rule$ and Regulations" means the rules and regulations promulgated bythe Board of Directors ro1 th9 management, preservation, safety, contril, and orderly oiperationof the Condominium Project in order to effectuate the intent and to enforce the obligations set CO_DOCS_A #152626 v1 I forth in the Condominium Documents, as amended and supplernented from time to time. Separate Rules and Regulations may be promulgated to apply orrty to a certain tlpe or types ofUnits. Section 2.54' "securitv Interest" means an interest in Real Estate or personal Fopertycreated by contract or conveyance which secures payment or performance ofan obligation.'The terms include a lien created by a mortgagg deed of trust, truit deed, security deed, -contract fordeed, land sales contract, lease intended as security, assignment oi 1"^" or rents intended assecurity, pledge of an ownership interest in an Association, and any other consensual lien or titleretention contract intended as security for an obligation. The iolder of a Security Interestincludes any insurer or guarantor ofa Security Interest. Section 2.55. "service Unit" means a Unit designated in this Declaration as the..ServiceUnit" with the prefix "S" on the Map. References to Units shall include the Senice Unit unlessthe context would prohibit or unless this Declaration expressly provides otherwise. . Section 2.56. "Spa Unit" means a Unit designated in this Declaration as the ..Spa Unit'with the prefix "A" on the Map. References to Units shall include the Spa Unit gnless thecontext would prohibit or unless this Declaration expressly provides otherwise. Section 2'57. "$pecial Declarant Riehts" means those rights reserved by Declarant inARTICLE 17 and ARTICLE 18 of this Declararion. Section 2.58. "spgcial Developmant District 6" means that certain diskict established byand located in the Town of Vail, Colorado which ordinance creates limitations on the use, righti and ownership of the Project and other real properfy within the district. - Section 2'59. "Unit" means a physical portion of the Condominium project which isdesignated for separate ownership or occupancy and the boundaries ofwhich are described in ordetermined by this Declaration and depicted onthe Map. A Unit shall consist of enclosed rooms and shall be bounded by the interior surfaces of Unfinished Perimeter Walls, Floors and Ceilingsthereof. For the purpose of defining a Unit, the terrns set forth below shall be defined as followi: (a) "unfinished perimeter wall" means the studs, supports, and otherwooden, metal, or similar stuctural materials which constitute the interior faie of a wall of aUnit. (b) "Ugfiuisbed--egtlilg" means the beams, joists, and wooden or otherstruchral materials which constitute the ceiling of a Unit. (c) "Unfinishgd-Flq9l" rneans the beams, floor joists, and floor deck materialwhich constitute the floor of a Unit. A unit shall include any lath, furring, wallboard, plasterboard, plaster, dryrwafl, wallpaneling, wood, tilq pain! paper, carpeting, or any other wall, ceiling, o. nooi "ouoin!, *yfireplace or stove hearth, facing brick, tile or firebox, fixtures and harlware, all improvilents contained within the area bounded by the unfinished perimeter walls, ceilings, and floon, andany heating and refrigerating eleinents or related equipment, utility lines and outlets, electrical CO_DOCS_A #152626 vl I and plumbing fixtures, pipes, and all other related equipment required to provide heating, airconditioning, hot and cold water, electrical, or other uti:lity seMces to such Unit and locatedwithin the unfinished walls, ceilings, and floors; provided, however, that such Unit shall notinclude any of the structural components of the Improvernents or utili'ty or service lines locatedwithin such Unit but serving more than one Unit. Each Unit shall be desigrrated by u ,.p*ui"number, letter, address or other symbol or combination thereof that identifils only one Unit lnthe condominium Project as more specificafly set forth on Exhibit B. Section 2.60. "Vail Plaza Club" or "Club" means the systsm of mutual use rights andmutual obligations created and established for Owners of Club Estates pursuant to the plan ofClub Ownership. Additional definitions relating to the Club are set forth in ARTICLE 24. - Section 2'61. "Vail Plaza Penthouse Unit" means the Condominium Unit designated asthe "vail Plaza Penthou " in this Declaration with the prefix of ..Y' ", il; M"pReferences to Units shall include the Vail Plaza Penthouse Unit unless the context wouldprohibit or unless this Declaration expressly provides otherwise. Section2.62. "Withdrawn Property" has the meaning given in Section 18.7 of thisDeclaration. ARTICLE 3 DIVISION OF PROJECT INTO CONDOMINIUM OWNERSHIP Section 3.1. DiYision tnto Condominium Units. The Property is hereby and hereafterdivided into those Units identified on Exhibiis B and B-1, * u-"nd"d from timl to time, eachconsisting.of a fee simple interest in a Unit and an u.rAirria"a fee simple interest in the CommonElements in accordance with the respective undivided interests in the Common Elements as set Itth i" Exhibits B and B-1' Such undivided interests in the Common Elements are hereUydeclared to be appurtenant to the respective Units. The total of the undivided interests in theCommon Elements set forth in Exhibits B and B-1, rounded to tie nearest one percent (l%),shall be deemed to equal one hundred percent ( I 00%) for purposes of this Declaration. Section 3.2' Delineation of Unit Boundaries. The boundaries of each Unit are $et]n9{edand desigrrated by an identiffiog n".t"t on the Map, and tlose numbers are set forthin Exhibit B. Section 3.3' Ins.eparabilitv of Condominium Unit. Exce.pt as provided in Section 3.5below, and in the Article entitled "R".*uti*lfEilLp-"tti nightr,', and in the Articleentitled "Plan of Club ownership": (a) no part of a Condominium tinit or of the legal rightscomprising ownership of a Condominium Unit may be partitioned or separated from ty oiher qart lher:ofduring the period of condominium ownirship prescribed in ttris Declaration; (b) eachCondominium Unit shall always be conveyed, transferred, devised, bequeatled, encumiered,and otherwise affected only as a compleie condominium Unit; and (c) every "on'"y*"",transf-er' grft,_devise, bequest, encumbrance, or other disposition oi a Condominium Unit or any Part thereof shall be presumed to be a disposition of the entire Condominium Unit, together withall appurtenant rights and interests created by law or by this Declaration, including the UnitOwner's membership in the Association. CO_DOCS_A #152626 v1 - Section 3.4. The Common Elernents shall b-" 9y-""0 in common by all of the o*"@cally undivided, and no ownershall bring any action for partition or division of the Common Elements. By acceptance of adeed or other instnrment of cortveyance or assignment to a Unit or Club Estate, each Owner shallbe deemed to have specifically waived such 6wner's right to institute or maintain a partitionaction or any other cause of action designed to cause a division of the Common Elements, andthis.Section may be pleaded as a bar to the maintenance of such an action. Any Owner who shallinstitute or maintain any zuch action shall be liable to the Association and hereby agrees toreimburse the Association for the Costs of Enforcsrnent in defending any such action. ln noevent shall this Section 3-4 be deemed to prohibit a submission of a Condominium Unit to Clubownership or withdrawal of a Condominium Unit from the Project in accordance with applicableprovisions of this Declaration and of the Act. Section 3.5. Adjoining Units- Unit Owners (other than Owners of CluU gstat"s *hi"h are a part of the VailPlaza Club) maL with the prior approval of the Board (which approval may be withheld in theBoard's sole discretion), alter the exterior of their Units, subdivide their Units and relocate boundaries between their Unit and an adjoining Unit and reallocate Limited Common Elements letween or among Units, subject to the provisi,ons and requiranents of this Declaration and ofthe Act. ARTICLE 4 ALLOCATED INTERESTS Section 4.1. Allocation of Interests. The Allocated Interests assigrred to each Unit areset forth on Exhibit B. These interests have been allocated in accordance with the formula setout in Section 4.2 below. These fonnulae are to be used in reallocating interests if Units areadded to the Condominium Project or if Units are converted to Common Elements or LimitedCommon Elements. The formula for the allocation of undivided interests in the CIub Units tothe Club Estates is described in Section 24.g. - Section 4.2. Formulae for the Allocation of Interests. The interests allocated to eachUnit have been calculated by the following formulae: (a) Undivided lnterest in the Common Elements. The percentage interest ofthe undivided interest in the common Elements for each unit (the ..Eers9ntaggldqgsl!') is basedgenerally on the ratio of the floor area of each Unit to the total floorarea Jf att of ttre-units onthe Project, subject to market value adjustments for certain Units as shown in the chart below.The market value adjustments reflect the limited, special uses of such units. Unit Type Actual Square Footage of Unit Market Value Adjustment Factor Adjusted Square Footage of Unit used to calculate Percentage Interest Hotel 34,369.00 0.9 30,931.20 CO_DOCS_A #152626 vl 10 Employee Housing 9,103.00 0.50 4,551.50 Restaurant 2,885.00 0.70 2,019.50 Commercial 2,169.00 0.70 1,517.60 spa 6,014.00 0.60 3,609.40 Managernent 8,865.00 0.70 6,205.50 Service 18,887.00 0.35 6,610.45 Parking 68,774.00 0.30 20,632.20 Convention 7,160.00 0.40 2,864.00 Catering Kitchen 6,553.00 0.40 2,621,20 Loading 8,154.00 0.2s 2,038.50 Club 62,557.00 r.00 62,557.00 Vail Plaza Penthouse 5,419.00 1.00 5,418.00 (b) co{nr-non Expenses Liabilitv. The percentage of common ExpensesLiability allocated to each Unit is equivalent to and based on each iJnit's percentage roi"."rt,subject to adjustrnents provided for in Section 12.3. (c) Votes. Each Unit shall be allocated the portion of the total voting powerequivalent to such Unit's Percentage Interest. Any specified percentagg portion or fraction ofUnit Owners, unless otherwise stated in the Condominium bocum"itr, *"alr, the specifiedpercentage, portion, or fraction of all of the votes as allocated in Exhibit B. - Section 4.3' Roundine Convention. Any Allocated Interes! stated as a fraction, shallbe rounded up to the nearest one percent (rX). fn" total of all illocated Interests shall bedeemed to equal to one hundred percent (r00zd'for purposes of this Declaration. Section 4'4. Effeptive Date of Reallocation. The effective date for reallocatingAllocated Interests to Units as a result of trr" "*o"lte of Developm€nt Rights set forth inARTICLE 18 of this Declaration shall be the date on which the amen'dment required by Section18.2 hereofis recorded in the Records. l1CO_DOCS_A #152626 vl ARTICLE 5 COMMERCIAL, RESTAURANT' SPA" CONVENTION, CATERING KITCHEN, AND LOADING UNITS Section 5.1. P.erpittd Uses. Except as otherwise provided in this ARTICLE 5, theCommercial' Restaurant, Sp4 Convention, Citering Kitchen, and Loading Units may be used forany purposes and uses permitted by law and by special Development District 6. Section 5.2. Rules and Rezulations. The Board may promulgate Rules andRegulations governing the operations of the Commercial, Restaurant, Spa" Convention, Catering 9t9h1'and Loading Units, only to the extent the operation of such Units materially affects tlfClub Units or the Hotel_.Ydt 1.a then only to: (i)1imit hours of operation when open to thepublic, if applicable; (ii) prohibit ampliied or exterior music after certain times; and(iii) reasonably control odors from restaurants and other facilities. The Rules and Regulationsfor such Units shall also provide a procedure whereby the Board, upon written requ-est, maywaive or vary the limitations on operations of such Units for specific events and/or ascircumstances otherwise allow. Section 5.3. Commercial Activities. A variety of commercial activities are and will be :o"gY"q in and adjacent. to the project (as further described below, th" ,.co.an*siel Activities'). The Commercial Activities are expected to generate an unpredictabl" *to*t ofvisible, audible and odorous impacts and disturbances. The Commercial Activities may include,without limitation: (i) office and retail uses, (ii) retail sales and rentals, (iii) restaurant and baroperations -(including, without limitation, sales of food and alcoholic and non-alcoholic beverages for -consumption on and imrnediately adjacent to the Project and at other locations,preparation of hot and cold food and beverages at indoor and outdoor facilities oo *jimmediately adjacent to the Project), (iv) sales of services relating to recreational activities,(v).the installation, operation and maintenance of illuminated ani non-illuminated sigragg(vi) meetings and conferences, and (vii) any other uses or activities permitted uy lu*.- rireCommercial Activities may occur during daytime and nighttime. Commercial ActMties withinthe Units at the Project must comply with- applicable iaws and regulations and with SpecialDevelopment District 6 requirements. ARTICLE 6 PARIflNG UNIT Section6.l' Permilted Uses. Except as otherwise provided in this ARTICLE 6, theParking unit may be used for any p.rtpoies and uses pirmitted by law and by speciaDevelopment District 6. Section 6.2. Parkine U4it Operation and Limitafions. Operation of the parking Unitmay include designated areas of the parking garage mt rA"A*uni public parking, Club"Estateowner parking, hotel and restaurant res"rved spuces, and a disignaled no*b". of p}ting spacesfor the Vail Plaza Penthouse Unit owner. Tne rarking Unit o-wner may require a fee from allusers of the Parking Unit and a fee from the Associati6n or the Managing Agent for use of theParking Unit by CIub Estate Owners. The Parking Unit Owner -uy."f,uir" valet parking for allusers, The Parking Unit Owner shall be required to provide; CO_DOCS_A #152626 v1 t2 (a) Each Orvner of a Club Estate with the use of one (l) parking space in tlePar$nq Unit during the Club Estate Owner's Club Week(s), pursuant to the terms of theapplicable agreement between Declarant and the Association, ro fong as such an agreement is ineffect; (b) At all times, four (a) parking spaces reserved and assigrred to the VailPlaza Penthouse Unit Owna; (c) Sufficient access to and spaces within the Parking Unit for use by theHotel Unit Owner, Restaurant Unit Owner, Convention Unit Owner, *d trrt*ug"*ent UnitOwner and for valet parking or otherforms of parking as the Parking Unit Owner may determineand agree with the Owners of such other Unitsiand - (d) Uses of the Parking Unit to comply with Special Development Diskict 6requirements. ARTICLE 7 CONDOMINIUM MAP - The Map shall be filed in the Records. Any Map filed subsequent to the first Map shallbe termed a supplernent to such Map, and the numerical sequence of such supplements rf,Ut U"shown thereon. The Map shall be filed following substantial completion of the tmprovement lpl9ted on the Map and prior to the conveyan"" of -y Unit depicted on the Map to a p*ctraser. The Map shall include a plat which shows the following: (a) the name and a general schernatic map of the entire Condominium project; (b) the location and dimensions of all Real Estate not subject to Dwelopment \4tt, or subject only to the Development Right to withdraw, and the locaiion and dimensionsof all existing improvernents within that Real Estate; (c) a description sufficient to identif,i any Real Estate subject to DevelopmentRights, labeled to identifu the rights applicable to it; (d) to the extent feasible, a legally sufficient description of any existingencroachments across any Condominium project boundary; (e) to the extent feasible, a legally sufficient description of all ease,rnentsserving or burdening any portion ofthe Condominium project; and (D the distance between any noncontiguous parcels of Real Estate comprisingthe Condominium Proj ect. The Map shall also show the following: (g) the location and dimensions of the Vertical Boundaries of each Unit andthat Unit's identiffing number;I CO_DOCS_A #152626 v1 13 (h) Horizontal Boundaries, if any, for each Unit with reference to allestablished data and that Unit's identifying number; (i) any Units in which the Declarant has reserved the right to create additionalUnits or Common Elements, identified appropriately; 0 the approximate location and dimensions of all Limited CommonElements; and (k) the number, size and location of any sales offices, management offices andmodels to be maintained by Declarant. The Map shall contain a certificate of a registered and licensed land surveyor certiffing that the Y?p ** prepared subsequent to the substantial completion of the Improvements and contains allinformation required by this Declaration and the Act. Each supplement shall set forth a likecertificate when appropriate. In interpreting the Map, the existin! physical boundaries of eachseparate unit as constructed shall be conclusively presumed to be its boundaries. Declaration and Map. Subsequent to the iecordit;;athi, D;lrr"ti;una vt-p, *nffiTconvey' instruments of conveyance of Units, and every other instrument afilectinj title to a Unitshall be in. substantially the following form with zuch omissions, insertions, recitals of fact, orother provisiory at may be required by the circumstances or appropriate to conform to t;1erequ^irements of any governmental authority, practice or usage or r&rrir"-"nt of law with respecttnereto: ARTICLE E LEGAL DESCRIPTION AND TAXATION OF'UNITS Section 8.1. Decl-4{ation-and Map. A conhact or other agreement for m" sate otu U.lt ""t"r"O into p.i* tothe filing of this Declar"ligllltt1: Records may legally describe such Unit in substantially themanner set forth in this ARTICLE 8 and may indicate that this Declaration and Map are io berecorded. Section 8.2. Unit , according to the Condominium Declaration for VailPlaza Hotel Resort Club, a condominium, recorded 200_, at (Reception No.)and the 200_- atCondominium Map recorded (Reception No.) in the office of the Clerk and Recorder of Eagle County, Colorado. Section 8.3. El-ements' Every instrument of conveyan"", S".*ity hio*t, * "tho ir"kument aftecting thetitle to a Unit which legally describes the Unit substantially in the manner set forth above shallbe construed to describe the Uni! together with the undivided interest in the Common Elernentsappurtenant to it, and together with all fixtures and improvements contained in it, and toincorporate all the rights incident to ownership of a Unit and all the limitations of ownership asdescribed in the covenants, conditions, restriciions, easernents, resen ations, rights-of-way, Ld CO_DOCS_A #152626 vl t4 other provisions contained in this Declaration, including the easement of enjoyment to use theCommon Elernents. Section 8.4. Separate Tax Assessments. Upon the filing for record of this Declarationand the Map in the Records, Declarant shall deliver a copy of thii Declaration to the assessor ofeach county specified in the Records as provided by law. The lien for taxes assessed shall becoafined to the Unit(s)' No forfeiture oisale of any Unit for delinquent raxes, assessments, orother govemmental charge shall divest or in any wayaffect the title to any other Unit. ARTICLE 9 UNIT OWNERS'PROPtrRTY RIGHTS IN COMMON ELEMENTS Section 9.1- Common Elernents. Every Owner shall have a perpetual non-exclusiveright and easement of access over, across, and upon any portion of the Common Elernentsdesignated for common pedestrian use (but specifically excluding, without limitation, CommonElements designated for maintenance, storagg utility installatiJns and service areas), whichincludes the benefit of a non-exclusive easement of access over, across and upon the CommonElements for the purpose of access to and from the Unit from public ways for both pedestrian and vehicular travel, which right and easement shall be appurtenant to andpass with the transferoftitle to such Unit; provided, however, that such righi'and easernent shall be subject to thefollowing: (a) the covenants, conditions, restrictions, easernents, reservations, rights-of-way, and other provisions contained in this Declaration and the Map; (b) the right of the Association from time to time to basis portions of the common Elements such as storage spaces, if any, the Owner of a particular Unit by an appropriate instrument in writing;- (c) the right of the Association to adopt, from fime to time, any and all rulesand regulations concerning vehicular traffic and travel upon, in, under, and across theCondominium Project; and (d) the right of the Association to adopt, from time to time, any and all rulesand regulations conceming the Condominium Project * ttt" Association may determine isnecessary or prudent for th3 management, preservation, safety, conkol, and orderly operation ofthe Condominium Project for the benefit of ull O*nos, and for facilitaiing the greatest and mostconvenient availability and use of the units and common Elernents by owners. . Section 9.2- Limited Common Elernents. Subject to the provisions of this Declarationand the Rules and Regulations, every owner shall havi the right io use and enjoy the LimitedCommon Elements appurtenant to such Owner,s Unit. ARTICLE 10 MEMBERSIIIP AND VOTING RIGIITS IN ASSOCIATION - Section 10.1. As.sociation Membership. The Articles of Incorporation shall be filed nolater than the date the first interest in a Unit in the Condominium i'roject is conveyed to a qurchaser, Every Owner shall be a member of the Association and shall remain a member forthe period of the owner's ownership of a Unit. No owner, whether one or more persons. shall assign on an equitable for the exclusive use of CO_DOCS*A #152626 v1 l) I have more than one merrftership per Unit owned, but all of the Persons owning a Unit shall beentitled to rights of membership and of use and enjoyment appurtenant to ownership of a Unit.Membenhip in the Association shall be appurtenant to, and may not be separated from,ownership of a Unit. If title to a Unit is held by more than one ioron, such-persons shaliappoint and authorize one Person or alternate Persons to represent the Owners of the Unit. Suchrepresentative shall be a natural person who is an Owner, or a designated board mernber, officeror other authorized representative of a corporate Owner, o. u g*lod partner of a partnership Owner, or a comparable representative of any other entity, and sich representative shall have thepower to cast votes on behalf of the Owners as a member of the Association, and serve on theBoard of Directors if elected subject to the provisions of and in accordance with the procedures more fully described in the Bylaws. Notwithstanding the foregoing if only one of the -"ftipi"O*11 of a Unit is present at a meeting of the Association, such Ovmer is entitled to cast ihevote allocated to that Unit. If more than one of the multiple owners are present and there is nowritten designation of an authorized representative, the vote allocated to that Unit may be castonly in accordance with the agreemenf of a majorily in interest of the Owners pr"r"nt, *hi"h majori-lv agreernent may be assumed for all purpos"rif *y one of the multiple Owners casts thevote allocated to that Unit w_ithout protest being made promptly to the person presiding over themeeting by any of the other Owners of the Unit- - Section 10-2. Voting fughts and Meetings. Each Unit in the Condominium project shall have the votes allocated in accordance with Section 4.2; provided, however, no vote allocated toa Unit or Club Estate owned by the Association may be cast. Class voting shall be allowed oncertain issues as described in Section 11.7. Ameeting of the Association shall be held at leastonce each year. Special meetings of the Association may be called (i) by the President, (ii) by amajority of the Board of Directors, (iii) if the special meeting is being'cailed to address issrres onwhich only the Class is entitled to vote, by Owners within the Class having ten percent (10%) ofthe votes entitled to be cast at such meeting, or (iv) by Owners having twenty psrcent (Zoyo), orany lower percentage specified in the Bylaws, of thi votes in the ,{ssociatio.r. Not i"r. iir*fourteen (la) and no more than fifty (50) days in advance of any meeting, the Secretary or otherofficer specified in the Bylaws shall cause noti"" to be hand delivered oi sent prepaid by United States Mail to the mailing address of each owner. The notice of any meeting *rrrt state ihe timeand place of the meeting and the iterns on the agenda including the general nature of anyproposed amendment to this Declaration or the Bylaws, any Budget changes, and any proposal toremove an officer or member of the Board of Directors. Unless the Byliws provide -fo, a lo*opercentage, a quorum is deemed present throughout any meeting of the Association if persons entitled to cast twenty percent (20%) of the votes which may be cast for election of the Board ofDirectors are presenl in person or by proxy, at the beginning of the meeting. With respect tomeetings called for issues primarily related to the Class, for wtrictr the Owners in the Class maydecide the issue voting as a Class, the presence at the beginning of the meeting in person or byproxy of Owners within_ the Class possessing sufficient uot"r to constitute twenty-6u" po"".rt(25%) of the votes of all owners within the Class shall constitute a quorum as to such mattersconceming the Class, and such owners in the Class present in person oi by p.o*y shall constitute the owners entitled to vote upon issues that may be decided by owners inltre itass voting as aClass presented at such meeting where a quonrm is present. Section 10.3. Meqtins to Approve Annual Budget. At the annual meeting of theAssociation or at a special meeting of the Association called for such purpose, the Owners shall CO_DOCS_A #152626 v1 l6 be.afforded the opportunity to ratiff a Budget of the projected revenues, expenditures (bothordinary and capital) and reserves for the AssJciation's next fiscal year as proposed by the Boardof Directors (the "Budegt"). - A summary of the proposed Budjet approvea by the Board ofDirectors shall be mailed to the owneff within thirty^(30) days inoitr adoption along with anotice of a meeting of the Association to be held not l"s, thanfourteen (1a) nor more tf,an fifty(50) days after mailing of the summary to the owners. Unless at the meeting a Majority ofOwners, rather than a.mljolty o!_thgse present and voting in person or by pioxy, ,";"jUr"proposed Budget, the Budget is ratified whether or not a quorum is present ut it i to""tirrg. t , tt "event the proposed BudSet is rejected, the Budget last ratified by the Ownas continues until suchtime as the owners rati& a subsequent Budget proposed by thl noard of Directors * prouiaJabove. Section 10.4. Unit gwners' and Association's Addresses for Notices. All Owners ofeach Unit and Club Estate shall have one and the ru*" r-gi--"d -uiitg ad<kess to be used bythe Association or other owners for notices, demands, *? at other communications regardin!Association matters. The Owner or the representative of the Owners of a Unit or of a ClubEstate shall furnish such registered address to the secretary of the Association within ten (10)days after transfer of title to the Unit or the Club Estati to such owner or owners. Suchregistration shall be in written form and signed by all of the Owners of the Unit or the ClubEstate or by such persons as are authorized t,o represent the interests of all owners of the unit orthe Club Estate. If no address is registered or if all of the Unit owners cannot agree, then theaddress ofthe Unit shall be-deemed their registered address until another registered address isfumished as required under this Section I 0.4.* If the address of the Unit is thJregistered addressof the owner(s), then any notice shall be desmed duly given if delivered to the principal office ofthe Association- All notices and demands intended- ti be served upon the Board of Directorsshall be sent to the Association at the address set forth in the Articles or such other address as theBoard of Directors may designate from time to time by notice to the owner(s). - - Section 10.5- Transfer Information. All Persons who acquire a Unit or Club Estate otherthan from Declarant shall provide to the Association written notice of the person,, nu*",address, Unit or Club Estate owned, date of transfer, and name of the former Owner within ten(10) days of the date of transfer. The Person shall also provide a true and correct copy of therecorded instrument conveying or hansferring the Unit orClub Estate or such other evidence ofthe conveyance or transfer as is reasonablf acceptable to the Association. In addition, the tss:??tign may request such other information as the Association determines is necessary ordesirable in connection with obtaining and maintaining information regarding conveyances andhansfers of Units and club Estates. The Association o-r Managing ege; shJl have irr",rgrrii"charge tle Person a reasonable administrative fee for procesri"! tri rinsfer in the records of theAssociation. Section 10.6. Declarant Control of the Association. There shall be a period of DeclarantControl of the Association, during which a D""t'-*t, "r persons designated by the Declarant,may appoint and rernove the officers of the Association and members oTthe Board of Directors.The Period of Declarant conhol shall commence upon filing of the Articles of lncorporation anashall terminate no later than the earlier of: CO_DOCS_A #152626 vl 17 I (a) sixiy (60) days after conveyance of seventy-five percent (75%) of theUnits that may be created by Declarant to Owners other than a Declarant; O) trvo (2) years after Declarant's last conveyance of a Unit in the ordinarycourse ofbusiness; or (c) two (2) years after any right to add new Units was last exercised. Declarant may voluntarily surrender the right to appoint and remove officers and mernbers of theBoard of Directors before 1Anr11ion of that period, but in that event the Declarant may require,for the duration of the Period of Declarant Control, that specified actions of the Association orBoard of Directors, as described in a recorded insffument executed by the Declarant, be approrrJby the Declarant before they become effective. Section 10.7. REquired Election of Unit Owners. Not later than sixty (60) days after@nveyance of twenty-five percent (25%) of the Units that may be created-by 6eclarant toOwners other than Declarant, at least one (1) member and notless than tweniy-five po"J(25%) of the members of the Board of Directors shall be elected by Owners other than theDeclarant. Not later than sixty (60) days after conveyance of fifty percent (50%) of the Unitsthat 111 be created by Declarant to owners other than Declarant, not less than tfri.ty-Utt"r -Aone{hird percent (33-1/3%) of the members of the Board of birectors must be elected byOwners other than the Declarant. Not later than the termination of any period of DeclarantControl, the Owners shall elect a Board of Directors of at least five (5) mernbers, at least amajority of whom shall be owners other than the Declarant or designated representatives ofOwners other than Declarant' In order to assure representation of Club Members and the otherUnit owners in the affairs of the Association and to protect the valid interests of such Owners inthe operation of the Condominium Project, following the termination of the period of DeclarantControl, the Club Mernbers, voting as a Class, shall be entitled to elect the greater of two (2)members or a minimum-ojfortv qercefi (40%) of the members of the Board ofbirectors, *a th"other Unit Owners shall be entitled to elect ihe remaining members of the Board of Directors-The Board of Directors shall elect the officers. The members of the Board of Directors andofficers shall take office upon election. Section 10.8. Relnoval of Members of tle Board of Directors. Notwithstanding anyprovision of this Declaration or the Bylaws to the cont ary, follo*ing notice and * oppotir*iito !e heard as required by this Declaration and the eci ttre ownJrs, by sixty-seven pg1."*t(67Vo) vote of all persons present and entitled to vote at a meeting of the Owners at which a -quorum is present, may remove a member of the Board of Directors with or without cause, otherthan a mernber appointed ^by the Declarant; provided, however, only Club Mernbers may removea member of the Board of Directors elected by the Club Members voting as a Class pursuant toSection 10.7 of this Declaration without cause- Section 10.9. Reguirqnents for Tumover of Declarant Conhol. Within sixty (60) daysafter the owners other than the Declarant elect a *uiority of th" *bers of tn! board ifDirectors, the Declarant shall deliver to the Association ali property of the owners and of theAssociation held by or controlled by the Declarant, including without limitation the followingitems (to the extent they are in Declarant's possession or contrJl;: CO_DOCS_A #152626 vl 18 (a) the original or a certified copy of the recorded Declaration as amended,the Articles of Incorporation, Bylaws, minute books, other books and records, and any Rules andRegulations which may have been promulgated; - (b) an accounting for Association funds and financial statements, from thedate the Association received funds and ending on the date the Period of Declarant Conhol ends.The financial statements shall be audited by an independent certified public accountant and shallbe accompanied by the accountant's lettlr, expressing either the opinion that the financialstatements present ra{v $9 financial position of the Associarion in cbnformity *ith ge";;ltu"j:pt"d accounting principles or a disclaimer of the accountant's ability to attest to the faimessof the presentation of the financial information in conformity with generally accepted u""o""tirrgprinciples and the reasons therefor. The expense ofthe aud-it shalinot te paia for or charged tithe Association; (c) the Assosiation funds or control thereof; (d) all ofthe Declarant's tangible personal property that has been representedby the Declarant to be the property of the Association or att oithi Diclarant,s tangible personalproperty that is necessary for, and has been used exclusively in, the operation anOln;ojment ofthe Common Elements, together with an inventory of suchiroperty, if *y, and the bill of salefrom Declarant to the Association evidencing transfer of ait personal property itemized in theinventory; (e) a copy' for the non-exclusive use of the Association, of any plans andspecifications used in the construction or renovation of the Improvements; (0 all insurance policies then in force, in which the Owners, the Associationor its mernbers of the Board of Directors and officers are named as insured persons; (g) copies of any certificates of occupancy that may have been issued withrespect to the Improvements; (h) any other permits issued by governmental bodies applicable to theCondominium Project and^which are currently in forceir which were issued witlin one (l) yearprior to the date on which Owners other than the Declarant took control of the Association;' " (i) written warranties of the contractor, subcontractors, suppliers, andmanufacturers that are still effective; 0) a roster of Owners and First Mortgagees and their addresses and telephonenumbers, ifknown, as shown on the Declarant,s recordsf - (k) employment contracts iu which the Association is a conhacting party; and 0) any service conkact in which the Association is a contracting party or in *-"LT:Stsociation or the owners have any obligation to pay a fee to the rosonJi"rrorming me selvlces. CO_DOCS_A #152626 vl t9 I ARTICLE ll ASSOCIATION POWERS AND DUTIES Section 1 1.1 . Association Management Duties. Subject to the rights and obligations ofDeclarant and other Owners as set forth in this Declaration, the Association shall be reiponsiblefor the administration and operation of the Condominium Project and for the exclusivemanagement, control, maintenance, repair, replacement, and imfrovement of the common Elernents and the Limited Common Elements, and shall ,rr" **i."ially reasonable efforts tokeep the same in good, clean, athactivq and sanitary condition, order, andrepair. The expenses, costs, and fees of such management, operation, maintenance, and repair by the Association shali be part of the Assessments, and prior approval of the Owners shall not bL required in order forthe.Association to pay any such expenses, costs, and fees. The Association strall establish andmaintain, out of the installments of the annual Assessments, an adequate reserve account for mainlenance, repair, or replacernent of those Common Elernents that must be maintained repaired and./or replaced on a periodic basis. The Association shall adopt and amend Budgas forrevenues, expenditures, and reserves which will be the basis for collection of AssessmJnts forCommon Expenses from Owners. The Association shall keep financial records sufficiently detailed to enable the Association to comply with the requirernent that it provide staternents o-fstatus of Assessments. All financial and other records of the Association shall be made reasonably available for examination by any Owner and such Owner's authorized agents. Section I 1.2. Association Powers. The Association shall have, subject to the limitations contained in this Declaration and the Act, the powers necessary for the administration of theaffairs of the Association and the upkeep of thJCondominium froiect which shall includg butnot be limited to, the power to: (a) adopt and amend the Bylaws and the Rules and Regulations; (b) adopt and amend Budgets forrevenues, expenditures and reserves; (c) collect Assessments for Common Expenses from Owners; (d) hire and discharge Managing Agents and delegate to such Managing Agents the power and duty to enforce the Rules and Regulations and otier powers and duties o-1 the Association, subject to the requirernents of the Act; (e) hire and discharge employees and agents, other than Managing Agents, and independent contractors; (0 institute, defend or intervene in litigation or administrative proceedings or seek injunctive relief for violation of this Declaration, the Bylaws or the Rules and Regulaionsin the Association's nilme on behalf of the Association o, t*o (2) or more Unit Owners onmatters affecting the Condominium project; (g) receive notices, join in any litigation or administrative proceeding, and execute any and all documents in the Association's name, on behalf of the Associatiotr,L onbehalf of the two (2) or more owners, in connection with any change in zoning, annexation,subdivision approval, building permit, or other type of govlrnmental upprorral required toaccomplish or maintain the purposes of this Declaration: CO_DOCS_A #152626 v1 20 I (h) make contracts and incur liabilities; (i) regulate the use, maintenancg repair, replacernent and modification of theCommon Elements; (t) cause additional irnprovements to be made as part of the Common Elernents; (k) acquire, hold, encumber, and convey in the Association's name any righ!title or interest to real property orpersonal property, but Common Elements may be "onrriy"d oi subjected to a Security Interest only pursuant to the requirements of the Act; 0) grant easements, including permanent easements, leases, licenses and concessions, through or over the Common Elernents; (m) impose and receive a pa)ment, fee, or charge for the usg, rental oroperation of the Common Elernents, other than Limited Common E]ements, and for servicesprovided to Owners; (n) impose a reasonable charge for late payment of Assessments, recover Costs of Enforcernent for collection of Assessment and other actions to enforce the powers of the Association, regardless of whether or not suit was initiated and, after notice and iearing, levy reasonable fines for violations of this Declaration, the Bylaws and the Rules and Regulation-s; (o) impose a reasonable charge for the preparation and recordation of amendments to this Declaration or for preparation of statements of unpaid Assessments; (p) provide for the indernnification of the Association's officers and Board ofDirectors and maintain Board of Directors' and officers, liability insurance; (q) assign the Association's right to future income, including the right to receive Assessments; _ (r) by resolution, establish Committees of the Board of Directors andlor Owners, pemanent and standing to perform any of the above functions under specifically delegated administrative standards, as designated in the resolution establishing the Committee; ' (s) exercise any other powers conferred by this Declaration, by the Bylaws orunder the Act: (t) exercise any other power that entities of the same type as the Associationt may be exercised in Colorado by legal (u) exercise any other power necessary and proper for the governance andoperation of the Association; and CO_DOCS_A #152626 v1 2l e (v) enter into agresments related to the Spa Unit and the parking Unit, to theextent permitted under all applicable law and so long as it complies with Special b"t "top-"ntDishict 6. . Section I 1.3. Actions bv Board of Directors. Except as specifically otherwise providedin this Declaration, the Bylaws or the Act, the Board of Directors may act in all instances onbehalf of the Association. Under certain circumstances, the Owners may require that certain lctigns be taken by the Board of Directors, including as set forth in Section ll.g of thisDeclaration. Section I 1.4- Board of Directors Meetings. All meetings of the Board of Directors, atwhich action is to be tale.n by vote, will te open to ne owners ind agendas for meetings of theBoard of Directors shall be made reasonably available for examinati-on by all membei of theAssociation or their representatives, except that meetings of the Board of iirectors may be heldin executive session(s), without giving notice and without the requiranent that they be opar toOwners, in the following situations: (a) matters pertaining to anployees of the Association or involving theoaployment, promotion, discipline or dismissal of an officer, agent, or employee oT tn"Association; O) consultation with legal counsel concerning disputes that are the subject ofpending, threatened or imminent court proceedings or matters ttlat ar; privileged or confiiential between attomey and client; (c) investigative proceedings conceming possible or actual criminalmisconduct; (d) matters subject to specific constitutional, statutory, or judicially imposedrequirements protecting particular proceedings or matters from public disclosure; (e) any matter the disclosure of which would constitute an unwarrantedinvasion of individual privacy. Section 11.5. Right to Notice and Hearine. Whenever the Condominium Documentsrequire that an action be taken after 'hotice and hearing," the following procedure shall beobserved: The party proposing to take the action (e.g., the Board of Directors, a Committee, anoF"o'. a Managing Agent, etc.) shall give notice Jf th" propo.ed action to all Unit Ownerswhose interests the proposinCyryy reasonably determines *ouiO t" sigrificantly aflected by theproposed action. The notice shall be delivered personally or mailed n6t l"r, than three (3)iays before the proposed action is to be taken. The notice slhall inctude a general statement of theproposed action and the date, time and place of the hearing. At the healng, the affected person shall have the right, personally or by a representative, to give testimony orally and/or in writing,subject to reasonable rules ofprocedure established by the party conducting the hearing to assgie 1 prompt and orderly resolution of the issues. Such evidenc" thull b" "onrido"d in riaking thedecision but shall not bind the decision makers. The affected person shall be notified oithedecision in the same manner in which notice of the hearing was given. Any owner having aright to notice and hearing shall have the right to appeaito thJBoard of Directors frori a CO_DOCS_A #152626 vl 22 t_decision of a proposing party other than the Board of Directors by filing a written notice of appeal with the Board of Directors within ten (10) days after being notified of the decision. The Board of Directors shall conduct a hearing within fo*y-five (a5f days, giving the same notice and observing the same procedures as were required for the original hearing. Sectionll.6. Payments to Working Capital Account. In order to provide the Association with adequate working capital funds, the Association may collect from purchasers at the time of the initial sale of each Unit or Club Estate by Declarant an amount not to exceed three (3) months' worth of annual Assessments based on the Association's Budget in effect at the time of the sale. Such payments to this fund shall not be considered advance payments of annual Assessmsnts. Section 1l'7. Class of Membership. Owners of Club Estates shall make up a separate class of voting mernbers in the Association ("C!gg") for purposes of voting on certain issues as described below, to the extent Club Estate Owners are othelwise allowed to vote on such issues pursuant to the Act or the Condominium Documents. The Board of Directors shall establish a Committee for the Class and shall appoint to such Committee the members of the Board of Directors elected by the Owners within the Class, such that there will be a Club Committee made up of the mernbers of the Board of Directors elected by the Owners of Club Estates voting as a Class. Actions to be taken and issues to be determined by the Board of Directors stratt be determined by the Committee to the extent such actions or issues fall within the categories of issues described below for the Class. Any issue relating solely to the Club, the Club Units or the Limited Common Elements appurtenant to the Club Units shall be decided by the Owners of Club Estates, voting as a Class or by the Club Committee, as appropriate, including: Declaration; Club Units; (i) (ii) all issues relating to ARTICLE 24 of this any issue expressly relating only to the Club or the administration and managem"!1?t*" clob; *Y issue expressly relating only to the (iv) Units or Owners of Club Estates: any Rules and Regulations affecting only the Club (v) any Assessments or items shown on the Budga that are payable only by Owners of Club Estates; and (vi) any issue relating to the Reservation procedures or the level or types of services provided to the Club. The decision on whether an issue relates solely to the Club Units or otherwise fits within the categories of the Club Class issues described above shall be determined in the reasonable discretion of the Board of Directors based on the provisions of the Condominium Documents. CO_DOCS_A #152626 vl 23 Section 11.8.Notwithstandinganything to-the contrary set forth in this Declaration]o i*, *ti* * desision which woulioperate to discriminate against any Class or otherwise interfere with the operation of the Unitsowned by the Class, shall be effective without a vote or agreement of at least sixty-seven po"*i(67%)-ot the voting power of the Class. The Board of Directors shall be required to act inaccordance with the directions of a Majority of owners within the Class in the followine circumstances: (a) If the Majority of Owners within the Class votes to increase the level ofservices or make additional services available to the Class and so notifies the Board of Directors,in writing, then the Board of Directors shall promptly take reasonable action to make suchservices available or to increase the level of sen ices-arrd the proposed Budget will be modifiedaccordingly. (b) If the Majority of Owners within the Class votes to increase or addspecific items to the Budget, beyond that which is included in the first Budget adopted by theAssociation, aflecting only the Class or to increase reserves available only to ttre Ctass anapayable only by the Class or if the Committee for the Class proposes a Budget item or charge,the Board of Directors shall be so notified in writing and the nudget proposed by the Board"oiDirectors pursuant to Section 10.3 for the following yiar shall incluie tire requested changes. (c) If the Majority of Owners within the Class votes to add Rules andRegulations affecting only the Class or to increase the stringency of such Rules and Regulationsor the penalties for violation thereof or to change the Chib's Reservation proceiures, ifapplicable, and so notifies the Board of Directors, in writing, then the Board of Directors shallact to amend the Rules and Regulations accordingly. In addition, any issue primarily relating to a Class that requires the approval or consent of theBoard of Directors shall be deemed to iaclude a requirement for the approval or consent of themembers of the Board of Directors elected by thl Ctass. Not'withst.antting anything to theconkary set forth herein, the Board shall not bi required to take any action that would cause abreach of any legal duty of the Board or that would result in a violation of the Act or a reductionin the level or quality of serwices or management of the Project below the level in place pursuant to the first Budget adopted by the Association for the projeci. ARTICLE 12 ASSESSMENTS Section 12.1. Commencement of Annual Assessments. Until the Association makes anAssessment for Common Expenses, the Declarant shall pay all Comnon Expenses. After anyAssessment has been made by the Association, Assessments shall be made no t"rr t*q"*iiithan annually and shall be based on a Budget adopted no less frequently than annuallyfv *r"Association. Section 12.2. Annual Assessments. The Association shall levy annual Assessments topay for the Common Expense Liability allocated to each Unit pursuantio this Declaration. Thetotal annual Assessments shall be based upon a Budget of the Association's cash requirementsfor upkeep of the Condominium Projict including operation, maintenance, repair and CO_DOCS_A #152626 v1 24 I replacemelt of the Common Elements as required by the Act and the Condominium Documents.Any surplus funds of the Associafion remait ing uft"r puy-*t of or provision for Common Expenses and any prepaynent of or provision for reserves shall be credited to the Unit Owners inproportion to their Common Expense Liability or credited to them to reduce their future Assessments for Common Expenses, Section 12'3. Apportionment of Annual Assessments. The total arurual AssessmEnts forany fiscal year of the Association shall be assessed to the Units in proportion to their percentage of Common Expenses Liability as shown on Exhibit B, subject to: ja) Common Expenses which are separately metered or assessed to the Units by third parties or pursuant to servici agreementswith third parties; (b) Common Expenses associated *ittt th" opiation, maintenancefrepair orreplacement of Limited Common Elements which shall be assessed equally or on such otherequitable basis as the Board of Directors shall determine to the Units to which the specificLimited Common Elements are appurtenant; (c) Common Expenses or portions thereofbenefiting fewer than all of the Units which shall be assessed eiclusively against the Units benefrted; (d) any increased cost ofinsurance based upon risk which shall be assJssed to Units inproportion to the risk; (e) any Common Expense caused by the misconduct of any Owner(s),which may be assessed exclusively or on such other equitable basis as the Board of Directorsshall determine against such owner(s); and (0 any expenses which are charged equally to theUnits. All such allocations of Common Expenses Liability to the Units on a basis other than theUnits' percentage of Common Expenses Liabilify shall Le made at the sole discretion of theBoard of Directors. - Section 12.4. Special Assessments. In addition to the annual Assessments authorized above, the Board of Directors may at any time and from time to time determine, levy, and assessin any fiscal year a special Assessment applicable to that particular fiscal ye* (anO for *y ro"hlonger period as the Board of Directors may determine) foi the purpose of defraying in whole or 1n patt, the unbudgeted costs, fees, and expenses of any construction, reconstruction, rqtair, dernolishing, replacement, renovation or maintenance of the Condominium project, specificallyincluding any fixtures and personal property related to it. Any amounts determLed, teuiea, ana assessed pursuant to this Declaration shall be assessed to the Units pursuant to the provisions insection 12.3 entitled "Apportionment of Annual Assessments" set forth above. Section 12.5. Dug Dates for Assessment Payments. Unless otherwise determined by theBoard of Directors, the Assessments which are to be paid in installments shall be paiA semi-annually in advance and shall be due and payable to the Association at its office or asthe Boardof Directors may otherwise- direct in any Management Agreernent, without notice (except for theinitial- notice of any special Assessment), on the date and in the installments determin"a Uy tt "Board of Directors, as set forth in the Rules and Regulations. If any such installment shall nlt be P-ard when due and payable, then the Board of Directors may ass"ri a late charge, default interest charge (not to exceed the rate from time to time allowed by the Act or appliia6le law), fee, orsuch other charge as the Board of Directors may fix by rule from time to time to cover the extra expenses involved in handling such delinquent Assessment installment. An Owner's Assessment shall be prorated if the ownership of a Unit rcmmences or terminates on a day other than the firstday or last day, respectively, of a month or other applicable payment period. However, if theCommon Expenses Liability_is re-allocated, any installmen4s;-of an Assessment not yet dueshall be recalculated in accordance with the re-aliocated common Expenses Liability. CO_DOCS_A #152626 v1 25 o t Section 12.6- Default Assessments. AII Costs of Enforcement assessed against anOwner pursuant to the Condominium Documents, or any expense of the Association which is theobligation of an owner pursuant to the Condominium bocuments shall become a defaultAssessment assessed against the Owner's Unit. Notice of the amount and dernand for paymentof zuch default Assessment shall be sent to the owner prior to enforcing any rernedies for non-payment hereunder. - Section 12.7. Cpvsnant of Personal Obligation for Assessments. Declarant, by creatingthe Units pursuant to this Declaration, und@ce of the Deed or otherinstrument of transfer of such Owner's Unit or Club Estati lwhither or not it shall be soexpressed in such Deed or other instrument of hansfer), are deemed to personally covenant andagree, jointly and severally, with all other Owners and with the Association, *i hereby do socovenant and agree to pay to the Association the (a) annual Assessments, (b) specialAssessments, and (c) default Assessments applicable to the Owner's Unit or Club Estate'. NoOwner may waive or otherwise escape p"oonul liability for the payment of the Assessmentsprovided for in this Declaration by not using the Common Elementi ii-it"a Comrnon Elementsor the facilifies contained in the Common Elements or by abandoning or leasing the Unit or ClubEstate owned. section 12.8. Lign -for Assessments: Assignment of Rents. The annual, special, andq"fullt Assessments (including installments of ttt" etr"ss**trl -i.ing under the provisions ofthe Condominium Documents shall be burdens running with, ani u poi'"tua lien in favor of theAssociation upon the specific Unit to which such Assissments apply. To further evidence suchlien upon a specific Unit, the Association shall prepare a written iien notice setting forth th;description of the Unit' the amount of Assessments on the Unit unpaid as of the date of such liennotice, the rate of default interest as set by the Rules and Regulations, *re name of the Owner orOwners, and any and all other information that the Associ-atior, -uy deem proper. The liennotice shall be signed by a meraber of the Board of Directors, an ofdcer of the Association, orthe Managing Agent and shall be recorded in the Records. Any such lien notice shall notconstitute a condition precedent or delay the attachment of the lien, but such lien is a perpetuallien upon the Unit and attaches without notice at the beginning of the first day of any p*iira f",which any Assessment is levied. Upon any default in the payirent of annual, specii, tr defaultAssessments, the Association shall also have the right to apioint a receiver io^collect Af ,""ts,profits, or other income from the Unit payable to the Unii b*rr", and to apply all such rents,profits, and income to the payment of delinquent Assessments. Each unit o;% by;*;;hi;of a Unit, agrees to the assignment of such rents, profits and income to the Association efifectiveimmediately upon any default in the payment of annual, special, or default Assessments. section 12.9. Remedies fur Nonpavment of Assessments. If any annual, special, ordefault-Assessment (or any installment olthe essessment) ls not trttypaid within tirt-rirgtdays after the same becomes due and payablq then as often as the same may happen, tal interesishall accrue at the default rate set by the Rules and Regulations on any amount of theAssessment in default' accruing from the due date until date of paynent, (b) the Associutioo *ufdeclare due and payable all unpaid installments of the annuil Assessment or any specialAssessment otherwise dye.during the fiscal lear during which such default o""u11j, a;tl*Association may thereafter bring an action at law or in equity, or both, against any Unii ifv^opersonally obligated to pay the same, (d) the Association may proceed to foreclose its lien I CO_DOCS_A #t52626 v1 26 I against the particular Unit pursuant to the power of sale granted to the Association by thisDeclaration or in the manner and form proviied by coloradi law for foreclosure of real Lstatemortgages, and (e) the Assosiation may suspend the Owner's right to vote in Association mattersuntil the Assessment is paid. An action at iaw or in equity by ilre Association (or counterclaimsor cross-claims for such relief in any_ action) against an ownir to recover a money judgment for*pd{ Assessments (or any installment thereof) may be commenced and p.us,rj by theAssociation without foreclosing or in any way waiving the Associationt lien for ttreAssessments. Foreclosure or atternpted foreclosure by the Association of its lien shall not bedeemed to stop or otherwise preclude the Association from again foreclosing or atternpting toforeclose its lien for any subsequent Assessments (or installmints thereof) wJrich are not 6rtypaid when due or for any subsequent default Assessments. The Association shall have the powJr and right to bid in or purchase any Unit at foreclosure or other legal sale and to acquire *d hold, lease, mortgage, and to convey, or otherwise deal with the Unit aJquired in such proceedings. Section 12.10. Purchaser's Liability for Assessments. Notwithstanding the personalobligation of each Owner to pay all Assessments on the Unil and notwl*rstaniing theAssociation's perpetual lien upon a Unit for such Assessments, all purchasers of a Unit stralt bejointly and severally liabie with the prior owner(s) of such Unit for any and all unpaid Assessments against such Unit, without prejudice to any such purchaser's right to ."*rro tio-any prior Unit Owner any amounts paid thereon by such purchaser. A purcliaser's obligationtopay Assessments shall commence upon the date the purchaser beco*"r th" Owner of a Uht. ForAssessment purposes, the date a purchaser becomes the Unit Owner shall be detemrined asfollows: (a) in the event of a conveyance or transfer by foreclosure, the date a purchaser becomes the Unit Owner shall be deerned to be upon the expiration of all applicable redernptionperiods; (b) in the event of a conveyance or transfer by deed in lieu of foreclosure a p*"ir*o shall be deemed to become the Owner of a Unit upon the execution and delivery of the deed orother instruments convefng or transferring title to the Unit, irrespective of the date the deed isrecorded; and (c) in the event ofconveyance or transfer by deed, a purchaser shall be deemed tobecome the Unit Owner upon the execution and delivery of'tne Aeea or other instrumentsconveying or transferring title of the Unit, irrespective of the date the deed is recorded.However, such purchaser shall be entitled to rely upon the existence and status of unpaidAssessments as shown upon any certificate issued by or on behalf of the Association to such named purchaser pursuant to the provisions of this Declaration. Section 12.11. +gqrsslB+l. By acceptance of the Deed or other instrumettt of transfer of u Unit * u Ct"UEstate' each Owner irrevocably waives the homestead exemption provided by part 2, Article 41,Title 38, Colorado Revised Statutes, as amended. The Association's perpetual lien on a Unit for Assessments shall be superior to all other liens and encumbrances exceptihe following: (a) real property ad valorem taxes and special assessment liens duly imposedby a Colorado govemmental or political subdivision or special ta><ing district, or any otSo ti"n, made superior by stafute; (b) liens recorded prior to this Declaration unless othen{ise agreed by theparties thereto; and CO_DOCS_A #152626 v1 27 (c) the lien of any First Mortgagee except to the extent the Act grants priorityfor Assessments to the Association. Any First Mortgagee who acquires title to a Unit by virtue of foreclosing a First Mortgage or byvirtue ofa deed or assignment in lieu ofsuch a foreclosure, or any purchaser at a foreclosure saleof the First Mortgage, will take the Unit free of any claims for *p"ia Assessments and Costs ofEnforcement against the Unit which accrue prior to the time ,l',"h Firrt Mortgagee acquires titleto the Unit except to the extent the amount of the extinguished lien may be reallocated and assessed to all Units as a Common Expense and except to the extent the Act grants lien priorityfor Assessments to the Association. nil other Persons not holding liens described in this Sectionand obtaining a lien or encumbrance on any Unit after the recordfng of this Declaration shall bedeerned to consent that any such lierr or encumbrance shall be suiordinate and inferior to theAssociation's lien for Assessments and Costs of Enforcernent as provided in this Article, whetheror not such consent is specifically set forth in the instrumint creating any such lien orencumbrance. The sale or other hansfer of any Unit shall not affect the Association's lien on such Unit forAssessments due and owing prior to the time such purchaser acquired title and shall not affectthe personal liability of each owner who shall have been responsible for the payment ttrereofexcept (a) as provided above with respect to First Mortgagees; ft) in the "ase of io.e"losure ofany lien enumerated in this Section, and (c) as provided in the next Section. Further, no suchsale or transfer shall relieve the purchaser of a Unit from liability for, or the Unit from the lienof any Assessments made after the sale or transfer. Section 12.12' Statement of Status of Assessments. On or before fourteen (14) calendardays after receipt of written notice to the Managing Agent or, in t}te absence of a tlanagingAgent, to the Board of r)irectors and paltnent of a reasonable fee set from time to tlme bfthJ Board- of Directo{s, any Owner, holder of a Security Interest, prospective purchaser of a Unit ortheir designees shall be furnished a statement of the owner's account seuing forth: (a) the amount of any unpaid Assessments tlen existing against a particglar Unit: (b) the amount of the current installments of the annual Assessment and the date that the next installment is due and payable; (c) the date(s) for payment of any installments of any special Assessments outstanding against the Unit; and (d) any other information, deemed proper by the Association, including theamount of any delinquent Assessments created or impoied und"i the terms of this Declaratio-n. Upon the issuance of such a certificate signed by a member of the Board of Directors, byan offrcer of the Association, or by a Managing Agent, the information contained therein shall beconclusive upon the Association as to the Person or Persons to whom such certificate isaddressed and who rely on the certificate in good faith. CO_DOCS_A #152626 v1 28 - Section 12.13-Liens' Except for Assessment liens as provided in this Declaration, T""hq::l liens (except as prohibited by this Declaration), tax liens, judgment liens and otherliens validly arising by operation of law and liens arising unaer security Iiterests, there shall beno other liens obtainable against the Common Elernents or against the interest of any Owner inthe Common Elsrnents,except a Security Interest in the Common Elements granted by theAssociation pursuant to the requirements of the Act. ARTICLE 13 MAINTENANCE RESPONSIBILITY - Section l3.l. Except as may 1"^1,'^T91 11ft" ly"nT" *d tut".usr t' "*""utJtiDeclarant in connection with sales to iniiial purchasers of the Units, """h o;;l;;*,rr"11 crriEstate owners) shall have the exclusive right and duty to paint, iile, wax, paper, or otherwisedecorate or redecorate and to maintain and repair the inierior r*fu"", oi the-walls, floors,ceilings, windows and doors forming the boundaries of such Owner's Unit and all walls, floors,ceilings, and doors within such boundaries. Notwithstanding the foregoing, no Owner rfraf U"permitted to install any hardwood floor or other hard surfice improiernents in any Unit thatmight aflect adjoining Units by increasing noise or vibrations, without the prior writtin approvalof the Association, which approval *ay U" denied, or mnditioned, in the Association,s solediscretion. - Section 13.2' Responsibility of the Unit owner. Each Owner (but not including Ownersof Club Estates) shall, at each owner's expense, ,*intuin and keep in repair all fixtures,equipment, and utilities installed and included in such Unit commencing at a point where thefixtures, equipmen! and utilities enter the Unit. A Unit Owner shall not allow any action oryork that will impair the structural soundness of the lmprovonents, impair th" propofunctioning of the utilities, heating, ventilation, or plumbing systems or integrity of theImprovem_ent(s), or impair any easement or hereditament. SuUii"tio the Association,s overallresponsibility for maintenance of the Common Elernents, each unit owner (other than Ownersof.-Club Estates) shall be responsible for routine maintenance and care oi the walls, floors,ceilings, windows and doors of any balcony or of any other Limited Common Elementsappurtenant and accessible only from the Owner's Unit and for keeping the same in a good,clean, sanitary, and attractive condition. An Owner (but not includinj Owners of Club esiatesjshall be responsible for rqr_ airs occasioned by casualty due to the acior negligence of the unitOwner or Occupant of the Unit except as provided in ARTICLE 20. . Section 13.3. Unit gwner's Neeligence. In the event that the need for maintenance,repalr' or replacement of all or any portion of tn" Co*-on Elernents, including the LimitedCommon Elements, is caused through or by the negligent or willful act or omission of an Owneror Occupant, then the expenses incrrrred by the Association for such maintenance, ,"puir, oireplacement shall be a personal obligation of such owner; and, if the owner fails to ,eeuv'trr"expenses incurred by the Association witlin seven (7) days aher notice to the owner of theamount owed, then the failure to so repay shall be a aefault by the owner, and such expensesshall automatically become a default Assessment determined and levied against such Unit, orclub Estate, enforceable by the Association in accordance with this Declaration. CO_DOCS_A #152626 vl 29 I Section 13.4. RgspQnsibilitv of the Association. The Association, without therequirement of approval of the Owners, shall maintain 'and keep in good reparr, replace, andimprove, as a Common Expense, all of the Condominium Project "ot r{"it"a in this declaration to be maintained and kept in good repair by an Owner or by Declarant. ARTICLE 14 MECHANICS' LIENS Section 14.1. Mechanics' Liens. Subsequent to recording of this Declaration and thefiling of the Map in the Records, no labor pirformed o, -"t!.iul, furnished for use andincorporated in any Unit with the consent of or at the request of the Owner or the Owner,s agenlcontractor or subcontractor, shall be the basis for the filing of a lien against a Unit of any o'therorvner not expressly consenting to or requesting the same,L against ariy interest in the CommonElements except as to the undivided interest therein upp.rtt**t to ttre Unit of the Owner forwhom such labor shall have been performed or such -aterials shall have been furnished. Eachowner shall indemni! and hold harmless each of the other owners and the Associafion fromand- against any liability or loss arising from the claim of any mechanics' lien or for laborperformed or for materials fumished in work on such owner's Unit, against the Unit of anotherOwnsr or against the Common Eleinents, or any part thereof. Section 14.2. Er-rfotcement by the Association. At its own initiative or upon the writtenrequest of any Owner (if the Association determines that further action by the Association isproper), the Association shall enforce the inrlemnity provided by the provisions of this ARTICLE14 by collecting from the owner of the Unit on which the labor was performed or materialsfurnished the amount nTe:sary to discharge by bond or otherwise any such mechanics, lien, topay all costs and reasonable attomeys' fees incidental to the lien, and io obtain a release ofsuchlien' If the owner of the Unit on which the labor was performed or materials furnished refusesor fails to indemni$r within five (5) days after the Association shall have given notice to suchOwner of the total amount of the claim, then the failure to so indernnifu rhutt t" a default bysuch Owner under the provisions of this Sectio n 14.2, and such amount to be indemnified shallautomatically become a default Assessment determined and levied against such Unit, andenforceable by the Association pursuant to this Declaration. ARTICLE 15 USE RESTRICTIONS Section 15.1. Use of Units. Except for uses reserved to Declarant in ARTICLE 17entitled "Special Declarant Rights and Additional Reserved Rights," and except for any usesreserved to the Owner of the Hotel Unit, all Residential Units shall be used for dwelling p".poroonly. Except as otherwise restricted herein, Owners of the Residential Units rnuy r"if ori"*"the Residential Units to others for these purposes and may use the Residential Units for homeoccupations which do not cause unreasonable disturbance to other Owners and which arepermitted by applicable zoning codes. Each non-Residential Unit shall be used for legal business or- commercial purposes compatible with the operations of the Vail Plaza Hotel, which are nototherwise prohibited under the Condominium Dbcuments. Section 15-2. Use of Common Elernents. There shall be no obstruction of the CommonElernents,, nor shall anything be kept or stored on any part of the Common Elements by anyOwner without the prior written approval of the Association. Nothing shall be altered o; CO_DOCS_A #152626 vl 30 I constructed in, ot removed from the Common Elements by any Owner without the prior writtenapproval of the Association. owners and occupants shatl not disnrb, damage, or have access to,certain restricted access are€ts in the common Elernents as designati on thJMap or in the Rulesand Regulations. t Nothing shall be done or kePt in any Unit or in * on the Common Elero"ntr, or any part thereof,which would result in the cancellation of the insurance on all or any part of the CondominiumProject or in an increase in the rate of the insurance on all o. -y pu.t of the CondominiumProject over what the Association, but for such activity, would pay,'without the prio. w.ittenapproval of the Association. Nothing shall be done or t"pt i" *y u*t or in or on the CommonElements which would h^e in violation of any statute, rulei ordinance, regulation, permit, or otherimposed requirement of any govemmentJ body having jurisdiction"over the CondominiumProject. No damage to or waste of the Common Elernents shall be committed by any Owner orOccupant, and each Owner shall indemnify and hold the Association and the other Ownersharmless against all loss resulting from any such damage or waste caused by such Owner or suchoySer'1 guest (including all attomeys' fees, costs and i*p"nr", incurred in the defense of claimsarising by reason of this section and incurred in estatlishing the right to indemnification). Failure to so indemnifu shall be a default by such Owner under this Sect6n. At its own initiativeor upon the written request of any Owner, if the Association determines that further action by theAssociation is proper, the Association shall enforce the foregoing indemnity as a de-faultAssessment levied against such Unit. In no event, regardliss of *y pr|r.iriol to theCondominium Documents, shall the Association or the Board of Directors ie liable to anyPerson for failure to enforce the provisions ofthis Section. Section 15.4. Structural Alterations and Exterior Appearance. No structural alterationst9 *{ Unit, including the construction of any additional rt/@ window, door or otheralteration visible from the exterior of the Unit or to any Common Elernent shall be made or :u*{ to be made by any 9*T without the prior written approval of the Declarant during thePeriod of Declarant Control and, thereafter, the Association. No window coverings o, J*roimprovements' alterations or decorations visible from outside a Unit shall be added bf an ownerwithout the prior written approval of the Declarant during the Period of Declarant iontrol and,thereafter, the Association. No alteration or subdivision of Units or relocation of boundaries letween adjoining Units shall be made by the Owners without the prior written approval of theDeclarant during the Period of Declarant Conhol and, thereafter, by the Association. TheAssociation shall promulgate Rules and Regulations establishing procedures for the approvalsrequired by this Section 15'4. Such Rules and Regulations shalt ilrctude, but shall not te jimiteA to, requirements that the applicant submit (a) plans and specifications showing the naturg kind,shape, height, color, materials, and location of the proposid alterations in sufficient detail ibr theAssociation and Declarant to review them; and 1b; processing and/or review fees, which mayinclude any professional fees the Association or Deciarant mifht incur in retaining architects orengineers to review the plans and specifications. The Rules Ld Regulations shal[ specificallyconsider the impact of the alteration on the harmony of external desigriand location in relation tosurrounding structures and topography. Section 15.3. Section 15.5. Pet and Use Restrictions. No outbuildings or structures of any kind shall be erected animal pens, sheds, fences or other by any Owner. No activity shall be CO_DOCS_A #152626 v1 3l allowed which interferes unduly with the peaceful possession and proper use of theCondominium Project by the Ovrners, nor shali any fire hazard or unsighily accumulation ofrefuse be allowed- No lights shall be emitted which are u*"a**rty bright or causeunreasonable glare; no sound shall be emitted which is unreasonably loud oi u*o'ying; and noodor shall be emitted which is nauseous or offensive to others. No animals, tiras, iisects, orlivestock of any kind shall be raised, bred, or kept on or in the Condominium project "*""pi *permitted by the Association in its sole and final discretion and except for property ucerrsejanJcertified service animals for disabled Penons. The Board of Directors may lbut shall not beobligated to) approve a request of an owner to keep a personal household pet with suchconditions as the Board of Directors in its discretion may impose, including, without limitation,that such pet shall be registered, licensed and inoculated aemay be required by the Board oiDirectors or local law from time to time, and that the Board of Directors may impose a specialAssessment on an Owner to defray the maintenance costs associated with the pet.Notwithstanding the foregoing, the occupant of the Vail Plaza Penthouse Unit shall be allowed tokeep a reasonable number of standard household pets without obtaining Board of Directorconsent and without the obligation to pay additional maintenance costs. The pas must be kepton a short leash when TyYhq" on the Project outside of the Vail Plaza Penthouse Unit and maybe outside such Unit only for the purpose of direct transit from the Unit to the outside or partinigarage' The Vail Plaza Penthouse Unit owner must ensure that all pets comply witn il nois!and nuisance restrictions herein. Section 15.6. Limit on Timesharins. No Unit Owner, excluding Declarant, shall offer orsell any interest in such Unit under a 'limisharing," 'aacation club,":,private residence club,';'hon-equity club," "fractional plan" or "interval ownership" plan, or anyiimitar ptan without thespecific prior written approval of the Declarant during thi p"tioa oi Declarant Control, and thereaft er the Associ ation. . Section 15.7. Rgstriction on Signs. Except with regard to the operation of the HotelUnit, no signs, billboards, posterboards, or advertising structLe of any kind shall be dispfayea,erected, or maintained for any purpose whatsoever exiept such signs as have been uppto""O UVthe Declarant during the Period of Declarant Control and-, thereaftJr, the Association.'Any sigrrswhich are permitted under the foregoing restrictions shall be erected or maintained on theCondominium Project only with the prior written approval of the Declarant during the period ofDeclarant Control, and thereafter the Association, which approval shall be givi only if suchsigns are of attractive design and as small a size as reasonably possible and shall be ilaced orlocated as directed or approved by the Association. Section 15.8. Commercial Operation. Each owner of a Commercial Unit must complywith the. Rules and Regulations for Commercial Units as adopted from time to time by ih;Association, subject to limitations on the Board's ability to promulgate Rules and Regulations under Section 5.2. Section 15.9. Restrictions on Use of Parking and Storaee Areas. No parking shall bepermitted at any location on the Common Elements unl"rr r.p""ifi"utly d"rignated fo. plrUng UVthe Association, or in a location designated as Limited Common Elernents and appurtenant to aspecific^Unit. No storage is perrnitted outside of Units except in specifically desigrrated storageareas, if any. No Owner may use any parking or storage spu"" *signed to another. No Ov,rner CO_DOCS_A #152626 vl 32 t may use any parking space for storage or use any parking or storage space in any manner that obskucts or interferes with any other Owner's parking or storagJrights or thai constitutes asafety hazard- Without timiting the generality of the powers of the Aisociation with r€spect toparking or storage, the Association is specifically authorized, but not obligated, to ,oo*" *y abandoned or inoperable vehicle,, any vehicle parked in any area not desifrati for partclng, or any vehicle parked in any space that is assigrred to another person or reserved for a siecific-use, or any vehicle parked in an obstructing or hazardous manner, or to remove any improierly stordor hazardous materials, in all cases at the expense of the Owner or Occupant thaiowns such vehicle or materials. Expenses incurred by the Association in connection with such removal (and storage, if necessary) shall be a personal obligation of such Owner and, if the Owner fails topay such atnount within seven (7) days after notice to the Owner of the amount owed, then the failure to pay shall be a default by the Owner and such expenses shall automatically become adefault Assessment determined and levied against such U*t enforceable by the Association asprovided in this Declaration. Section 15.10. Restrictions Not Applicable to Owner of the Hotel Unit. Notwithstanding anything in this Declaration to the contrary, no Owner or Occupant, except the Hotel UniiOwnet, the Declarant, the Restaurant Unit Owner, the Convention Unit Owner, and any Commercial Unit Owner permitted by the Association, after the Period of Declarant Control ends, shall have any right to the sale or service of food or alcoholic beverages on the project. The Hotel Unit Owner may designate in writing any and all permitted providers for the sale or service of food or alcoholic beverages on the Project. No Owner or Occupant shall do anything as may hinder or interfere with the Hotel Unit Owner's ability (or the ability of any person oi entity designated by the Hotel Unit Owner as permitted provider) to secure and maintain licenses for the sale or service of food or alcoholic beverages. The Association shall promptly execute such documents as may be requested by the Hotel Unit Owner, from time t; tim;, io further assure the rights granted to the Hotel Unit Owner under this Section 15.10. Notwithstanding any restriction or limitation in this Declaration, the Hotel Unit Owner shall have the right, wilfrout the consent or approval of the Association or other Owners, but without obligation,t ia) make alterations, additions or improvernents, structural and nonstructural, int&or and eiterior, ordinary and extraordinary, in, to and upon the Hotel Unit or any other Units owned by the HoteiUnit Owner (including, without limitation, the rernoval of walls, floors, ceilings and other structural portions of any improvements within such units), and (b) expand, alter;discontinue, replace or add to all or any part ofthe recreational facilities or other improvernents. Section 15.11. District Documents. The Project is located in Special Development District 6 and is subject to and governed by various recorded and unrecorded documents pedaining to such district, including but not limited to, that certain Declaration of Easernents andRights recorded on February 2, 1988 in Book 478,Page 377 in Records conceming parking,utilities, eassments and other matters within such dist i"t, and that certain Diclaratio]i Concerning Parking Within Special Development District 6, recorded July 10, 1984, in Book 388, Page 856 in Records. Section 15.12. Rgstrictions on Employee Housing Unit. The use and occupancy of the Employee Housing Unit is limited -by zoning codes and ordinances as morJ speiifically described in the deed of conveyance of the Employee Housing Unit to the Owner of such Unit. CO_DOCS_A #152626 v1 JJ l"ARTICLE 16 EASEMENTS Section 16.1. Easement of Enjoyment. Every Owner shall have a non-exclusive easement for the use and enjoyment of the Common Elements (which includes the benefit of thenon-exclusive easemeirt for access over, through and across the Limited Common Elements ofthe Management Unit, Service Unit, and Convention Unit as provided under this Article), whichshall be appudsnant to and shall pass with the title to everyUnit, subject to the easernents setforth in this ARTICLE 16 and the easements and restrictions set forth in ARTICLE 9 entitled"Unit Owners' Property Rigbts in Common Elements". Section 16.2. Deleeation of Use. Any Owner may delegate, in accordance with theCondominium Documents, the owner's right of enjoyment in tie Common Elements to anOccupant of the Owner's Unit. - Section 16.3. Recorded Easements The Property shall be subject to any easements asshownon any recorded plat affecting the Property, aiho*n on the redrded Maj or reserved orgranted under this Declaration. The recording data for recorded eassments and licensesappurtenant to or includedin the Property or to which any part of the Property may become subject is set forth on Exhibit C attached hereto and incorporatia herein by this reference. nonexclusive easement in favor of each Owner *a p".-itt"d O""r,p*t rhutt "*irt fo, p"d"rt iuntraffrc over, through and across such portions of thi timited Common Elements appurtenant tothe Management Unit, Service Unit, and Convention Unit, as are desigrrated, modihed, altered and relocated from time to time by the owners of such Units for the pr"ipose of providing directpedestrian access to and from the applicable Residential Unit and the public rights oi *uy, adjacent to the Project, subject to the procedures, rules and regulations as may bi establishedfrom time to time by the Owners of such Units. Section 16.5- Easernents for Encroachments. The Condominium project, and allportions ofit, are subject to easements hereby created for encroachments between Units and theCommon Elernents as follows: (a) in favor of all Owners, so that they shall have no legal liability wheq anypart of the Common Elements encroaches upon a Unit; (b) in favor of each Owner, so that the Owner shall have when any part of such owner's Unit encroaches upon the common ElementsUnil and (c) in favor of all Owners, the Association, and the Owner of any encroachingUnit for the maintenance and repair of such encroachments. Encroachments referred to in this Section 16.5 include, but are not limited to, encroachments caused by error or variance from the original plans in the construction of the Improvements orany unit constructed on the Property, by error in the Map, by settling, rising, or shifting of theearth, or by changes in posifion caused by repair oi reconstructioo oi any part-of theCondominium Project. Such encroachments ihall not be considsred to be encumbrances uDon Section 16.4. no legal liability or upon another CO_DOCS_A #152626 v1 34 t any paxt of the Condominium Project; provided, however, that encroachments created by theintentional act of an ownet shall not be deemed to qreate an easement on the property anA snaltbe considered an encroachment upon the Condominium Project. Such enctoachment shall beremoved at Owner's expense immediately upon notice from ihe Association. In the event such encroachment is not timely rernoved, the Association may effect rsmoval of the encroachment and the expense thereof shall be a default Assessment to the Owner. Section 16.6. Utilitv Easernents. There is hereby created a general easement uponoacross' over' in, and under all of the Property for ingress and egress and for installaton,replalernent repair, and maintenance of all utilities and iervices for the Owners, including buinot limited to water, sewer, gas, telephone, electricify, cable television, cable, ana ithercommunication systems' By virlue of this easernent, it shall be expressly permissible and properfor the companies providing such utilities to erect and maintain the neclssary equipment on theProperty and to affix and maintain electrical, communications, and telephone wiresj circuits, and condrrits under the Property' Any utility or sen ice company using this general easement shall use its best efforts to install and maintain the utilities piovided without disturbing the uses ofother utilities, the Owners, the Association, and Declaran! shall complete its installation and maintenance activities as promptly as reasonably possible; and shall restore the surface to itsoriginal condition as soon as possible after completion of its work. Should any utility or service company fumishing a service lovered by this general easement request a specific eLement by separate recordable document, Declarant during the Period of Declarant Control and, thereafter, the Association, shall have the right and authority to grant such easement upon, across, over, orunder any part or all of the Property without conflicting with the terms hereof. The easementsprovided for in this Section 16.6 shall in no way affect, avoid, extinguish, or modifu any other recorded easement on the Property. Section 16.7. Emergency Access Easement. A general easement is hereby granted to allpolice, sheriff, fire protection, ambulance, and all other similar emergency agencies or persons to enter upon all streets and upon the property in the proper performanci oftheir duties. Section 16.8. Maintenance Easement. An easement is hereby granted to the Association and any Managing Agent and their respective officers, agents, *pl-oy"", and assigns upon, across' over, in, and under the Common Elernents and a right to maki such use of the Common Elernents as may be necessary or appropriate to perform the duties and functions which they are obligated or permitted to perform pursuant to thiJ Declaration. the.Common Elements, including Limited Co.o-on gt"t*ntr, ur" o. r*v be locatea within theUnits or may be conveniently accessible only tbrough the Units. The Hoiel Unit owner and the section 16.9. E**"ntr ofA"""rr fo. R.puir. Muint"r-"". *d E*".q"n"i"r. some of Association shall have the irrevocable right ftut not the obligation), to be exercised by theAssociation as the Owners' agent, to have access to each Unit, "*""pf tn" yail plazapenthouse Unit, and to all Common Elements from time to time during such reasonable hours as may be necessary for the maintenance, repair, removal, or replacem"nt of *y of the Common Elenents therein or accessible therefrom or for making emergency repairs therein necessary ro prevent damage to the Common Elernents or to any Unit. Unless caused by the negligent or wiliful actor omission of an Owner or Occupant, damage to the interior of anapart of a Unit resulting fromthe maintenance, repair, emergency repair, rernoval, or replacement of any of the coinmon CO_DOCS_A #152626 vl 35 I Elements or as a result of ernergency repair within another Unit at the instance of the Associationor of the Owners shall.be a Common Expense. In order to effectuate this right, the Associationshall retain a master key, in the form of a card which opens all doors *itt io the projec! including all Units and an Onmer shall not tamper with the cardreader on any door, including adoor to or within such Owner's Unit. Section 16.10- Pedestrian Easements. The Declarant and/or the Association may grantcertain easements to the public and/or adjacent property owners relating to the CommeicialActivities' the Convention Unit, the Spa U*t, ttre llotel Unit, the Restaurant Unit, the parking Unit, the lnading Unit, and/or the Commercial Units. Such easements shall be depicted on thIMap or otherwise recorded against the property. Section 16.11. Easements Deerned Created. All conveyances of Units hereafter made,whether by Declarant or otherwise, shall be construed to grant and reserve the easernentscontained in this ARTICLE 16, even though no specific reference to such easements or to thisARTICLE 16 appears in the instrument for such conveyance. Section 16.12' Easement for Warranty Work. To the extent that and for as long asDeclarant remains liable under anJ warranty, whether stafutory, express or implied, for an/actor omission of Declarant in the development, construction, Jale and marketing of *r"Condominium Project, then Declarant and its contractors, agents and designees shall have theright, in Declarant's sole discretion and from time to time, to enter the Prop-erty for the purposeof making any necessary__inspections, tests, repairs, improvements and/or replalernents t"qriit"afor the Declarant to fulfill any of its waranty obligatlons. Failure of the Association or anyOwner to grant such access may result in the appiicable warranty being nullified and of nofurther force or effect. Section 16.13. Reserved Easernent of Hotel Unit Owner. There is reserved to the HotelUnit Owner, its express successors, transferees, designees, ug"rrtt, assigns and co-licensees, theexclusive right to provide room service and any otheihotel r"*i""r on ihe proiect, including thenon-exclusive right to sell, serve and deliver alcoholic beverages ofevery kind and characier to and within all portions of the Project, specifically including the Management Unit, Service Unit, Spa Unit, Convention Unit, Residential Units, Commercial-Units, the -ommon Elements, and aliLimited Common Elements appurtenant to such Units. The exercise or grant of such exclusive and non-exclusive rights shall not be deemed to preclude, prevent ot prJhibit other uses of theCommon Elements or the Units not in conflict with such exclusive and non-exclusive rights (for example, the Restaurant Unit may include a bar and the service and sale of alcoholic UJu"rug"sand the Convention Unit Owner may serve and sell alcoholic beverages to Convention attendees). Grantees of any interest in the Project, by acceptance of any ddd, lease or licensq shall be and are hereby bound by such reservations ofrights. ARTICLE 17 SPECIAL DECLARANT RIGHTS AND ADDITIONAL RESERVED RIGHTS _ Section 17.1. Special Declarant Riqhts. Declarant hereby reserves the right, from timeto time, to perform the acts and exercise the rights hereinafter splcified (the ..Spe-cial lgslg&ntRights"). Declarant's Special Declarant Rights include the following: CO_DOCS_A #152626 v1 36 O'" (a) Cgmpls:tio.n of lmprovements. The right to complete Improvementsindicated on Plats and Maps filed with this Declaration. (b) Ex-ercisq of Development Riehts. The right to exercise any DevelopmentRight reserved in ARTICLE l8 of this Oectardion. (c) Sales. Management and Marketine. The right to locate, relocate andmaintain sales ofifices, management ofEces, sigrs advertising the bondominium project, andmodels,within any Unit or Units and in the Common Elernents. Declarant shall have tfre right;show Units and the Common Elements to prospective purchasers and to arrange fbr the use ofany parking, storage, or recreational facilities within the Common Elements by prospfive purchasers. (d) Conslruction Easements. The right to use easements through the CommonElements for the purpose of making Improvements within the condominium projict. (e) Master Association. The right to make the Condominium project subjectto a Master Association upon majority vote of the Owners. (0 . The right to appoint orremove any officer of the Association or any member of tt " go*d of Directors. (g) Amendment of Declaration. The right to amend this Declaration inconnection with the exercise of any Development Rights. (h) Amendment of Map. The right to amend the Map in connection with theexercise of any Development Rights. (i) Sisrs. The right to maintain signs on the Common Elernents advertisingthe Condominium Project, the Vail Plaza Hotel, the vail Plaza Club, and any exchange prograr;connected with the Club. 0) Post-Sales. The right to use the Common Elements to maintain customerrelations and provide post-sale and re-sale services to owners of club Estates. (k) Beverage Stand. The right to establish, operate, and maintain a bar orother beverage stand, providing alcoholic and./oi nonalcoholic feverag", op"n to the public andto Owners and Occupants and which may be located in any of the-common arqlsincludingCommon Elements and may convert such area into a Limited Common Element of theManagement Unit, Suvice Unit, or any other Unit owned by Declarant. - 0) MerleJ. The right to merge or consolidate a project with another projectof the same form of ownership. (m) Parkiqg/Storyqe. The right to use and to allow others to use all parking and storage areas in connection with its marketins efforts. CO_DOCS_A #152626 v1 JI ^ Section 17.2. Ad-ditional R.eserved Rights. In addition to the Special Declarant Rightsset forth in Section l7.l above, Declarant also reserves the following additional rights [trre"Additional Reserved fu fu,); (a) Dgdications. The right to establish, fiom time to time, by dedication orotherwise, utility and other easements for purposes including but not limited to streets, paths,*d$"y_t, ski-ways, drainage, recreation areas, parking are;, driveways, ducts, shafts, flues,conduit installation areas, and to create other reservatins, exceptions and exclusions for thebenefit of and to serve the unit owners within the condominium rrolect. - (b) Use Ageqments. The right to enter into, establish, execute, amend, andotherwise deat with contracts and agreemants foi the use, lease, repair, maintenance or regutationof parking and/or recreational facilities, which may or may not 6e a part of the CondominiumProject for the benefit of the Ownsrs and./or the Association. (c) Easement Riefits. The rights to an easement through the CommonElernents as may be reasonably necessary for the po.por" of discharging Declaiant's obligationsarising under this Declaration or the Act. - (d) Club Weeks' The right to establish and change the number of ClubEstates (as defined below) in each Club Unit. - (e) OFfl niet!. The right to exercise any Additional Reserved Right createdby any other provision of this Declaration oi of the Act. lo$ ^ the Declarant (a) is obligated under any waranty or obligation; 1b) hoids a DevelopmentRight;-(c) owns any Unit or any interest therein, inciuding, tiltto"i li*it"tior,, Club dstatescreated pursuant to the Plan. of Club ownership; or (d) holdi'a Security Interest in any Unit(s);provided, however, all Special Declarant Righti and daaitionat Reserved Rights shall i"r1nlnui"thirty (30) years after the date of recording this Declaration. Earlier termination of certain riehtsmay occur pursuant to requirernents of the Act. Section 17.4' Interference with Special Declarant Riehts. Neither the Association noranv-.Uyt Owners may take any action or adopt any *t" *O""."grlation that will interfere withor diminish any Special Declarant Rights or AAaitionat Reserved F;ghts without the prior *ritt*consent of the Declarant. - Sectionl7.S' Rishts Transferable. Any Special Declarant Rights or AdditionalReserved Right created or reserved under this ARTICiE 17 for the benefit Jf Declarant;;tb" lansfened to any Person by an instrument describing the rights transferred and recorded in theRecords. such instrument shall be executed by the transferor and the transferee. Section 17.3. Y*:l'lli,T l"*'l"j:d bv^ T..T"""Pdtspecial fec]arant Right or Additionar Reserved Rights may be exerciseJiry,11g ;il;;; CO_DOCS_A #152626 vl 38 I ARTICLE 18 RESERVATION OF DEVELOPMENT RIGHTS Section 18.1. Dgvelopment.and Withdrawal Riehts. Declarant expressly reserves theright to create units, common Elements and ii*it.a co--on Elements (the ..Addilional Improvernents') to combine Units, to subdivide Units, to convert Units into Co11-ooE rrtqto convert Common Elements into Units, and to allocate ReaI Estate as Limited CommonElements on all or any portion of the Real Estate reserved for future development in thisDeclaration. Declarant may exercise any or all of the Development Rights so r"ro"; "t ;ttime with respect to all or any of the Real Estate marked subject to Development Rights in thisDeclaration' No assurancel .a1e lade with respect to the boundaries of any parcels that may bedeveloped or the order in which the parcels rnuy u" developed. Exercise of a bevelopm; Rtgh,with respect to any one parcel doer not requiie exercise tf a Development Right on any otherparcel of Real Estate subject to Development Rights. No assurances ari made, hiwever, trrut *vfurther development wi{ oc1ur, Declarant expressly resewes the right to wilhdraw utt o, *yportion of the Property that is designated as subject to withdrawal in-this Declaration from thecondominium Project by recording a document evidencing such withdrawal in the RecorJs;provided, however, that no portion of the Property may be withdrawn after a Unit in that portionof the Property has been conveyed to a purchaser. The Real Estate withdrawn from theCondominium Project shall be subject to whatever easements, ifany, are reasonably necessaryfor access to or operation of the Condominium Project. Declarant shuti p.epar" and record in theRecords whatever documents are necessary to evidence such easernents and shall amend Exhibitc to this Declaration to include reference to the recorded easement. rrt" o""i-*t J"i" iiffifor all expenses in connection with Real Estate subject to Development Rights. - Section 18.2. Amendment of Declaration. If Declarant elects to submit the AdditionalImprovements to this Declaration, or to subdivide or to convert Units or Comrnon Elements, thenat such fime as construction of the Additional Improvements is substantially complete Deciarantshall record an amendment to this Declaration reallocating the Allocated Interests so that theAllocated Interests appurtenant to each Unit will be apportio-ned according to the total number ofUnits submitted to this Declaration. The Allocated interests apportioned to each Unit in theC^ondominium Project, shall be based on the formulae set forth in 3ection 4.2. Mere subdivisionof a Unit shall not aflect the Allocated Interests of any Unit not included in such subdivision.The Amendment to this Declaration shall contain at a minimum a legal description of the RealEstate on which the Additional Improvernents being submitted to tlis Declarafion are locatedand a schedule of the Allocated Interests appurtenant to the Units in the Condominium project, - Section 18.3. Supple.mentlp the Map. Declarant shall, contanporaneously with theamendment of this Declaration, file a supplement to the Map showing the location of theAdditional Improvernents or the construction, combination, subdivision, conversion or allocationof Units or Common Elements allowed by this Article. The supplement to the Map shallsubstantially conform to the requirements contained in this Declaration. Sectionl8.4. lnterpretation. Recording of amendments to this Declaration andsupplement to the Map in the Records shall automatically: (a) vest in each existing Owner the reallocated Allocated Interests appurtenantto each Owner's Unil and CO_DOCS_A #152626 v1 39 o o (b) u".tt il each existing holder of a Security Interest a perfected Securitylnterest in the reallocated Allocated lnterests appurtenant to the encumbered unit. lnon the recording of an amendment to this Declaration, the definitions used in this Declarationshall. automatically be extended to encompass and to refer to the Properfy, as expanded. TheAdditional Improvanents shall be added toand become a parr of the r.oieci ior all purposes. ,lticonveyances of Units after such expansion shall be effeitive to transfer rights in ali CommonElements as expanded, whether or not reference is made to any amendment to this Declaration orsupplement to the Map. Reference to this Declaration *d Uup in any instrument shall bedeerned to include all amendments to this Declaration ana suppternents to the Map without speci fi c reference therero. Section l8-5' Maximum Number of Units. The maximum number of Units in theCondominium Project shall not exceed three hundred (300) Units, or, if allowed by the Act, themaximum number of Units_ allowed by any govemrnental entity having jurisdiction over theProperty, pursuant to any development plan for the Property, ii any. Declarant shall not beobligated to expand the condominium Project beyond the number of i-lnits initially submitted tothis Declaration. Section 18,6. Cqnstruction Easement. Declarant expressly reserves the right to performwaranty work, and repairs and construction work and to stoie maierials in secure *"^, i1 Uoit,and in Common Elanents, and th9 future right to control such work and repairs, and the right ofaccess thereto, until its completion. All work may be performed by Declarant withou:t theconsent or approval of any Unit Owner or First Mortgagee or holder of a Security Interest.Declarant has such an easement through the Common Elements as may be reasonably necessaryfor the purpose ofdischarging Declarant's obligations and exercising 6eclarant's reserved rightsin this Declaration. Such easernent includeslhe right to construJt underground utility liies,pipes, wires' ducts, conduits, and other facilitier u".*r the Property not ddignated * ,"r*"jfor future development in this Declaration or on the Map for the purpose of fuirishing utility andother services to buildings and improvernents to be constucted tn *y of the propeiy r"ril"afor fufure development. Declarant's reserved construction easement includes tharight to grani easements to public utility companies and to convey improvernents within thosJ easerientsanywhere in the Common Elsments not occupied by an^Improverrent containing Units. IfDeclarant grants any such easements, Exhibit C to this Declaration will be amendi to includereference to the recorded easement. Section 18.7. Reciprocal Easements. If property is withdrawn from the Condominium Proj ect ("Wllhdg.uA_Epp ertt',) : (a) the owner(s) of the Withdrawn Property shall have whatever eassments are necessary or desirable, ifany, for access, utility service, rqlair, maintenance and emergenciesover and across the Condominium project; and (b) the Unit Owner(s) in the Condominium Project shall have whatevereasements are necessary or desirable, ifany, for access, utility service, repair, maintenance, andemergencies over and across the Withdrawn properry. CO_DOCS_A #152626 v1 40 Declarant shall prepare and record in the Records whatever documents are necessary to evidencesuch easements and shall amend Exhibit c to this Declaration to include reference to therecorded easement(s). Such recorded easanent(s) shall specifu that the owner(s) of theWithdrawn Property and the Unit owners in the Condomini"* p-:""t tfrafl be obligaiJo t" p"ya proportionate share ofthe cost of the operation and maintenance tf any easements utilized byeither one of them on the.o'her's p.op"iy upon such reasonable basis as the Declarant shallestablish in the easernent(s). Preparation and iesordation by Declarant of an easernent prrrru*ito this section 18.7 shall concfusively determine the ex-istence, location and extent of thereciprocal easements that are necessary or desirable as contemplati ly tnit Section 1g.7. Section 18.8. Tgqlqiqation of Exnansio.n and Development Rishts. The ExpansionRichts and Development Rights t"sou"d to o""l**t, for idJil;;;;ssors and assigns, shallexpire thirty (30) years after the date of recording this Declaration in the Records, unless theExpansion Rights and the Development Rights are reinstated or extended by the essociatioo,subject to whatever terms, conditions, and liiritations the Board of Directors may impose on thesubsequent exercise of the Expansion Rights and Development Rights by Declarant. Declarantmay at any time release and relinquish some or all of the-Expansioi nights and/or DevelopmentRights yitit respect to all or any part of the Real Estate s;bject to sich rights by instrumentexecuted by Declarant and effective when recorded in the Records. Upon theixpiration or othertermination of the Expansion Rights and the Development Rights, *y n""t EstaG then .uUi"ci tosuch rights shall become Common Elernents or Units, * upptt*l". ' Section 18.9. Interference Withftelerence With Expansi or Development Rights. Neither theIffirrutio"ffi;t;j-.^-l^-- --:.1 ARTICLE 18 without the prior written consent olthe Declarant. Section 18.10.Transfer of Expansion or Development Riehts. Any Expansion Rights orDevelopment Rights created o. t"t"*"d .tndo thi, ARncLE 18 f- th; t-eriefi;;ineEil;imay be hansferred to any person by an instrument expressly describing the rights transferred inwhole or in part and recorded in the Records. Such instrument sf,ail be-executeJ bt$transferor Declarant and the transferee. ARTICLE 19INSURANCE - Section 19. I . Coveraee' Commencing not later than the first conveyance of a Unit to apwchaser and to the extent reasonably available, the Association shall obtain and maintaininsurance coverage as set forth in this Article. Ifsuch insurance is not reasonably available, andif the Board of Directors determines $at any insurance described herein will not be maintained,the Board of Directors shall promptly "urrt" notice of that fact to be hand delivered or sent ffi_i_d 1{ Ynited States mail to all owners and Eligible First Mortgagees at their respective lastKnown aocresses. (a) Propgrtv Insurance. The Association shall maintain property insurance onthe Condominium Project for broad form covered causes of loss in an amount not less than thefull insurable replacement cost of the insured property less applicable deductibles at the time CO_DOCS_A #152626 v1 4l t,insurance is purchased and at each renewal date, exclusive ofland, excavations, foundations, andother items normally excluded from property insurance policies. (b) Liability Insurance. The Association shall maintain commercial generalliability insurance against claims andliabilities arising in connection with the "*ri*rtip,existence, use' or managernent of the Condominium Proje-ct, insuring the Board of Directors, theAssociation, the Managing AgenL and their respective anpioy""r, agents and utt poron" u"tirr!as agents' The Declarant shall be included as an additiona irxurea in such Declarant's capacit|as an Owner and member of the Board of Directors. owners shall be included as additionalinsureds but only for claims and liabilities arising in connection with the ownership interest in,existence or management of the Common Elements or membership in the Association. Theinsurance shall cover claims of one or more insured parties against the other insrued parties. - (c) Fidelitv Insurance. The Association shall maintain fidelity insurance onall persons who control or disburse funds of the Association. Coverage shall not be less in the lgqegate than two (2) months' current Assessments plus reserves, as c-alculated from the currentBudget of the Associalion' Any person ernployed as an independent contractot uy tn"Association,- including the_ Managing Agent must obtain and maintain fidelity insurance ii likeamount for the benefit of the Association unless the Association names such p"rron as an insuredanployee in the policy of fidelity insurance specified above. (d) other Insurance. The Board of Directors may also procure insuranceagainst such additional risks ofa type normally canied with respect to'properties of comparablecharacter and use that the Board ofbirectors deems reasonable and necessary in order to protectthe Condominium Project, the Association and the Unit Owners. (e) unit owners' policies. Each oy"o, excluding crub unit owners, mayobtain additional property insurance at their own cost for their own biefit covering ail p;;;property within their oYl.U.3t. All such policies shall contain waivers of subiogatiion andprovide further that the liability of the carriirs issuing insurance to the Association hereundershall not be effected or diminished by reason of any such insurance carried by any Unit owner.Each owner waives and releases all claims against the Association to the extent such claim iscovered by applicable insurance policies, regardless of whether damage, loss, or i"jury ;;;from the negligence or breach of any agreeient by the Association. 'Each Ci*oo,'""!fo6ngClub Unit Owners, acknowledges thai insurance obtained by the Association does not obviate theneed for an Owner to obtain s€parate insurance for their own benefit. Each Owner, other thanclub Unit owners, shall also obtain general liability insurance at their own cost for their ownbeaefit covering their own operations and activities within their own Unit. such coverage shallalso extend to cover any legal liability imposed on an Owner due to an Owner,s interest in theCommon Elements or membership in the Association. Section 19'2' Required Provisions. All insurance policies carried by the Associationpursuant to the requirements of this ARTICLE 1g must provide that: (a) each Unit Owner and each Eligible First Mortgagee is an insured personunder the policy with respect to liability arising out of such owneris lnterest in the CommonElements or membership in the Associati-on: CO_DOCS_A #152626 vl 42 I (b) the insurer-waives its rights to subrogation under the policy against anyOwner or member of an Owner's household; (c) no act or omission by any Owner or Eligible First Mortgagee, unlessacting within the scope of such owner's u.rttto.ity on behalf of ihe Association, will void thepolicy or be a condition to recovery under the poliry; (d) if, at the time of a loss under the policy, there is other insurance in thename of an Owner covering the risks covered by the policy (other than a Unit Owner,s policycovering such owner's personal property), the Association" poti"y provides primary insurance;" (e) any loss covered by the policies must be adjusted with the Association; (D the insurance proceeds for any loss (other than for a unit owner,spersonal property) shall be payable to an insurance trustee'desigrrated for that pu{pose, orotherwise to the Association and not to any holder of a security Interist; (g) the insurer shall issue certificates or memoranda of insurance to theAssociation and, upon request, to any owner or holder ofa security lnterest; and (h) the insurer issuing the policy may not cancel or refuse to renew it untilthirfy (30) days after notice of the proposed cancellation or non-renewal has been mailed to theAssociation and any owner(s) and holdeds) of Security Interests to whom a certificate ormemorandum of insurance has been issued at their respective last known addresses. Section 19.3' Adjustment of Claims. The Association may adopt and establish writtennondiscriminatory policies and procedures relating to the submitti of ciaims, responsibility foideductibles, and any other matters of claims adjushnent. To the extent the Association settles aproperty insurance claim, it shall have the authority to assess negligent Unit owners cuusin!zuch loss or benefiting from such repair or restoration all deductible-s pluia Uy the Association. Iithe event more than one Unit is damaged by a loss, the Association in it, reasonable discretionmay assess each Unit owner a prorata share of any deductible paid by the Association. Section 19.4. Copies of Policies. A copy of each insurance policy obtained by theAssociation shall be made available for inspection ty uny Unit Owner at reasonable times. ARTICLE 20 RESTORATION UPON DAMAGE OR DESTRUCTION - section2o'I. Dqtv Io Restore, Any portion of the condominium project, for whichinsurance is required under the Act or for whi"h inr**"" carried by the Association is in effect,that is damaged or destroyed must be repaired or replaced promptly fy the Association unless: (a) the Condominium project is terminated: -. (b) repair or replacement would be illegal under a state statute or municipalordinance governing health or safety; CO_DOCS_A #152626 v1 43 t (c) sixty-seven percant (67%) of the Unit Owners, including every Owner of aUnit or assigned Limited Common Element that will not be rebuilt, vote not to rebuild; or - (d) prior to the conveyance ofany Unit to a purchaser, the holder ofa SecurityInterest on the damaged portion of the Condominium Project rightfuUy demands all or asubstantial part ofthe insurance proceeds. ln the event the Condominium Project is not repaired or replaced as allowed by Subsections (a),(b) ad (c) above, then the Real Estate in the Condominium Project shall be sold and theproceeds distributed pursuant to the procedures provided for in tle Act for termination ofcondominium projects. Section 20.2. Cost The cost of repair or replacement in excess of insurance proceeds and reserves is a Common Expense. Section 20.3. Plans. The Property must be repaired and restored in accordance witheither the original plans and specifications or other plans and specifications which have beenapproved by the Board of Directors and a Majority of bwners. Section 20.4. ReDlacement of Less Than Entire Propertv. If the entire Condominium lloject is not repaired or replaced, the insurance proceeds utt ib,rt bl" to the damaged CommonElements shall be used to restore the damaged urei to a condition compatible with the remainderof the Condominium Project and, except to the extent that other persons will be distributees: (a) the insurance proceeds attributable to a Unit and Limited CommonElements that are not rebuilt must be distributed or credited to the Unit Owner of the Unit andthe Unit Owner of the Unit to which the Limited Common Elemsnts were allocated, or to holdersof Security Interests, as their interests may appear; (b) the remainder of the proceeds must be distributed or credited to each UnitOwner or holders of Security Interests, as their interests may appear, in proportion to theAllocated Interests in the Common Elernents of all the Units; and (c) if the Unit Owners vote not to rebuild a Unit, the Allocated Interests of theunit are reallocated upon the vote as if the Unit had been condernned, and the Associationpromptly shall prepare, execute and record an amendment to this Declaration reflecting thereallocations. Section 20.5. Insurance Proceeds. The insurance trustee, or if there is no inswancetrustee, then the Board ofDirectors, acting by the President, shall hold any insurance proceeds intrust for the Association, Unit owners and holders of Security Interests as their interest may lPPear. Subject to the provisions ofthe Sections above, the proceeds shall be disbursed first forthe repair or restoration of the damaged Property, and the Asiociation, Unit owners and holdersof Security Interests are not entitled to reciive-payment of any portion of the proceeds unless there- is a surplus of proceeds after the Property has been *rnpi"t"ty repaired oirestored, or theCondominium Project is terminated, in which event the surplus pro"""a, will be distributed asprovided in this Declaration and the Act. a CO_DOCS_A #152626 v1 44 - Section 20.6. Certificates bv the Board of Directors. The insurance kustee, if any, mayrely on the following certifications in witing maae uy ttre noard of Directors: (a) whether or not damaged or destroyed Property is to be repaired orrestored; and (b) the amount or amounts to be paid for repairs or restoration and the names and addresses of the parties to whom such amounts are to be paid. Section 20.7. Certificates bY Attornevs or Title Insurance Comoanies. If payments areto be made to Unit Owners or holders of Security dt"t*tt, th" B"*d of Dir""too, and theinswance trustee' if any,-shall obtain and may rely on a title insurance company or attomey,scertificate of title or a title insurance policy based on a search of the Records Aom the date ofrecording of this Declaration stating the names of the Unit owners and the holders of SecurityInterest. ARTICLE 21 CONDEMNATION If all or part of the Condominium Project is taken by any power having the authority ofeminent domain, all compensation and damages for and on accouniof the taking shall be payable in accordance with the provisions on eminenf domain in the Act. ARTICLE 22 MORTGAGEE PROTECTIONS Section22.l- Inhoduction. This ARTICLE 22 establishes certafur standards andcovenants which are for the benefit of First Mortgagees. This ARTICLE 22 is supplernental to,and not in substitution for, any other provisionr of this Declaration, but in the'case of anyconflict, this Article shall control. Section 22'2. Pergent4ee of First Mortqagees. Unless specifically provided otherwisenwherever in this Declaration the approval ot "onr-"nt of a specified p".centage of Eligible FirstMortgagees is required, it shall mean the approval ot "oor*i of sixty-ssysn percent ,;iW) ottnevoting power of Eligible First Mortgagees. Each Eligible First Mojgagee shall be entitled to thesame voting power as held by the encumbered Unit or Club Estate foieach Unit or Club Estateheld as security by such Eligible First Mortgagee. Section 22.3- Notice of Actions. If requested in writing to do so, the Association shallgive prompt written notice of the following to each Eligibl; First Mortgagee making suchrequest: (a) any condemnation loss or any casualty loss which affects a materialportion of the Common Elements or any Unit in *hi"h * intlrest is held by the Eligible FirstMortgagee; O) any delinquency in the payment of Assessments which remains uncured FI lltty (60) days by an owner whose Unit oi ctuu Estate is encumbered by a Security Interest held by such Eligible First Mortgagee; CO_DOCS_A #152626 vl 45 (c) any lapse, cancellation, or material modification of any insurance policy orfidelity bond maintained by the Association; (d) any proposed action which would require the consent of Eligible FirstMortgagees as set forth in this Article; (e) any judgment rendered 'g"inst the Association having a material effect onthe ability of the Association to perform its obligations herewith; and (0 a copy of any financial statsment of the Association. . Section 22-4. Consent Required. The Association may not take any of the followingactions, exc€'pt as such-rights have been specifically reserved by Declarant under the provisioniof this Declaration, without the consent of sixty-seven percent (67%) of the voting power of theEligible First Mortgagees : (a) sale, conveyance or encumbrance of the Common Elernents (provided,holever, that the ganting of easernents for public utilities, for construction and maintLance oiroads within the Condominium Project, or for other purposes provided for in this Declarationwill not be deerned a transfer within the meaning of thii clause);' O) restoration or repair of the Condominium Project (after hazard damage orpartial condernnation) in a manner other than that specified in this Declaration; (c) termination of this Declaration for reasons other than substantialdestruction or condemnation, subject to the approval percentages required for such termination; (d) merger of the Condominium Project with any other common interestcommunity; or (e) any action not to repair or to replace the Common Elernents except aspermitted in this Declaration. Section 22.5. Nqtice of Obiection. Unless an Eligible First Mortgagee provides theSecretary of the Association with written notice of its Jbjectioa if any, to any proposed amendment or action requiring the approval of Eligible First Mortgagees wlitrin thlrty 1:oj daysfotlowing the receipt of notice of such p.oporid amendmenr ir-action, tne migitte riisiMortgagee will be deemed conclusively to have consented to or approved the- proposed amendment or action. Section 22.6. First Mortgagees, Riehts. (a) AdvanggE. First Mortgagees, jointly or singly, may pay taxes or othercharges which are in default and which rouy or have become " th*g" against any of thecommon Elements or improvements thereon, and may pay overdue premiums on hazardinsurance policies, or secure new hazard insurance coverage on the lapse of a policy, for theCommon Elements- First Mortgagees making such payments shail be owid immediatereimbursement from the Association. CO_DOCS_A #152626 vl 46 - (b) Cure Rights. Iirst Mortgagees shall be entitled to cure any delinquency ofthe Unit ovrner encumbered by alirst Naortg;gJin the payment of Assessments. In that event,the Firstlvlortgagee shall be entitled to obtain a release from the lien imposed or perfected byreason of such delinquency. Section 22.7. Limitations on First Morteasee's Ri ts. No requirernent for approval or (a) deny or delegate control over the general administrative affairs of theAssociation by the Unit Owners or the Board of Directors; (b) prevent the Association or Board of Directors from commencing,intervening and/or settling any legal proceeding; or (c) prevent any insurance trustee or the Association from receiving anddistributing any insurance proceeds in accordance with the requironents of ARTICLE 20 entitled"Restoration Upon Damage or Destruction". - Section22.8. Special Declarant Riehts. No provision or requirement of this ARTICLE22 entitled "Mortgagee Protections" shall ipply to or conhavene any Special Declarant Rightsreserved to Declarant in this Declaration. ARTrCIE 23 DURATTON OF CO\aENANTS: AMENDMENT A}iD TERMINATION Section23.l. Term. This Declaration and any amendments or supplernents to it shallrernain in effect from the date of recordation for a period of fifty (50) years. Thereafter, thisDeclaration shall be automatically extended for succissive periods oiten (10) yeam each, unlessothelwise terminated or modified as provided in this Article. Section 23.2. Amendment of Declaration. This Declaration may be amended asfollows: (a) Reserved Amendment Riehts. To the extent that this Declaration and theAct expressly perrnit or require amendments that may be executed by the Declarant or by theAssociation, this Declaration may be amended by amendments executfo solely by the Deciarantor solely by the Association. To the extent permitted by the Act, Declarant may €xecute anyamendment required or necessary to comply with applicable state regulatory requirements. (b) General Amendments. Except as otherwise allowed or restricted by thisDeclaration, this Declaratiol may !e amended by a vote or agreement of owners norairrg|orethan fifty percent (50%) of the total voting powei of the AssoJiation, including a majoritfof thevoting power allocated to Units or Club Eslates not owned by Deciarant. Notrilltirstanding theforegoing provision, the percentage of the voting power of the Association necessary to amend aspecific. clause or provision of this Declaration shall not be less than the percentage oiaffirmative voting power prescribed for action to be taken under that clause or provision. CO_DOCS_A #152626 vl consent by a First Mortgagee provided in ttris nnricLn zz "nulop.,ut" to, 47 t (c) Peqlritted Use Amendments. Except to the extent otherwise expresslypermitted or required in this Declaratior, thir De"lu.ution may be amended to change th";;;;which any unit is restricted only by a vote or agreement of owners holding at leaJt sixty-s"""ipercent (67%) of the total voting power of the Association, including u -alority of the votin!power allocated to Units or Club Estates not owned by Declarant and i-ncluding a ma1ority oi*rlvoting power allocatedlo rhe crass if directly affected by such amendment i".g., ;**d;;;changrng uses for Club Units). (d) Sneci4l Declarant Rishts Amendments. Except to the extent otherwiseexpressly permitted or required ln ttris neclaration or,rnao the Aci this Declarati"";;t;;amended to increase Special Declarant Rights, increase the number of Units or changJ theboundaries of any Unit or the Allocated kiterests of a Unit or Club Estate only by a vote oragreernent of owners holding at least sixty-seven percent (670/o) of the total voting plwer of theAssociation' including sixty-seven percent 16lw) if the voting power allocated to-tinits o, ir,rtEstates not owned by Declarant. Section 23-3. Amendment bv Declarant. To the extent permitted by the Acl Declarantmay execute any amendment to this Declaration required or necessary to comply with secondarymortgage market and Colorado state regulatory requirements. _ SectionZ3.4. The Articles ofIncorporation and Bylaws shall be amended in accordanie *ittt trr" t".-s of such documentsand the Colorado Revised Nonprofit Corporation Act, as amended. The Rules and Regulationsmay be amended as determined by the Board of Directors. Section 23'5. E4qcution of Amendments: Expenses. Any amendment shall be prepared,executed and recorded either by the Declarant or by an offi"o oi the Association aesignated forthat purpose or, in the. absence of a designation, by the president of the Associaiion. Allexpenses associated with preparing and recording an amendment to this Declaration shall be thesole resPonsibility of: (a) any Owners desiring an amendment as provided for in this Declarationor the Act; (b) the Declarant, to the extent ttri right to amend this Declaration is reserved to theDeclarant and exercised by the Declarant; or 1c; in all other cases by the Association as aCommon Expense. , Section 23'6. Interpretation. Recording of amendments to this Declaration andsupplement to the Map in the Records shall automatically: (a) vest-in each existing Owner the reallocated Allocated Interests appurtenantto each Owner's Unit or Club Estate; and (b) ve.st. l] each existing holder of a Security Interest a perfected SecurityInterest in the reallocated Allocated tnterests appurtenant to the encumbered Unit or club Estate. U-pon the recording of an amendment to this Declaration, the definitions used in this Declarationshall automatically be *l:id{ to encompass and to refer to the properry, as expanded. Allconveyances ofUnits or Club Estates after such expansion shall be effectivl to transfer right" i;all Common Elements as expanded, whether or not reference is made to any amendment to thisDeclaration or supplement to the Map. Reference to this Declaration and Map in any inskument CO_DOCS_A #152626 vl 48 I shall be deemed to include all amendments to this Declaration and supplernents to the Mapwithout specific reference thereto. Section23'7- WhQn Modifications Permitted. Notwithstanding the provisions ofSection 23.2 and Section 23.3 above, no amendment or termination of this Declaration shall beeffective in any event during the Period of Declarant Control, unless the written approval ofDeclarant is first obtained. Section 23.8. Recording of Amendments. Any amendment to this Declaration made in accordance with this ARTICLE 23 shall be immediately effective upon the recording of theexecuted amendment in the Records together with a -duly authenticated certificate- of theDeclarant or the Secretary of the Association stating that the required vote of Ouners, if any, andrequired consents of First Mortgagees (and/or Eligible First Mortgageq as applicable)- wereobtained and are on file in the office of the Association or *o" rroi*quiredio be obtainedpursuant to this Declaration or the Act. The amendment must be indexed in the grantee's indexin the name of the Condominium Project and the Association and in the grantor;s index in thename of each person or entity executing the Amendment. Section 23.9. Righls pf Elieible First Morteagees. To the extent allowed by the Act,Eligible First Mortgagees shall have the rights to approve specified action of the Unit bwners oithe Association as a condition to the effeciiv"tt"rr-of thot" actions as provided in ARTICLE 22entitled "Mortgagee Protections". Section 23.10' Teqaination of the Condominium Pro-iect. The Condominium project mayonly be terminated as provided in the Act. ARTICLE 24 V AIL PLAZA CLUB Section 24- l . Submi-ssion of Residential Units to the Vail Plaza Club. Up to fifty (50) ofthe Residential Units in the Project will be suU-itt"o Uy oe"tara.rt to ttte Vail piaza Club as setforth in this Article- The provisions of this Articlq relate only to those Residential Unitssubmitted to the Vail Plaza Club and shall govem the ownership of Club Estates in said ClubUnits and the rights, duties and obligations of Club Mernbers. So tong as Declarant: (a) holds aDevelopment Right; (b) owns any Condominium Unit or Club Estate; (c) holds a SecwityInterest in any Condominium Unit or Club Estate; or (d) for thirty (30) years after the date ofrecording this Declaration, the right to submit a Residential Unit to ttre Vail plaza Club shallextend only to the Declarant and shall specifically not be available to purchasers ofResidentialUnits in the Projecl their successors, or assigns except with the prior written consent ofDeclarant. Thereafter, any Owner may submit a Residential Unit to the Vail plaza Club, with theprior written consent of the Association. Submission of a Residential Unit to the Vail plaza Clubshall be subject to the prior written consent of any First Mortgagee of the Club Unit. Theprovisions of this Declaration shall apply to all Club Units and club gstates created hereunder;provided, however, in the event of an inconsistency between this Article and the remainingprovisions of this Declaration with respect to the ownership of a Club Unit or Club Estate anithe rights' duties, and obligations of Club Members, therr the provisions of this Article shallcontrol. CO_DOCS_A #152626 v1 I 49 I Section 24.2- Definitions. Unless the context expressly requires otherwise, words shallh"t-" E meanings desigrated below with respect to *rose Residential Units which are submiftedto the Vail Plaza Club. (a) 'Christrnas Holiday and New y 'means extended occupancy ;;; il;4ilil;;Tl^t:l- *ll1g *::ry b"fl: on the second slgtaur that occurs on or before December 27 eachyear,yith any Saturday falling on December 27 counting as the first of the two Saturdays, aod enjs on;tt;J';,;";; *y.Xi::Tq:'"],lf y:tt rn the.sucgee{ing yei. club week +e uegins on tr," sutorJuv :"_".n{2 ,11{: !:T'" P" faturdalfa! begins the Christonas Holiday each }ear. All p.;i;;club weeks 1l ** ".d_:ldT vear (48 to l) begin on the Sarurd"y r"n"n rzji"v"u"6.i;";;";of the succeeding Club Week. (b) "e!lrb-,{sse$4en!" means the assessment paid by the Club Memberspursuant to ARTICLE 24. (c) "elub.__eglgudgt'' means the calendar prepared each year by theAssociation which shall at all times establish the dates of each Ctub weet< at least h"e 1sf yearsinto the future. (d) "e.!ub_Es!g!g" means a timespan estate consisting of an undivided interestas tenant in common in the present estate and fee simple in a Club tioit of an identified type,together with an exclusive right to possession and occupancy of the Club unit during ttre iruUWeek assigned to the Club Estate owner by the Club Caiendar or the Club Week specified in theDeed conveying the Club Estate to the Club Estate Owner. (e) "QlgbMember" or "Membd'means the Owner vested with legal title to aClub Estate. (0 Club. (e) equipment, utensils, Unit. "elgb-u4il" means a Residential Unit which is submitted to the vail praza "elUb_-Un{__Egrnish:ingi!" means all furniture, appliances, moveabie carpeting accessories, and other personal property tocatea within a club (h) ' elub-Week' means a period of exclusive possession and occupancy of aClub Unit established in the initial Deed convelng a Club Estate to a club Estate owner orresetwed pursuant to the Reservation Procedures. Club Weeks for each Club Unit are establishedeach year for the dates set forth in the CIub Calendar. Club weeks will usually consist of seven(7) consecutive days beginning on a Saturday. Club Weeks in a Club Unit shail be computed onthe same basis and shall commence and end at the same time, on the same day of the week,according to this section unless the initial deed conveying a Club Estate in a partiiular Club Uniiincludes or refers to a CIub Calendar which creates a Christmas Holiday and New year,s Holidav. CO_DOCS_A #152626 vl 50 (i) "Ilqaling-elgb. Jslatg" means a Club Estate subject to the Use Right Easement and Reservation procedures set forth in this plan of club ownership. (,) "Besale--Intere$" has the meaning set forth in Section 24.12 of thisDeclaration, which also contains additional defined terms relating to Declarant's waiver of the Resale Reskiction. (k) 'Resae&shislia!" has the meaning set forth in Section 24.11 of thisDeclaration. (l) "Bgservatign Jtgggdures" means the Reservation Procedures established by the Association pursuant to Section 24.10. (m) "Beltricltqn-bigd" has the meaning set forth in Section24.11 of thisDeclaration. (n) "TIA4gfu" has the meaning set forth in Section 24.11 of this Declaration. (o) "IIsg Si$t-Elsgrngn!" has the meaning set forth in Section 24.10 of this Declaration. Section 24-3' Submission of Residential Unit to Club Ownership. Declarant may submita Residential Unit to Club ownership either by recording u p.of"rty acknowledgei notice executed by Declarant describing the Residential Unit to be submitted io Club Ownership and reciting Declarant's intention to do so or by Declarant's execution, delivery and recordation ofa Deed conveying a Club Estate to a Club Mernber. By acceptance of a deed to a Club Estate, each Club Mernber waives their right to bring a suit for partiiion except in accordance with theprovisions of this Declaration. For purposes of Section 10.6 and Section 10.7 of this Declaration, a Residential Unit submitted to Club Ownership shall be deemed conveyed to a UnitOwner other than Declarant after conveyance of one hundred percent (100%) of the Club Estates in the Club Unit. Section 24.4. Conveyance by Furchaser. Each Club Estate shall constitute an estate inreal property separate and distinct from all other Club Estates in the Club Unit and other Units,which estate may be separately conveyed and encumbered. A purchaser may acquire more than one Club Estate and thereafter convey or encumber each Club b,state so acq.,i.ed separately. Inno event, however, shall a Club Member convey or encumber less than a Club Estaie as defined herein, or ausrnpt to subdivide a Club Estate into lesser interests. ln the event all Club Estates ina !lu! Unit are acquired by one Mernber, such Club Unit may, at zuch Mernber's election andwith the written consent of the Association by notice duly t""oid"d, be withdrawn from this Vail Plaza Club. Section 24.5. Description of a Club Estate, A contract for sale of a Club Estate writtenprior to the date this Declaration is filed in the Records may legally describe a Club Estate by reference to the Club Unit No., the purchaser's percentage interest in the Club Unit and either thl specific Club Week(s) or the purchaser's right to use and occupy the Club Unit during the weeks reserved under the Reservation Procedures, or by completing thi following legal desciption: CO_DOCS_A #152626 v1 5l Club Week , in Club Unit _ [or a Club Estate consistingof an undivided interest as tenant-in-coulmon together with the exclusive right to possession and occupancy of Club Unit during Club Week(s) _ or reserved by the Club Me,rnber pursuant to the Reservation procedures], according to the condominium Declaration for vail plaza Hotel Resort club, a condominium to be filed for record in Eagle County, Colorado. After submission of a Condominium Unit to Club ownership, every conhact for sale, deed, lease,mortgage' kust deed, or other instrument relating to a Club -Estate wiil legally descriLe the ClubEstate as follows: CIub Week _, in Club Unit _ [or a Club Estate consistingof an undivided interest ^r tettunt-in-common together with the exclusive right to possession and occupancy of -Ctub Unit during Club Week(s) _ or reserved by the Club Member pursuant to the Resenation procedures], according to the condominium Declaration for vail plaza Hotel Resort club, a condominium recorded ( dateJ, at ( Reception No.) and the Condominium Map recorded ( date ), at (Reception No.) in the office of the Clerk and Recorder of Eagle County, Colorado. Any legal description substantially in the form provided above or which is otherwise sufficient toidentify the Club Estate shall be good and suffiiient for all purposes to sell, convey, transfer andencumbsr or otherwise affect a Club Estate and all Common Eiements, Limited Common Elements and easements appurtanant thereto. - Section24.6. Adlninishati-on and Manasement. The administration and managernent ofthe vail Plaza club shall be performed by thi Association. The Association shalf have allpowers necessary or desirable to effectuate any of the purposes provided for herein. A Club YqP"" upon becoming the owner of a Club Estate, shall be a member of the Association andshall remain a member for the period of time a Club Estate is owned. A Club Msrnb€r shall beentitled to a vote, the size of which vote shall be based upon each Club Member's undividedinterest as tenant-in-common in the applicable Club Units. Voting by proxy shall be permitted. The Club Members shall constitute a separate Class of Members ii the Association foi purposesof voting on all issues affecting the administration and management of the Vail plaza Club, asfurttrer described in Section 1 1.7 of this Declaration. Section 24.7. way of enumeration and without limitation and in "dditi"" t" CO_DOCS_A #152626 vl By Association provided for in this Declaration, the Associafion specific powers and duties with respect to Club Estates: (a) coordinate the plans of members for moving their personal effects into andout of the Club unit with a view towards scheduling such m-oves, so that there will be aminimum of inconvenience to other Members: the powers and duties of the shall also have the following 52 O) cause each Club Unit to be maintained in a fust class manner andcondition. The Association shall determine the color schane, decor, and fumishing of each ClubUnit as well as the proper time for refurbishment, redecorating, and replacement thereof: (c) acquire and hold title to all Club Unit Furnishings. The Association shall,on behalf of all Mqnbers, hold title in its name to all Club Unit Fumishings, and no Membert]-ull !* any right, title, or claim thereto, and the Association shall have the right to deal withClub Unit Fumishings for all purposes; (d) bill each Memb€r for the expense of occupancy of a Club Unit duringwhich occupancy the Association determines the individual expenses of ttre particular vtember]including, but not limited to long-distance and other eitraordinary telephone charges,extraordinary repairs or-.charges for damage to the Club Unit, the Club Unit nurnishiigs,equip.melt' fixtures, appliances, and carpeting caused by a Member or such Member's gu"rt-o.permitted Occupant, firewood, other chargesiendered by the Managing Agent on beha*of theparticular Member and maid service in addition to the standard *uiA r"mL provided for eachclub week and included within the club Assessment provided for in this Articie; (e) collect the Club Assessment provided for in this Article; (0 establish, subject to modification at any time, publish, and administer (i) alist of services to be offered by the Association to the Mernbers, -the cost of which shad Leincluded in the Club Assessments; (ii) such other rules and regulations as the Association deemsnecessary or desirable, specifically including but not limited to fit"r and reshictions on use andoccupancy if a Member is not current on Assessments or is otherwise in violation of theprovisions ofthis Article; and (iii) ifapplicable, a Reservation Procedure as provided for in thisPlan of Club Ownership; (g) upon the vote of more than a Majority of owners and the approval orconsent of more than fifty percent (50%) of Eligible iirst -Mortgagees, establish, subject tomodification at any time, publish and administer procedures for tle-rental of Club Estates byOwners; and the Association-may enter into separate rental agreernents with Owners, providei that the Association shall not be the exclusive rental agent for iire Vail plaza Club or impose anylimitation or restriction that may cause the rental arriu:gements to be deemed securities underfederal or state law: (h) prspare the Club Calendar; (i) enter into license agreements or other like agreements with respect to theoperation, management, maintenance and./or benefits related to the 6lub; and 0) enforce the remedies for non-payment of the Club Assessments set forth inthis Article. Section 24.8. Club Assessment. In addition to the Assessment for Common Expensesestablished by the Association to meet the Common Expenses of the project, the Associationshall also establish a separate Club Assessment which *itt b" assessed against Club Estates to CO_DOCS_A #152626 v1 53 l-cover the Assessment for Common Expenses for the Club Units and the additional costs ofoperating the Club Estates as part of the Vail plaza Club. (a) Club .Asse-ssment Iterns. The Club Assessment for each Club Estate mayinclude but is not limited to, the followinsl , l:). - the allocated share of the Common ExpensesLiability attributable to each club Estate shown on Exhibit D-l attached hereto and incorporatedherein by this reference; (iD maintenance and regularly scheduled cleaning andmaid service and upkeep of the Club Unit: Fumishings; (iii)repair and replacement of the Club Unit real and personal property taxes, if any, assessed insurance occasioned uy trre of?ation ortn" ilJt ##l[""r,tt*ium for propertv or liabilitv (v) against the Club Estates; (vi) management fees assessed by the Managing Agent .to cgve-r-the costs of operating the vail Plaza Club that are in addition to the management fees setby the Managing Agent for managonent of the Condominium project; Club Unit Fumishings; (vii)a reserve for refurbishment and/or replacernent of riab'ity insurance coverase "Ti?*, uo a' ypffi . ;HHtiLj!" ;:f; ill?"#- itrf#of a club unit within the Project by owners-of iluL Estaies,'thei. go"sts o, other users; (ix) amenities use fees assessed by the Managing Agentor owner of the Parking Unit and/or Spa Unit for the use of the health spa and p*tiniuilt; ir,a orthe project attributabre *" j;L",,* "r,n#,,lfi,'"iioff;"":;:"tryJ1il1n$ffttr1";otherwise within the definition of Common Expenses provided for in this Declaration. (b) Club Eqtate Assessments Allocation. The Club Assessment shall beassessed and prorated among the Members on the basis of each club Estate's undivided interestas tenant in common in the Club Unit as set forth on Exhibit D-l. The undivided interest of eachClub Estate is based on the relative market rralu" of thi Club gstute as established by Declarant,sinitial offering price for the Club Estates. (c) oblieatioD tg Pay Club {q,ssessments. The Club Assessment shall be paidby the Member pursuant to a schedule established by th" nrro"iation. These Assessments shall CO_DOCS_A #152626 vl 54 I be the personal and individual debt of the club Mernber and all sums assessed but unpaid shallconstitute a lien on the club Estate. The Association shall have all of the rights in ;;;;ti".with the collection thereof as it has in connection with the collection of unpaii Arr"rrrnents fo,Common Expenses. (d) Taxqs on- Club Estates. The Declarant shall advise the County Assessorfor Eagle County, Colorado of the ownffip of the Club Estates operated by the Hotel UnitOwner as part of the commercial hotel operution, and the allocation of perceritage Interests ;club Estates in Section- 4.2, Section 24.g (b), and Exhibits B. B-1. and D-l fo-. p.rrpores oiimplernenting the special assessment proceduris set forth fu Cns. :s-1-102(5.5). (e) Club Assessment for Amenities. The Club Assessments will include a feeto be paid monthly to the Managng Agent, and/or the Spa Unit owner, as applicable, for the useof the health spa' including the outdooi pool to be located on the project. The Association has orwill enter into a binding a.greement with the Spa Unit Owner to require the Spa Unit Owner tomake such amenities available to CIub Estati owners so long as the Association makes itspayments to and meets all of the obligations of the Association under such agreement to keepsuch amenities available to the Club Estate Owners. Section 24'9. Acgeptance: Enforcernent: Indernnification. By acceptance of a deed to aCIub Estate, a Club Member agrees to be bound uy the terms ana "onaito^ of this oeclaration,specifically including, but not limited to, the provisions of this Article. In addition to alireinedies provided to the Association in this Dlclaration, the Association shall also have thefollowing special remedies with respect to any Club Member who fails to pay the ClubAssessment or is otherwise in default of any provision of this Article: (a) In the event any Club Member fails to vacate a Club Unit after terminationof the Club Week in which an owner is entitled to use of the Club Unit or otherwise uses oroccupies or prevents *oP:l -owner (or permitted occupant) frorn using or occupying a clubunit, that Club Member shall be in defauli hereunder and-shall be subjectlo immedliate iemoval,eviction or ejection from the Club Unit wrongfrrlly occupied; shall be deemed to have waivedany notices required by law with respect to any legal pro"""dingr regarding the rernoval, evictionor ejection; and shall pay to the owner 1or permittea occupit; Jrutt"a to use the ituu urritduring such wrongful occupancy, as liquidated damages for tle wrongful use of the Club Unit, asum equal to two hundred percent (200%) of the eitimated expensJ of providing the arrivingOwner (or permitted Occupant) with equivalent lodging anO anenltles, as deteririned by th;Association in its sole discretion for each day, or portion thereof; including the day of ru11".raer,during which the Club Meinber wrongfully o"*pi"r a Unit, plus all Costs of Enforcement whichamounts may be collected by the Association in the manner provided herein for the collection ofAssessments for Common Expenses. (b) Any Club Mernber who suffers or allows a mechanics' lien or other lien tobe placed against their Club Estate or the entire Club Unit shall indernnifu, defend and hold eachof the other Club Mernbers harmless from and against all liability or loss arising from the claimor such lien' The Association may enforce such indemnity by collecting from tt " CtuU Memberwho suffers or allows such a lien the amount necessary to discharge the lien and all Costs ofEnforcement incidental thereto. If such amount is not prompttylala, the Association mav CO_DOCS_A #152626 vl 55 I collect the same in the manner provided herein for the collection of Assessments for Common .E xpenses. (c) Withhold use or possession of the Member's Club Estate during the ClubWeek entitled to use of.the Club Unit, prohibit the Club Member from making any reservationpursuant to the Reservation Procedures, and upon notice, cancel any reservation-previously madeby such Manber, and rent or reallocate any Ciub week to whlch a Memuer would otherwise beentitled to use the Club Unit. (d) Suspend all of such Membsr's rights and privileges as a member of theAssociation, including lul ":t Iimited to, the righito participate'in any vote or otherdetermination provided for in the Condominium Docunsnts. (e) Except as to a transfer to a First Mortgagee by foreclosure or deed in lieuof foreclosure, no transfer of a Club Estate shall ue pemrlttJa uniess and until the p;"p*;transferor is current as to all Assessments due to the Aisociation and is othsrwise not in default ltdel anv other provision of this Declaration. Any purported transfer of a Club Estate whiie aMernber is delinquent or is in default on any other obligation shall be null and void. All of the rernedies ganted by the Condominium Documents, specifically including thespecific remedies provided for in this Article are cumulative, and tlte -exercise of one right orrernedy by the Association shall not impair the Association's right to exercise any other;;y.The Association shall not be limited to the rernedies set forth herein and may invoke any other oradditional remedies provided for or allowed by the Act, in law or in equity. The Associationmay pursue any of the remedies provided for in whatevsr order is determined by the Association.The failure by the Association to insist in any one or more instances upon the strict compliancewith any provision of the Condominium Documents, to exercise any right or option containedtherein, to serve any notice^ or to institute any action or proceeding, strait not be construed as awaiver or relinquishment of any such provision, option oiright. (a) C-ros$ Uqe -Easement RiChts. ln order to maximize the availability ofspace to fulfill club Members' desired use, zubject to the provisions of paragraph o) #o;relating to reservations, all Floating Club nstatei shall be uuuitubl" for reservation, occupancyand. use (the "Usc._Ri&!__Easemgd') by Members of comparable Floating club Estates in theProject' Comparable Floating Club Estates shall be deerned to be all Floating Club Estates in thesame type of Club Unit (l-bedroom Club Unit, 2-bedroom Club Unit, 3-bedroom Club Unit, ;dpenthouse club unit). Each Deed conveying a l'loating club Estate #*t u" deemed to include areservation of this use Right Easernent benefiting all club Members. (b) Reseryation Procedures. All Club Members shall be entitled to makereservations with the Association for the Club Week(s), or portions thereof, the Mernber A"ri.",to use pursuant to the reservation procedure from time to time established by the Associ"tio;;;rule and regulation (the "&egervation-PrQgghE'). The Reservation procedure shatl speciry trr'emanner in which reservations are to be requested and confirmed. The right to reserve u -ct,rU CO_DOCS_A #152626 v1 56 o o Week, if unused in any year, is lost and does not accrue. The Reseryation procedure shallcontain such schedules, conditions, restrictions and limitations as are deerned n"""r.oy-oidesirable by the Association. The Association may from time to time, without the consent of theMembers or Eligible First Mortgagees, amend the Reservation Procedure to include, by way ofenumeration and without limitation, one or more of the following feafures: as.Newyear,snay,Martirf 11,**{,liiJ"H;:"f,":::H,:9"fi,:t"l'ffi ,TH"f##"riIndepurdence Day, Labor Day, Veterans' Diy, Thanksgiving, chrisfinas o, otho holiday periodwhich allocates the opportunity to reserve th" rno." pop"rut holidays {rmong the owners ofFloating Club Estates; by lot, drawing, rotation, o, o,[tl-,r" ",' uo frn"T,Tfffifr:fjffining prioritv of reservation (iii) Restrictions on use and occupancy of a Club Unit ifa Member is not current on Assessments or is otherwise in violation of thi provisions of the VailPlaza Club; (iv) Penalties,includingforfeituresofreservationrights for the calendar year, for untimely cancelations or reservations: (v)Short term reservation procedures for Bonus Time (vi) A schedule offees to be separately charged to ClubMernbers who use a portion of a Club Week or who use Bonus Time on u ,pu"" available basisto cover the additional expenses of such use, including but not limited to, additionaladministrative, janitorial and maid service costs: or the Association shar a"*,,llliJ,u,y *d",T:n'"*fi:ii1'::"ff';T$""iT'#g#ifll:Jffi syston. (c) Bonus Time. Bonus Time shall mean any period of time not otherwisereserved which is used by a Member pursuant to the short term reselation procedures (e.g. upononly 24 or 48 hours notice) of the Reservation Procedure and is in "*""r, oith" cfuU w"&fsl iowhich the Mernber is entitled. The purpose of Bonus Time is to allow Members to use andoTlpy Club Units, or portions thereof, on short term notice and on a space available basis whichmight otherwise rernain unoccupied. (d) Rental. The Reservation Procedures may prohibit or limit the right ofClub Mernbers to rent or to allow use by an unaccompanied guest of any club unit otlerwiseproperly reserved by a Club Mernber. Section24.ll. Resale Restriction. owners of Club Estates shall be prohibited fromselling, assigning, or otherwise transferring a Club Estate (not including a deed in lieu oiforeclosure, transfer by public trustee or shlrifPs deed, or any transfer in connection with the (as hereinaft er defi ned) ; CO_DOCS_A #152626 vl 57 t merger, consolidation, liquidation or reorganization in Owner) (a 'a14451ger,) until the earlier tooccur of (i) the date on which Declarant no longer owns a Club Estate, a Residential Unit or aC,lub Uni! or (ii) the date that-is five (5) yeais from the recording of this Declaration (the"Rgg!44ion Jerigd')- A Transfer shall not include the sale, assignrient or other transfer of aFint Mortgagee of its right or interest in a Club Estate. Thi-s ,,Resa!9_R9qbiglliq4,, shallautomatically expire on and be of no further force and effect from *a uto tt " futt Ouy of tfr"Restriction Period. - Section 24. I 2. Waiver pf Resale Restriction. Notwithstanding the foregoing if Declarant Td_* Owner so agree in writing with respect to any Club Estate oired Uy sictr 5*rr"r, d;n;theRestriction Period, a Transfer of such dwner's Club Estate may occru and will not basubjecito the Resale Reskiction if such owner and Declarant enter into an exclusive listing agre#errisubstantially upon the following terms and conditions ("Exclusive Listing A "): (a) Owner shall irrevocably appoint such real estate agent as Declarant shalldesignate ("Etqkt") as owners' exclusive aglnt to market and sell the Owner,s club Estate. (b) Broker's authority shall begin on the date of the Exclusive ListingAgreement and shall continue until the expiration of the Restriction period (the ..USUn; Period"). (c) Brokershall agree to use good faith efforts to find a purchaser for the ClubEstate, ho_*9u* during the Restricfion Period, Broker shall be entitled to sell five (5) ClubEstates of the same Club Unit type owned by Declarant prior to offering to p.orp""ti1r"purchasers one (l) Club Estate which is not owned by Declarant (Club Estates o*n"A Uy partlesother than Declarant are referred to as "Besa!-glu!.eres,ts'). Resale Interests shall be offered in anorder of priority ("Pnan!y qdgt') determinedly th-oate of the Exclusive Listing egeem;i F F" applicable type of Resale Interest, with th; earlier date having the earlier priutv for theBroker to begin marketing such Resale lnterest. (d) The listing price and terms of the sale shall be agreed upon by Owner andBroker based upon market conditions and the most recent sales pricl of Club *tates of thesame Club Unit type in the Club at or around the time of the Exclusive Listing Agreernent. (e) The Exclusive Listing Agreement shall include such other terms andprovisions as are contained in the standard exclusive listing agreement then used by Declarant, asamended &om time to time. . Section 24' 13. Pqrpose of Resale Restriction. The purpose of the Resale Restriction andwaiver of the same conditioned on an owner "tttoing into the Exclusive Listing Agreement is to(i) prevent re-sales of Club Estates from flooding the market so as to maintain Club Estate valuesfor the benefit of all owners, (ii) prevent owiners from retaining ,r;to, brokers with littleincentive to sell Club Estates causing sales to slow, and (iii) encorirage the use of brokers mostfamiliar with the Project. ARTICLE 25 MISCELLANEOUS Section 25. l. EnforcemenUArbitration. t CO_DOCS_A #152626 v1 58 t (a) subjgct to the provisions. of Sections 25.10) and (c) regarding themediation" arbitration and resolution of certain disputes, enforcement of the covenants.conditions, restrictions, easefilents, reservations, riglrts-of-way, ti*r, "t-[. il;;provisions contained in this Declaration, the Articles-of krcorporation, Bylawi or Rules andRegulations, as supplemented and amended, m1r be by any proceeding at law ", i" "ditagainst any Person(s) (including without limitation, the essociation) violating or auempting toviolate any such provision. lub_ject to the provisions of Sections 25.1(b) and (t, the Associaionand any aggrieved OYo shall have ttre rigtrt to institute, maintain'and prosecute *y .rr"hproceedings, and the Association shall further have the rigirt to levy and collect fines for theviolation of any provision of any of the aforesaid documents. In any action instituted ormaintained under this Section, the prevailing party shall be entitled to recover its costs andreasonable attomeys' fees incurred pursuant thereto, as well as any and all other sums awardedby the Court. Failure by the Association or any Owner to enforce any covenant, restriction orother provision herein contained, or any other piovision ofany ofthe aioresaid documents, shallin no event be deemed a waiver of the right to do so thereafter. (b) For the purposes of this 25.rft), "Di!pu!e" shall mean any dispute, action,claim or controversy, whether sounding in law, equity, *nii"t o, tort (excluding, however, tortclaims arising from physical bodily inju.y) betwien the Declarant, the essociation and/or anyone or more owners that: (i) concerns or requires the application of any provision of thisDeclaration, the Bylaws, or any related agreements or documents (collectively the . arbttrationDocuments"); (ii) concerns or requires the application of any p.orri.ion of tt" e"t; liii; *iGfrom any act, omission, kansaction ot o""rr.r"n"" in any unitt, in o, on any common Eiement;or (iv) concerns any Unit or Common Eleurent or *y i*prouement or itern-of tangibte personjproperty in or on a Unit or Common Elernent, but shall eipressly exclude: (a) any action by anyparty to seek or obtain a temporary restraining order, preliminary injunction or similar "q"i*rlorder ol decree; O) any action by uny patty to compel arbiiation or enforce a temporaryreshainiag order, preliminary injunction, permanent injunction or similar equitable orio o,decree, or any award or decision ofany arbitration conducted pursuant to this Section 25.1(b);(c) any action by the Association to asses or collect any Assessments or to enforce o, forectoseany lien for such Assessments; (d) any action by the Association to enforce the provisions of thisDeclaration concerning use_ restrictions; or (e) any action pursuant to the provisions of thisDeclaration concerniag mechanics liens. Upon the written d'emand of any Owner, Declarant orthe Association (for purposes of this section zs.tiu;, each of which is ca-lled a .!ady, ;J;ttwo (2) or more of which lg called "pgrtie,s"), any Dispute shall be resolved by ,iffition, o, ifmediation is not successful, by binding arbitration in accordance with the terms of this Section25'l(b)' but in the case of a.Construltion Dispute (as defined below), only after comptiance withthe requirements of subsection fi) of this Section 25.1. (c) A written dernand for mediation shall be made within a reasonable timeafter the Dispute has arisen, or in the case of a Construction Dispute, within sixty (60) days afterthe party becomes entitled to submit the Construction Dispute io mediation. TLe Dispuie shallbe mediated by a mutually acceptable mediator to be chosen by the parties within thirtyl30) daysafter the demand for mediation. No party may unreasonably withhold consent to the selection ofa mediator, and each party shall share the cost of mediation equally. If the parties are unable toresolve the Dispute by mediation within one hundred twenty ltZil; days after the demand for I CO_DOCS_A #152626 vl 59 t_mediation, then any party may make a demand for the resolution of the Dispute by arbihation inaccordance with the terms of this Section. (d) No proceedings for arbitration of a Dispute, or a Construction Dispute ashereinafter defined (or litigation of the same in the event that any judicial proceeding is allowedor had) shall be commenced by the Association unless prior to-the initiation of the-arbitration, such action is approved by the vote of Owners holding at least two-thirds (2/3rds) of tne "otinipower of the Owners entitled to vote. (e) A demand for the resolution of a Dispute by arbitration must be made inwriting within a reasonable time after the party becomei entitied to submit the Dispute toarbitration. The dernand for arbitration shall be delivered to the other party(ies) *O tf,"American Arbitration Association (the "A4A") before the date when commencement of legal oreQuitable proceedings based on the Dispute would be baned by the applicable statufe oflimitations. In no event shall the demand for arbihation of a Dispute Ue made after the datewhen institution of legal or.equitable proceedings based on such Dispute would be barred by theapplicable statute of limitations. Any party who fails to submit to bi;ding arbihation regarding aDisPute following a lawful dgand by the opposing party shall bear itt costs and "l*p"nJ".,including reasonable aftomeys' fees, incurred ty tir" opporing party in compelling arbitra-tion ofsuch Dispute. Except as otherwise provided in this -Section 25-.1 or by the "l.pr"r, *titt; agreement of the parties, the AAA shall administer all aspects of arbitrations conduited pursuantto this Section 25'1, including selection of arbitratorq pursuant to the AAA's CommercialArbitration Rules- Except as provided below with resplct to enforcing the decision of thearbitrator(s), once a Dispute is submitted to arbitration, the claims involved cannot later bebrought, filed orpursued in any court. (0 All arbitration of Disputes shall be conducted in the greater Denver,Colorado metropolitan area. -Except with respect to any Dispute involving, in the aggregate,claims and counterclaims of less than Ten Thousand Obllars ($t0,000), arbitration hereunder thall^b-: before a three (3) person panel of neutral arbitrators consisting oiporon, from either ofthe following categories, but at least one (l) from each category: (i) an attorney who haspracticed in the area ofreal estate transactional law for at least ten tiO) years or a retiredjudge atthe district court or an appellate court level; or (ii) a person wiitr, at least ten ffdl iearsexperience in the residential construction industry. Any bispute involving, in ttre aggregate,claims of less than Ten Thousand Dollars ($10,000) shal'l be resolved befor-e a single iitifutoimeeting the qualifications set forth in clause (i) of the preceding sentence. The AAA shallsubmit a list of persons meeting the criteria outlined above for eaJh category of arbitrator, andthe parties shall select one (l) person from each category in the manner esiabiistred by the Aaa.Arbihations conducted pursuant to the terms of this section 25.1 will be govemed by Coloradolaw. G) Multiple Disputes or party claims not consolidated or administered as aclass action pursuant to the following sentence will be subject to, and will be arbitratedindividually pursuant to the tenns of, this Section 25.1, provided that the arbitrator(s) shall(i) consolidate in a single arbitration proceeding any multiple Disputes or party claims that aresubstantially identical; and (ii) arbitrate multiple Disputes as a class action in accordance withRule 23 of the Colorado Rules of Civil Procedure. A party will state as a counterclaim any claim t CO_DOCS_A #152626 v.l 60 that-relates in any way to a Dispute and does not require the presence of a third party who couldnot-be joined as a pafty_ in the proceeding. The orders of the'arbitrator(s) shall be in writing andshall specifu the factual and legal basis for the decision. Except * pro.ria"a below with rJgard 1o awardl of attomeys' fees and expenses, no party shall be entitlia to receive any awarl ofdamages in connection with the arbihation of a bispute, other than such party,s actual damages,and Declarant, the Association and any Owner shall be deemed to have waived their righi;receive any damages in a Dispute, other than actual damages, including without limiltationspecial damages, consequential damages and punitive or exemp-rary damages. (h) BY TAKING TITLE TO A UNIT OR CLUB ESTATE EACH OWNERACKNOWLEDGES AND AGREES THAT SUCH OWNER HAS WAIVED AND SHALL BEDEEMED TO HAVE WATVED THE RIGHT TO ANY AWARDS OF DAMAGES INCONNECTION WITH THE ARBITRATION OF A DISPUTE, OTHER THAN OWNER,SACTUAL DAMACES. (i) The arbitrator(s) shall make an award of attomeys' fees and expenses,including the fees and expenses ofthe arbitrator(s) to the prevailing party; provided howiver, ifthe decision of the arbitrator(s) is not wholly in favor of one parry,-the arbitrato(s) ,hutt ullo*t"such fees and expensesbetween the parties. The results ofany arbitration conducted pursuant tothis Section 25.1 shall be binding ana nnA, and the decision of the arbitrator(s) may be filed,converted and enforced as ajudgment, order or decree in the District Court ofthe County. (t) Any Dispute which relates to or arises out of the physical condition of theCommon Elements or the Units and involves the Declarant in a position adverse to theAssociation and/or any owner(s) shall be deerned a . esllrugia! ligpute," and shall be subjectto the provisions of this subsection (i), in addition t" th" pt"rttLr*-f subsection 1U; of ihisSection 25.1 above. Prior to invoking binding arbitratio; under subsection (a) abovg theAssociation or the Owner, as applicable (the "In{ia!!4g Jgrtt'') shall deliver writien notice (a'Di0EleXslice") to the Dgclaran! speciffing ttt" purti"ut.- aefects that are the subject of theConstruction Dispute, together with copies of all studies, surveys, reports and other documentsrelating thereto. The Dispute Notice shall contain the current mailin! address for the Initiatin!Party. (k) within _ forty-five (45) days after receiving the Dispute Notice, theDeclarant may deliver to the Inifiating party a written notice- (the ..Bgsponsg_l!o;99') designating a time and place for a meeting between the Declarant ^"a th"-piliuUng p;y todiscuss the Construction Dispute; provided, however, that such meeting shall take ptice *i'tlrinthe Project or at the Declarant's principal place of business, and shall icur not less than seven(7)-nor mole than thirty (30) lays after aiuvery of the Response Notice. The Declarant maymake on-site inspections of the Project, including investigative testing of those *"u, *icomponents identified in the Notice. Upon delivery of the Response Notice, all statutes oflimitations applicable to the claim against the Declarant shall be tolied. If the Declarant does notdeliver the Response Notice within the forty-five (a5) day period, as provided in this subsection(k) of this Section 25.1, the Initiating Party may institute mediation and then binding arbikation,if necessary, pursuant to subsection (b) above. Within thirty (30) days after re-ceipt of theResponse Notice, the Association and the Owners shall make avaiiabie foi inspection *a t"rtingall Common Elements and units identified in the Dispute Notice. The Declarant shall pay aii CO_DOCS_A #152626 v1 6l o costs to restore any portions- ofthe Project damaged by Declarant's inspection and/or testing toits original condition and shall indemnifu the Association for any damages arising from theinspection and/or testing. All inspectiont *d testingshall ue comptetJ within one tlrinareo nty(150) days after delivery of trre Response Notice, unless otherwir; -"tr"6-;;;;J;;;;"parties. 0) within two-hundred ten (210) days after deliver of the Response Notice,the Declarant may submit a written statement to the Association setting forth the Declarant,sproposed settlsrnent of the- Construction Dispute (an "Qffer") and stating whether the Declarantproposes to repair or replace the work at issug to pay the lnitiating party a cash surn inconnection therewith, or a combination thereof, or to'repurchase the Unit(s). If the Offer isaccepted, the Declarant and. its F"lltt employees and subcontractors shall G provided in fuiiaccess to the Project, including the Units, to tate and complete the corrective action set forth inthe offer' If the Declarant does not deliver an offer witlin trvo-hundred ten (210) d",,,. ;ii; lgliYsry of the Response Notice or if the offel is rejected, the Initiating party may proceed toBinding Arbihator pwsuant to subsection (a) of this Siction 25.1. (m) At any time after delivering the Response Notice the Declarant maytT"hlt-" the tolling of the statute of limitations provided in this Section 25.1 by aefivery ofthirty (30) days prior wriften notice thereof (the .Tgr8ination_Nqlrce,,) to the tnitiating party. (n) Upon delivery of the Termination Notice, the Initiating party shall berelieved of all further obligations to satisfr the conditions of this Section 25.1 and may initiateArbitration pursuant to subsection 1b) of ihis Section 25.1. Notwithstanding tt" p.orririor* oithis Section 25.1, the tolling of any stahrte of limitations p*.r*i to uris Section 25.1 shallautomatically cease two-hundred forff (240) days following the delivery of the Responr" rrioti"".If the lnitiating Party desires to assert another bispute not-r"t fo*h inLy prior Dispute Noticedelivered to the Declarant by the Initiating Party,- the Initiating party shali u" ,"qui."a ,o ,uiirryall of the conditions and requirements of this section 25.1 with-respett thereto. Section 25.2. Notices. All notices, demands, or other communications required orpermitted to be given hereunder shall be in writing, and any and all such items shall be deernedt^o have- been duly delivered upon personal delivery; upon actual receipt, in the case of noticesforwarded by certified mai! retum receipt requested, postage prepaid; as of 12:00 Noon on theimmediately following business day after deposit with FJe;l E*p*, or a similar ovemightcourier service; or as ofthe third business hour (a business hour beini one ofthe hours from g:00 a'm' to 5:00 p.m. on business days, local time at point of receipt) aftJtransmitting by telecopier. Section 25.:. xgtw4tg_. Failure by Declarant, the Association, or any unit owner,Club Estate owner, or Eligible -First Mortgagee to enforce any covenant, condition, restriction,eassnent, reservation, right-of-way, or other provision contained in the CondominiumDocuments shall in no way or event be deemed to bi a waiver of the right to do so thereafter. Section 25.4- Sqverability. The provisions of this Declaration shall be deemed to beindependent and severable, -and the invaiidity of any one or more of the provisions of it byjudgment or court order or decree shall in no way 1ff9ct the validity or enfoiceability orany o'rthe other provisions, which provisions shall remain in full force and effect. Any provision which I r_ l, CO_DOCS_A #152626 v.t 62 I a would violate the rule against perpetuities and the rule prohibiting unlawful restraints onalienation shall be conshued in a manner as to make this Declaration uulid and enforceable. Section 25.5. Nqmber and Gender. Unless the context provides or requires the contrary,the use of the singular herein shall include the plural, the usi of the plurai shall include thesingular, and the use ofany gender shall include jl genders. Section 25.6. Captions. The captions to the Articles and Sections and the Table ofContents at the beginning of this Declaration are inserted only as a matter of convenience and forreference, and are in no way to be construed to define, limit, or otherwise describe the scope ofthis Declaration or the intent of any provision of this Declaration. . SectionZ5'7- Cpnflicts in Leeal Documents. In case of conflicts between the provisions in this Declaration and the Articles of Incorporation or the Bylaws, this Declaration shall control.ln case of conflicts in the provisions in the Articles of Incorporation and the Bylaws, the Articlesof lncorporation shall control. Section 25.8. Vesting of Interests. Any interest in property granted under thisDeclaration shall vest, if at all, on or before the date of the death of the survivor of the now livingchildren of Prince Charles, Prince of Wales, plus twenty_one years. Section 25.9. Choice of Law. This Declaration shall be construed and interpreted inaccordance with the laws of the State of Colorado and specifically, the provisions of the Act andnot the general cornmon law (including rernedies) of tenancy_in_**-on. Section 25.10. Third Partt Beneficiary. This Declaration is submitted, imposed, anddeclared solely for the benefit of the Declarant, Unit owners, Owners of CluL Esiates, FirstMortgagees, and their respective successors, assigns, heirs, executors, administrators, andpersonal represantatives. No party shall be deemed a third party beneficiary of this Declaraiion. IREMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK] CO_DOCS_A #152626 vl t 63 Executed as ofthe dav of 20 VAIL PLAZA DEVELOPMENT,LLC, a Colorado limited liability company Print Name: Its: CO_DOCS_A #152626 v1 64 I o STATEOFCOLORADO )) ss. cor.rNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of 2004 by Waldir Prado, the Manager of Vail plaza Develffient, LLC, aColorado limited liability company. Witness my hand and offisial seal. NOTARYPUBLIC My Commission Expires: Co_DOCS_A #152626 v1 65 MORTGAGEE'S CONSENT The undersigned hereby consents to the execution Declaration, agrees to be subject to and bound by the terms hereby subordinates the lien of its Deed of Trust. dated OI that said instrument wasli-grea on Ueirutf of saiA and recording of the foregoing of the foregoing Declaration, and and recorded in Book _ at Page _ as Reception No.in the records of EagleCountS Colorado, to this Declaration andlhe eflect hereof. Dated this _ day of - 200_ lTrTLEl lTrTLEl STATE OF COLTNTY OF On the -- day of 200_., personally appeared before say that she/he iswho, being by me duly swom did a NOTARY PUBLIC By: ) ) ss. ) me the and CO_DOCS_A #152626 v1 66 Exhibit A To Declaration LEGAL DESCRIPTION I The Property referred to in the Declaration is described as follows: PARCEL I: J!4I_PJ{[T OF LOT O, BLOCK 5.D VA]L VILLAGE FIRST FILING, ACCORDING TO THE MAP THEREOFRECORDED LTNDER RECEPTION NUMBER 9638znr rni orercE oF THE EAcLE couNTy, coLoRADo, CLERKAND RECORDE& DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTT{ERLY LINE OF SAID LOT O THAT IS ALSO THE NORTHEASTERLYcoRNER oF A PARCEL DESCRIBED IN BooK 2:o ei pioe s56 oF rHE EAGLE couNry, coLoRADo, cLERKAND REcoRDER's RECORDS, sAlD PARCEL cunmNiiv BEING KNowN AS TI{E ,.cATEwAy pRoJEcr,,THENCE S79"46'OO"E 178.40 FEET ALONC THE NORTHERLY LINE OF SAID LOT O, TO THE NORTHWESTERLYcoRNER oF VILLAGE INN PLAZA, AcconprNc ro rie coNDoMINtLM tuep rgrnron, RECoRDED IN BooK349 AT PAGE I I, IN THE OFFICE OF THE CECIC COU'Ifu, COLORADO, CLERK AND RECORDER THENCE,ALONG THE WESTERLY LINE OF SAID VILLAGE INN PLAZA, SO9'30'OO-W 37.6I FEET, TO THE TRUE POINT OFBEGINNING; THENCE, coNTINLrINc ALONG SAID WESTERLY LINE, s09"30,00.w 102.21 FEET; THENCE,DEPARTING SAID WESTERLY LINE, N79'47'08-w 67.05 FEET; THENCE sr0.r2'52,w 32.60 FEE1 rI{ENcEN79"47'08"W 83'93 FEET' TO THE EASTERLY FACE OF AN EXISTING BUILDING; THENCE TI{E FOLLOry1N6 TWOcouRSES ALONG THE EASTERLY AND NORTHERLY FACES OF SAID EXISTING BUILDING; (l) N10"01,09-E 6.41FEET; (2) N79"58'5I"W 6.35 FEET; THENCE, DEPARTING THE NORTHERLY FACE OF SAJD EXISTING BUILDING,Nl0'12'52"8 69.82 FEET; THENCE s79"47'0s-E 61.46 FEET; THENCE N32.56'22'E 63.51 FEET; s79.47,08-E 70.07FEET' TO THE TRUE POINT OF BEGINNING, CONTAINTNC 0.335 ACRES, MORE OR LESS. PARCEL 2: CONDOMINIUM UMTS 766 THROUGH 794 AND 797 THROUGH 805, INCLUSTVE VILLAGE INN PLAZATACCORDING TO THE CONDOMINITJM MAP THEREOF RECORDED NOVEMBER 19, 1982 IN BOOK 349AT PAGE I I, AND AS DEFINED IN T}IE CONDOMINITJM DECLARATION RECORDED NOVEI\,AER 19,1982 IN BOOK 349 AT PAGE 12, COUNTY OF EAGLE, STATE OF COLORADO. PARCEL 3: THOSE PORTIONS OF LOTS M, N, AND O, BLOCK 5-D, VAIL VILLAGE, FIRST FILING, ACCORDING TOTHE MAP THEREOF RECORDED UNDER RECEPTION NO. g6382IN THE OFFICE OF THE EAGLECOUNTY, COLORADO, CLERK AND RECORDER (CLERK'S RECORDS) DESCRIBED AS FOLLOWS: BEGINNING AT A POINT, ON THE NORTHERLY LINE OF SAID LOT O, WHICH IS THE NORTHEASTCORNER OF A PARCEL DESCRIBED IN BOOK 230 AT PAGE 556 OF THE CLERK'S RECORDS, WHENCETHENORTHWEST CORNER OF SAID LOTN BEARS NORTH 79 DEGREES 46 MINUTES OO SECONDSWEST 175.00 FEET DISTANT; THENCE, AIONG SAID NORTHERLY LrNE, sourH 79 DEGREES 46MINUTES 00 sEcoNDS EAST 178.40 FEET, TO THE NORTHWEST CORNER OF VTLLAGE INN pLAZAs ACONDOMIMUM' ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 349 AT PAGE 11 OF THECLERK'S RECORDSI THENCE, ALONG THE WESTERLY LINE oF SAID VILLAGE INN PLAZA, ACONDOMIMTIM, SOUTH 09 DEGREES 30 MINUTES OO SECONDS WEST 37.6I FEET TO THENORTHEASTERLY CORNER OF CONDOMINIUM MAP FOR VILLAGE INN PLAZA - PHASE TVCONDOMINIUMS, ACCORDING TO THE MAP THEREOF RECORDED INTHE CLERK'S RECORDS;THENCE' DEPARTINC SAID WESTERLY LINE, THE FoLLoMNc NINE COIJ'RSES ALONG TIIENORTHERLY' EASTERLY AND SOUTHERLY LINES OF SAID CONDOMINIUM MAP FOR VILLAGE INN CO_DOCS_A #152626 v1 A-l lLrY_{:fHASE W: (l) NoRrH 79 DEGREES 47 MTNUTES 08 SECONDS WEST 70.07 FEET; (2) SOUTH 32DEGREES 56 MINUTES 22 sEcoNDS WEST 63.51 FEET; (3) NORTH 79 DEGREES 47 MINUTES 08SECONDS WEST 6I.46 FEET; (A)SOU-TH 10 DEGREES 12 MINUTES 52 SECONDS WEST 69.82 FEET, TOTHE NORTHERLY FACE oF AN E>(IsrINc BUILDING; (5) sourH 79 DEGREES 58 MINurEs 5lsEcoNDS EAST 6.35 FEET, ALONG TT{E NORTTIERLY FACE OF SArD EXISTING BLILDTNG; (6) SOU-IHIO DEGREES OI MINUTES 09 SECONDS WEST 6.4I FEET, ALONG THE EASTERLY FACE OF SAID ^EAS]Tg BL'ILDING; (7) DEPARTING TTIE EASTERLY FACE OF SAID EXISTING BUILDING, SOUTH79 DEGREES 4? MINUTES 08 sEcoNDS EAsr 83.93 FEET; (s) NORTH l0 DEGREES t2 MTNUTE5 52SECONDS EAST 32.60 FEET; (9) SOUTH 79 DEGREES 47 MINUTES 08 SECONDS EAST 6?.05 FEET, TOTHE SAID WESTERLY LINE OF VILLAGE INN PLAZA, A CONDOMIMUM; THENCE THE FOLLOWINGTHREE coURsEs ALONG SAID WESTERLY LINE: (l) SOUTH 09 DEcREEs 30 MTNUTES 00 SEcoNDsIF!I9,9I FEET; (2) sourH 80 DEGREES 30 MTMjTES 00 sEcoNDS EAsr 56.60 FEEr; (3) sourH 09DEGREES 30 MINUTES OO SECONDS WEST 7.46 FEET, TO THE NORTHERLY LINE OF VILLAGE INNPLAZA PHASES I AND II, ACCORDING TO THE MAP THEREOF RECORDED IN BOOK 388 AT PAGE 855OF THE CLERK,S RECORDS; THENCE THE FOLLOWING FOUR co{JRsEs AL0NG THE NoRTHERLYAND WESTERLY LINES OF SAID VILLACE INN PLAZA PHASES I AND II; (l) NoRTH 80 DE6REES 22MINUTES 22 SEcoNDs WEST 125.59 FEET; (2) SOUTH 42 DEGMEs 32 M[.idTES 2t SEcoNDs wEST46.01 FEET; (3) sourH 82 DEGREES 06 MTNUTES 46 sEcoNDs WEST 49.48 FEEr; (4) sourlr l0DEGREES 13 MINUTES 02 SECONDS WEST 53.5I FEET TO THE NORTHEASTERLY CORNER OFFORFEITURE OR REVERTER CLAUSE AMENDMENT TO CONDOMIMUM MAP OF VILLAGE INNPLAZA - PHASE V CONDOMINIUMS, ACCORDING TO THE MAP THEREOF RECORDED IN THE 9L1RK'S RECORDS; THENCE TI{E FOLLOMNG THREE COURSES ALONG THE NORTTIERLY LINE OFSAID FIRST AMENDMENT TO CONDOMIMUM MAP OF VILLAGE INN PLAZA - PHASE VCoNDoMIMUMS: (l) NoRTH 80 DEGREES 02 MTNUTES 44 sEcoNDs WEST 106.72 FEET; (2) NoRTH09 DEGREES 57 MINUTES 16 sEcoNDs EAsr 6.25 FEET; (3) NoRTH 80 DEGREES 02 MINUTES 44SECONDS WEST 52'23 FEET, TO THE WESTERLY LINE OF SAID LOT M; THENCE NORTTI 00 DE6REES23 MINUTES OO SECONDS WEST 105.76 FEET, ALONG SAID WESTERLY LINE, TO THE NORTHWESTCORNER OF SAID LOT M, THENCE, ALONG THE WEST LINE OT SAN TOi N_, NORTH OO DEGREES 23MINUTES OO SECONDS WEST 50.05 FEET, TO THE SOUTHWEST CORNER OT'SATO PARCELDESCRIBED IN BOOK 230 AT PAGE 556 OF TI{E CLERK'S RECORDS; THENCE THE FOLLOWIN6 TWOCOTJRSES ALONG THE SOUTHERLY AND EASTERLY LINES OF SAID PARCEL: (I) SOUTTI 79 DEGREES46 MINUTES 00 SECONDS EAST 147.36 FEET; (2) NoRTH l0 DEcREES 14 MINUTES 00 SEcoNDS EAST147.43 FEET, TO THE POINT OF BEGINNING, COTII{IY OF EAGLE, STATE OF COLORADO. CO_DOCS_A #152626 v1 A-2 Exhibit B to Declaration TABLE OF ALLOCATED INTERESTS - TlPs-qf Unit Percentage share of esn0mqln Elements Percentase share of _Common Expenses Vote in the affairs of Association I. Vail Plaza Club (See Exhibif B-l) 4t.27 41.27 4r.27 3t57 IL Vail Plaza _, Condon_rinium Unit 3.57 3.57 rll. Employee Housing Unit 3.00 |o.+r 3.00 2U4l 3.00 IV. Hotel Unit 20.41Y, Total Commercial 1.00 1.00 1.00 A. Commercial Unit 3 (SpaRetail)1.808 r ,80816636 '; 3.6636 1.808_B. Commercial Unit I 3.6636_C. Commercial Unit 2 4.5282 4.5282 4.5282 VI. _ Parking Unir r3.61 13.61 13.61VII. llanagement U;it 4.09 4.09 4.09VIII. Loading Unir !,34 r.73 1.34 r.73 134E , 9e!@g Kitchen u1 1.89 X. Convention r.E9 1.89XI. Service 436 4.36 4.36XII. Spa 2.38 1.33 2.38 r33 2.38XIII. Restaurant r33 TOTAL *-.,-*,100 percen!__,___ 1Q0 qercenr _ t99.,percent CO_DOCS_A #152626 v.l B-t Exhibit B-l to Declaration CLUB UNIT ALLOCATION Club Unit No. 218 212 207 203 202 318 312 307 303 302 301 348 347 346 345 342 334 412 410 409 408P 407P 406P 405 403 402 401 442P 44lP 440 439 4J) 427 507 506P 505P .5065 .6689 .6728 .5263 .7084 .5098 .677 .6913 .5322 .5902 .598s .6088 .6088 .6428 .5927 .78t2 .6694 .5214 .7919 .6s73 .9183 1.2066 1.2665 .7296 .8892 .7104 .6958 1.3308 1.2642 .6956 .5s38 .7513 .8034 .7064 .9620 r.2838 Club Percentaae share Designation of CommonNo. Elements Percentaqe share of Common Expenses .5065 .6689 .6728 .5263 .7084 .s098 .677 .6913 .5322 .s902 .5985 .6088 .6088 .6428 .5927 .78r2 .6694 .5214 .79r9 .6573 .9183 r.2066 1.2665 .7296 .8892 .7104 .6958 1.3308 1.2642 .6956 .5538 .7513 .8034 .7064 .9620 1.2838 Vote in the affairs of Association .5065 .6689 .6728 -5263 .7084 .s098 .677 .6913 .5322 .5902 .5985 .6088 .6088 .6428 .5927 .78r2 .6694 .5214 .7919 .6s73 .9183 1.2066 r.2665 .7296 .8892 .7104 .6958 l 3308 1.2642 .6956 .s538 .7513 .8034 .7064 .9620 1.2838 2 J 4 5 6 7 8 9 l0 ll 12 l3 t4 l5 l6 t7 t8 l9 20 2l 22 1A 25 26 27 28 29 30 31 32 JJ 34 Jf 36 CO_DOCS_A #152626 vl B1-l Club Unit No. 504P 503P 502 501P 527 521 515 601P 602P 603P 604P 605 606P 607P TOTAL Club Desienation No. 3t 38 39 40 4l 42 43 44 45 46 47 48 49 50 Percentage share of Common Elements r.0527 1.1554 .7'159 1.0990 1.0610 .8076 .8296 1.1498 1.1174 .8450 .8402 .6647 r.2930 r.2s60 41,270 Percentage share of Common Expenses 1.0s27 r.1554 .7759 1.0990 1.0610 .8076 .8296 1.1498 t.r174 .8450 .8402 .6647 1.2930 1.2560 41.27o/o Vote in the affairs of Association 1.0527 1.1554 .7759 1.0990 1.0610 .8076 .8296 1.1498 1.1r74 .8450 .8402 .6647 r.2930 1.2560 4l.27Vo CO_DOCS_A #132626 v1 B1-2 f,xhibit C to Declaration EASEMENTS AND LICENSES OF RECORD Permitted Exceptions zuCHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THESAME BE FoLJND To PENETMTE oR INTERsECfrni pRlttrrsrs As RESERVED rN LrNrrED srATEs pATENTRECORDED JULY 12, I899, IN BOOK 48 Nr P,{CE +ZS. RIGHT OF WAY FOR DITCHES OR CANAIS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES ASRESERVED IN LNITED STATES PATENT RECORDiOIUT-V 12, I899, IN BOOK 48 AT PAGE 475. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BI,TT OMTTTINGANy COVENANT OR RESTRICTION BASED ON nece, coloq RELtctoN, srx, iarvorcep, FAMILIAL STAruSoR NATIONAL ORIGIN LNLESS AND ONLY To rHeExrervr ruAT sAID covENeni 1e; IS EXEMpT SNDERCHAPTER 42' sEcrloN 3607 oF THE LNITED sraies dooe oR (B) RELATEs ro Her.rorcap BLrr DoES Nor Rilttftilil?tittJsr HANDIcAP Pe nsorvs, ei couranven IN INSTRUMENi pacomso aucusr r 0, r e62, RECIPROCAI EASEMENT AGREEMENT BETWEEN VAIL VILLAGE INN, A COLORADO CORPORATION, JAMMLTD" A coLoRADo LIMITED peRl-NensHtp AND veiivlt-t-nce INN ASSocrATEs, A coLoRADo cENERALPARTNERSHIP RECORDED JANUARY 3, I 983 TT.T EbOI' 35 T AT PAGE 324. ffiHirio*otrloNs AND PROVISIONS OF AGREEMENT RECORDED SEPTEMBER 0e, 1983 rN BOOK 367 AT CONVEYANCE OF EASEMENTS BETWEEN VAIL VILLAGE INN, INC., A COLORADO CORPORATION AND F&LVAIL VILLAGE INN PARTNERSHIP, A coloRAoo b-n-Nanel pARTNERSHIp REcoRDED ruLy r0, 1984 IN BooK388 AT PAGE 86I . DECLARATION OF PARTIAL VACAT]ON OF EASEMENT IN CONNECTION WITH SAID EASEMENT RECORDEDJIJLY 25, I985 IN BOOK 420 AT PAGE 741. TERMS' CONDITIONS AND PROVISIONS OF DECLARATION OF EASEMENTS AND RIGHTS RECORDEDFEBRUARY 04, 1988 IN BOOK 478 AT PAGE 377. TERMS' CONDITIONS AND PROVISIONS OF DECT-A,RATION CONCERNING PARKING WITHIN SPECIALDEVELOPMENT DISTRICT 6 RECORDED JULY rO, rqAq'iN SOOK 388 AT PAGE 856. TERMS, CONDITIONS AND PROVISIONS OF DECLARATION OF EASEMENTS RECORDED DECEMBER I7, I992 INBOOK 596 AT PAGE 908 AND As SHowN oN errelecsrt'r suRVEY PREPAREn rur-ilo, lee6 By EAcLE vALLEySURVEYING, INC., JOB NO, 854-5. EASEMENTS, CONDITIONS. COVENANTS, RESTRICT]ONS, RESERVATIONS AND NOTES ON THE RECORDEDPLAT OF VAIL VILLAGE FIRST FILING. EASEMENT AND RICHT OF WAY AS GRANTED TO HOI,Y CROSS ELECTzuC ASSOCIATION, INC., ININSTRLJMENT RECORDED NOVEMBER I9, T qZI TN SOOK ZZ2 AT PAGE 32I, AND AS SHOWN ON THECONDOMINIUM MAP RECORDED NOVEMBER Tq, iSSi iN SOOK 349 AT PAGE I I. EASEMENT GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC., IN INSTRUMENT RECORDED JANUARY21, t983 rN BOOK 352 AT PACE 397. CO_DOCS_A #152626 v1 c-1 I THOSE PROVISIONS, COVENANTSAND CONDITIONS, EASEMENTS AND RESTRICTIONS, WHICH ARE ABURDEN To A CERTAIN CONDOMINIUM uMT, AS ccir'lren',rno rN rxsrnuuEli nrcoRDED NovEMBER 19,1982, IN BOOK 349 ATPAGE 12. EASEMENT BETWEEN VILLAGE INN PLAZA CONDOMINIUM ASSOCIATION, A COLORADO NON-PROFITCORPORATION, VAIL VILLAGE INN, INC., E COT.ONEOO CORPORAT]ON, AND F & L VAIL VILLAGEPARTNERSHIP, A COLORADO GENEML PARTNENSHIP TFT NOCUMENT RECORDED ruLY tO, 1984 IN BOOK 388AT PACE 862. 1I-lY!{TS'CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDEDCONDOMINIUM MAP OF VILLAGE INN PLAZA. UNLITY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC. IN INSTRUMENTRECORDED JANUARY 2I, 1983 IN BOOK 352 Er PNCE rS6. ENCROACHME}TT AND ROOF OVERHANG OF VTLLAGE INN PLAZA PHASES I AND II ONTO SUBJECT PROPERTYAS SHOWN ON IMPROVEMENT LOCATION CERTINTCETE BY EAGLE VALLEY SURVEYING, INC., JOB NO. 854.5,DATEDruLY26, I9q6. NOTE: EASEMENT AGREEMENT IN CONNECTION WITH sA]D ENCROACHMENT wAS RECORDED JULY I O, 1984IN BOOK 388 AT PAGE 86I. TERMS' CONDITIONS AND PROVISIONS OF ENCROACHMENT AND VIEW AGREEMENT RECORDED DECEMBER22, 1989 IN BOOK 520 AT PAGE 167. TERMS' CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED APRIL 14, 1992 IN BOOK 577AT PACE 628. TERMS' CONDITIONS AND PROVISIONS OF RESTRICTIVE COVENANTS RECORDED AP FJL23, Igg2IN BOOK 578AT PAGE 368 AND RERECORDED APRIL 30, 1992 IN BOOK 578 AT PAGE 996. TERMS' CONDITIONS AND PROVISIONS OF DEED OF EASEMENT RECORDED MAY 18, 1994 IN BOOK 640 ATPAGE 621. EXISTING LEASES AND TENANCIES. I CO_DOCS_A #152626 v1 c-2 Penthouse Club Units (11) 60lP 602P 603P 604P 606P 607P Exhibit D To Declaration UNITS SUBMITTED TO VAIL PLAZACLUB Club Desigration penthouse Club Club Desimation Units (continued) 505P 506P 408P 503P 504P 44 45 46 47 49 50 36 35 21 38 37 One-Bedroom Club Units (23) 202 203 218 301 302 303 318 34s 346 347 348 401 Club Designation 5 4 I ll l0 9 6 l5 t4 13 12 27 O4e-Bedroom Club Units (continued) 402 403 405 409 410 412 439 440 502 507 605 Club Desisnation 26 25 24 20 l9 18 3l 30 39 34 48 Two-Bedroom Club Units (l l) 207 2r2 307 312 334 342 Club Desi€rration Two-Bedroom Club Units (continued) 427 435 515 521 527 Club Desienation JJ 32 43 42 41 J 2 8 tt 16 Three-Bedroom Club Units (5) 406P 407P 441P 442P 50lP Club Desienation ZJ 22 29 28 40 TOTAL CLUB {JNITS = 50 D-1CO_DOCS_A #152626 vl I Exhibit Dl to Dectarationf VAIL PLAZA CLUB - Factors for each Club Estate o Club Week #.,-----Qlub Unit # 218 212 207 ( 203 \ 202 318 3',t2 307 303 1 2.767 2.767 2.767 \ 2.767 / z.r0t z.toI Z.TOT 2.767 2.767 2.767 2.767 z.tot '2]Sl I.IOI z.toI z.Iol 2.767 2.767 J Z.IO T 2.767 2.767 2.767 2.767 2.767 2.767 2.767 2.767 A 2.767 z.tol Z.TOT 2.767 2.767 z.Io I z.toI Z.TOT 2.767 5 .t.z.JD J.ZdO J.260 J zdo 3.286 3.286 3.286 3.286 3.286 6 J.Z+5Y J.+CV .t.+cv J.45Y 3.459 3.459 3.459 J.+CV 3.459 7 .J. O JZ J.OJI .t. o Jz J.OJZ J.OJZ 3.632 J.OJZ J.OJZ 3.632 8 3,459 J -.I3v 3.459 3.459 J.+3V J..+CV J.45V J..+5v J.+JYI3.459 J.+CV 3.459 3.459 J.4CV 3.459 J.4Cv 3.459 J.z+cv 10 J.4CU 3.459 J.+CV 3.459 J.+5V J.+CV 3.459 J 45Y J.45Y 11 J.+CY 3.459 J.+CY 3.459 3.459 J.{CY 3.459 J.45Y 3.459 12 J. r+c9 3.459 J.+CV J_r+3Y 3.459 J.4CV 3.45S J.z+cv J.4CY 3.45S 3.459 3.459 3.459 J.+CY 3.459 .J. +CY .t.+3Y 3.459 14 2.421 2.421 2.421 1..12 |t.+z I 2.421 2.421 1.1t2 | 15 U. UJ5 0.035 0.035 U. UJC 0.035 0.035 0.035 U.UJC 16 U UJb 0.035 0.035 U.UJ3 n n?A 0.035 0.035 0.035 n nlt 17 n n?E 0.035 0.035 U.UJ5 0.035 0.035 0.035 18 0 035 0.035 0 035 0.035 0 035 0.035 0.035 0.035 0.035 '19 U, J+O u..5r+o 0.346 0.346 U..JZ+O 0 346 0.346 0.346 0.346 20 u. J.+o 0.346 0 346 0.346 0.346 U JZ+O u.Jz+o 0.346 0.346 21 u.c+o 0.346 u. J.to 0 346 0.346 0.346 U.JZ+O 0.346 u.$+o U.J4b 0.346 0.346 0 346 0.346 0.346 U.J4b 0.346 0.346 IJ 1.038 1 038 1.038 .t n?n '1.038 1 .038 1.038 1038 1.038 z+1.038 1 .038 1.038 1n?f,1.038 1.038 1.038 1.038 '1.038 za 1 .038 1 .038 1.038 1 .038 1 .038 1.038 1.038 1 .03E 1.038 26 2.421 2.421 2.421 2..+11 2,421 2.421 27 Z,U I3 l.uta t.ut3 2.O75 2.075 2.O75 2 075 2.075 2.075 28 l.lJtC z.utc 2.075 2.O75 2.075 l.utc 2.O75 t n-78,2.075 29 2.248 2.248 2.246 2.?48 2.248 2.248 z zt+6 2.248 2.248 JU z.uta 2 075 2.075 z.ut3 I.UI3 2.075 z.utJ z-u I3 2.075?,r 2.075 z.vlc 2.075 2.O75 t.vt3 2.075 2.075 z.ut5 z.uta 32 1.679 1 679 1.679 1 679 1.679 1.679 1.673 1.679 1.679 JJ 1.679 1.679 '1,679 1.679 1.673 '1 679 1.679 1.679 1.679 JZ+'t.679 1.679 1.679 1 470I 1.679 1.679 '1.67S 1.679 1.679 35 1.679 '1 679 LO/Y 1.67e I 1679 t.o/Y 1.679 1.679 '1.679 JO 0.865 0. 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IOt 2.767 z.totl z toI z to r I z.loI 49 2.767 2.767 z.toI 2.767 t -tAt I t-ro| |2.767 t.toIl 2.767 c.H.*5.238 5.238 |5.238 5.238 C.ZJ.'5.238 s.2381 5.2381 5.238 N.Y.H.-6.7S4 6.794 6.794 6.794 6.794 6.754 6.794 6.794 6.794 Total 100.00 100.00 100.00 100.00 100.00 100.00 100.00 100.001 100.00 .C.H. = Christmas Holiday*N.Y.H. = New Yea/s Holidav D1-1 *C.H. = Christmas Holiday.N.Y.H, = New Year,s Holidav ,rtr.o.ffiEstare D1-2 *C.H. = Christmas Holiday-N.Y.H. = New Year's Holidav utr**mEstare D1-3 .C.H. = Christmas Holiday*N.Y.H. = New Yeais Holidav 'ilr*rffiEstare D1-4 a Exhibit Dl to Dectarationf VAIL PLAZA CLUB - Factors for each Club Estate I I *C.H. = Christmas Holiday*N.Y.H. = New Yea/s Holiday D1_s Club Week #Club Unit # 515 601P 602P 603P 604P 605 606P 607P 1 z-toI 2.767 Z.TOI 2.767 2.767 2.767 2.767 z.toI22-767 z.toI z.Iot 2.767 Z. IOI 2.767 2.767 2.767 2.767 z.toI z.tol 2.767 2.767 2.767 2.767 z.to( 2.767 z.toI 2.767 Z.IO T 2.767 2.767 Z.IO T z.Io Ic3.286 3.286 .t.zbD 3.286 3.286 3.286 3.286 3.286 o 3.459 J.+CV 3.459 3.459 3.459 .t.+JY .1..+Ct 3.459 7 J,OJZ 3.632 J,OJI 3.632 J.OJZ J.O5Z 3.632 ,t.oJz 8 J.4C9 3.459 .t.+cy J..+CU J..+CV 3.459 J.4CY 3.459 3.459 3.459 .t.+cv .t.{cY 3.459 J..+5V 3.459 3.459 10 3.459 3.459 .t. +cY J_+CV 3.459 J_ r+39 3.459 J.45Y 11 3.459 3 459 3.459 J.+5V 3.459 3.459 3.459 J. r+cv tz J.r+cv J. r+c9 3.459 J.+Cv 3.459 3.459 .) z+3u J_40V12.3 459 J.45t 3.459 J +CV 3.459 J.z+3v J. r+59 3.459 14 2.421 2.421 a.iz I 2.421 4..+z I 2.421 1.+1 |2.421 15 0.035 0.035 U.UJC 0 035 U.UJC 0.035 0.035 0.035 to 0.035 0.035 n n?tr 0.035 0.035 0.035 n n?R 0.035 17 0.035 0.035 U.UJ3 0.035 0.035 n n?F 0.035 n n?E 18 U.UJC 0.035 n n?a 0.035 n niE 0.035 n n?E U. UJ5100.346 0.346 0.346 u..t+o U JI+O 0.346 0.346 u. J4lozv0,346 u. Jr+o 0.346 0.346 U, JZ+O 0.346 0.346 U-JZ+O 21 0.346 u.J+o u. J.lo 0.346 0.346 u. Jr+o 0.346 u.J40 0.346 \J.J+O 0.346 0.346 0.346 0.346 0.346 0.346z51.038 1.038 1.038 1.038 1.038 1.038 1.038 1.038241.038 1.038 1.038 1 .038 '1.03E 1.036 I n?q 1.038 25 1.038 1 .038 '1.038 '! n?a 1.038 a n?n 1.038 1.038zo2 421 2.421 2.421 2..+z I 2.421 2.421 27 2.O75 z.utJ 2.075 2.O75 2.075 2.O75 2.075 2.075 28 z.u tcl 2.O75 2.075 z.u/3 2.075 z-ut3 2.075 2.O7529z.z+a 2.248 z. z.+6 2.21.J 2.2481 2.248 2.248 2.248?n z.utc 2.O75 2.075 2.075 2.075 2.0751 z.vIc z.uIc112.O75 2.O75 2.075 Z.UIJ 2.075 j z.utc 2.07s 1 2.O75 JZ 1.6791 1.679 1-67e 1.679 1.6791 1.679 1.679 |1.679 LO/V LO/rV .t 470 1.67e I 167e1 1.679 .t 470 1.679 ,J+1.67e i 1.679 16791 1.679 167e1 1 .67e I 1.679 1.679 1.679 1.679 1 679 t.o/v 16791 1.679 1.679l 1470 0.865 0.865 N RA(0 86sI 0.865 o 86sI 0.865 JI u.6b5 0.865 o.B6si 0.865 u-ooc 0.865 0.865 0.865 u.oo3 N EAtr u.oo3 0.865 u.a1D5 u. ooc 0.865 JV 0.865 u.60c u.oo3 o 8651 u.ooc 0 865400.346 0 346 0.346 0.346 0.346 0.346 |0.3461 0.346 41 0.346 |u.Jz+o 0.346 U.J+O 0.346 0.3461 0.3216 U. J+O.+t 0.346 U, J+O 0.346 0.346 0 346 0 346l 0.346 i u.Jr+o+J 0.346 U.J+O u.J.to 0.346 0346|0.3461 0.346 |u. J.+o440.346 |U.J+O 0.346 |o scoI u_J.+b 0 3461 o 346|0.346 2.421 2.421 2.421 2..+z I 1.+Z I 1.+1 |2.421+o 3.1 13 3.1131 3.1 13 ? t.l"l 'l .t ,t ??,t{11 3.113z.Iol 2.767 2.767 2.7671 2.767 2.767 z.ro| |z.toI +o 2.767 2.767 2.767 z.toI 2 7671 z.to||2.767 2.767491. IOI z.tot 2 7671 z.Io I 2.7671 z- tol 2.767 |2.767c.H..5.2381 5.238 5.238 5.238 i 5.238 |5.238 5.2381 5.238N.Y.H.*6.794 6.794 6.794 6.7e41 6.794 6.794 6.794 6.794 100.00 100.001 100.00 100.00 100.00 100.00 100.00 100.00 oI o o o oo o Lo o o ARTICLES OF INCORPORATION OFVAIL PLAZA CONDOMINIUM ASSOCIATION, INC. Pursuant to the Colorado Nonprofit Corporation Act, Articles l2l through 137 of Title 7,colorado Revised Statutes, as amended, and p'art 3 of Article g0 of Title 7, colorado RevisedStatutes, as amended, these Articles oflncorporation are delivered to the Colorado Secretary ofState for filine: ARTICLE I. NAME The name of the corporation is Vail Plaza Condominium Association, krc. (the"Association"). ARTICLE 2. Rf,GISTERED OFFICE AND REGISTERED AGENT . Theinitial registered office of the Association is Corporation Service Company, 1560Broadway, Denver, Colorado, 80202. The initial registered agent at such office is CorporationService Company. ARTICLE 3. PRINCIPAL OFFTCE The address of the^initial principal place of business of the Association is 12 Vail Road,Suite 200, Vail, Colorado g1657. ARTICLE 4. PERJOD OF DURATION The Association shall exist in perpefuity from and after the date of hling of these Articlesof Incorporation with the colorado s-ecietatyir state, unless dissolved according to Coloradolaw. ARTICLE 5. PURPOSES OF THE ASSOCIATION The Association does aot contemplate pecuniary gain or profit of the members thereof,The primary purposes for which the Association is formed are (a) to provide for the operation,administration, use, and maintenance of certain common areas and other property more fullydescribed under the Condominium Declaration for vail plaza Hotel Resort Club, acondominium' recorded in the office of the Clerk and Recorder oi E"gl; county, Colorado, asamended or supplemented from time to time (the ,,Declaration,,); o) to preserve, protect, andenhance the values and amenities of such prop"rty and (c) to pio*ot" the hearth, safety, andwelfare of members of the Association. ARTICLE 6. DEFINITIONS unless otherwise specified, capitalized terms used in these Articles of Incorporation shallhave the same meanings as such termi have in the Declaration. CO_DOCS_A #149399 v2 ARTICLE 7. POWERS In furtherance of the purposes stated above, the Association shall have and may exerciseall of the rights, powers, priuileges, and immunities now or subsequently conferred uponnonprofit cotporations organized under the laws of the State of colorado, or granted under theDeclaration. ARTICLE 8. MEMBERS The Association shall have voting members and the number, qualifications, rights,obligations, and other matters relating to tlie members shall be as set forth in the Bylaws of theAssociation. ARTICLE 9. LIMTTATION OF LIABILITY No member of the Board of Directors of the Association shall have any liability to theAssociation or to its members for monetary damages for breach of fiduciary duiy as u *-ugo,except to the extent such exemption from liabilityis not permitted under the Colorado N*tr;t;corporation Act or the. Act- Aay repeal or modification or tn" roi"going sentence shall notadversely affect any right or proteition of a manager in respect of any a"ct or omission occurringprior to such repeal or modification. No member of the Board of Directors, or officer of the Association shall be personallyliable for any injury to. person(s) or property arising out of a tort "o*-itt.a by an employeeexcept to the extent such exemption frora liability is ;ot permitted under the colorado NonprofitCorporation Act. ARTICLE I O. INDEMNIFICATION The Association shall provide indemnification either directly or indirectly throughinsurance policies or otherwise, to the fullest extent permitted by law, for any individual whoseryes as a member of the Board of Directors, offiier, employee, fiduciary or agent of theAssociation against liabilities and expenses asserted against or incuned by such individual inconnection with holding such position. such indemnification shall not extend, in any event, toany act or omission occurring prior to the date of incorporation of the Association. whenever such an individual seeks indemnification by the Association against anyliability or expenses incurred in any threatened, pending or completed proceeding in which theindividual is a part because he or sire holds or hir h.to *y su"tr porition, the Association shallproceed diligently and in good faith to make a determination, in tne rnu*". permitted in theColorado Nonprofit Corporation Act, whether indemnification is permissible in thecircumstances' If indemnification is determined to be permissible,- the Association shallindemnify the individual to the-fullest extent permissible, provided that any indemnification forexpenses shall be limited to the amount found ,euronable by an evaluation conducted in amanner permitted by the Colorado Nonproht Corporation Act. CO_DOCS_A #149399 v2 I No member of the Board of Directors of the Association shall have any liability to theAssociation or to its members for monetary damages for breach of fiduciary duiy as u ,ri*ugrr, except to the extent such exemption from liability is not permitted under the Colorado Nonproni Corporation Act or the Act. Any repeal or modification of the foregoing sentence shail not adversely affect any right or protection of a manager in respect of any it oi omission occurringprior to such repeal or modification. No member of the Board of Directors, or officer of the Association shall be personally liable for any injury to person(s) or property arising out of a tort committed by an'employee except to the extent such exemption from liability is not permitted under the Coloiado Nonpront Corporation Act. This Article shall not be interpreteC to limit in any manner any indemnification the Association may be required to pay pursuant to the Colorado Nonprofit Corporation Act, any court order, or any contract, resolution or other commitment which is legally valia. ARTICLE 1I. BYLAWS The Board of Directors shall have the power to adopt and amend the Bylaws of theAssociation as it may deem proper for the management of thi affairs of the Association. The Bylaws shall not be incsnsistent with these Articrei of Incorporation. ARTICLE 12. DISTRIBUTION OF ASSETS UPON DISSOLUTION Upon dissolution, the assets of the Association will be distributed to the Unit Owners in accordance with $ 38-33.3-218 of the colorado common Interest ownership Act. ARTICLE 13. INITIAL BOARD OF DIRECTORS The number of member(s) constituting the initial Board of Directors shall be one. The name and address of this person is listed as follo.ws: Name Connie Dorsey Address 12 Vail Road, Suite 200 Vail, CO 81657 CO_DOCS_A #149399 v2 ARTICLE 14. INCORPORATOR The name and address of the individual causing this document to be delivered for filing and to whom the Secretary of State may deliver notice if filing of this document is refused, is: W. Michael Clowdus Ballard Spahr Andrews & Ingersoll, LLP 1225 lTth Street, Suit€ 2300 Denver, Colorado 80202-5596 Telephone: 303 /299 -7 3 5 | Facsimile: 303 /296-39 5 6 co_Docs_A #149399 \r2 oo o t o BYLAWS OF VAIL PLAZA CONDOMINruM ASSOCIATION, INC., A Colorado nonprofit corporation CO_DoCS_A #149400 v6 I ARTICLE I. PURPOSES, ASSENT OF I-NIT OWNERS, AND DEFINITIONS....................... 1 Section 1.1 purposes. ............. I Section 1.2 Assent........... ............................- I Section 1.3 Definitions.... ............................. IARTTCLE 2. M8M8ERSHIP............... ........................ I Section 2.1 Membership. ............................. I Section 2.2 Responsibilities of Unit Owners. .................... I Section 2.3 Membership Certificates... ........2 Section 2.4 Voting Rights........... .................2 ARTICLE 3. MEETINGS OF LINIT OWNERS .,........2 Section 3.1 place of Meeting .......-................2 Section 3.2 Annual Meeting. ........-..............2 Section 3.3 Special Meetings....... .....-..........2 Section 3.4 Notice of Meetings.. ..................2 Section 3.5 Meeting to Approve Annual Budget. ... ...........2 Section 3.6 Adjourned Meetings....... ........... 3 Section 3.7 Proxies. ............... 3 Section 3.8 Desigration of Voting Representative--proxy. ......-.............. 3 Section 3.9 euorum. ..............4 Section 3.10 Voting. ................4 Section 3.11 Waiver of Meeting and Consent to Action. ..........................4 Section 3.12 Action by Written 8a11ot............ ..................... 4ARTICLE 4. BOARD OF DrRECTORS................. ........................... s Section 4.1 Number and eua1ification................. .............. 5 Section 4.2 Required Election of Unit Owners......... ......... 5 Section 4.3 Declarant Control ofthe Association.............. ......................6 Section 4.4 Election and Term of Office. ..........................6 Section 4.5 Rernoval of Members of the Board of Directors... ............--..7 Section 4.6 Vacancies. ........-.-7 Section 4.7 Quorum of the Board of Direcrors. ................-7 Section 4.8 Place and Notice of the Board of Directors Meetings................................. 7 Section 4.9 Powers and Duties..... ................ g Section 4.10 Managing Agent............ .......... l0 Section 4.11 Compensation of the Members of the Board of Directors........................ l0 Section 4.12 Board of Directors Meetings.................... ........................... l0ARTICLE 5. OFFICERS AND THEIRDUTIES....... ......................1I Section 5.1 Enumeration of Officers.... ....................-....... I I Section 5.2 Election of Officers.... ............. I I Section 5.3 Term............. ........................... I I Section 5.4 Special Appointments...,................ ............... I I Section 5.5 Resignation and Removal. ............................ I I Section 5.6 Vacancies. ......... I I Section 5.7 Multiple Offices. ..................... I I Section 5.8 Duties. ............... 11 Section 5.9 Execution of Instruments................... ......-.-..12 Section 5.10 Staternent of Unpaid Assessments. ............... 13 I CO_DOCS_A #149400 v6 t ARTICLE 6.INDEMNIFICATION OF MEMBERS OF THE BOARD OF DIRECTORS AND OFFICERS................ ...... 13section6.l ActionsotherthanbyorintheRiehtoftheAssociation...................-.....13 Section 6.2 Actions by or in the Right of the Association......_.................................... l3 Section 6.3 Successful on the Merits .......... 14 Section 6.4 Determination Required....... ......................... 14 Section 6.5 Payment in Advance of Final Disposition. ......................... l4 Section 6.6 No Limitation of Rights...... .......................... 14 Section 6.7 Directors and Officers Insurance. ................. 14 ARTICLE 7. BYLAWS. ....................... 15 Section 7.1 Amendments ...... 15 Section 7.2 Compliance with the CIOA............ ............... 15 Section 7.3 Conflict between Documents... ..................... 15 ARTICLE 8. COMMITTEES.............. .......................15 ARTICLE 9. BOOKS AND RECORDS................... ....................... 15 Section 9.1 Records and Audits. ... ............. 15 Section 9.2 Examination. ...-....................... 15 Section 9.3 Records. ............ 16 Section 9.4 Roster. ............... 16 ARTICLE 10. CORPORATE SEAL..... .....................16 ARTICLE 11. FISCALYEAR ............. 17 ARTTCLE 12. RULES AND REGULATrONS.......... ...................... 17 ARTICLE 13. MEMBERSHIP zuGHTS AND PRIVILEGES .,.,....17 Section 13.1 Rights and privileges of Members. . .............. L7 Section 13.2 Suspension of Rights.....". ........ lg ARTICLE 14.INTERPRETATION.... ....................... l8 llCO_DOCS_A #149400 vo BYLAWS vArL pLAzA coNDoMrRLr nrro.rArroN. rNC. The name of the corporation shall be Vail Plaza Condomiaium Association, Inc., a Colorado nonprofit corporation (the ..AssSSIgU9I"). ARTTCLE 1. PURPOSES, ASSENT oF TINIT owllERs, AND DEFINITIONS Section l.l Purposes. The Association is formed pursuant to the Colorado RevisedNonprofit corporation Act, colo. Rev. Stat. $ 7-l2l-l0l et seq. (the ..Nqnptq&_Ag!') and thecolorado common Interest ownership Act, colo. Rev. Stat. g :i-::.:-iot et seq. (..1)ba'), as each may be amended from time to time. The primary purposes for which the Association isformed are (a) to provide for the operation, aami*staiion, use, and maintenance of certain cornmon areas and other property more fully described in the Condominium Declaration for Vail Plaza Hotel Resort Club, a condominium, recorded in the office of the Clerk and Recorder of Eagle Counfy, colorado, as amended or supplemented from time to time (the..Dgslaratis!"); (b) to preserye' protect, and enhance the values and amenities of such property; and (c) to promote the health, safety, and welfare of members of the Association. Section 1.2 Assent. All present or future Unit owners, occupants, or any otherpersons using the facilities of the Condominium Project in any manner are subject to theseBylaws and any Rules and Regulations atlopted by the Board tf Directors pursuant to theseBylaws. Acquisition or rental of any of the Units in the Condominium Project or the mere act of occupancy of any Units shall constitute an acceptance and ratification of these Bylaws and an agreement to comply with said Rules and Regulations. Section 1.3 Definitions. Unless otherwise specified, capitalized terms used in theseBylaws shall have the same meanings in these Bylaws as such terms have in the Declaration. ARTICLE 2. MEMBERSIIIP Section 2-l Mqrnbership. Ownership of a Unit is required in order to qualify for membership in the Association. Section 2.2 Resnonsibilities of Unit Owners. Any person or entity, including Declarant, on becoming a Unit Owner, shall automatically become a mernber of the Associatioi and be subject to these Bylaws. Such membership shall terminate without any formal Association action whenever such person ceases to own a Unit, but such termination shall notrelieve or release any such former Unit Owner from any liability or obligation incurred under, orin any way connected with, the Association during the period of such olwnership, or impair anyrights or remedies which the Board of Directors or others may have against such former UnitOwner arising out of ownership of the Unit and mernbersirip ;n tli" Association and the covenants and obligations incident thereto. CO_DOCS_A #149400 v6 I Section 2.3 Mernbershin Certificates. No certificates of stock shall be issued by the Association, but the Board of Directors may, if it so elects, issue membership cards to Unit Owners. Such mernbership card shall be surrendered to the secretary of the Association whenever ownership of the unit designated on the card shall terminate. Section 2.4 Votins Rigflts. The Association shall not have a vote with respect to any Unit which may be owned by it. Declarant shall be entitled to vote with respect to any Unit owned by it. Class voting by Club Mernbsrs (the "e!elg") shall be allowed on issues specifically relating to or directly affecting only the Club, as determined by the Board of Directors in accordance with the Declaration. Voting rights shall be allocated among the types of Units on the Condominium Project in the Association as shown on Exhibit B of the Declaration and allocated among the club Estates as shown on Exhibit D-l of the Declaration. ARTICLE 3. MEETINGS OF UNIT OWNERS Section3'l Place of Meeting. Meetings of the Unit Owners shail be held at such place, within or without the State of Colorado, as the Board of Directors may determine. Section 3.2 Annual Meeting. Regular meetings of Unit Owners shall be held arurually. The first arxrual meeting of the Unit Owners shall be held within one (1) year after the date of the adoption of these Bylaws. Thereafter, the annual meetings of the Unit Owners shall be held on a date and at a time selected by the Board of Directors in each succeeding year. The purpose of the annual meetings is for the election of the members of the Board of Directors and the transaction of such other business of the Association as may properly come before the meeting. Section 3.3 Special MeetingE. Calls for special meetings of the Unit Owners may be made (i) by the president of the Association, (ii) by a majority of the Board of Directors, (iii) if the special meeting is being called to address issues on which only the Class is entitled to'vote, by Owners within such Class having ten percent (10%) of the votes entitled to be cast at such meeting, or (iv) by written inskument sigred by Unit Owners representing twenty percent (20%) of the total votes in the Association. Section 3.4 Notice of Meetinss. Written notice given in accordance with the Declaration and stating the place, day, and hour of each meeting, and, in case of a special meeting, the purpose or ptrrposes for which the meeting is called, shall be delivered and effective not less than fourteen (14) nor more than fifty (50) days before the date of the meeting, by or at the direction of the president, or the secretary, or the persons calling the meeting * ptorria"a under these Bylaws, to the registered address for notice (as provided in the Declarationj of each Unit entitled to be represented by a vote at zuch meeting. No action shall be adopted at a special meeting except as stated in the notice. Section 3.5 Meetine to Approve Annual Budget. At the annual meeting of the Association or at a special meeting of the Association called for such pu{pose, the Unif Owners shall be afforded the opportunity to ratifu a budget of the projected rwenues, expenditures and reserves for the Association's next fiscal year as proposed by the Board of Directors in accordance with applicable provisions of CIOA. A summary of the proposed budget approved CO_DOCS_A #149400 v6 t by the Board of Directors shall be mailed to the Unit O$'n€rs within thirty (30) days after its adoption along with a notice of a meeting of the Association to be held not less than fourteen (14) nor more than fifty (50) days after mailing of the summary to the Unit Owners. Unless at the meeting a majority of the total votes of the Association, rather than a majority of those present and voting in person or by proxy, reject the proposed budget, the budget is ratified whether or not a quonrm is present at the meeting. In the event the proposed budget is rejected, the budget last ratified by the Unit Owners continues until such time as the Unit Owners ratifu a subsequent budget proposed by the Board of Directors as provided above. For the purposes of this Section 3.5, any '?neeting" to ratifu a proposed budget may take place by written ballot in accordance with Section 3.1l, below. Section 3.6 Adjourned Meetines. If any meeting of the Unit Owners cannot be organized because a quonrm, as defined below, has not attended, the Unit Owners who are present, either in person or by proxy, may adjoum the meeting from time to time until a quorum is obtained. Section 3.7 Proxies. Votes allocated to a Unit may be cast pursuant to a proxy duly executed by a Unit Owner. If a Unit is owned by more than one Person, each Owner of the Unit may vote or register protest to the casting of votes by the other Owners of the Unit through a duly executed proxy. A Unit Owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the Association. A proxy is void if it is not dated or puports to be revocable without notice. A proxy terminates eleven (1 l) months after its date, unless it provides otherwise. A form of proxy may be distributed to each Unit Owner to afford the Owner(s) of such Unit the opportunity to cast the vote allocated to such Unit in absentia at a meeting of Unit Owners of the Association, provided that it meets the requirements for a written ballot set forth in Section 3.12 below and includes the name or names of the Owners who expect to be in attendance in person at the meeting to whom the proxy is given for the purpose of casting the vote to reflect the absent Owner's vote as specified in the form ofproxy- Section 3.8 Desigrration of Votins Representative--Proxy. If title to a Unit is held by more than one (l) individual, by a firm, corporation, partnership, association or other legal entity or any combination thereof, such individuals, entity, or entities shall by written instnrment executed by all such parties and delivered to the Association, appoint and authorize one (1) person or alternatepersons to rspresent the Unit Owners ofthe Unit- Such representative shall be a natural person who is a Unit Owner, or a designated board member or officsr of a corporate Unit Owner, or a general partner of a partnership Unit Owner, or a comparable representative of any other entity, and such representative shall have the power to cast votes on behalf of the Unit Owners as a mernber of the Association, and serue on the Board of Directors if elected, subject to the provisions of and in accordance with the procedures described in these Bylaws. Notwithstanding the foregoing, if only one (l) of the multiple Unit Owners of a Unit is present at a meeting of the Association, such Unit Owner is entitled to cast the vote allocated to that Unit. If more than one (l) of the multiple Unit Owners are present, in person or by proxy, and there is no written designation of an authorized representative, the vote allocated to that Unit may be cast only in accordance with the agreement of a majority in interest of the Unit Owners, which majority agreement may be assumed for all purposes if any one (1) of the multiple Unit Owners CO_DOCS_A #149400 vG o cast the vote allocated to that Unit without protest being made promptly to the person presiding o-ver the meeting by any of the other unit owners of the Unit. If such protest is made, the voteallocated to the Unit may only be cast by written instrument executed by all Unit owners who arepresent at the meeting. Section 3'9 Ouo{um. Except as otherwise provided in these Bylaws, the presence atthe beginning of the meeting in person or by proxy of the Unit owners possessing sufficientvotes to constitute twenty percent Q}o/o) of the votes of all Unit Owners shall constitute aquorum' and such Unit owners present in person or by proxy shall constitute the Unit Ownersentitled to vote upon any issue presented at a meeting af whicha quonrm is present. with respectto meetings called for issues primarily related to issues relating only io the Class (iszuesconcerning Club Units or the adminishation and managonent of the Club), for which the o*n*in the Class may decide-the issue voting as a Class, the presence at the beginning of the meetingin person or by proxy of Owners in the Class possessing sufficient votes to constitute twenty-fivepercent (25o/o\ of the votes of all owners in the Class shall constitute a quorum as to suchmaners. Section 3'10 Votine. Except as otherwise required by the Declaration, CIOA or bythese Bylaws, the votes of Unit owners who are present either in person or by proxy at any duliconvened meeting of the Association at which a quomm has been established and who cast asimple majority of the total votes eligible to be voted by such present or represented Unit ownersshall decide any question under consideration, and shali constitute the act of *a be binding uponthe Association. Section3.ll . Whenever the vote qf Unitowners at a meeting of the Association is requirea or p*itt"a uy any provision of these Bylawsto be taken in connection with any action of the Association (including without limitation, avote on ratificafion of a proposed Association budget pursuant tosection t.5, above) the meetingand vote of Unit owners may be dispensed with and the action in question may be approved if allthe Unit owners eligible to vote conceming such matter consent in writing to dispense with themeeting and consent in writing to the action in question. Section 3'12 Action by written Ballot. Any action that may be taken at any arnual orspecial meeting of mernbers (incruding, without ii.itution, any iatificatiol of a pr;;;r;Association budget pursuant to Section 3.5, above) may be taken without a meeting *d thro.,ghvoting by mail, if the following requirements are met: (a) a written ballot is distributed to every Unit Owner entifled to vote on thematter' setfing forth each proposed action and providing an opportunity to vote for or againsteach proposed action; O) the solicitation for votes by written ballot (a) indicates the number ofresponses needed to meet the quorum requirernents for authorization or rejection of the proposedaction (or, if the proposed acfion is ratification of a proposed budget pursuant to Section 3.5,above, specifies that no quomm of votes is required); iu; rtut"r the pLentage of votes needed toauthorize or reject each matter, other than election of the Board of birectors (or, if the proposedaction is ratification ofa proposed budget pursuant to Section 3.5, above, states that the budget CO_DOCS_A #143400 v6 will be ratified unless rejected by a majority of the total votes of the Association); (c) specifies the time by which a ballot.must be received by the Association in order to be counted; and (d) is accompanied by written information (including, if applicable, a sunmary of any proposed Association budget) sufficient to permit each person casting such ballot to reach an informed decision on tle matter; and (c) except for ratification ofa proposed budget pursuant to Section 3.5, above,the number of votes cast by written ballot within ttre specined time period, authorizing orrejecting the proposed action, equals or exceeds the quorum required to bi present at a me&ng authorizing or rejecting the action, and the number of votes in favor or against the proposei action equals or exceeds the number of votes in favor or against that would be required toalthorize or reject the action at a meeting at which the total number of votes cast was the same €rs the number of votes cast by written ballot. A written ballot provided pursuant to this Sectio n 3.12, may not be revoked. Action taken underthis Section 3.12 has the same effect as action taken at a meeting of Unit Owners and may be described as such in any document. ARTICLE 4. BOARD OF DIRECTORS Section 4.1 Number and Qualification. The aflairs of the Association shall begoverned by a Board of Drectors,-initially composed of one (1) person. At the first meeting ofthe Association after the Period of Declarant Control, at leasf five (5), and in any event an iddnumber of Unit Owners, shall be elected to the Board of Directors 6y the Unit Owners. TheBoard of Directors may be expanded to seven (7) persons by an amendment of these Bylaws. The members of the Board of Directors may be nonresidents of Colorado, but all members of theBoard of Directors electe.d by the Unit Owners (as opposed to any mernbers of the Board ofDirectors appointed by Declarant) must be Unit Owners. Section 4.2 Required Election of Unit Owners. Not later than sixty (60) days after conveyance of twenty-five percent Q5%) of the Units that may be created to Owners other thanDeclarant, at least one (1) mernber and not less than twenty-five percent (257o) of the membersof the Board of Directors shall be elected by Owners other than the Declarant. Not later thansixry (60) days after conveyance of fifty percent (507o) of the Units that may be created toOwners other than Declarant, not less than thirty-three and one-third percent (33-l/3%) of the mernbers of the Board of Directors must be elected by Owners other than the Declarant. Notlater than the termination of any Pqiod of Declarant Control, the owners shall elect a Board ofDirectors of at least five (5) members, at least a majority of whom shall be Owners other than theDeclarant or designated representatives of Owners other than the Declarant. In order to assure representation of all Owners in the affairs of the Association and to protect the valid interests ofal] Ownen in the operation of the Condominium Project, following tire termination of the period of Declarant Control the Club Mernbers, voting as a Class, shall be entitled to elect the greater of Yo tz) members or forty percent (40%) of the members of the Board of Directors and the otherOwners shall be entitled to elect the other Mernbers of the Board of Directors. The Board ofDirectors shall elect the officers of the Association. The members of the Board of Directors andofficers of the Association shall take office upon election. CO_DOCS_A #149400 v6 Section 4.3 Declarant Control of the Association. There shall be a Period of Declarant Control of the Association, during which the Declarant, or persons designated by the Declarant, may appoint and remove the officers and mernbers of the Board of Directors. The period of Declarant Conhol shall commence upon filing of the Articles of lncorporation of the Association and shall terminate no later than the earlier of: (a) sixty (60) days after conveyimce of seventy-five percent (75%) of the Units that may be created to Unit Owners other than Declarant; (b) rwo (2) years after Declarant's last conveyance of a Unit in the ordinary course ofbusiness: or (c) two (2) years after any right to add new Units was last exercised. The Declarant may voluntarily surrender the right to appoint and remove officers and mernbers of the Board of Directors before termination of that period, but in that event the Declarant may require, for the duration of the Period of Declarant Control, that specified actions of thi Association or Board of Directors, as described in a recorded instrument executed bv the Declarant, be approved by the Declarant before they become effective. The name and address of the person who is to initially act in the capacity of the sole member of the Board of Directors until his successor is duly elected and qualified is as follows: Name Connie Dorsey Address 12 Vail Road. Suite 200 Vail. CO 81657 Section 4.4 Election and Term of Office. Until the first annual meeting after the Period of Declarant Conhol, the terms of members of the Board of Directors not appointed by the Declarant shall expire at the annual meeting which occurs not less than one (1) year, nor more than two (2) years, eleven (l l) months after election to the Board of Directors. At any time after Unit Owners, other than the Declarant, are entitled to elect a member of the Board ol Directors, the Association may call a meeting and shall give not less than fourteen (14) nor more than fift5r (50) days' notice to the Unit Ownsfs for this purpose. This meeting may be called and the notici given by any Unit Owner if the Association fails to do so. At the first meeting of the Association after the Period of Declarant Control, the terms of the initial Board of Directors elected by the Unit Owners shall be staggered so that one (l) or more members shall be elected to sene a one(l) year term, one (l) or more members shatl be elected to serve a two (2) year tsrm, and one (l) or more members shall be elected to serve a three (3) year term. At the expiration of the initiai term of ofEce for each respective member of the Board of Directors, his successor shall be elected to serve a term of three (3) years. Notwithstanding any provision in this Section4.4 to the contrary, members of the Board of Directors may be electd by written ballot pursuant to the conditions set forth in Section 3.12 above. Each memberof the Board of Directors shall hold office until the election and qualification of his successor. At any meeting at which the Board of Directors is to be elected, the Unit Owners may, by resolution, adopt specific procedures which are not inconsistent with these Bylaws or the Nonprofit Act for mnducting the elections. CO_DOCS_A #149400 v6 Section 4.5 Removal of Mernbers of the Board of Directors. A regular or special meeting of Unit owners may be called for the purpose of considering the removal of any mernberof the Board of Directors. The Board of Directors shall designatJby resolution or motion the date and time of such regular or special meeting after such mleting is properly set or called in accordance with these Bylaws and Colorado law. Any one (1) or.ori of the mernbers of the Board of Directors, other than a member appointed by the Declarant, may be removed with orwithout cause by an affirmative vote of sixty-seven percent (67%) of u quo*rn of the Unit O-w1ers present in person or represented by proxy and eligible to vote; prorrid"d, however, only Club Mernbers may remove without cause a member of the Board of birectors elected bv the Club Members voting as a Class pursuant to Section 4.2. Any mernber of the Board of Directors whose removal has been proposed shall be given an opportunity to be heard at the meeting. Successors may then and there be elected by a majority of the rernaining Board of Directors; provided however, that if the entire Board of Directors is removed at once, an election by the Unit Ownsrs present in person or represented by proxy andeligible to vote to fill the vacancies thus created shall be immediately thereafter at the same meeting. Section 4.6 Vacancies. (a) Durine Period of Declarant Control. During the Period of Declarant Control, if a member of the Board of Directors dies or resigns, DeJlarant shall appoint a new mernber of the Board of Directors. O) After the Period of Declarant Control. After the Period of Declarant Control, any vacancy occurring in the Board of Directors may be filled by the affirmative vote of a majority of all of the ranaining Board of Directors, though less than a quonrm of the Board ofDirectors. The term of the member of the Board of Directors so elected shall be coinsident with the term of the replaced member of the Board of Directors. - Section 4.7 Ouorum of the Board of Directors. A majority of the number of members of the Board of Directors fixed from time to time by these Bylaws shall constitute a quorum for the transaction of business; provided however, that for issues or actions relatingto a-Class, the mernbers elected by the Class must be present. Any act by a majority vote of the Board ofDirectors in affendance where a quorum is present shall be an act of the Board of Directors. Section 4.8 Place and Notice of the Board of Directors Meetines. Any regular or special meetings of the Board of Directors may be held at ru"h plu"" rltttin or without the Stateof Colorado and upon such notice as the Board of Directors may prescribe. Any special meetingof the Board of Directors shall be preceded by at least two (2) iiys' notice of tire date, time anf place of the meeting. The Board of Directors shall hold a regular meeting at least once each year and shall, in addition, meet as often as they deern necessary or desirable to perform their duties hereunder. Attendance of a member of the Board of Directors at any meeting shall constitute awaiver of notice of such meeting except when a member of the Board of Directors attends ameeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Before, at, or after any meeting of the Board ofDirectors, any member of the Board of Directors may, in writing, waive notice of such meeting, CO_DOCS_A #149400 v6 t and such waiver shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, aor the purpose of, any regular or special meeting of the Board of Directors need be specified in the waiver of notice of such meeting. The Board of Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written approval of all members of the Board of Directors. Any action so approved shall have the same effect as though taken at a meeting of the Board of Directors. All or some of the members of the Board of Directors may participate in a meeting by means of a conference telephone or similar communications equipment by which all persons participating in the meeting can hear each other at the same time. Such participation shall constitute presence in person at the meeting. Section 4.9 Powers and Duties. The Board of Directors shall have, subject to the limitations contained in the Declaration and CIOA, the powers and duties necessary, desirable, or appropriate for the administration of the affairs of the Association and for the operation and maintenance of the Condominium project, including the following powers and duties: (a) Adopt and amend Bylaws and Rules and Regulations; (b) Adopt and amend budgets for revenues, expenditures, and reserves; (c) Collect Assessments from Unit Owners; (d) Suspend the voting interests allocated to a Unit, and the right of an Owner to cast such votes, or by proxy the votes of another, during any period in which such Owner is in default in the payment of any Assessmen! or, after notice and a hearing dwing any time in which an Owner is in violation of any other provision of the Condominium Documents: (e) Hire and discharge Managing Agents; (0 Hire and discharge employees, independent contractors and agents other than Managing Ageirts; (g) Institute, defend or intervene in litigation or administrative proceedings or seek injunctive relief for violations of the Condominium Documents in the Association's name, on behalf of the Association or on behalf of two (2) or more Unit Owners in matters affecting the Condominium Project; (h) Receive notices, join in any litigation or administrative proceeding and execute any and all documents in the Association's name, on behalf of the Association,-or on behalf of the fwo (2) or more Owners, in connection with any change in zoning, annexation, subdivision approval, building permit, or other type of govemmental approval required to accomplish or maintain the purposes of the Association; (t Make contracts and incur liabilities: CO_DOCS_A #149400 v6 I l' (t) Regulate the use, maintenance, repair, replacement, and modification of all Association property within the Condominium Pmject or property which serves the Condominium Project but which is outside its boundaries: (k) Cause additional improvements to be made as a part of the Common Elements; 0) Ac.quirq hold, encumber and convey, in the Association's namg any righltitle or interest to real estate or personal property, but Comrnon Elements may be "onuiy"J o, subjected to a security interest only pursuant to Section 3 l2 of CIOA: (m) Grant easements for any period of time, including permanent easements, and grant leases, licenses and concessions, through or over the common ilernents; (n) Impose and receive a payrnent, fee or charge for services provided to Unit Owners and for the use, rental or operation of the Common Elements; (o) Establish Aom fime to time, and thereafter impose, charges for late payment of Assessments or any other sums due and, after notice and hearing, levy a reasonable fine for a violation of the Condominium Documenrs; (p) Impose a reasonable charge for the preparation and recording of amendments to the Declaration or staternents of unpaid assessments and for services providld to Owners; (q) Impose a reasonable charge for late payment of Assessments, recover Costs of Enforcement for collection of Assessment and other actions to enforce the powers of the Association, regardless of whether or not suit was initiated and, after notice and -hearing levy reasonable fines for violations of the Condominium Documents; G) Provide for the indernnification of the Association's officers and the Boardof Directors to the extent provided by law and maintain directors' and officers' liabilitv insurance; (s) Assign the Association's right to future income, including the right to receive Assessments; (t) Declare the office of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) regular meetings of the Board of Directors during any one (l) year period; (u) Appoint any committee as required or permitted by the Declaration or these Bylaws, and by resolution, establish committees, permanent and standing to perform anyof the above functions under specifically delegated administrative standards as iesignated in thl resolution establishing the committee; (v) incorporated herein CO_DOCS_A #149400 v6 By resolution, set forth policies and procedures which sharl be considered by reference as though set forth in full, and which provide for corporate actions and powers which are different than those set forth in the Nonprofit Act, which arepermitted to be "otherwise set forth in the Bylaws." Such resolutions shall be given the same force and effect as if specifically enumerated in these Bylaws; (w) Exercise any other powers conferred by the Declaration, the Articles of Incorporation, these Bylaws, CIOA, or the Nonprofit Act; and (x) Exercise any other po\,ver necessary and proper for the govemance and operation of the Association. Section 4.10 Managine Aeent. The Board of Directors may ernploy for the Association a Managing Agent at a compensation established by the Board oi Directors, to perform such duties and services as the Board of Directors shall authorize; provided, however, that the Boardof Directors in delegating such duties shall not be relieved of its responsibility under the Declaration. The Managing Agent shall maintain fidelity insurance coverage or a bond for the benefit of the Association in an amount not less tfran finy Thousand Dollars ($50,000.00) or such higher amount as the Board of Directors shall require. The Managing Agent shall maintainall funds and accounts of the Association separate from the funds and accounts of other associations managed by the Managing Agent and shall maintain all reserve accounts for the Association seParate from operational accounts of the Association. The Managing Agent shallprovide an annual accounting for Association funds and a financial statement to the Association. Section4.ll Compensation of the Members of the Board of Directors. Except asprovided in this Section 4'l l, members of the Board of Directors rhutt not U" paid any compensation for their services performed as members of the Board of Directors unless aresolution authorizing such remuneration shall have been adopted by the mernbers of theAssociation. Each member of the Board of Directors shall receive reimbursement for reasonable transportation, meals, lodging expeNrses and reasonable per diern payments, for aftendance at anyregular or special meeting of the Board of Directors or for other'actual expenses incgrred in connection with the performance of his or her duties of office as a member of the Board of Directors. Section4.12 Board of Directors Meetines. All meetings of the Board of Directors, atwhich action is to be taken by vote, will be open to the Unit Owners, except that meetings of theBoard of Directors may be held in executive session(s), without giving notice and without the requirement that theybe open to unit owners, in the following situations (a) matters pertaining to employees of the Association or involving theemployment, promotion, discipline or dismissal of an officer, agent, or employee o1 m" Association; O) consultation with legal counsel conceming disputes that are the subject ofpending or imminent court proceedings or matters that are p;vitegea or confidential between attorney and client; CO_DOCS_A #149400 vG l0 I (c) misconduct; investigative proceedings conceming possible or actual criminal (d) matters subject to specific constitutional, statutory, or judicially imposed requirernents protecting particular proceedings or matters from public disclosure; (e) any matter the disclosure of which would constitute an unwarranted invasion of individual privacy; and (0 review of or discussion relating to any written or oral communications from legal counsel. ARTICLE 5. OFFICERS AND TIIEIR DUTIES Section 5.1 Enumeration of Officers. The officers of the Association shall be a president, vice president, secretary, and treasurer, and such other officers as the Board of Directors may from time to time by resolution create. The president must be a member of the Board of Directors. Section 5.2 Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors and thereafter at the first meeting of the Board of Directors following each annual meeting of the Unit Owners. Section 5.3 Term. The officers shall be elected annually by the Board of Directors and each shall hold office for one (1) year unless such officer shall sooner die, resign, or shall be removed or otherwise disqualified to serve. Section 5.4 Special Appointments. The Board of Directors may elect such other officers as the affairs of the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board of Directors mav from time to time determine. Section 5.5 Resi€nation and Removal. Any officer may be removed from office with or without cause by the Board of Directors. Any officer may resign at any time by giving written notice to the Board of Directors, the president, or the secretary. Such resignation shall take effect on the date of receipt of such notice or at any later time specified therein, and unless othsrwise specified therein, the acceptance ofsuch resigpation shall not be necessary to make it effective. Section 5.6 Vacancies. A vacancy in any office may be filled by appointment by the Board of Directors. The officer appointed to such vacancy shall serve for the rernainder of the term ofthe officer he or she replaces. Section 5.7 Multiple Offices. Any two (2) or more offices may be held by the same person, except the offices ofpresident and secretary. Section 5.8 Duties. The duties of the officers are as follows: CO_DOCS_A #149400 v6 I I tl (a) President. The president shall preside at all meetings of the Unit Owners and the Board of Directors; shall see that orders and resolutions of the Board of Directors are carried out; shall sign on behalfofthe Association all leases, mortgages, deeds, notes and other written instruments; and shall exercise and discharge such other dufies as may be required of the president by the Board of Directors, In addition, the president shall have all of the general powers and duties that are incident to the office of president of a nonprofit corporation otg*ir"d under the laws of the State of Colorado, including but not limited to, the power to appoint committees from among the Unit Owners from time to time as the president may Aecide is appropriate to assist in the conduct of the affairs of the Association. The president may fulfill the role of treasurer in the absence of the treasurer. The president may cause to be preparid and may execute amendments, attested by the secretary, to the Declaration and these Bylaws on behalf of the Association, following authorization or approval of the particular amendment as applicable. (b) Vice President. The vice president shall act in the place and stead ofthe president in the event of his or her absence, inability, or refusal to act, and shall exercise and discharge such other duties as may be required of the vice president by the Board of Directors. (c) Secretarv. The secretary shall record the votes and keep the minutes ofall meetings and proceedings of the Board of Directors and of the Unit Owners; keep the corporate stamp or seal of the Association, if any, and place it on all papers requiring said siamp or seal, if necessary; serve notice of meetings of the Board of Directors and of the Unit Owners; keep appropriate current records showing the Unit Owners together with their addresses; and shal:l perform such other duties as required by the Board ofDirectors. (d) Treasurer. The treasurer shall receive and may endorse on behalf of the Association, for collection only, all checks, notes, and other obligations and shall deposit the same and all monies in appropriate bank accounts of the Association. The treasurer shall disburse such funds as directed by resolution of the Board of Directors; keep proper books of account; at the direction of the Board of Directors, cause an audit of the Association books to be made; and prepare an annual budget and a statement of income and expenditures to be presented to the Unit Owners at the regular annual meeting of Unit Owners, and deliver a copy of each to the Unit Owners. Except for reserve funds described below, the treasurer -ay have custody of and shall have the power to endorse for transfer, on behalfofthe Association, stock, securities or other investrnent instruments owned or controlled by the Association or as fiduciary for others. Reserve funds of the Association shall be deposited in segregated accounts or in prudent investrnorts, as the Board of Directors decides. Funds may be withdrawn from these reserves for the purposes for which they were deposited, by check or order, authorized by the treasurer, and executed by: (i) prior to the first meeting of the Association after the Period of Declarant Conhol, the sole member of the Board of Directors; or (ii) after the first meeting of the Association after the Period of Declarant Control, two (2) mernbers of the Board of Directors, one (l) of whom may be the treasurer. Section 5.9 Execution of Instruments. All agreements, contracts, deeds, leases, checks, notes and other instruments of the Association may be executed by any person or persons as may be designated by resolution of the Board of Directors, including the Managing Agent. CO_DOCS_A #149400 vo t2 Any officer may prepare, execute, certi$ and record duly adopted amendments to the Declaration on behalf of the Association. Section 5.10 Statement of Unnaid Assessments. The treasurer, assistant teasurer, a Managing Agent ernployed by the Association or, in their absence, any officer having access to the books and records of the Association may prepare, certifu, and execute staternentJ of unpaid assessments, in accordance with Section 3 I 6 of CIOA. The amount of any fee for preparing such statements of unpaid assessments and the time of payment shall be established by resoluttn of the Board of Directors. Any unpaid fees may be assessed as an Assessment against the Unit or Club Estate for which the certificate or statement is furnished. ARTICLE 6. INDEMNIF'ICATION OFMEMBERS OF THE BOARD OF DIRECTORS Ai\D OFFICERS Section 6.1 Actions Other than by or in the Rieht of the Association. The Association shall indemniff any person who was or is a party, or is threatened to be made a party to anypending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right ofthe Association) by reason ofthe fact that such person is or was a member of the Board of Directors, officer, Managing Agent, onployee, fiduciary, or agent of the Association, who is or was serving at the request of the Association in such capacity, against expenses (including expert witness fees, aitorneys' fees and costs)judgments, fines, amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, if sueh person acted ia good faith-and in a manner that he or she reasonably believed to be in the best interests of the Association, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Determination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contende." o. its equivalent, shali not of itseli create a presumption that the person did not act in good faith and in a manner such person reasonably believed to be in the best interests of the Association and, with respect to any criminal action or proceeding, had reasonable cause to believe his or her conduct was unlawful. Section 6.2 Actions by or in the Rieht of the Association. The Association shallindemnifr any person who was or is a party or who is threatened to be made a party to anypending or completed action or suit by or in the right of the Association to procure judgment inits favor by reason of the fact that such person is or was a member of the Board of Directors, ofEcer, Managing Agent, ernployee, fiduciary, or agent of the Association, or is or was serving ai the request ofthe Association in such capacity, against expelrses (including expert witness fees, attorneys' fees and costs) actually and reasonably incurred by such person in connection with the defense or settlernent of such action or suit if such person acted in good faith and in a mannerthat he or she reasonably believed to be in the best interests of the Association; but no indemnification shall be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable for negligence, recklessness, or willful misconduct in the performance of his or her duty to the Association unless, and to the extent that, the court in which such action or suit was brought determines upon application that (despite the adjudication ofliability), in view ofall circumstances ofthe case, such person is fairly and ,"uronudly entitled to indernnification for such expenses. CO_DOCS_A #149400 vo l3 t Section 6.3 Successful on the Merits. To the extent that a member of the Board of Directors, officer, Managing Agent, employee, fiduciary, or agent of the Association has been wholly successful on the merits in defense of any action, suit or proceeding referred to in Sections 6.1 or 6.2 of this Article 6, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including expert witness fees, attomeys' fees and costs) actually and reasonably incurred him or her in connection therewith. Section 6.4 Determination Required. Any indernnification under Sections 6.1 or 6.2 of this Article 6 (unless ordered by a court) and as distinguished from Section 6.3 of this Article 6, shall be made by the Association only as authorized by the specific case upon a determination that indemnification of such person is proper in the circumstances, because such person has met the applicable standard of conduct set forth in Sections 6.1 or 6.2 above. Such determination shall be made by the Board of Directors by majority vote of a quomm consisting of those mernbers of the Board of Directors who were not parties to such action, suit or proceeding or, if a majority of disinterested mernbers of the Board of Directors so directs, by independent legal counsel or by mernbers entitled to vote thereon. Such determination shall be reasonable. based on substantial evidence of record, and supported by a written opinion. The Board of Directors shall provide a copy ofits written opinion to the person seeking indernnification upon requesr. Section 6.5 Parrynent in Advance of Final Disposition. The Association shall pay for or reimburse the reasonable expenses incurred by a former or current mernber of the Board of Directors, officer, Managing Agent, ernployee, fiduciary, or agent of the Association who is a party to a proceeding in advance of final disposition of the proceeding if: (a) such person fumishes to the Association a written affirmation, executed personally or on such person's behalf, of his or her good faith belief that he or she has met the standard of conduct Aescrruea in Sections 6.7 or 6.2 of this Article 6; (b) such person fumishes to the Association a written agreement, executed personally or on such person's behalf, to repay the advance if it is ultimately determined that he or she did not meet the required standard of conduct; and (c) a determination is made that the facts then known to those making the determination would not preclude indemnification under this Article, The undertaking required in this paragraph shall be an unlimited general obligation of the Board of Directors but need not be accepted by a particular Board mernber or officer or may be accepted without reference to financial abilitl. to make repayment. Section 6.6 No Limitation of fue*rts. The indemnification provided by this Article 6 shall not be deerned exclusive of nor a limitation upon any other rights to which those indemnified may be entitled under any bylaw, agreement, vote of the members or disinterested members of the Board of Directon, or otherwise, nor by any rights which are granted pursuant to CIOA and the Nonprofit Act. Section 6.7 Directors and Officers Insurance. The Association shall purchase and maintain insurance on behalf of any person who is or was a member of the Board of Directors or an officer of the Association against any liability asserted against him or her and incurred by such person in any such capacity or arising out of his or her status as such, whether or not the Association would have the power to indemnifu such person against such liability under provisions of this Article. CO_DOGS_A #149400 v6 14 ARTICLE 7. BYLAWS Section 7.1 Amendments. These Bylaws may be amended by a vote of a majority of a quomm of the Board of Directors at a regular or special meeting of the Board of Directors. These Bylaws may be amended at any regular meeting of the Unit Owners or at any special meeting called for the purpose of amending the Bylaws, by the affirmative vote of a majbrity of a quorum of Unit Owners present at the meeting in person or represented by proxy ana itigifte to vote' Any amendment shall be binding upon every Unit Owner. Any provision of these Bylaws adopted at a regular or special meeting of the Unit Owners may thereafter only be amended at a regular or special meeting of the Unit Owners. The Unit Owners shall have no power to amend the Bylaws in such a manner as to materially change the configuration or size of any Unit, to materially alter or modify the appurtenances to any Unit, or to change the proportion or percentage of any Unit Owner's interest in the Common Elernents, without the unanimous consent of all Unit Owners directly affected thereby. No amendment shall serve to shorten the term of any member of the Board of Directors, or conflict with the Act or delete any provision which must be contained in these Bylaws under the terms of the Act, or conflict with thi Articles of lncorporation of the Association or the Declaration. Section 7.2 Compliance with the CIOA. These Bylaws are intended to comply with the requirements of the CIOA. If any of these Bylaws conflict with the provisions of mi btOe, the provisions of the CIOA will govem the Association. Section 7.3 Conflict between Documents. In the case of any conflict between or among the Condominium Documents for the Association, the Declaration controls over the Articles of lncorporation of the Association, these Bylaws and the Rules and Regulations. The Articles of Incorporation of the Association control ovsr these Bylaws and the Rules and Regulations. These Bylaws control over the Rules and Rezulations. ARTICLE 8. COMMITTEES The Board of Directors may appoint such committees as deemed appropriate which, to the extent provided for in the resolution appointing the Committee and allowed by law, shall have the powers of the Board of Directors in the managernent and affairs and business of the Association. ARTICLE 9. BOOKS AND RECORDS Section9'l Records and Audits. The Association shall maintain financial records. The cost of any audit or review shall be a Common Expanse unless otherwise provided in the Declaration. An audit or review shall be done no less often than once every three (3) years, unless othenvise provided for in the Declaration. Section 9'2 Examination. All records maintained by the Association or the Managing Agent shall be available for examination and copying by any Unit Owner or by any of their duly authorized attorneys, at the expense of the person examining the records, during normal business CO_DOCS_A #149400 v6 l5 I hours and after reasonable notice. The Board of Directors may impose restrictions on thecommercial or any other use of any list of unit owners obtained pursuant to this Article 9 that isnot directly related to Association tusiness. section 9'3 Records. The Association shall keep the fotowing records: (a) An account for each unit, which shall designate the name and address ofeach unit owner, the name and address of each mortgagee who has given notice to theAssociation that it hords a mortgage on tbe unit, the ariount of each common ExpenseAssessment' the dates on which euch Ass*ss-ent comes due, the amounts paid on the accountand the balance due: O) The current operating Budger; (c) A record of insurance coverage provided for the benefit of Unit ownersand the Association; (d) Tax returns for state and federal income taxation: (e) Minutes of proceedings of incorporators, unit owners, the Board ofDirectors and its committees, and waivers of iotice: _ (0 A copy of the most current versions of theDeclaration, these Bylaws, Rules and Regulations, and resolutionsalong with their exhibits and schedules; anj (g) Such other records as the Board of Directors shall determine from time totime are necessary or desirable. Section 9'4 Roster' In addition to keeping the other records listed in this Article 9, theAssociation shall annually compile a roster of the name and address of each of its Members (the"Bsslsr'). The Associatio3 gatt provide a copy of the Roster to *y rur"Inuo upon: (i) receipt ofa written request from such Mernler, stating tih" ."uron for the request; and (ii) execution by theY:"b- and receipt by _tne RssociatiJn, of a confidenrl"urr-'"g""r.ent and affidavit("confid"ntialitv Agee*ent")' in a form reasonably acceptable to tt" irro"iation, stating thatthe Roster will be used- only for purposes .eusorrutly related to the Member,s interest in theAssociation' Each Member who requests and receives a copy of the Roster ttrereby agrees that heor she will not make any commercial use of the Roster -o *itt not distribute a copy of theRoster or any portion thereof to any third parfy. ^The Association may establish and charge areasonable fee for processing and issuance'of-any n""* .lqr"its and confidentialityAgresrnents, and payment of any expenses associated therewith. ARTICLE 10. CORPORATE SEAL The Association may have a seal or stamp in circular form having within its form thewords: "Vail plaza Condominium Association. Inc.,, Articles of Incorporation, of the Board of Directors, CO_DOCS_A #149400 v6 l6 r-ARTICLE 11. FISCAL YEAR The fiscal year ofthe Association shall begin on the first day ofJanuary and end on the3lst dayof December of.everyyear, exc€pt that the first fiscal year shall begin on the date ofincorporation' The Board. of birectors may uy amendment to the Bylaws establish a differentfiscal year for the Association. ARTICLE 12. RULES AND REGULATIONS The Board of Directors shall have the right to establish, amend, and enforce, from time totime' such Rules and Regulations as the Board lfDirectors -"y a"".'*cessary and appropriate lor the Tanlgement, pre-servation, safety, control, and orderly operation of the condominiumProject for the benefit of all unit owne.s and occupants, ani for facilitating the greatest andmost convenient availability and use of the Units and common Elernents by Unit owners andoccupants' such Rules and Regulations may include a system of late charges and/or interest foruntimely payment of Assessments, fees tbr ieview by the Association of matters required underthe Declaration, and fees a{ fi-nes fo, nonco*pliance with the Rules and Regulations and otherobligations set fonh in the Declaration and these Bylaws. The Board of Directors shall providenotice of the adoption or amendment of any Rules and Regulations and make such amendedRules and Regulations available for inspection by all ulnit owners, occupants, contractpurchasers -and Eligible First Mortgagees during convenient weekday business hours at theprincipal office of the Association. suctr Rutes and Regulations may, to the extent not in conflictwith the provisions of the Declaration, the Articles of lncorporation of the Association and theseBylaws, impose reasonable restrictions upon the use and occupancy of any portion of thecondominium Pro-fect as the Board of Directors, in its sole and absolute discretion, deernsnecessary and appropriat":. E1"1 unit owner agrees that all his or her ownership rights shall bein all respects subject to the Rules and Regulaions, and each Unit owner agrees to obey suchRules and Regulations as. the same may tairtutty be amended from time to time, and to ensurethat the same are faithfully olse1ed br occupants of his or her unit. Each person who comeswithin the condominium Project shall be subject to the Rules and Regulations for the duration ofhis or her presence therein. A copy of the Ries and Regulations, as imended from time to time,shall be made available t^o- unit -d*n"r., occupunts and contract purchasers upon request andpayment of a reasonable fee. I ARTICLE T3. MEMBERSHIPRIGHTS AND PRIVILEGES Section l3'l Riqhts- and-Privileses of Mernbers. No mernber shall have the right, #l:iT:",:1""::lT:liir.,I B;*d;Di.".tors,ro exercise any ofthe powers or to performanv of the acts delegated to rhe Board oro;rectooiy;;;r#ffi: r*ili:J]::ilmember shall have all of the rights-and privileges, including but not limited to property rights andeasement rights of access over and. usqand erijoyment of the common Elements, granted to themembers by the Declaration, subject to such iirnitution, as may be imposed in accordancetherewith. CO_DOCS_A #149400 v6 17 I Section 13.2 Suspension of Riehts. The Association shall have the right to suspend the =.. rights and privileges of an Owner as a member of the Association for the period during which any Assessment owed by such owner remains unpaid and delinquent, ARTICLE 14. INTERPRETATION The provisions of these Bylaws shall be liberally construed to effect the purpose of ensuring that the Condominium Project shall at all times be operated and maintained in a manner so as to optimize and maximize its enjoyment and utilization by each Unit Owner and Occupant. CO_DOCS_A #149400 vo l8 o t The undersigned, being the sole initial director of the Board of Directors of Vail plaza condominium Association, lnc., has approved and executed these Bylaws as of the _ day of .200 Connie Dorsey, Initial Director I CO_DOCS_A #149400 vG l9 OFFICE OF TIIE SECRETARY OF STATE OF THE STATE OF COLORADO C ERTI FI CATE of the State of Colorado, hereby certifr that, I, Donetta Davidson, as the Secretary of State according to the records ofthis office. Vail Plaza Development, LLC isa Limited Liabiliry Company formed or registered on 11105/2004 under the law of Colorado, has complied with all applicabterequirements of this ofTice, and is in good standing with this ofiice. This entity has beenassigned entity identification number 2OO+tf AStSA This certihcate reflects facts established or disclosed by documents delivered to this office onpaper through 11/0912004 that have been posted, and by documents d.elivered to this offrceelectronicalfy through lI/Ig/Z}M @ l2.52:ll . I have affixed hereto the Great Seal of the State of Colorado and duly generated, executed,authenticated, issued, delivered and communicated this official certificut. it D.nu.r, Coloradoon .l l/18/2004 @ 12:52:11 pursuant to and in accordance with applicable law. This certificate isassigned Confirmation Number 6091 963 . rl i .A/Ah*Z Secretary of Srate of the State oFeoloEdd rttt"r" r+{rrt''t"r'+"r "..t"'e r'*" rEnd of CenifiCate.ata a+a aa*alt at'.arra a+raatttaaarraaa'raar, Nsiee:r;u: Ji'the Secretary of State's Web sire. ,zr, ,.'',,..,,,,.\t,ttr tt) t^ ht: t""a,,,i.5ili"Tri,i.:;';:,";;,;;;;n:";::;:";::::::ffi:;;;tr,f disployed on the certficarc' and lollowing th. inst1c:ions displeed.' colarmino the issuance o! a certificate b meretv o^rional and b notT?fsrv ! tle v!y! ond ell.ect.tv! ts.svance. of a,:enificare. ro, ior" afiiuion, "t it ii, w"tii. illlii -*-r.:,(r( (1, u' ctich Busirerscenter and select "Freguently tskd euestions. oo o I o I Document Processing Fee If document is on paper: If document is filed electronicallv: Fees are subject to change. For electronic filing and to obbin copies offiled documenrs visit wrr1v.sos.statc.co.us Deliver paper documenrs ro: Colorado Secretary of State Business Division 1560 Broadway, Suite 200 Denver, CO 80202-5 t69 Paper documents must be ryped or machine prinred. 2. Use of Restricted Words ftf anr of these ternts are cottained n dr e tin. nque, true none of ai entin-, trade nante or trademark stated in rhis docuttent, fiqke the applicable Setecnon): 3. Principal office street addrcss: Colorado Secretary of State Date and Time: I l/05/2004 03:39 pM Entity Id: 20041389158 Document number: 2004 I 389158 $50.00$ .99 fired pursuant to 7-e0-30 r , ", rlrlt:lltt:rt 9rtix11ffi?".il.* Revised Statutes (c.R.S) L Entiry name: ABOVE SPACE FOR OFFICE USE ONtY (The name ofa limted liabhry'conpary mus couain the term or abbreviarion '.lrmited 4. Principal office mailing address lifdifferenr irom above ): liobiliw.conpany."hd.hahiliry,companv'."tinitedliabiliq,co.,,"hd. liabiliry co.'.,''linited'', 'llc''. "1.1.c.", or "ltd." l7-90-6()1. C.R.S.) "bank" or "mrst" or any derivative thereof "credit union"E "savings and loan" "insurance", "casualty", "mutual", or ..surety" Vail CO 81657 (Ciq1 (State)(PostaltZip Code) (Pruvince - ifapplicable) (Country - dnot tJS) (St/eet name and huhber or Post Ofice Bot informatrcn) tr tr tr (State)(PosralEip Code) (Prownce - { appltcoblel rcountq,- d nol IJS) 5. Registered agent name (ifan individuat): (lasU (First)(Middle)(Suta) OR (ifa business organization): 6. The person identified above as registered agent has consenred to being so appointed. 1560 Broadwav (Srreet name and number) Rcv.6/14/2001 I of3 (CiD1 80202 (Streel name at1.l number) 7. Registered agenr street address: Denver co 8. Registered agent mailing address (if different fiom above): 9. Name(s) and mailing address(es) of person(s) forming the limited liability company: (if an individual): OR (if a business organizarion): (ifan individual) OR 1if a business or-eanizarion) (Ciry1 6,ate)(PostaW)p Code) (Cir).1 (State)(PostaUhp Codel (Province - { applicable)(Couhtry - if not US) York Heidi M. (Last)thrst)(Middlel (sulltr) Denver co 80202 un[f86'states 7 Pos ta ,zp codel (Provnce - if applicablel lCount4' - if nor US) (lastl (First)(,\liddle)(sulIa) (c;\) unft68states (Posrat/zip code) (Province - ilapplicable) (Count4,- ifnot US) llast )(Middle)(sulfa) (Ci41 (Street name and number or Post Ofice Box inlonnation) (Street name aad number or Post Ollice Box inlormation) /Ciry1 (Streer name and number or Post OlJice Bot nformation) (ifan individual) OR lifa business organization) (Streer nome and number or Post Ollice Box iaformolioh) un(rf56/states Postat/zP codel (Province - ifapplicablel (Countn,- dnot IJS) (f more rhan lhree persons are formng the limited liobiltD' conpany, mark this bot lf and include an anachhent slating lhe truehames ond mailng oddreJses ofal! addittonal personsforming the lrm ed liobilly company) Rev.6/14/2004 2of3 1225171h St., Suite 2300 t 10. The management of the limited liability company is vesred in managen [t OR is vested in the members n. I L There is at least one member of the limited liabiliry company. (ntudd' ytty) 13. Additional information may be included pursuanr ro other organic statutes such as title 12, C.R.S. If applicable. mark this boxE and include an anachment smring rhe additional information. Notice: Causing this document to be delivered to the secretary ofstare for filing shall con*inrte the affirmarion or acknowledgment ofeach individual causing such delivery, under penaliies ofpe{ury, that the document is the individual's act and deed, or that the individual in good faith believes the document is rhe act and deed of the person on whose behalfthe individuat is causing the documenr to be delivered for filing, taken in conformiry with the requirements of part 3 of article 90 of title 7, C.R.S., the constiruent documen;, and the organic starutes' and that the individual in good faith believes the facts stated in the document are mre and the document complies with the requirements of that Part, the constituent documents, and the organic stanrtes. This perjury notice applies to each individual who causes this document to be delivered to the secretary of state, whether or not such individual is named in the documenr as one who has caused it to be delivered. 12. (Optional) Delayed effective date: | 4. Name(s) and addrcss(es) of the individual(s) causing the document to be delivered for filing:York Heidi M. Ballard SpSnr lnorews Slf{bersoll (Middte)(SuJItx) 1225 17thrtt"gfiftE y36y* post ofrce Bor information) Denver co 80202 (Cit)") u r{i?88 states ( Postawip Code) (Provincc -,Fapplicable) (Couury- dnot US) (The do'unenl ccd nttt srate rhp true nome and address of more than one individual. Howeuer, 11ly6y y,61, 1o state the name and addtess ofonv addtuonal individuals causing the docvment to be delivercd lor fihng, mark thts bot4and include an artachment tturing rhe nome and uddress of such inditiduals.l Disclaimer: This florm' and any related instructions, are not intended to provide legal, business or tax advice, and are oflered as a public sen'ice without representation or warranry. While this form is believed to satisry minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from lime to time, remains the responsibiliry ofthe user of rhis form. Questions should be addressed to the user's attorney. Rev. 6/14l20O4 JOIJ I o ARTICLES OF ORGANIZATION OF VAIL PLAZA DEVELOP}IENT. LLC Pursuant to $ 7-80-203, Colorado Revised Statutes (C.R.S.), the individual named below causes these Articles of Organization to be delivered to the Colorado Secretary of State for frling, and states as foliows: ARTICLE I NAME AND ADDRESS The name of the limited liability company shall be Vail Plaza Development, LLC and its principal office address shall be l2 Vail Road, Suite 200, Vail, CO 81657. ARTICLE II PERIOD OF DUR{TION The limited liability company shal! exist in perpetuity, from and after the date of filing these Articles of Organization with the Secretary of State of the State of Colorado unless dissolved by unanimous rvritten agreement of all members or as otherwise provided in the operating agreement. ARTICLE III PURPOSES AND POWERS Pumoses. Except as restricted by these Articles of Organization, the limited liability company is organized for any legal and lawfui purpose for which a limited liability company may be organized pursuant to the Colorado Limited Liability Company Act. General Powers. Except as restricted by these Articles of Organization, the limited liabiiity company shall have and may exercise all powers and rights which a limited liability company may exercise legally pursuant to the Colorado Limited Liabiiity Company Act. CO_DOCS_A #151761. v1 a ARTICLE IV ADOPTION OF OPERATING AGREEMENT An initial operating agreement of the limited liability company may be adopted by its members. The operating agreement may contain any provisions for the regulation and management of the affairs of the limited liability company nor inconsistent with law or these Anicles of Oreanization. ARTICLE V AMENDMENTS The limited liability company reserves the right to amend its Articles of Organization from time to time pursuant to the operating agreement of the limited liability company and otherwise in accordance with the Colorado Limited Liability Company Act. ARTICLE VI REGISTERED OFFICE AND REGISTERED AGENT The initial registered office of the limited liability company is Corporation Service Company, 1560 Broadway, Denver, Colorado, 80202. The initial registered agent at such office is Corporation Service Company. ARTICLE VII INITIAL MEMBER AND MANAGER The limited liability company shall be organized with one member. The name of the initial member is Da)'rner Corporation N.V., a Netherland Antilles corporation. Management of the limited liability company is vested in the manager identified in the operating agreement of the limited liability company. FILING The name and address of the individual filing, and to whom the Secretary of State may refused is: who caused this document to be delivered for deliver notice if the filine of this document is CO_DOCS_A #151761 vl oa I NAME ADDRESS Heidi M. York, Esq. Ballard Spahr Andrews & lngersoll, LLP 1225 17* Street, Suite 2300 Denver, Colorado 80202-5596 l' I CO_DOCS_A #151761.vl oo o o o e TAB D Note Regarding Transfer of Title to Vail plaza Developmenl LLC LLC, but has not been recorded. WestStar Bank, the construction financing lender for the Project, is holding the original Special Warranty Deed until it revises its loin documents so that Vail Plaza Development, LLC, will be jointly liable with Daymer Corporation N.V. for the loan obligation. We anticipate that the Special Wananty Deed will be recoided this week, and we will provide you with a copy of the recorded deed as soon as it becomes available to us. Please contact us if you have any questions or concems regarding this matter. I CO_DOCS_A #152501 vl t ' DA'MER CoRpoRATio\ N.v.' a r.etfer]ands Ant'res corporation (.Grantof),;ffiffi;t11$:,11t Y.9 .n"".'ii,r'" ,ui'y"r. c"r"*a" ili#il *. consideration or lEv'o*,e,rr, *ffi [f"t H:'#YrTffi |1':!r'"1"-*a"*""JvJ t o vor- n-oza - - - l? Yd}"+ Suite 200, vaf c"r"T.al'r"#rTtfily C'cra1ee.'), ufiose street address isstateorcororado,morepani",r"dt;-#;;';itffi ifl ilr"o1*oll,Xyo",lffi *jtberein bv this reference :*^*:tt Til;#"*, aot *.rr"ots,i,. tri. .grir* a, persons43ffi ##f#J"1lJi'tr#t*ffi ffi ""p,i"*ri*il"#r".ilt"attachedhereto Signed rhis day ofNovember,2O04. GRANTOR STATEOFCOLORADO ) cotrNTyoFEAGLE ) ss: On November .2004,1 onary appeared welrrir,3:f^t:Xl1under^s1sne4 a Notary public in and fori,if dtr;ffi :,,Y,'":HH#ffi ;fJtr":S1 Hli'ffi ffiTffiff T;"Ttr{,::Neth^erlaads entittes cori ---.- "** -,a.o 8s tresrdent ofDevr,cnCoRFoRATIoN, N.\r"tiraeto.y eui-aei-.";#til*.tj:3fll^!"-*l to me or ptor"a to"J.'on rle basis ofsatisfactory evidence to ; - -:--- vu '.,uauy *o*1 to me or proved to me oa ttre Uasis of ' ngnoo*r"igJio-.,; ,i,"frn:Ill Hl""::l".is subscrib'J1;;;th'" insrrument and ljsnture on the insfrument, tie.rdry;;;;1c:nlueaee{ to me rhat rt-*i",rii ffi!ffif ts subscribed to the within instrunenr signature oi tlr";rt ,il'"nl the entitv r,,,..- r.^r.^,rTl-authorized capacity, and that by his:uuonzed capaci whieh thqperson acted, executcd theinstrument. my hand oo_DOCS_A #15t751 w H DITqR CORPORATTON, N.v., a Nefierbnrtc A-drr* ^^-- 'r"^t ia EXIIBIT A Legal Desqiption PARCEL I: TIIATPARTOFLOTO. E*sd#J$$j[ffi*^###^rHffi :.sf ip#inffi,ff"m,.LERK BEGINNINGATAPOINT fis$?l$-##$#a gffi' DE'ARTTNG sArD q*srmrv mrE, Mrn;;;ilry6ii, rm-r, ,rm.rbr iro"#siv u.60 EEE'; TnENCEMe"47'08"w-83.e3 FEEr. n- r'c ioi'.imiiiotii;l^rr*rnrosLnbnri, ri;{"ETmFoLLorvrNGrwocouRSFsALoNot"."Tpv-roNonffiri'ro"esorso6,-ffifr?trrio,o^o,tri*0"0r,0e,86.41 ffilr9JXH ff #t: i:Pl rrm'icr, obTffii'c ri*.tonnunrv riti-oi rao ,,ssrtr rc BrnLDNG.,*.,,;""-*,;"s,ffi ?HRK,T3mmm:am,;.jgu"f"*g" iH,tlly,l,lHil" PARCEL2: CONDOMIMUM UMTS ]mtr:ffim ffiffi PARCEL 3: ffi ffi i?ffi;ff#tffidlq:i*$Hrin:,rri,Tffaff r"Hffi Bffi tr BEGINNING AT A POINT. O laru"arumHti#$:1ffi8iff "?",H^Jffi iffJ'"tr",^ilffi ,Hffi "^?ffi*tr+ ffi-Wrux+ffi*ffif CO_DOCS_A #1S17Sl rrt I AIONG SAID UESTERLY LINE:-(I) SO.IIrg 09 DEGREES 30 MINUTES O0 sEcoNDS WEsr 50.91 FEET; (2) SOUTTT80 DEGREES 30 MINTITES OO SEtOND_ S EAST SEEO-ffii; <:) SOUTH 09 DEC,REES 30 M]NUTES OO SECONDS WEST7.46 TEET, To TI]E NoRTEERLY Lsc oi wTG;"IiilJ PLAZ{ PITASES I AND 4 AccoRDING To TEE MAPTTIEREoF RECoRDED n'r BooK 3s8 Ai paceTi-6i i# cr-mrs RECoRDS; THENSE rHE FoLLos{NG FosRcouRsEs ALoNG TIIE NORTHERLT Al'D wEsrERiY^inus or seo wr^Aca-Da'I pr-AZA pr{AsEs I A}.rD IL(I)lroRTIi 80 DEGREES 22 MINUTES 22 secoiffi-wlsir:s.sq FEET; (2) sourn 42 DEcREES 32 MINr.rIEs 2lsEcoNDs WEST 46'0I FEETi p) soul1l s2 DacRrFi ft"i,otrms co s'eboNni -wrsr 4e.48 Fmrr (4) sourfl i0DEGREES 13 MINUTES oz'sbcoHos qmii-s3sr;Err ro rrIE NoRTHEAsTERLy coRNER oF FrRsrAMENDMEITT ro coNDoMIhIIla'lya1girm:-acr rnrir proza - plIAsE v coNDoMrNrul/ts, ACcoRDrNc rorr{E MAP TIIEREoF neconoeD }I rrc-ciifri;JfioRDS; THENcE lrrr ForrowrNc THREE coiJRsESALoNG TIIE NoRTHERLY mm o-I sm rnrsr-ariiiiinrr ro coNDolrrNnrM MAp or uu-{cE rNN pt qzA- PfiAsE v coNDoMiNIUMS: 1r ) NoRIE m DiciEes*di i',ml"ms * secnrvps-vdsiioo,z rmr; e) NoRrff 0eDEGREES 57 MI)'IurEs 16 sEboNDS EAsi;;;'dr, iii NoRrr{ 80 DEGREES 02 MrNurEs 44 sEcoNDS wEsr52.23 FEET, TO THE sEsrERLy_uNE_OF]SAo rror ie."ltm{cE NoRTIT 00 DEGREES 23 MTNUTES 00 SECONDSwESr 105'76 FEET' AL.NG l4P yETmrY Ln6, ib im NoRrHwESr Con*rn or sArD Lor Lq, rnENcE,ALoNG THE wEsr LINE or sam ror N' N-onG6 bicnss 23 MINUTES oo sstolus wESr s0.05 FEET, ToTI{E sourl{wEsT coRNR-o-F s4D iARcFi-riEs"CRbED IN BooK z:o er pacr ss6 oF rr{E cr..ERK,sRECORDS' THB'ICE THE Fo[owl]rc ru'o cbunsfrirtwc rrn sourrrERly AND EAsrERLy uNEs oF sArDPARCEL: (l) sourrl ?e DEGREES ae w'nrrrs h*siErlros EAST 147.36 FEET; (2) NSRTH l0 DEGREES i4ffif SECONDS EAST 147.43 rmr, io nfi-"ri,blr oF BEGTNNTNG, coiiffv oF EAcLE, srArE oF OO_DOeS_A #tst75t vl E)GIBIT B RIGI{T OF PROPRIETOR OF A Ir'EIN OR LODE TO I}CIRACT AND REMO1IE I]IS ORE TT{EREFROM STIOI]LD TTIESAI\dE BE FOUND TO PENETNATE OR INIERSECT TIIE PREMISES AS RESERVSD ]NUNITM STATES PAIENTRECORDED JIJLY 12, IE99, IN BOOK 43 AT PAGE 475, RIGI{T OF WAY FOR DITCHES OR CA}IAIS CONSTRUCTM BY TTIE AUIIIORITY OF TIIE UNIED STATES ASRESERIED IN I]NITM STATES PA]ENT RECORDM JI]LY 12, 1899. IN BooK 48 AT PAGE 475. RESTRICTTVE CO\ENANTS WTIICH DO NOT CONTATN A FORTEITI'PJ oR REVERTm. CI-AUSq BUT OMTTINGANY CO\ENANT OR RTSTRITTION BASED ON RACq COi,.OR RzuGION, SE)L HANDICAP, FAI,'IIJAL STATUSoR I{ATIONAL oRIGIN IlNLEss AND oNLy ro rT€ irnnff-niAT-snoi-oirnrelrr (A) rs H.ulvfrr urDERcrrAPTm 42, SECTION 3607 OF TT{E rNITm STATES CODE OR (B) REI-{TES TOIIANDTCAP Br.rr DoES NOTDISCRIMINATE AGAINST FIANDICAP PERSONS, AS CONTAINM IN INSTRUMENT RECORDED AUGI'ST IO, I%2,INBOOK I74 ATPAGE 179. RECIPROCAL EASEMENT AGREEMENT BETWEE}'i VAIL VIIIAGE INN. A COIORADO CORPONANON, JAT.TMLTD.' A COLORADO LIMIID_PARTNERSIM ANO VAN ULI-A.GE INN ASSOCIATES, A COIiRADO GENERALpARTNERSTp REcoRDm JANITARy r, r ssl n'iBooK isr er rece :zc. IR}Vf,S' CONDMONS AND PRO\ISIONS OF AGREEMENT RECORDED SEPTEMBER 09, 1983 iN BOOK 367 ATPAGE 833. CON\IEYA}ICE OF EASEMENTS BETWEEN VAIL ULI.A.GE INN, INC., A COLORADO CORPORATION A],ID F&LVAIL VILLq'GE INN PARTNERSIM. A COIORADO GENERAL PARTNERSIM RECORDED JULY IO, 1984 INBooK388ATPAGE 861. DECLAKA-TION OF PARTIAL VACATION OF EASEMENT IN coNNECTIoN wIITI SAID EAsEMENT RECoRDEDRII.Y }5, 1985 iN BOOK 420 AT PAGE 74T. TERMS' CONDMONS AND PROVISIONS OF DECI-ARAIION OF EASEME]..{TS AND RIGHTS RECORDEDFEBRUARY 04, r98S h{ BOOK 478 AT PAGE 3.7i: TERMS' CONDMONS AND PROVISIONS OF DECLCRATION CONCERNING PARKING WIIT{IN SPECIALDEvELoPlv€NT DISTRrcT 6 RECORDED .RJLY io, t9s4 IN BooK 38t AT pAcE t56. ImMs' coNDmoNS AND PROVISIONS OF DECI-ARATTON OF E{SEMENTS RECORDED DECzuBER 1Z 1992 INBOOK 596 AT PAGE 908 AND AS SHOWN ON IITA/ACSM PREPARED JULY 26, 1996 BY EAGI.E VAIIEYSUR\1E1dIG, INC. JOB NO. 85+5. EASEME].ITS' CONDMONS, COVENANTS, RESIRICTIONS. RISERVATIONS AND NOTES ON TIIE RECORDEDPIAT OF VAIL ULI,.A.GE FIRST FIUNG. EASEMENT AND RIGI{T OF WAY AS GRANTED TO HOLY CROSS F'TFCTRIC ASSOCIATION, ]NC., ]NiNSTRUMENT RECORDED NO\EMBEjR 19, I97I IN BOOK 2?2 AT PAGE 321, AIiID AS SHOWN ON THECOI.DOMINIUMMAPRECORDEDNOVEMBER 19. I9S2 IN BOOK 349ATPAGE Ir. EASEMENT GRAJ..ITED TO HOLY CROSS EIICTRIC A,SSOCIANO\ INC., IN iNSTRUMENT RECORDED ]A}IUARY2I, 1983 IN BOOK 352 AT PAGE 39?. IIIOSE PROVISIONS, CO\M-IANTS AND CO}TDMONS, EASEMENTS AND RESTRICTIONS, WHICH ARE ABURDEN TO TTIE CONmMINILJM rlNlr DESCRtsED IN SCHmTJLE A, AS CONTAINED IN INSTRUMENTREEORDED NO\EMBER I 9, I 982, IN BOOK 349 AT PAGE 12. CO_DOCS_A f15175i vl EASEMENT BETWEEN VILIACTE INN H-AZA @NmMINIttM AssoClATIoN, A COLORAm NON-PROIYf CORPORANO}{ VAIL VIII"ACf, iNN, INC.. A COI.oRADo CORPOMIIO}q A}.ID F & L VAIL ULI.AGE PARINERSEIIP, A COI,oRAI)o GENERAL PARTNERSM IN DOCUMENT RECORDTD JULY 10. 1984 INBMK 388ATPAG 862. EASEMENTS, CONDMONS, COVENANTS, RESTRICNONS. RESERVATIONS AND NOTES ON TIIE RECORDD CONMMINIT'MMAP OF VILLAGE INN PI.-AZA UTITITY EASEMENT AS GR.A}ITED TO IIOLY CROSS ELECTRIC ASSOCIATION. INC. IN INSTRUMENT RECORDED JA}IUARY 21, 1983 IN BooK 352 AT PAGE 3%. ENCROACHMENT OF BASEMENI AREA OF VIII.AGE INN PT.AZA AND VILI.AGE INN PIAZA PHASE,S I A}TD trONTO SI]BIECT PROPERTY AS SIIOShI ON IMPRO\EMA.IT I.OCATION CERTIFrcATE BY EAGLE VALLEY SURVEYING,INC., JOB NO. 85+5 DATM JULY26. 1996. ENCROACIIMENT AND ROOF OVEREANG OF VILI^AGE INN PI.A.ZA PTIASES I A}.ID tr ONIO SUBJECT PROPERTY AS SHOWN ON ]MPROVEMENT LOCATION CERTIFICATE BY EAGI.E VALITY STJR\IEYTNG.INC., 'OB NO. 854-5, DATEDJULY26, 1996. DECLARAfiON OF PART]AL VACATION OF EASEMENT IN CONNECTION WIIH SAID EASEMENT RECORDM ftILY 25, T985 IN BOOK 420 AT PAGE 741. TERTdS, CONDMONS AND PROVISIONS OF ENCROACHMENT AND VIEW AGREEMENT RECORDM DECEMBER 22, 1989 IN BOOK 520 AT PAGE 167. TER}IS, CONDMONS A}ID PROVISIONS OF EASEMENT AGREEMNT RECORDM APRIL 14. 1992 IN BOOK 57l AT PAGE 628, TERIVIS, CONDMONS AND PROVISIONS OF RESTfuC]TVE COVENANTS RECORDM APRIL 23, 1992 IN BooK 578 AT PAGE 368 AND RERECORDED APRIL 30, 1992 IN BooK 578 AT PAGE 9%. TER}'S, CONDMONS AND PROITSIONS OF DEED OF EASEMENT RECORDED MAY 18. 19% IN BOOK 640 AT PAGE 621. E}SSTING I.EASES A}.ID TENANCIES. CO_DOCS_A trl51751 yl oo o I o m Land Title Guarantee Company CUSTOMER DI STRIBTITION Date: l1-19-2004 Property Address: VAILPLAZA CLUBVAIL. CO 8165? BALLARD SPAHR ANDREWS & INGERSOLL 1225 ITTH ST STE Z3OO DENVER, CO 80202 Attr: HEIDI YORK Phone: 308-299-7359 Fax: 303-3EZ-4659 EMail: yorkh@ballardspahr.com Sent Via EMail Our Order Number: V50006f95.f Ifpu have any inquiries or require further assistance, please contact one ofthe numbers belot: For Title Assistance: Vail Title Dept. Karan Biqgs IOE S. FRONTAGE RD. W. #203 P.O. BOX 357 VAIL, CO 81657 Phone:97047G2251 Fax:.97O476.4732 EMail: kbigg@ltgc.com t Land Title Guarantee Company Date: ll-19-2004 Our Order Number: V50006195.1 Property Address: VAIL PLAZA CLUB VAIL, CO 81657 Buyer/Borrower: VAIL PI.-A,ZA DEVELOPMENT, LLC, A COLOMDO LIMITED LI,ABILITY COMPANY Seller/Orrner : VAIL PLAZA DEVELOPMENT, LLC, A COLORADO LIMITED LIABILITY COMPANY N!"9," qlp or directions fo1 you^I upcoming closing? Check out Land Title's web site at www.ltgc.com ___,]9ryq!eclrons to any ol our 54 office locations. ESTIMATE OF TITLE FEES Information Binder s750 .00 rl laajnat Titla Cuer&ta. col,a! aty yi71 be cLoBlDE tbis tE.natction, .bov6 taes vill b6 colLecCad at tlat tLda. TOTAL $rso.oo rod clft c. o6/ot THANK YOU FOR YOUR ORDER! Land Title GU RANT'I COT'PANY IAls nTE GIJARANIE C[,pAf{Y IN,|cCE owner: VAIL PLAZA DEVELOPMENT, LLc, A coLoRADo LMITED LLABIHTY coMpANy Properg Addrrss: VAIL PLAZA CLUB VAIL, CO 81652 Your Reference No.: When rrferring to this order, please reference our Order No. V500061g5.1 - CHARGES - Information Binder $150.00 -Total-$150.00 Please make checks payabl e to: Land Title Guarantee Company P.O. Box 5440 Denver, CO 80217 Chicago Title Insurance Company ALTA COMMITM ENT Our Order No. V50006195.1 Cust. Ref.: t. ) Schedule A Property Address: VAILPLAZA CLUB VAIL, CO 81657 Effective Date: November 03, 2004 at 5:00 p.M. Policy to be Issued, and Proposed Insured: Informatior Binder Proposed Ins ured: VAIL PLAZA DEVELOPMENT, LLC, A COLOMDO UMITED LIABILITY COMPAT{Y The estate or intetest in the land described or referred to in this Commitment and covered herein is: A Fee Simple Title to the estate or interest covered herein is at the effective date hermf vested in: VAIL PLAZA DEVELOPMENT, LLC, A COLORADO LIMMED LIABIUTY COMPANY The land referred to in this Commitment is described as follows: SEE ATTACHED PAGE(S) FOR LEGAL DESCRIPTION 4. f,. I Our Order No: V50006195.1 I.ESALDESCRPnCN THOSE PORTIONS OF LOTS M, N, AND O, BLOCK 5-D, VAIL VILLAGE, FIRST FILING, ACCORDING TO THE MAP THEREOF RECORDED UNDER RECEPTION NO. 96382 IN THE OFFICE OF THE EAGLE COUNTY, COLORADO, CLERK AND RECORDER (CLERK'S RECORDS) DESCRJBED AS FOLLOWS: BEGINNING AT A POINT, ON THE NORTHERLY LINE OF SAID LOT O, WHICH IS THE NORTHEAST CORNER OF A PARCEL DESCRIBED IN BOOK 230 AT PAGE 556 OF THE CLERK'S RECORDS, WHENCE THE NORTHWEST CORNER OF SAID LOT N BEARS NORTH 79 DEGREES 46 MINUTES 00 sEcoNDS WEST 175.00 FEET DISTANT; THENCE. ALONG SAID NORTHERLY LINE. SOUTH 79 DEGREES 46 MINUTES OO SECONDS EAST 178.40 FEET, TO THE NORTHWEST CORNER OF V]LLAGE INN PLAZA, A CONDOMINIUM, ACCORDING TO THE MAP TI,IEREOF RECORDED IN BooK 349 AT PAGE n oF THE cLERK's RECORDS: THENCE. ALONG THE WESTERLY LINE OF SAID VILLAGE INN PLAZA, A CONDOMINIUM, SOUTH 09 DECREES 30 MINUTES OO SECONDS WEST 37.6I FEET TO THE NORTHEASTERLY CORNER OF CONDOMINIUM MAP FOR VILLAGE INN PLAZA . PHASE IV CONDOMINIUMS, ACCORDING TO THE MAP THEREOF RECORDED IN THE CLERK'S RECORDS; THENCE, DEPARTING SAID WESTERLY LINE, THE FOLLOWING NINE COURSES ALONG THE NORTHERLY, EASTERLY AND SOUTHERLY LINES OF SAID CONDOMINIUM MAP FOR VILLAGE INN PLAZA - PHASE IV : (l) NORTH ?9 DEGREES 4Z MINUTES 08 SEC ONDS WEST 70.02 FEET; (2) SOUTH 32 DEG REES 56 MINUTES 2 Z SECONDS WEST G3.sl FEET; (3) NoRTH 79 DEGREES 4? MINUTES 0s sEcoNDS WEST 61.46 FEET: (4) SOUTH IO DEGREES 12 MINUTES 52 SECONDS WEST 69.82 FEET, TO THE NORTHERLY FACE OF AN EXISTING BUILDING; (5) SOUTH Z9 DEGREES s8 MTNUTES 5l SECONDS EAST 6.35 FEET, ALONG THE NORTHERLY FACE oF sArD EXISTTNG BUILDING; (6) sourH l0 DEGREES 01 MINUTES 09 SECONDS WEST 6.41 FEET, ALONG THE EASTERLY FACE OF SAID EXISTING BUILDING; (7) DEPARTING THE EASTERLY FACE oF sA]D EXISTING BUILDING, sourH 79 DEGREES 47 MINUTES 08 SECONDS EAST 83.93 FEET; (8) NORTH l0 DEGREES lz MINUTES 52 SECONDS EAST 32.60 FEET; (9) SOUTH Zg DEGREES 4Z MINUTES 08 SECONDS EAST 67.05 FEET, TO THE SAID WESTERLY LINE OF VILLAGE INN PLAZA, A CONDOMINIUM; THENCE THE FoLLowING THREE couRsES ALONG sArD wEsrERLy LINE: 0) sourll 09 DEGREES 30 MINUTES 00 sEcONDS WEST 50.91 FEET; (z) sourH s0 DEGREES 30 MTNUTES 00 SECONDS EAST 50.60 FEET; (3) SOUTH 09 DECREES 30 MINUTES 00 SECONDS WEST 7.46 FEET, TO THE NORTHERLY LINE OF VILLAGE INN PLAZA PHASES I AND II. ACCORD]NG TO THE MAP THEREOF RECORDED IN BOOK 3SS AT PAGE 855 OF THE CLERK'S RECORDS; THENCE THE FOLLOWING FOUR COURSES ALoNG THE NoRTHERLY AND WESTERLY LINES OF SAID VILLAGE INN PLAZA PHASES I AND II; (I) NORTH 80 DEGREES 22 MINUTES 22 SECONDS WEST tzs.59 FEET; (z) SOUTH 42 DEcREES 32 MTNUTES zl SECONDS WEST 46.01 FEET; (3) SOUTH 82 DEG REES 06 MINUTES 46 SECONDS WEST 49.48 FEET; (4) SOUTH IO DEGREES 13 MINUTES OZ SECONDS WEST 53.5I FEET TO THE NORTHEASTERLY CORNER OF FORFEITURE OR REVERTER CLAUSE AMENDMENT TO CONDOMINIUM MAP OF VILLAGE INN PLAZA . PHASE V CONDOMINIUMS, ACCORDING TO THE MAP THEREOF RECORDED IN THE CLERK,S RECORDS; THENCE THE FOLLOWING THREE COURSES ALONG THE NORTHERLY LINE oF SAID FIRST AMENDMENTTO CONDOMINIUM MAP OF VILLAGE INN PLAZA - PHASE V CONDOMINIUMS: (l) NORTH 80 DEGREES 0z MINUTES 44 sEcoNDS wEsr 106.z2 FEET; (z) NORTH 09 DEGREES 57 MINUTES 16 sEcoNDS EAsr 6.25 FEET; (3) NORTH B0 DEGREEs 0z MINUTES 44 SEC ONDS WEST 52.23 FEET, TO THE WESTERLY LINE OF SAID LOT M; THENCE NORTH OO DEGREES 23 MINUTES O() SECONDS WEST 105.76 FEET, ALONG SAID WESTERLY LINE, To rHE NORTHWEST coRNER oF SAID l-or M; THENCE, ALONG THE wEsr LINE oF SAID LOT N, NORTH OO DEGREES 23 MINUTES OO SECONDS WEST 50.05 FEET. TO THE SOUTHWEST CORNER OF SAID PARCEL DESCRIBED IN BOOK 230 AT PAGE 556 OF THE cLERIt's RECORDS; THENCE THE FoLLowINc rwo couRSEs ALoNc rHE sourHERLy AND EASTERLY LINES oF sAID PARCEL: (1) sourH 79 DEGREES 46 MINUTES 00 sECoNDs EAST Our Order No: V50006195.1 1EGALEHRPnCN 142.36 FEET; (z) NORTH l0 DEGREES 14 MINUTES 00 sEcoNDs EAsr 142.43 FEET. To THE POINT OF BEGINNING, COUNTY OF EAGLE. STATE OF COLORADO. AND THAT PART OF LOT O, BLOCK 5-D, VAIL VILLAGE FIRST FILING, ACCORDING TO THE MAP THEREOF RECORDED UNDER RECEPTION NO. 96382 IN THE OFFICE OF THE EAGLE COUNTY. COLORADO, CLERK AND RECORDER, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAID LOT O THAT IS ALSO THE NORTHEASTERLY CORNER OF A PARCEL DESCRIBED IN BOOK Z3O AT PAGE 556 OF THE EAGLE COUNTY, COLOMDO, CLERK AND RECORDER'S RECORDS, SAID PARCEL CURRENTLY BEING KNOWN AS THE 'GATEWAY PROJECT", THENCE S ?9 DEGREES 46 MINUTES O() SECONDS E U8,40 FEET, ALONG THE NORTHERLY LINE OF SAID LOT O, TO THE NORTHWESTERLY CORNER OF VILLAGE INN PLMA, ACCORDING TO THE CONDOMINIUM MAP THEREOF, RECORDED IN BO OK 349 AT PAGE I I, IN THE OFFICE OF THE EAGLE COUNTY, COLORADO. CLERK AND RECORDED, THENCE, ALONG THE WESTERLY LINE OF SAID VILLAGE INN PLAZA, S 09 DEGREES 30 MINUTES OO SECONDS W 37.6I FEET, TO THE TRUE POINT OF BEGINNING; THENCE, CONTINUING ALONG SAID WESTERLY LINE. S 09 DEGREES 30 MINUTES 00 SECONDS W 102.2r FEET; THENCE, DEPARTING SAID WESTERLY UNE, N z9 DEGREES 47 MINUTES 08 sEcoNDs w 67.05 FEET; THENCE s l0 DEGREES lz MINUTES 52 SECONDS W 32.60 FEET; THENCE N 79 DEGREES 4z MINUTES 0s SECONDS W 83.93 FEET, TO THE EASTERLY FACE OF AN EXISTING BUILDING; THENCE THE FOLLOWING TWO COURSES ALONG THE EASTERLY AND NORTHERLY FACES OF SAID EXISTING BUILDING: (I) N IO DEGREES OI MINUTES 09 SECONDS E 6.4I FEET (2) N ?9 DEGREES 58 MINUTES 51 SECONDS W 6.35 FEET; THENCE, DEPARTING THE NORTHERLY FACE OF SAID EXISTING BUILDING, N 10 DEGREES 12 MINUTES 52 sEcoNDS E 69.82 FEET; THENCE s z9 DEGREES 47 MINUTES 08 SECONDS E 61.46 FEET; THENCE N 32 DEGREES 56 MINUTES 2? SECONDS E 63.51 FEET; S 79 DEGREES 47 MINUTES 08 SECONDS E 20.02 FEET, TO THE TRUE POINT OF BEGINNING. AND CONDOMINIUM UNITS 766 T}IROUGH 794 AND 797 THROUGH 805, INCLUSNE VILLAGE INN PLMA, ACCORDING TO THE CONDOMINIUM MAP THER.EOF RECORDED NOVEMBER 19, 1982 IN BOOK 349 AT PAGE II, AND AS DEFINED IN THE CONDOMINIUM DECLARATION RECORDED NOVEMBER 19, 1982 IN BOOK 349 AT PAGE 12, COUNTY OF EAGLE, STATE OF COLOMDO. t ALTA COMMITMENT ScheduleB-Sectionl @equirernents) The following are the requirements to be complied with: Item (a) Payment to or for the account of the grantors or mortgagors interest to be insured. Our Ordq No. V50006195.1 of the fulI consideration for the eslate or l. Item (b) Proper instrument(s) creating the estate or interest lo be imured must be executed and duly ffled for record, lo-\vi t: Item (c) Paymenl of all taxes, charges or asses sments levied and assessed agaimt the subject prernises which are due and payable. Item (d) Additional requirements, if any disclosed below: RELEASE OF DEED OF TRUST DATED FEBRUARY 25,2OO4 FROM DAYMER CORPOMTION N.V., A NETHERLANDS ANTILLES CORPOMTION TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE USE OF WESTSTAR BANK TO SECURE THE SUM OF $3,OO(),O()().OO RECORDED MARCH T5, 2004, UNDER RECEPTION NO. 870698. EVIDENCE SATISFACTORY TO THE COMPANY THAT THE TERMS, CONDITIONS AND PROVISIONS OF THE TOWN OF VAIL TRANSFER TAX HAVE BEEN SATISFIED. WARMNTY DEED FROM DAYMER CORPORATION N.V., A NETHERLANDS ANTILLES CORPORATION TO VAIL PLAZA DEVELOPMENT, LLC. A COLORADO LIMITED LI,ABILITY COMPANY CONVEYING SUBJ ECT PROPERTY. WARRANTY DEED FROM VAIL PLAZA DEVELOPMENT, LLC, A COLORADO LIMITED LI.ABILITY COMPANY TO TO BE DETERMINED CONVEYING SUBJECT PROPERTY. 4. ALTA COMMITMENT ScheduleB-SectionZ @xceptions)Our Order No. V50006195.1 The policy or policies to bc issued will contain exc€ptions to the following unless the same are disposed of to the satisfaction ofthe Company: l. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not showr by the public records, 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a conecl survey and inspection of the premises would disclose and whi ch are not shown by the public records. 4. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and nol shown by the public records. 5' Defects, liens, encumbrances, adverse claims or other matters, if any, created, Iirst appearing in the public records or altaching 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. Taxes or special assessments which are not shown as existing liens by the public records.o the Treasurer's office. 7 . Liens for unpai d waler and sewer charges, if any.. 8. In addition, the owner's policy will be subject lo the mortgage, if any, noted in Section I of Schedule B hereof. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR ]NTERSECT THE PREMISES AS RESERVED IN UNITED STA TES PATENT RECORDED JULY 12, 1899, IN BOOK 48 AT PAGE 475. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STA TES PATENT RECORDED JULY 12, 1899, IN BOOK 48 AT PAGE 475. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTTNG ANY COVENANT OR RESTRICTTON BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL STATUS OR NATIONAL ORIGIN UNLESS AND ONLY TO THE EXTENT THAT SAID COVENANT (A) IS EXEMPT UNDER CHAPTER 42. SECTION 3607 OF THE UNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT DISCRIMINATE AGAINST HANDICAP PERSONS, AS CONTAINED IN INSTRUM ENT RECORDED AUGUST 10, 1962, IN BOOK I74 AT PAGE 179. RECIPROCAL EASEMENT AGREEMENT BETWEEN VAIL VILLAGE INN, A COLOMDO CORPOMTION, JAMM LTD., A COLOMDO LIMITED PARTNERSHIP AND VAIL VILLAGE INN ASSOCIATES, A COLORADO GENERAL PARTNERSHIP RECORDED JANUARY 3, 1983 IN BOOK 35I AT PAGE 324. 10. ll. 12. ALTA COMMITMENT Schedule B - Section 2 (Exceptions)Our Order No. V50006195.1 The policy or policies to be issued will contain o(ceptions to the following unless the same are disposed of to the satisfaction of the Company: 13. TERMS, CONDITIONS AND PRO\ISIONS OF AGREEMENT RECORDED SEPTEMBER 09, 1983 IN BOOK 367 AT PACE 833, 14. CONVEYANCE OF EASEMENTS BETWEEN VAIL VILLAGE INN, INC., A COLORADO CORPOMTION AND F&L VAIL VILLAGE INN PARTNERSHIP. A COLOMDO GENERAL PARTNERSHTP RECORDED JULY 10, 1984 IN BOOK 388 AT pAcE 861. DECLARATION OF PARTTAL VACATION OF EASEMENT IN CONNECTION WITH SAID EASEMENT RECORDED JULY 25, 1985 IN BOOK 420 AT PAGE 74I. I5. TERMS, CONDII]ONS AND PROVISIONS OF DECLARATION OF EASEMENTS AND RIGHTS RECORDED FEBRUARY 04, 1988 IN BOOK 478 AT PAGE 377. 16. TERMS, CONDMONS AND PROVISIONS OF DECI.A,RATION CONCERNINC PARKING WITHIN SPECIAL DEVELOPMENT DISTRICT 6 RECORDEI] JULY IO, T984 IN BOOK 388 AT PAGE 856. TERMS, CONDITIONS AND PROVISIONS OF DECLARATION OF EASEMEMS RECORDED DECEMBER 17, 1992 IN BOOK 596 AT PAGE 908 AND AS SHOWN ON ALTA/ACSM PREPARED JULY 26, 1996 BY EAGLE VALLEY SURVEYING, INC. JOB NO. 854.5. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PIAT OF VAIL VILLAGE FIRST FILING. EASEMENT AND RIGTIT OF WAY AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION. INC., IN INSTRUMENT RECORDED NOVEMBER 19, 197I IN BOOK Z2Z AT PAGE 321. AND AS SHOWN ON THE CONDOMINIUM MAP RECORDED NOVEMBER 19, 1982 IN BOOK 349 AT PAGE IT. (AFFECTS CONDOMINIUM UNITS ONLY) EASEMENT GMNTED TO HOLY CROSS ELECTRIC ASSOCIATION. INC.. IN INSTRUMENT RECORDED JANUARY 21, 1983 rN BOOK 352 AT PAGE 397. t7. 18. 19. 20. oo ALTA COMMITMENT ScheduleB-SectionZ @xeeptions) Our Order No. V50006195.1 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: (AFFECTS CONDOMINIUM UNITS ONLY} 2I. THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS AND RESTRICTIONS, WHICH ARE A BURDEN TO THE CONDOMINIUM UNIT DESCRIBED IN SCHEDULE A. AS CONTAINED IN INSTRUM ENT RECORDED NOVEMBER T9, T982, IN BOOK 349 AT PAGE 12. (AFFECTS CONDOMINIUM UNITS ONLYI 22. EASEMENT BETWEEN VILLAGE INN PI.AZA CONDOMINIUM ASSOCI.ATION, A COLORADO NON.PROFIT CORPORATION, VAIL VILTAGE INN, INC., A COLORADO CORPORATION, AND F & L VAIL VILLAGE PARTNERSHIP. A COLOMDO GENERAL PARTNERSHIP IN DOCUMENT RECORDED JULY 10, 1984 rN BOOK 388 AT PAGE 862. (AFFECTS CONDOMINIUM UNITS ONLY) 23. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED CONDOMINIUM MAP OF VILLAGE INN PLAZA. (AFFECTS CONDOMINIUM UNITS ONLYI 24. UTILITY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION. INC. IN INSTRUMENT RECORDED JANUARY 21, 1983 IN BOOK 352 AT PAGE 396. 25. TERMS, CONDITIONS AND PROVISIONS OF ENCROACHMENT AND VIEW AGREEMENT RECORDED DECEMBER 22, 1989 IN BOOK 520 AT PAGE 167. 26, TERMS, CONDITIONS AND PROVISIONS OF EASEMENT AGREEMENT RECORDED APRTL 14. 1992 IN BOOK 577 AT PAGE 628. 27. TERMS, CONDITIONS AND PROVISIONS OF RESTRICTIVE COVENANTS RECORDED APRIL 23, 1992 IN BOOK 578 AT PAGE 368 AND RERECORDED APRIL 30. 1992 ]N BOOK 578 AT PAGE 996. ot ALTA COMMITMENT ScheduleB-Section2 @xceptions)Our Order No. V50006195.1 The policy or policies to be issued will contain exc€ptions to the following unless the same are disposed of to the satisfaction ofthe Comoany: 28. TERMS, CONDITIONS AND PROVISIONS OF DEED OF EASEMENT RECORDED MAY 18. 1994 IN BOOK 640 AT PAGE 62I. LAND TITLE GUARANTEE COMPANY DISCLOSIJRE STATEMENTS Note: Pursuant to CRS 10-ll-lZZ, notice is hereby $ven that: A) The subject real property may be located in a spicial taxing district. B) A Certificate of Taxes Due listing each taxing jurisdiction may be obtained from the County Treasurer's authorized agent. C) The information regarding special districts and the boundaries ofsuch districts may be obtained from the Board of County Commissioners, the County Clerk and Recorder , or the County Assessor. Note: Effective September l, l9 97, CRS 30-10-406 requi res that all documents received for recording or filing in the clerk and recorder's ofli ce shall contain a top margin of at least one inch and a left, right and bottom margin of al least one half of an inch. The clerk and rec order may refuse to record or file any document that dms rrot conform, except that, the requirement for the top margin shall not apply to documents using forms on which space is provided for recording or filing information at the top margin of the document. Note: Colorado Division of Insurance Regulations 3-5-1, Paragraph C of Article VII requires that " Every title entity shall be responsible for all matters which appear of record prior to the time ol recording whenever tlr e title enti$ conducts the closing and is responsible for recording or filing of legal documenls resulting from the transaction which was closed". Provided that land Title Guarantee Company conduct s 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 PoIiry when issued. Note: Amrmative mechanic's lien protection for the Owner may be available (typically by deletion of Exception no. 4 of schedul e B, section z of the commitment from the omeris policy to be issued) upon compliance with the following conditions: A) The land described in Schedule A ofthis commitment musl be a single family residence which includes a condominium or townhouse unit. B) No labor or materials have been furni shed by mechanics or material-men for purposes of mnstruclion on the land described in Schedule.A of this Commitment within the past 6 months. C) The Company must receive an appropriate afffdavit indemni$ing the Company agai nst un-filed mechanic's and material-men's liens. D) The Company must receive paym enl of the appropri ate premium. E) If there has been construction, improvements or major repairs undertaken on the property to be puchased within six months prior to the Date of the Commitment, the requirements to obtain coverage for unrecorde d liens will include: disclosure of certain construction informalion; frnancial information as to the seller, the builder and or the contractor: payment of the appropri ate premium fully executed Indem nity Agreements satisfactory to the company, and, any addit ional requirements as may be necessary after an examination ofthe 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 agre ed to pay. Note: Pursuant to CRS l0-ll-123, notice is hereby given: This notice applies to owner's po licy commitrnenls containing a mineral severance ins trumenl exception, or exceptions, in Schedule B, Section Z. A) That there is recorded evid ence that a mineral estate has been severed. leased. or otherwise conveyed from the surface eslate and lhat there is a s'rbstantial likelihood that a third party holds some or all interest in oil, gas, other minerals, or geothermal enerry in the property; and B) That such mineral estate may include the right to enter and use the property without the surface owner's perm ission. Nothing herein contained will be deemed to obligate the company to provide any ofthe covecrges refered to herein unless the above condi tions are fullv satisfied. Form DISCXOSURE O9/oI/o2 JOINT NOTICE OF PRIVACY POLICY Fidelity National Financial Group of Companies/Chicago Title Insurance Company and Land Title Cuarantee Company July l, 2001 We recognize- and respect $e pqvacy expectations of today's consumers and the rtquirements of applicable federal andstate priv-hcy laws. W'e believi that fiaki;aF;;;arc 6ito* *e use your non-public pfiili-i"iif,i';ffi c"iftt#i"Inrormation''),3nd t9 whom^ir is aisclose-E'wilr forln tft 6;;is'i6r; rii;ito;ilfiffi5irn-n"ee; rij a,iJih;'r,iliil'*lhat we serve. This Privacv statement provides rtiiexptinitriiri-iveiiT.riit iitli rilfr il.#;;'i# Fi-d6*-*Statement from time to tirfie consijientfirf;tpiGbie'pilnu.y ,"ru.. In the coursc of our business, we may collect Personal Information about you fiom the following sources: I IfI lp^p--tj:ltio_ns.or other forms^we rrceive from you or yo_rr authoriz€d representat ive;' .F rom your transactions with, or from the services 6eing frrformed tV, "s, o'ui-"tfltiates, or others;* From bur internet web sites:'* From lhe public records m_agt1_n99,!y_g9yE-mental entities that we eirher obrain directly from tlose* entities, oi from our afliliates or otheisfand' From consumer or other reporti ng ig;niG. our Policies Regarding the Protection ofthe Confidentiality and Security of Your personal lnformation We maintain physical, electronic and proce-Llural safeguards to pmtect your Penonal Information from unaulhorizedaccess or intrirsion. We limit access td treFJrsonat ifiro-rmafrf;;iy rdifr;*"iit"i'i.iv"Lt*no need such access inconnection with providing products or services 6to6i;hdl14giffi;j;fi;i;""rtilrp"r"r. our Policies and Practices Regarding the sharing of your personar Information We mav share vour Personal Information with oq alliliales, such as insurance companies, agents, and other realestate s-ertlemerir service providers. wi aiso iiiay aiiiios:e il; pe,sd;i In6r.;6;i, -- I to agents, brokers or representar ives lo provide you with services you have requested:* to third-parlv conrracrois or.sefuce ploiio,;rs;i'6 fifrd' s;il;dr;r'f,et;il"iliiiiring or orr,erfunctioni on"our behatf: and -- r-------' "-" r''* to others with whom wd enter into ioint marketing agreements for products or services that we believe youmay find of interest. In addition' we will disclose your Personal Information when you direct or give us permission, when we art re quiredby-law to do so, or when we'suspeci rrauauiiiri-oi crifriiiii"iit'i,iriii. ii';ffi il""ffi;ilse vour personarLiformation when otlterwise peniritteaty ap:pil'cirte'p-rir;icy ia*i-ii,ir,'^, ?iii "ii'"rpl;, ';ft'"ffi.i;;iriiiii neeaeato enforce our righrs arising our or.ny agreement, rransacrioniir:ei;iffiffi;iih ifi: " One of the imDortant resoonsibilities of some of our aIIi liated companies is to record documents in the publicdomain. Such documenti may conrt;t;; persjna -liiininionl- Right to Access Your Personal Information and Ability to Correct Errors Or Request Changes Or Deletion certain states a-fford you the righl to.access your Personal Information and, under certain circumstances, to find outto whom your Persoial Informrtion hatilLiitiic6;;i.'ltso, ce4qin stares afford vou rhe-iiehiloieiiidri- ""- -*' correctiori, amendment or deletion of your ninonliin-fo'iliio-nl wi ffiilii;;'g;i.'r""r,"i3'i,'.i""iiiii''Ly Ir*, rocharge a reasonabre fee to cover rhe cdsiiincrr.eiii'i iiii,liliiii,i! rii i,i* ,eqirill.'""" "' All requests submitted to lhe Fideliry National Financial Group of Companies/Chicago Tille Insurance Companyshall bb in wriring, and detivered io-ne fiitt6vit-nfi'iiladss]' privacy Comoliance Offi cer i6g$'g"TJ'-?:ii $ilL5L$.'. Santa Barbara . CA g3l l0 Multiple Products or Services If we provide vou with more Ihan one financi al product or service, you may receive more than one privacy noticeItom ris. We apologize for any inconvenienii rtii ,iif ."ri,s" you. Forrn PRw. PC[,.GII PRECONSTRUCTION PURCHASE AND SALE AGREEMENT VAIL PLAZA CLUB THIS PRECONSTRUCTION PURCHASE AND SALE AGREEMENT (this'asegag$") is made and entered into this - day of -.-, 200_ (the ,.Effegtive Date') by and between VAIL PLAZA DEVELOPirrfuf, f.rC;, C"f"ruAo t*it"A-tiatitity lompany ("Se.Ier"), and the undersigned ("Purchaser"). The attached General Terms andConditions ("General rerms") *" "rnit"riul;; "f tltir Agreement. Capitalized terms used butundefined in this Agreement shall have the mianings givenihem in the Declaration. A' CLLts ESTATE. In consideration of the mutual promises hereinafter set forth,Seller agrees to sell and Purchaser agrees to purchase rhe following described Club Estate at thevail Plaza Hotel Resort club, a condominium, in vail, colorado (tie ,.proiecf'): Club Week_ in Club Unit Club Week _ in Club Unit B' CLUB LNIT. Each Club Estate includes the exclusive right to possession andoccupancy of the specified Club Unit during the specified Club Week together with an undividedinterest in the Common Elements and the n-on-exclusive right to use the-Common Elements andcertain Limited Common Elements, as set forth in the Declaration and shown on the Map (eachdescribed.more fully in Paragraph 3A of the General rerms). A basic floor plan, site plan, and *,*l,t,,ltl(the "P]ans') for the Club Unit are attached as Exhibit A to this Agreement. TheLluD urut shall be tirrnishe_d_with the personal property as set forth on Exhibit B.1h" Club Unit ::,P::l:o in the county of Eagle, stit" of cororado and the club nrt"t" i, t"gully described asIOllows: Club Week _ in Club Unit _ according to the Declarationvail Plaza Horel Resort club, a condominium]and as depicted on the Map, to be recorded in the office of the crerk and Retorder of Eagle County, Colorado. seller is the developer of the project and, on or before _, 200_, selrer shalcause the Club Unit to be constructed in accordance *itfr-Eis Afrern",rt and the plans. C. PTIRCHASE PRICE. Purchase Price of Club Estate(s): $ Eamest Money (15% of purchase price): $ Balance of Purchase price Due at Closine: D' DOCUMENTS._ By signing this Agreement, purchaser acknowledges thatPurchaser has received copies of thefollowing documents: (1) condominium Declaration for vail plaza Hoter Resort crub(2) Map of Vail plaza Hotel Resort Club(3) Anicles of Incorporation of Vail Plaza Condominium Association, Inc.(4) Bylaws of Vail plaza Condominium Association. Inc.(5) Rules and Regulations by the Board of Directors of vail praza Condominium Association, Inc.(5) BuCget of Vail plaza Ccn:icminlum Association, Inc.(7) Management Agreement between Vail Plaza Condominium Association, Inc. and Vail plaza Hotel Management, LLC(8) Amenities Use Agreement between Seller and Vail Plaza Condominium Association, Inc. E' ANNUAL ASSESSMENT. The annual assessment for common Expenses iscutrently estimated to be $--.--.- annually, payable to the Association. F' GENERAL TERMS AND CONDITIONS. Attached hereto and incorporatedherein by thil reference, are the General Terms and Conditions of this Agreement. All Terms CO_DOCS_A #14941(r vi and Conditions attached ar- e a material part of this Agreement. Seller and purchaser herebyacknowledge receipt of and agree to be bound by the General Terms and Conditions thereof. IN ACCORDANCE WITH C.RS. $ T2-61.405(IXi) PURCHASER HAS THE RIGHT TORESCIND AND CANCEL THIS AGREEMENT WITH OR WITHOUT CAUSE AND ATPURCHASER'S SOLE OPTION BY GIVING WRITTEN NOTICE BY TELEGRAM,MAIL OR HAND DELIVERY TO SELLER OF PURCHASER'S EXERCISE OF SUCHRIGHT OF RESCISSION AT ANY TIME WITHIN THE LATER oF: (A) FIVECALENDAR DAYS FOLLOWING THE DATE OF SIGNING OF THIS AGREEMENT II-BOTH PARTIES' oR (B) THREE BUSINESS DAYS FoLLowINc DELIVERY oFTHE DISCLOSURE STATEMENT. SUCH REQUEST SHALL BE CONSIDEREDMADE IF BY MAIL WHEN POSTMARKED,IF BV TELEGRAM WHEN FILED FORTELEGRAPHIC TRANSMISSION AND IF BY HAND DELIVERY, WHENDELIVERED TO SELLER'S PLACE OF BUSINESS. IN THE EVENT PURCHASERSO RESCINDS, ALL SUMS DEPOSITED WITH SELLER SHALL BE RETURNED TOPURCHASER. WITHIN SEVtrN DAYS AF"TER SELLER RECEIVES PURCHASER,SWRITTEN NOTICE OF RESCISSION, THIS CONTRACT SHALL BE NULL ANDVOID AND THE PARTIES HERETO SHALL BE RELEASED FROM AIIY FURTHERPERFORMANCE HEREUNDER THIS RIGHT OF RESCISSION CA}INOT BEWAIVED. IN WITNESS WHEREOF, each of the parties hereto has voluntarily executed thisAgreement. SELLER: PURCHASER: Vail Plaza Development,LLC, a Colorado limited liability company By: By: Purchaser By: Print Name: Its: Address: l2 Vail Road, Suite 200 Vail, Colorado 81657 Purchaser Address: Phone Number: E-mail address: Address: Telephone; Facsimile: E-mail: 3260 E. Maplewood Avenue Littleton, Colorado 8012 l 303/779-3344 303/290-8944 LISTING BROKER: Tandem Group, LLC By: Address:COOPERATING BROKER: By: Telephone: Facsimile: E-mail: co_Docs_A #1494.it v7 General Terms and Conditions 1' PURCHASE PzuCE. The purchase price for the Club Estate shall be as set forth inParagraph C of the Agreement (the.?urchase.i:ri99"), payable as follows: A' Eamest Money. Upon Purchaser's execution of this Agreement, purchaser shallpay to -Seller fifteen percent (15%) of the purchase price * * "u-"si*oney deposit (..EameslMonev")' To protect Purchaser's interest in the Earnest Money, Seller has established an escrowagreement, dated November 18, 2004, with Land ritle Guarantee company (..Escrow Agent')and by Purchaser's execution_ of this Agreement, the terms of the escrow agreement areincorporated herein. Attached as Exhibii C hereto is a copy of the form of such escrowagreement' Seller shall deliver to Escrow Agent any Earnest Money received from purchaser within one (l) business_ day of receipt. Escro-w Agent shall place the Earnest Money in one ormore insured, interest bearing_accounts, upon Purchaser's execution of any forms ieasonablyrequested by Escrow Agent. Except as otherwise specifically provided in tlis Agreement, an!interest on the Earnest Money shall accrue for the benefit of deiler and at Closing (as definedbelow in Paragraph 7A) shall be credited toward payment of the purchase price. Seller reservesthe right to obtain a letter of credit or bond o. -oth", financial arrangement acceptable to theColorado Real Estate Commission to guarantee the retum of the Eame-st Money to purchaser inthe events contemplated-in laragraphs +B, 5A, 68, and 98 of this Agreement. within three (3)business days after Seller prwid-es Escrow'Agent evidence of the Colorado Real EstateCommission's approval of such altemative assurances, Escrow Agent shall deliver all EarnestMoney deposits to Seller. - B' Balance. _Purchaser shall pay the balance of the Purchase price (which shall bethe Purchase Price less Eamest Money piio uy Purchaser) in good funds acceptable to Seller atthe Closing. 2' DESCRIPTION oF THE PROJECT. According to Seller's current development plan, lry.PI"J"..t' known 6 "vail plaza Hotel Res ,,, shall consist of (i)'fifty(50) Residential Club Units, (ii) on" 1t) vuit ltaza Penthouse Unit, (iii) one (l) parking Unit,(iv) three (3) Commercial Units which may include, retail shops, oi any other commercial usepermitted by law and under the Declaration, (v) one (l) Hotel Unit which may consist of onehundred (100) hotel rooms and ._whjch will be'operared as part of the Vail plaea Hotel, (vi) one(l) Management Unit and one (1) Service Unit which may include a front desk area, offices, aconcierge area, and related- hotel facilities, (vii) one (lj Employee Housing Unit providingresidences for employees of the Project and surrounding areas ln vail, Colora-do, (viii) one (ljRestaurant Unit, which may includJ a restaurant, uar ana kitchen, (ix) one (l) spa Unit whichmay.include.a health spa,.an outdoor pool, hot tubs, and saunas, 1x; one (l) convention Unitwhich may include facilities_for meetings, gatherings, and conventions, (xi) one (l) CateringKitchen Unit, and (xii) one (l) Loading Unil all as funhe, described in the Declaration and asshown on the Map (defined below). 3. GOVERNINGDOCUMENTSA4EMBERSHIP. A.- The Project. The Club Estate is part of the Vail plaza CIub located within theProject, declared pursuant to the Colorado Common Interest Ownership Act Article 33.3,Colorado Revised Statutes and is subject to the Condominium Declaration for vail plaza Hotel *::on,ct:b,a condominium (the "D.sc!e!e!ion"), to be recorded in the office of the clerk andKecoroer lor L,agle county, Colorado (the "Rgqordb"), the map of the project to be recorded inthe Records (the "A4ap"), and various otheiEcorded and unrecorded documents. purchaser agrees to abide b;" ail of tlic iccoii'lcc! and :::::::rrci,l rlocrrrn.-ntq ,r.r.r!irpurchaser wiu, bv ui.tu. or ownership "f ,h" ;:r;i-1il::5;ff:tfiH#tli;ji;i}: Condominium Association' Inc., a Colorado nonprofit .o.poiution iiie lAssociation,,), and shallbe subject to and bound by the Anicles of Incorporation, -Bylaws, and Rutes and Regulations ofthe Association in effect from tirne to time. The Association has been established for thepurpose . of maintaining the Common Elements and for other purposes set forth in theDeclaration, Articles of rncorporation, and Bylaws of the Association, and any amendments l"t:t-9 (collectively, the "Goyqning-Dogglqgnb'). Purchaser, u, u *".b"r of the Rssociation,is obligated to pay unttu"l uttIildFTEet the common Expenses (as defined in theDeclar'rlicn)' Failure of a member to pay such assessments may result in a lien being placed onthe Club lstate. CO_DOCS_A #1494'10 v7 o B' Purchase{'s Acknowledgrnent. Purchaser hereby acknowledges that purchaser previously received drafts of the CovimingDocuments, the Declaration, the current Budget ofthe Association, and a Disclosure Statement*(the "Djgclolurg-$atemen!") for the Vail plaza Clubat the Project' Purchaser further acknowledges tfi th" co*n,.t*g Doruments are in draft formand are subject to revision by Seller prior-to Closing, without -purchaser,s further review orapproval and without the obligation to resubmit ,u"h do.u*"nts to the Colorado Real EstateCommission for approval following revision to such documents. purchaser acknowledges that ithas reviewed and understands ali documents referenced in and attached to this Agreement,Further, Purchaser acknowledges that Seller has advised Purchaser to obtain legal counsel toreview all aspects of the transaction c-ontemplated by this Agreement, and to represent purchaser in connection with the examination of title and the Closing. 4. CONTINGENCIES. A' Financine. Purchaser understands and agrees that this Agreement is notcontingent upon Purchaser obtaining financing for the Closin-g. . B. . Seller,s obligations under thisAgreement are expressly ronting"nt una "iiaiti*Jlftin s"[". 1i; ootiinlng satisfactoryfinancing for rhe project by Jury it, zoos (the "E!nansuc_gq!$r4censi;;, *a liii"ntering intoagreements with purchasers for the sale of at t"urt r*ittuna."a (+6J Etub Estates in Vail plaza -cllt ('-rrct"t"t") by Julv 3 I , 2005 (the ' Presele-co.,liryelgy'f . jr s"rL does not meer either orboth.of the.Financing contingency *a l."ruri contg.n"y, s"tt". shall have the option toterminate this Agreement, at Seller;s sole option, by givi;g Purchaser notice of such terminationwithin twenty (20) days of the expiration of thJ Finincing Contingency and the presalecontingency. In such event and at such time, this Agreement ihall be deemed terminated, andSeller shall direct Escrow Agent to retum the Eamest Money, with all accrued interest thereon,to Purchaser and neither. party -shall lave any further liability under thrs Agreement except asprovided under Paragraphs 5(D), 5(E), and li. seller shall have the right, however, at Seller,ssole option, to waive either or both of the Financing Contingency and ihe presar" ionting"n"yand proceed with the Project. In the event that Selller aoei noi give purchaser a terminationnotice, Seller shall be deemed to have waived either or both of thJ Financing Contingency anJthe Presale Contingency, and this Agreement shall continue in full force and effect. 5. CONSTRUCTION OF THE CLUB LINIT AND PARKING. - .A' Club Unit.. fyryualt to this Agreement, Purchaser is agreeing to purchase a ClubEstate in a completed club Unit. Purchaser alknowledges that Seller is not acting as a contractorfor Purchaser in the construction of said Club Unit. Purchaser shall acquire no right, title orinterest in or to the Club Unit except the correlative right and obligation to purchase the ClubEstate, in accordance with the termJ hereof, upon completion of the-Club Unit. purchaser shall fav.e no. rigtrt to modify the Club Unit or to occupy the Club Unit until Closing and then onlyduring the Club week(s) included in Purchaser's Cluu gstate. The Club Unit is to be constructedand completed substantially in conformance with the Plans attached hereto as Exhibit A. Ifseller does not substantially complete construction of the Club unit within two (2) yearsfollowing the execution of this Agreement, this Agreement shall terminate and Seller shall directE-scrow Agent to retum.the ru*9tt Money, wiih atl accrued interest thereon, to purchaser. However, the date of substantial completion will be extended f;; ;;t delays beyond Seller,s :gnholi including, but not limited to, belays caused by weather, inauitity to obtain materials,labor shortages, strikes, acts ofGod, governmental regulations, court orders and other conditionsor events legally recognized in the State of Co_lora-do as frustrating or rendering impossibleperformance of contracts. For all pulposes under this Agreement,""substantial comnletion,,shaii be:ire ciate Seiler has.obtained cimci a tenrpoi:ary (corriiiiionai) or peru'raneni certiircate ofoccupancy for the Club Unit from an appropriate governmental authority. B.Amenitles outside Vail plaza. Except for the common Elements and certain: irj:^tj3:tt*i":,_ski facilities. or th; like, shall be conveyed to pu.ctrasi ;;;r;;; ,hi **::,:"::;^:T oyners.gf such near-by a"iriti", ,r,urrl"r"-t* .ier,t,;;il;J,";#il;":i; ilT;.-tj: ft::l:l discontinue operation of, restrict access-;, ;;;;;"s for thelH:r:l*::**lgiffi ilru;t;Il,?'."ff iiil:.JffrT''ff :,?J,ff ,TL",';::luse of or be,nefit to any owners or residents of the proiect. CO_DOCS_A #14941a v7 o C' Plans. The Plans for the Club Unit prepared by Seller's architect, Zefuen &Associates are available for review by Purchaser ai risting Broker's oflices during normalbusiness hours ("Ltslilg-Brokgt" is the broker signing ", *"t on the sigrature pale of tnePreconstruction Purchase and Sale Agreement). SelGr reserves the righq at its fttion, tosubstitute or change fixtures, equipmeni and maierials with fixtures, equipment and maierials ofequal or better quality and to make other minor modifications to the ilans if Seller reasonablydetermines that the quality of the Club Unit remains substantially unaffected by sucirsubstitutions and changes. In addition, Seller is authorized to modify the plans an,i makesubstitutions in its sole discretion but in a reasonable manner (a) to meet requirements ofgovernmental authorities, (b) to correct errors, omissions and' oversights, (c) to meetunanticipated site requirements, (d) to overcome hindrances to the expeditious completion ofconstruction due to strikes or materials or labor shortages, and (e) to make minor relocations ofelectrical, plumbing, heating and similar services and equipment. 'tt is anticipated that there willbe minor deviations in room dimensions, locations of windows, doors, healing registers andcontrols, electrical outlets and switches, telephone outlets and othsr items of similar nature fromthe-exact requirements of the Plans and sucir deviations will not be a breach of this Agreementby Seller' Similarly, statements of approximate square footage of the Club Unit, as well as of theCommon Elements located in the Project, may be made in this Agreement and the plans. Purchaser acknowledges,.holgver, that iquare footage calculations rnui, U" made in a variety of glarTers' and as long as the Club Unit is constructed substantially in accordance with the plans, Purchaser will have no right to rescind this Agreement, nor will purchaser be entitled to anyclaim for breach of this-Agreement or adjustrnent of the Purchase Price, on account of allegeddiscrepancies in square footage calculations. D' Insoection. bJr Purchaser. Upon reasonable advance request, Seller will allowPurchaser and Purchaser's authorized representatives to tour the Project site prior to and aftercommencement of construction. Purchaser acknowledges that prior io and during constructionof the Project, hazardous conditions and insurance and security requirements prevent purchaser and Purchaser's represent{i_ves from entering the Project site'unless accompanied by anauthorized representative of Seller. Any such inspection shall be conducted in full compliancewith rules and procedures estabrished by Shaw construction company (.eonIraclq") orimposed by law. Any tour of the Project site by Purchaser and Purchaser's representatives willbe at their own risk- Purchaser and Purchaser's representatives waive uil "1"i., againstContractor, Seller, and Seller's contractors, subcontractors, employees and agents for personal inj-uty ol property damage caused by any person or thing during such a tour. purchaser willindemnify, defend and hold harmless -setter and its arntiate{ contractors, subcontractors,employees and agents against any claims, demands, losses, damages, liabilities or other "*panr"arising out of such tour. The provisions of this Paragraph -shall survive Closing or thetermination of this Agreement. E Control of Construction. Purchaser acknowledges that control, direction andsupervision of all construction personnel at the construction site lies exclusively with Seller andthat Purchaser may not issue any instructions to, or otherwise interfere with, constructionpersonnel' Purchaser will not perform any work or contract with Seller's contractors or otherbuilders, contractors, interior decorators, oi others to perform work in or about the Club Unit.Purchaser will indemnify, defend and hold harmless deller, and its contractors, subcontractors,employees and agents against any claims, demands, loss, damages, liability, or other expense thaithey.may incur by reason of purchaser's breach of any priuision of this raragra;h. Theprovisions of this Paragraph shall survive Closing or the termination of this Agreemeit. ' F' ., , Parkine at the Pro.iect. The Owner of the Parking Unit will make one (l) parkingspace available within the Parking Unit to owners of Club Estates during the Clut'week(sjiiiciude'i iii iursiiascr's Club I'statc undci thc tci::'is and co::diticm mcre rpecilcdly eet fech inAfticle 6 of the Declaration. q Project Amenities. Vail Plaza Club is part of an overall Project including a fivestar hotel and certain amenities for hotel guests. Seller intends that a health spa with exerciseequipment, saunas' hot tubs and an outdooi swimming pool within the Spa Unit will be availablecn the Project for use by Club Estate owners pursuant to an amenities use agreement betweenthe Association and Seller, the current Spa tlnii owner. Vail plaza Hotel Management, LLC, acolorirdo limited liability company ('MaagcEclcgd"), will be or has been engaged by sellerto mana.g?, operate, and maintain the amenilies de-scrilea in this paragraph on behalf of Seller.Pursuant to the amenities use agreement between Seller and the Association, Seller must make co_Docs_A #149410 ,,7 such amenities available to club Estate owners, so long as the Association maintains suchagreement with Seller and pays a monthly fee for the use of-such u.*iti"r. 6. TITLETOTHECLUBESTATE. A' Commitment. At least fourteen (14) days prior to Closing, Seller shall deliver toPurchaser a preliminary title insurance commitrnent (the "esrnlqillsenl) issued by Land TitleGuarantee Company, as. ag:lt for Chicago. fitt, tor**Tffiany (..T!Ilc_!ompqy,,),committing to insure marketable title for tnJCtuu Estate to purchaserin the amount equal to thePurchase Price upon payment.of.thepolicy premium by Seller and the recording of the Deed(defined below in Paragraph 7(B))' The titie io the clubEstate shall be subjecr to the following(collectively, the "Egrmiugd jrgqliglc): the exceptions, covenants, conditions, restrictions,reservations, easemenls and rights;f-way of record ai of the date of this Agreement as set forthon Exhibit D attached.hereto; any easements granted to utilities or municipalities in connectionwith the Project; *t 11. Governing Documents. A title insurance policy based on thecommitment will be delivered to Purihaser, at no cost to purchaser, within sixty (60) days ofClosing. B' Title Review. If Purchaser asserts the exislence of any title exception other thanthe Permitted Exceptions which renders title to the club Estate un;arketable, purchaser shallgive written notice of such exception to seller within seven (7) cal,enoar days after delivery ofthe commitment' otherwise, Puichaser shall be deemed t" r,l* *r"pted title as shown on theCommitment' After the receipt of such notice, Seller shall use reasoriable efforts to attempt toremove or cure such exception(s) or to obtain an endorsement to the commitment ;r";i;;;;protection against such exception(s), at seller's expense, prior to the closing date. The existenceof liens or encumbrances of any'kind shall not constitute a defect allowing termination byPurchaser if seller elects to provide to Purchaser a title insurance endorsement insuring againstsuch lien or encumbrance or the collection of such tax. If selrer is unable to remove or cure suchexceptions to title or obtain such title insurance protection before the date ofclosing, purchaserlon or before the Closing date, shall elect one of the following actions, which shall be purchaser,sexclusive remedy in the event title to the Club Estate is unmarketable: i' Waive such exceptions to title without a-djustment in the purchase priceand proceed to Closing; ii' Grant one (l) or more additional periods of time within which Seller shallcontinue to attempt to cure, remove, or obtain title ins;rance protection against the exceptions,and the date of closing shalr be extended by a corresponding amount of time; or iii' Terminate this Agreement, in which event Seller shall direct the EscrowAgent to return the Eamest Money, *ith ult accrued interest thereon, to purchaser, and theparties shall be released from all fuih"t obligations under this Agreement. If Purchaser fails to give timely notice of its election, Purchaser will be deemed to have electedto accept title as shown in the commitment and to have waived all defects and such exceptionsto title' Purchaser expressly relinquishes and waiues *y *J utt-o*r". remedies, claims, ,][T*ot and causes of iction at law tr in "qriiy uguinrt selier for failure to deliver marketable 7. CLOSING. A' closins Date' The closing of the purchase and sale of the club Estate(s) (the"closing") shall be held not more than "nn""r (15) business days after notice of Substantialcompicrioir hi:s becrr uivcii i-'y Sciicr tu Furcirasur'. Thv riatc, iiriic, and place of closiiig shall r;cdetermined by Seller La s.it", tn"l g*"-*Jtten notice of the date oi ctosing to purchaser atleast five (5) days in advance of the siheduled closing date. closing may be effected by mailand Purchaser need not be present. B' Documents--for closing. on the c-losing date, and upon payment by purchaser ofttre Purchase Price and a"tiu-ty uffi*rr*"i ti"rrrt (or as directed by Seller) of all funds anddocr'rments necessary for closinipurru-, L-irris Agreement, seller shall deliver an executedand acknowledged speciar *"''Jniy deed (the ;;p*c'r to Escrow Agent for recording, with acopy to Purchaser, conveying title to tne ctuu Lrt"tr to purctra"eif,"e and clear of liens and CO_DOCS_A #1494i 0 v7 encumbrances other than the permitted Excentions. Recorder for Eagle County, Colorado for rectrding sixty (60) days following Closing. The Deed will be delivered to the Clerk and following Closing, and in no event later than Purchaser agrees at Closing to o C. pay: t' the actual and customary Closing costs and recording fees and any costsincuned by Seller or its agents in connection with a Clo-sing by mail, together with any amountsrequired by Purchaser's lender (if any) for tax and insurance escrows, mortgage insurancepremiums, or any other items' and to eiecute settlement statements, tax statements, and all othernecessary or customary Closing documents; ii' Purchaser's prorated share of general taxes for the calendar year ofclosing which shall be prorated as of the date of Closlng uutrJ uponite most recent levy andmost recent assessments avairable from governmental authlrities; iii' Purchaser's prorated share of water and sewer charges which shall also beprorated as of the date of Closing; and iv' any required deposit for fees and reserves including the annual ClubAssessment for Common Expenses as set forth in Paragraph E, "Annual Ass-essments,,, on pageI -of this Agreement, and which shall be prorated as of the date of Closing. purchaser acknowledges that the amount of the Club Assessment is currently only an estimate, andPurchaser agrees that it will not object to any variation of ten percent ltbx; or less between suchestimate and the actual amount thit is prorated at Closing. In order to provide the Associationwith working capital funds, Purchaser shall pay at Closing an amount equal to 1/4 of the annualAssessments based on the Association's budgei in effect at the time of Closing. The payment tothis fund shall not be considered an advanci payment of Assessments. The payment shall bemade either to the Association or to Seller as reimbursement if Seller has previously paid suchamount as to the Club Estate to the Association. Ifthe Closing is held later than the date provided under paragraph 7(A), throughno fault of Seller, in Seller's sole discretion, the above items shall be prorated to the originalClosing date provided under Paragraph 7(Ai and Purchaser strati puy to Seller at Closing, inaddition to the Purchase Price, eigntein pircent (18%) interest on the balance of the purchase Price from the original Closing oaG to tne aate Closing actually takes place. All adjustments andprorations at the time of Closing shall be final. Each p1.ty sh"it puy tt" fees and expenses of theparty's own attorney. the closing, a form 1099-8 with the Intemal Revenue Service, iiafpricable under Section60a5(e)(2) of the Intemal Revenue code, as amended. The closing Agent will prepare the realproperty transfer declaration required under colorado Rev. stat. g ie-i+-102, as amended llomtime to time. . - ! FIRPTA Affidavit. At the Closing, Seller shall deliver to purchaser a certificatethat Seller is not a non-resident alien as defined in the Intemal Revenue code and rreasuryRegulations promulgated thereunder as necessary to comply with section 1445 of the TreasuryRegulations. 8' DAMAGE BEFORE SALE. If prior to closing, the club unit shall be destroyed ordamaged by fire or other casualty, Sellei shall repair th! damage to the club unit as soon asreasonablypractiuabic, iiiis Agrccrre,rt si',aii r'er:iarrr irr iuii furce in.i cfiecr, ai,d i:r. Closi6g shallbe delayed as necessary to allow the completion ofsuch repair. 9. DEFAULT AND REMEDIES. . . A: , Default bv Purchaser. Purchaser and Seller agree that in the event of default orl.rreach of this Agreement by Purchaser, Seller may elect eitf,er of the following remedies: (a)Seller may assert a claim against Purchaser for specific performance or damages, or both, or (b)selle; may unilaterally terminate this Agreement and direct the Escrow Agent to deliver theEarnest lzloney, with all accrued interest thereon, to Seller. Seller and purchaser agree thatactual damiqes to seller would be extremely difficult and impractical to ascertain, and therefore o CO_DOCS_A #14941u vZ the Eamest Money and all accrued interest is a reasonable estimate of the damages Seller wouldsustain in the event of a default by Purchaser and shall be deemed to constitute liquidateddamages' In either case, Purchasei shall pay all costs including reasonable attomey,s fees,incurred by Seller in connection with the .ott"rtion of any mo.r"i due-setter or in connectionwith the enforcement of this Agreement. B' Default by Seller' If Seller defaults, Purchaser may elect to either (i) terminatethis Agreement by written notice to Seller within ten (10) days after such default, in which eventPurchaser's sole and exclusive remedy shall be the return io purchaser of the Eamest Moneywith all accrued interest thereon' and the parties shall have no further obligations to one another,or (ii) enforce this Agreement through specific performance, or seek damaees. IO. DISCLOSLTRESAN'DDISCLAIMERS. A Insulation of Premises. Seller and Purchaser hereby acknowledge pursuant toSection 460'16 of the Federal rrade commission Regulationsregarding laueting and advertisingof home insulation' that the t}pes, thicknesses and R-values of insulation presently anticipated tobe installed in the crub Unit at the time of crosing shail be as set forth below: Location Exterior walls Ceiling/Roof Tvne oflnsulation Thickness Fiberglass Batts 6" Fiberglass Batts,rRigid Insulation t2*/4" R-Value R-19 R-50 (total) higher the R-value, the determination of the R- o The "R-value" indicates the resistance of insulation to heat flow. Thegreater-the insulating power. Seller has not made its own independentValue data provided to Seller by the insulation manufacturer. . . B' Notice Regar4ing Soils Conditions. Seller has delivered to purchaser a soilsanalysis and site recommendat.n ."Jort p..pured by Hepworth-pawlak Geotechnical, Inc., alicensed geotechnical engineering ti.-, *a'a^ted June 16, 2004 (the ..ss]-ll Rgport,,), or asummary thereoi on the Project site. If the Soils Report reveals'a significant potential forexpansive soils at the site, seller also shall have delivered to purchaser the publication requiredby c'R'S' $6-6'5-10l(l]. The Project will be designed and constructed pursuant to therecommendations in the Soils Report- Purchaser hereby-acknowledges that purchaser has beenadvised by seller and understands that the soils within the state o? colorado consist of bothexpansive soils and low-density soils which may result in shifting or other movement of thefoundation or otherwise resultin damage to the structural or other parts of the club Unit if theClub Unit and property upon which ir siis are not properly maintained. C' Improvem-ents tg the Project and -Surroundine Areas. purchaser acknowledgesandrecognizesthatPurcha'.'i'pu@periodofconstructionfor the Project and the club unit may be coriplered prior to the completion of other club Units,streets' sidewalks and other improvements in ttre. Pioject ot ,uoouniing projects. There may becertain inconveniences, including noise and dust, until the constriction of the project iscompleted' Therefore, Purchaser waives any claims against seller for any costs or occurrencesas a result of such construction. The club unit is in.ilrJuirinity;io;;;;u.""ls of real properry,which, as of the date hereof, have not been Jeveloped. such propen y may or may not bedeveloped the same as the club Unit. Purchaser acknowledges that any renderings, land plans,conceptual layouts cr other materials such as brochures oi otherwisc which strow such usesrepresent oniy seller's current knowledge of what rrlay be planned for the area in question andare subject-to change or modjfication at iny time without noiice. No assurances have been madeor are made that such development and/or use will in any manner "orr"rpono to the mattersreflected on any such rendering, land plan, lufort o, brochures or be consrstent with the use ofthe club Unit' oral "o.nn,itrn*t, fi; "g.;i; "r employees of Seller concerning use of clubIjnit are not authorized by seller. pu.theiir-o.e, seller hereby reservls tire right to change itsde;'elspn-1.r1 plans, timing, sales methodr *Jpl.ing in connection *iir, uny property within orwithcut the project. CO_DOCS_A #14941c v7 D. Environmental Conditions/Radon. Ecological and environmental conditions, including but not limited to radon gas, may affect the Club Unit. Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, rnuy prrr.ni health risks to persons who are exposed to it over time. Levels ofradon that exceed federal and state guidelines have been found in buildings in Colorado. Additional information regarding radon and radon testing may be obtained from the county public health unit. ln our continuing effort to educate and inform our purchaser(s), Seller hereby notifies you, Purchaser, that thi Colorado Department of Health and the United States Environmental Protection Agency (the "EPA') have detected elevated levels of naturally occurring radon gas in certain residential structures throughout Colorado. The EPA has voiced concems about possible adverse effects on human health from long term exposure to high levels ofradon gas. Purchaser is hereby advised that Seller is not qualified to evaluate all aspects of this very complex and constantly changing issue nor has it undertaken to do so. Selier issues no warranty oi *y nature whatsoever with respect to the ecological and/or environmental conditions affecting the CIub Unit, including but not limited to the existence of radon gas. Purchaser acknowledges that Seller is undei no obligation with respect to the radon gas levels occurring in the club Unit. E. Sales Price. Sales prices can vary due to various factors such as, but not limited to, the size and location of the specific Club Unit and the specihc Club Week(s) included in a purchaser's Club Estare. F. Easements Affecting the Proiect. Various easements affect and encumber the Project and each Club Unit and additional easements may be granted to utilities and municipalities in connection with development of the Project. These easements may contain above-ground facilities such as electric pedestals, electric transformers, telephone pedestals, cable TV pedestals, street signs, and mailboxes. Any of these facilities may be located anywhere within these easements. Purchaser acknowledges that the precise conditions in existence as of the Effective Date are subject to change as precise development plans (setting forth pad elevations, street alignments, etc.) are implemented and as landscaping matures. Purchaser agrees that any such changes of conditions shall in no event provide a basis for return of all or any part ofthe Purchase Price. _ G. Investigation. Seller hereby advises Purchaser to investigate the zoning, size and future improvements sunounding the Club Unit. Purchaser has not relied on any stalement by Seller or Seller's agents on these items and hereby releases Seller and Seller's agents ofany duty to investigate these items. H' No Investment Representations. Purchaser acknowledges that neither Seller nor any of its employees or agents have made any warranties or representations concerning (i) the Club Estate as an investment opportunity for appreciation of value or as a means of obtaining income from the rental thereo{ or (ii) rental or other income fiom any Club Estate or as to an} other economic benefit, including possible federal or state tax advantages from the ownership of a club Estate. SELLER HEREBY EXPRESSLY DTSCLAIMS eNo nBpuoIATES ANV REPRESENTATION FROM ANY SOURCE AS TO ANY POSSIBLE ECONOMIC BENEFIT ARISING FROM OWNERSHIP OF A CLUB ESTATE IN THE PROJECT. I. Ski Area Operations. Purchaser acknowledges that Seller is not the operator ofany ski area in the vicinity of the Project, and accordingly, Seller cannot make any representations relating thereto. Neither Seller nor any of its employees or agenls have made any representations regarding the opening or closing dates of such ski areas in any given year. Purchaser fully understands that the operator ofthose ski areas may decide, in its sote ais"r"tion, whether any or all of the chairlifts within the ski areas shall be opeiated. J. Commercial Activities. A variety of cornmercial activities are and will be conducted in and adjacent to the Project (as further described below, the .,gq4merglgl Activities"). The Commercial Activities are expected to generate an unpredictabt" ur**t of visible, audible and odorous irnpacts and disturbances. The Commercial Activities may include, without limitation: (i) office and retail uses, (ii) retail sales and rentals, (iii) restaurant and bar operations, (iv) sales of services relating to recreational activities, (v) parking activities, (vi) theinstallation, operation and maintenance of illuminated and non-iiluminited signage, ivii)meetings and conferences, and (viii) any other uses or activities permitted UV faw. Th; Commercial Activities may occur during daytime and nighttime. Commercial Activities and CO_DOCS_A #14941C v7 Commercial Units at the Project must comply with applicable laws and regulations and with the requirements of Special Development District 6. K' Restriction on Resale. Purchaser specifically acknowledges and agrees to theprovisions regarding the restriction on resale of the Club Eitate set forth in Articie 24 of the Declaration. L' Buildine Codes. Spaces such as attics, chase ways, or plenums constructed within the building on the Project or within an individual Club Unit are restricted. from any alternative use by the Eagle County Building Code, Fire Life Safety Codes, and the Project Documents. These areas are not available for any owner's access, improvement, or use. M. Seller's Disclaimer. Upon completion of the Project and sale of all of the ClubUnits, Seller will have no continuing part in the success or failure of Vail plaza Club or the Association. N. Pedestrian Access. Purchaser acknowledges that Seller and/or the Association may grant certain easements to the public and/or adjacent property owners across certainportions of the Project including all sidewalk and plaza -"ui, to provide access to the Commercial Units and other easements as required by the Town of Vail. Such easements shall be depicted on the Map or otherwise recorded. against the Project. All such access easements shall become Permitted Exceptions hereunder. O. Parkine: Commercial Use. The Project includes Commercial Units that may be used to conduct commercial and retail operations, including, without limitation, office, retaiiand restaurant operations. Certain inconveniences or other consequences may result fiom the Commercial Activities including, but not limited to, noises, odors, increased traffic around and in the Project and additional insurance costs. Adjacent properties and the public have rights to access and use certain portions of the Parking Unit as described in the Declaration and permitted Exceptions. P. Natural Materials. Purchaser acknowledges and understands that log and wood siding and wood floors may be planned for certain portio-ns of the Club Unit as part of the llans. Purchaser understands that the wood products that may be included as part of the Club Unit are natural materials subject to the laws of nature, and therefore, some warping, fwisting, cracking and splitting may occur. Simitarly, natural stone materials may require sealing or othei maintenance from time to time to maintain their appearance and durability. Purchaser acknowledges that noise transference is greater for wood floors than for carpeted floors. a. Spa and Pool. The health spa within the Spa Unit, will not be open to the public, but only to certain Owners and their guests and invitees within the Project, as more specifically set forth in the Declaration. The health spa will include an outdoor pool *tti"h rnuy b" used bythe Club Estate Owners, the Vail Plaza Penthouse Unit Owner, *d hot"l guests and invitees. Certain condominium unit owners on Phase III and Phase V of Special Development District 6 have rights to use the pool, which rights are more specifically described in documents of record constituting Permitted Exceptions. 11. WARRANTY AND LIMITATIONS. A. Limited wananty bv Seller. The following warranty (the ,.Ltrnredluarraaly") is the only warranty made by Seller regarding labor and materials used in the construction of th" Club Unit' and the Limited Warranty shall not be effective until Closing. The Limited Warranty is personal to Purchaser and may not be assigned by Purchaser upon tie sale of the Club Unit. Seiier warrants that aii marerials incorporared irr arr<i macie a parr oiihe struciure uf tire Ciub UDiishall be new as of the date of installation and shall remain free from defects in workmanship or material for a period of one (l) year from the date of Substantial Completion. Seller represents that Seller will cause to be remedied, by repair or replacement, any defects in the Club Unitwhich appear within one ( I ) year from the date of Closing anO w'trich result from faulty materialor workmanship, provided that Purchaser gives Seller written notice of any such defict withinten (10) days after Purchaser's discovery ofthe defect. Any such notice shall be addressed toSell-:r at the address following Seller;s signature below, or such other address for noticefurnisird to Purchaser in accordance with Piragraph l4(I) hereof. purchaser's sole remedy (in CO_DOCS_A #14941C v7 l0 o ,-, - lieu of all remedies implied by law or otherwise) against Seller in connection with such defects shall be to require seller to correct the defects in maierial or workmanship. B. Appliance Warrantv. The Limited Wananty in Paragraph 1l(A) does not extendor relate to any items of tangible personal property in the Club-Unit (wtrettrer or not suchproperty is attached to or installed in the Club Unit) including, without limitation, any range,oven' range hood and fan, trash compactor, microwave, garbage disposal, dishwasher, refrigerator, washer, dryer, hot water heaier, components of G treating ,yrt". and any fire alarm or other life-safety or security system installed in or servicing ttre Ctub Unit (collectlvely, the "4pplianceq"). Seller will assign to the Association at Closing any unexpirea wananties Seller has received from the manufacturers of such Appliances to thJ extent such warranties are assignable. Seller shall not be responsible for the performance of any such manufacturer under the manufacturer's warranties. With respect to the Appliances, whether or not warranted by manufacturers, all implied warranties are expressly disclaimed and do not apply, including, without limitation, the implied warranties of mirchantability and fitness for u purti.ul* putporl, ifcreated and recognized under Colorado law. c. Restrictions on warranties. EXcEpr AS STATED IN PARAGRAPH l1(A) ABOVE, SELLER MAKES NO WARzu.NTY OR REPRESENTATION OF ANY NATURE,EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OFWORKMANLIKE CONSTRUCTION, HABITABILITY, DESIGN, CONDITION, OR QUALITY AS TO THE PROPERTY T]NDERLYING THE PROJECT, THE CLUB UNIT, OR THE OTHER IMPROVEMENTS CONSTITUTING THE PROJECT, AND SELLER HEREBY EXPRESSLY DISCLAIMS ANY SUCH REPRESENTATIONS OR WARRANTIES. SELLER SPECIFICALLY DISCLAIMS, AND PI,RCHASER SPECIFICALLY RELEASES SELLER FROM, ANY LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES TO ANYPERSON OR THE CLLIB UNIT OR ANY OTHER RIAL OR PERSONAL PROPERTY RESULTING FROM A DEFECT. WITH REGARD TO THE APPLIANCES AND ANYOTHER ITEMS OF TANGIBLE PERSONAL PROPERTY, SELLER DISCLAMS ALLWARRANTIES INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D. Masnuson-Moss Warranty Act Compliance. The Limited Warranty in thisArticle I I has been prepared to comply wittr thi disclosure requirements of the federal Magnuson-Moss Warranty - Federal Trade lmprovement Act (15 U.S.C. $ 2301, as amended). With.respect to any Appliances finally determined by a court to be within thir ti-it"d Wananiy described above, all implied warranties are limited in duration to the period of the Limitei Warranty. This includes, without limitation, the implied warranties of merihantability and fitnessfor a particular purpose if created or recognized in Colorado. Some states do not allow limitations on how long an implied warranty iasts or the exclusion or limitation of incidental or consequential damages so the above limitation may not apply to Purchaser. This Limited Warranty gives specific legal rights, and Purchaser may also-have other rights which vary from state to state. E. Acknowledgr.nent: Survival of Covenants. Purchaser hereby acknowledges and accepts the foregoing disclaimers and agrees to waive any and all rights Puichaser may iave by yirtle of the representations and warranties disclaimed. Except as otherwise provid-ed in theLimited Warranty, Purchaser assumes the risk of damage occurring in the Club Unit after the Closing regardless of the cause. The provisions of this Paragraph sha'll survive Closing. CO_DOCS_A #1494 r0 vz 11 12' BROKERS. Each party represents to the other that no real estate broker other than theListing Broker and the Cooperating Broker identified on the signature page(s) hereof has anyclaim for compensation or expenses as a result of this transaction,'and "u"f, purty shall indemnifothe-other against any claims for commissions or other compensation by any other broker orfinder with whom the indemnifying party has dealt. Seller agrees to compensate the ListingBroker and the Cooperating Broker for services rendered in this transaction. The Cooperatin!Broker is not an agent ofseller, and Purchaser acknowledges that Purchaser's relationship witi the Cooperating Broker has been previously disclosed to Purchaser in a notice from Cooperating Broker to Purchaser. The Listing Broker is a Transaction Broker. I3. CORPORATION, PARTNERSHIP, ASSOCI.,A.TION, TRUST. - A' Corporation. If Purchaser is a corporation, Purchaser shall deliver to Seller, atleast-ten (10) days prior to -Closing, a copy of i resolution of Purchaser, duly adopted andcertified by the secretary of Purchaser as required by the laws of the state of purchaser's incorporation, authorizing the purchase of the Ciub Estaie, together with all trade name affidavits and other documents required by Colorado law to enable Purchaser to hold title to the ClubEstate. Purchaser represents that at Closing Purchaser will be in good standing and authorized, as necessary, to conduct its business in Colorado. B. Partnership or Association. If Purchaser is a partnership, joint venture, limitedliability company or other association, Purchaser shall deliver to Sellei, at least ten (10) dayspno.r-to Closing, a copy of any approval required by Purchaser's organizational documents, certified_by the appropriate representative of Purchaser, together with all registration forms, trade name affidavits, and other documents required to be filed in the office of tie Colorado Secretaryof State, the Colorado Department of Revenue, the Eagle County Clerk and Recorder, or otherwise required under Colorado law to enable Purchaser to hold title to the Club Estate. Purchaser represents and warrants that at Closing Purchaser will be in good standing and authorized, as necessary, to conduct its business in Colorado. C. Trust. If Purchaser is a trust, Purchaser shall deliver to Seller, at least ten (10) days prior to Closing, a copy of the Trust Agreement, certilied by the appropriare representaiive of Purchaser, together with an Affidavit of loint Venturers or Trustees, ai required by Coloradolaw, or, if the Trust is irrevocable, a Trust Registration Statement filed with the District Court in the appropriate county of Colorado, and any other documents required to be filed or otherwise required under Colorado law or by a title company to enable Purchaser to hold title to the Club Estate in a Trust. 14. MISCELLANEOUS. A. Time of Essence. Time is of the essence of the provisions of this Agreement. Failure of Purchaser to make payments or to close or to compiy with the provisiois of thisAgreement within the time provided herein shall be considered a Lreach of this Agreement. Ifany date set forth herein for performance is a Saturday, a Sunday, or a legally recognized holiday, performance shall be made on the next business day following such date. B. Joint and Several Liability. If Purchaser is comprised of nvo (2) or more parties, they stall be jointly and severally obligated under this Agreement. If Purchaser is comprised oitwo (2) or more individuals, they shall deliver written notice ro Seller, at least ten (10) days priorto Closing, of whether they will take title to the Club Estate as ioint tenants or tenants incommon. C Assimment._ Seller may assign this Agreement to a lending institution inconiiection rvith iinancing the constructir.n of tiie Ciub -r-inirs on tire projecr anci purchaser agr.eesto purchase the Club Estate if the Club Unit is completed in compliance with the terms hereofregardless ofthe party who actually cornpletes the construction. Purchaser may not assign anyportion of Purchaser's interest under this Agreement without the prior written consent of Seller. ff luth attempted assignment without Seller's written consent shall be null and void, shall be adefault under this Agreement and shall entitle Seller to liquidated damages in accordance withParagraph 9(A) above. LOCATED IN A SPECL T TNXTNC USTNTCT. PURCHASER LINDERSTANDS THAT CO_DOCS_A #149410 v7 12 o THE PROJECT MAY BE INCLUDED WITHIN SPECIAL TAXING DISTRICTS IN THEFUTURE. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERALOBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROMANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS,PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FORINCREASED MILL LEVIES AN'D EXCESSTVE TAX BURDENS TO SUPPORT THESERVICING OF DEBT INCURRED BY A DISTRICT WHERE CIRCUMSTANCES ARISERESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE ITSINDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. PURCHASERSSHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENT OF THEAUTHORIZED GENERAL OBLIGATION II\DEBTEDNESS oT SUCH DISTRICTS,EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH NDTETPONESS,AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. E. Arbitration. All controversies and disputes between Seller and purchaser and allclaims by Seller or Purchaser against the other directly or indirectiy arising out of, or related tothis Agreement, including those directly or indirectly arising out of or related to the LimitedWarranty shall be submitted to and settled by ionclusive binding arbitration under the Commercial Rules of the American Arbitration Association. To the extent that Seller does notprevail in the arbitration, Seller shall pay any and all costs and expenses associated with thearbitration' including but not limited to the arbitrator's expenses and both Seller's andPurchaser's reasonable attomey's fees. To the extent that Purchaser does not prevail in thearbitration, Purchaser shall pay any and all costs and expenses associated with the arbitration,including but not limited to the arbitrator's expenses and both Seller's and purchaser,s reasonable attorney's fees. The arbitrator's award shall be enforceable as a judgment in anycourt with jurisdiction. Purchaser acknowledges that the Declaration requires-arbitration of ailclaims related to the Project and Purchaser has read and is familiar with such arbihationprovision. F Severabilitv. Each provision of this Agreement shall be deemed to be severable and the invalidity of any one provision of this Agreement shall not invalidate the Agreement as a whole. - G' Paraeraph Headings. The paragraph headings are inserted only for convenient reference and do not defrne, limit or prescribe the scope of this Agreement. H. Survival. Where applicable, each provision shall survive Agreement and shall be binding upon anC inure to the benefit of the successors and assigns. the Closing of this parties, their heirs, I. Governing Law. This Agreement shall be construed according to the laws of the State of Colorado. J' Notice. All notices or deliveries required under this Agreement shall be in writing and shall be hand delivered or given by facsimile trarsmittal, regulai mail, or overnight courieidirected to the telecopier number or address of Purchaser und S.ll", set forth under their signatures. All notices so given shall be considered effective, ifhand-delivered, when received;if delivered by facsimile transmittal, upon telephone confirmation of receipt if received on abusiness day between the hours of 8:00 u.rn. und 5:00 p.m., or upon the next business day; ifdelivered by courier, one (l) business day after timely deposit wit^h ttre courier service, chargesprepaid; or if mailed, three (3) days after deposit, frrst class postage prepaid, with the UnitedStates Postal Service. Either party may change the address to which future notices shall be sentby notice given in accordance_with this Paragiaph An agent of Seller or the Listing Broker mayseld notices at the direct:,tn of zrrd in piace of S"ll".. - 5j Entire Aereement. This Agrbement, together with any exhibits or addendaattached hereto, constitutes the entire agreement of the parties with respect to the subject matterhereof and supersedes all other agreements or underitandings betrveen the partiei, whetherwritten.or oral, with respect to the subject matter hereof, and miy not be modifr"d in any manner'xcept by an instrument in writing signed by all parties. L' No Recordatio!. This Agreement shall not be recorded and any recorded s to this Agreement shall in no way be construed as imposing or constituting a cloud or ') V7 l3 o lj.l o-n title to the property underllng the Club Unit. Any recording by purchaser shall be adefault of this Agreement rendering it null and void and entitling Selleito liquidated damages in accordance with Paragraph 9(A) above. M. Exhibits and Addenda. AII Exhibits and Addenda attached to and described in this Agreement are incorporated into the Agreement by the reference. N. Bindine Effect. This Agreement shall be binding upon and inure to the benefit of Purchaser and Seller and their respective heirs, personal lepresentatives, successors andpermitted assigns. O. Acknou'ledgr.nent: Survival of Covenants. Purchaser hereby acknowledges and accepts the foregoing disclaimers and agrees to waive any and all rights Purchaser may iave byvirtue of the representations and warranties disclaimed. The provislons of this laragraph sfrail survive Closing. P. Acceptance. This Agreement shall not be binding on Seller unless and until accepted in writing by manager or other authorized representative of Seller. Upon such accaptance, a signed copy shall be returned to Purchaser. Sales counselors and brokers are not authorized to accept this Agreement. Acceptance of the Earnest Money deposit shall not constitute acceptance of this Agreement by Seller. In the event this offei is not accepted by Seller, all obligations of the parties under this Agreement shall terminate and any EarnesiMoney shall be refunded. a. Disclosure Statement. PURCHASER HEREBY ACKNOWLEDGES RECEIPTOF THE DISCLOSURE STATEMENT REQUIRED BY COLORADO LAW. BYEXECUTION OF THIS AGREEMENT. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS READ AN'D UNDERSTANDS ALL OF THE MATTERS DISCUSSEDAND DISCLOSED IN THE DISCLOSURE STATEMENT, AND FT]RTHER ACKNOWLEDGES THAT THE DISCLOSURE STATEMENT ACCURATELY SETS FORTH PIJRCHASER'S LINDERSTANDING OF THE ITEMS DISCUSSED THEREIN. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANKI o CO_DOCS_A #149410 vl 14 .-, - EXHIBIT A FLOOR PLAN, SITE PLAN AND FEATURES LIST [To be attached] -i.t CO-DOCS_A #14941C v7 A-1 E)CIIBIT B FURNISHINGS AI\D PERSONAL PROPERTY [To be attached] o CO_DOCS_A #149410 v7 B.l EXHIBIT C FORM OF ESCROW AGREEMENT (Please see Tab I of this Application) o o CO-DOCS_A #149410 v7 c-l EXHIBIT D - Permitted Excentions V RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BEFOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED JULY 12, I899,IN BOOK 48 AT PAGE 475. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED INUNITED STATES PATENT RECORDED JULY 12, I899, IN BOOK 48 AT PAGE 475. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTINC ANYCOVENANT OR RESTRICTION BASED ON RACE, COLOR, RELIGION, SEX, HANDICAP, FAMILIAL STATUS OR NATIONALORIGIN LTNLESS AND ONLY TO THE EXTENT THAT SAID COVENANT (A) IS EXEMPT UNDER CHAPTER 42, SECT,ION 3607 OFTHE UNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT DISCRIMINATE AGAINST HANDICAP PERSONS,AS CONTAJNED IN INSTRUMENT RECORDED AUGUST IO, I962, IN BOOK I74 AT PAGE I79. RECIPROCAL EASEMENT AGREEMENT BETWEEN VAIL VILLAGE INN, A COLORADO CORPORATION, JAMM LTD., ACOLORADO LIMITED PARTNERSHIP AND VAIL VILLAGE INN ASSOCIATES, A COLORADO GENERAL PARTNERSHIPRECORDED JANUARY 3,I983 IN BOOK J5 I AT PAGE 324. TERMS' CONDITIONS AND PROVISIONS OF AGREEMENT RECORDED SEPTEMBER 09, I983 IN BOOK ]67 AT PAGE E]3. CONVEYANCE OF EASEMENTS BETWEEN VAIL VILLACE INN, INC., A COLORADO CORPORATION AND F&L VAIL VILLAGEINNPARTNERSHIP,ACOLORADOGENERALPARTNERSHIPRECORDEDruLY IO, I984 INBOOK388ATPAGE86I. DECLARATION OF PARTIAL VACATION OF EASEMENT IN CONNECTION WITH SAID EASEMENT RECORDED JULY 25, I9E5 INBOOK 420 AT PAGE 741- TERMS' CONDITIONS AND PROVISIONS OF DECLARATION OF EASEMENTS AND RIGHTS RECORDED FEBRUARY 04, 1988 INBOOK 478 AT PAGE 377. TERMS' CONDITIONS AND PROVISIONS OF DECLARATION CONCERNING PARKINC WITHIN SPECIAL DEVELOPMENTDISTR]CT 6 RECORDED JULY I O, I984 IN BOOK 388 AT PAGE 856. TERMS' CONDITIONS AND PROVTSIONS OF DECLARATION OF EASEMENTS RECORDED DECEMBER I7, I992 IN BOOK 596 ATPAGE 908 AND AS SHOWN ON ALTA/ACSM SURVEY PREPARED JULY 26, I996 BY EACLE VALLEY SURVEYING, INC., JOB NO.854-5. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF VAILVILLACE FIRST FILING. EASEMENT AND RIGHT OF WAY AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC., IN INSTRUMENT RECORDEDNOVEMBER 19, I97I IN BOOK222 AT PACE 32I, AND AS SHOWN ON THE CONDOMINIUM MAP RECORDED NOVEMBER 19,1982 IN BOOK 349 AT PAGE I I . EASEMENT GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC., IN INSTRUMENT RECORDED JANUARY 2I, I9E3 INBOOK 352 AT PAGE 397. THOSE PROVISIONS, COVENANTS AND CONDITIONS, EASEMENTS AND RESTRICTIONS, WHICH ARE A BURDEN TO ACERTAIN CONDOMINIUM UNIT, AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER I9, I982, IN BOOK 349 AT PAGE I2. EASEMENT BETWEEN VILLAGE INN PLAZA CONDOMINIUM ASSOCIATION, A COLORADO NON.PROFIT CORPORATION, VAILVILLAGE INN' INC', A COLORADO CORPORATION, AND F & L VAIL VILLACE PARTNERSHIP, A COLORADO GENERALPARTNERSHIP IN DOCUMENT RECORDED JULY IO, I984 IN BOOK 388 AT PACE 862. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED CONDOMINIUMMAP OF VILLAGE INN PLAZA, UTILITY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC, IN INSTRUMENT RECORDED JANUARY 2I,I983 IN BOOK 352 AT PAGE 396. ENCROACHMENT AND ROOF OVERHANC OF VILLACE INN PLMA PHASES I AND II ONTO SUBJECT PROPERTY AS SHOWNON IMPROVEMENT LOCATION CERTIFICATE BY EACLE VALLEY SURVEYINC, INC., JOB NO, 854-5, DATED JULY 26, t996. NOTE: EASEMENT ACREEMENT IN CONNECTION WITH SAID ENCROACHMENT WAS RECORDED JULY IO, I984 IN BOOK 388AT PACE 86I , TERMS, CONDITIONS AND PROVISIONS OF ENCROACHMENT AND BOOK 520 AT PAGE 167. VIEW ACREEMENT RECORDED DECEMBER 22. t989 IN TERMS' CONDITIONS AND PROVISIONS OF EASEMENT ACREEMENT RECORDED APRIL I4, I992 IN BOOK 57? ATPACE 628. TERMS' CONDITIONS AND PROVISIONS OF RESTRICTIVE COVENANTS RECORDED APRIL 23, 1992 IN BOOK 578 AT PAGE 368AND RERECORDED APRIL 30, I992 IN BOOK 578 AT PACE 996. TERMS' CONDITIONS AND PROVISIONS OF DEED OF EASEMENT RECORDED lvlAY 18, I994 IN BOOK 640 AT PACE 62l. EXISTINC LEASES AND TENANCIES. CO_DOCS_A #149410 v7 D-l oo o o o I SPECIAL WARRANTYDEED TI{IS DEED, made this _ day of , 200 , between VAIL PLAZA I TOGETHER WITH all and stngular the hereditaments and appurtenances thereto belonging, or inan)|vlse- appertaining, and the reversion and reversions, remainder and remainders, rents, iisuis anaprofits thereof; and all the estate, right, title, interest, claim and demand whatsoever of the Grantor, eitherin law or equify' of, in and to the above bargained premises, with the hereditaments and appurtenances; TO HAVE AND To HOLD the said premises above bargained and described with rheappurtenances, unto the Grantee(s), and Grantee(s)' heirs and assigns foiever. The Grantor, for itself, its 1u::1t-to_tt and assigns, does covenant and agree rhar it shall und *ill WARRANT AND FOREVERDEFEND the. above bargained premises in the- quiet and peaceable possession of the Grantee(s), and itsheirs and assigns, against all and every person or persons claiming the whole or any part thereof, by,through or under the Grantor' subject to all unpaid taxes for the current year payable in the followingyear, unpaid condominium assessment installmints not yet due and payable, uil tu*ar, assessments andcondominium assessments for all subsequent years, and matters on Exhibit A attached hereto andincorporated herein by reference. IN WITNESS WHEREOF, the Grantor has executed this deed on the date set forth above. f*ulP,tY!Y: lt9: a{ol.orado limit.oilatitir,y **puny, trauing u"-uJd.s at t2 vail Road, Suite200, Vail, Colorado 81657 (,,Grantor"), and whose legaladdress is ("Grantee(s)"): the Declaration for Vail Plaza on the map covering the Project of Eagle County, Colorado on 200_ at Reception No. VAIL PLAZA DEVELOPMENT, LLC, a Colorado limited liability company Waldir Prado, Manaser WTTNESSETH' that the Grantor, for and in consideration of the sum of .-- andNoi 100 DOLLARS ($ - )' the receipt and sufficiency "r *rti.i r..-iereuy ackno*ledged, hasgranted' bargained, sold and conveyed, and by these presents does grant, bargarn, sell, convey andconfirm unto the Grantee(s) and Grantee(s)' heiis and assigns forever, uil th. real property, together withmprovements, if any, srtuate, iying and being in the County of Eagle, State of iotorujo, dlscribed asfollows: Club_Week -- in Club Unit =-- according to Hotel Resort Club, a condominium, and as deolted recorded in the office of the Clerk and Recorder By' CO_DOCS_A #149815 v1 t I STATEOFCOLORADO ) -- ., rr. COI.]NTY OF EAGLE ) The foregoing special warranty Deed was acknowledged before me thisLrg, rptrutat !.v arranty ueed was aclcnowle(lged belore me this day of 200-' by waldir Prado, as Manager of Vair plaza Develop..nt, Lic]Icolorado limited liability company. Witness my hand and official seal. My Commission Expires: CO_DOCS_A #14981b v1 Norary Public EXHIBITA EXCf,PTIONS TO TITLE RIGHT OF PROPzuETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THERTFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECTTHE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED JULY 12, I899, IN BOOK 48 AT PAGE 475. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHOzuTY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED JULY I2. I899. IN BOOK 48 AT PAGE 475. RESTRICTIVE COVENANTS WHICH DO NOT CONTAIN A FORFEITURE OR REVERTER CLAUSE, BUT OMITTING ANY COVENANT OR RESTRICTION BASED ON RACE, COLOR, RELICION, SEX, HANDICAP, FAMILIAL STATUS OR NATIONAL ORIGIN UNLESS AND ONLY TO THE EXTENT THAT SAID COVENANT (A) IS EXEMPT LINDER CHAPTER 42, SECTION 3607 OF THE LNITED STATES CODE OR (B) RELATES TO HANDICAP BUT DOES NOT DISCRIMINATE AGAINST HANDICAP PERSONS, AS CONTAINED IN INSTRUMENT RECORDED AUGUST IO, 1962, IN BOOK I74 AT PAGE I79. RECIPROCAL EASEMENT ACREEMENT BETWEEN VAIL VILLACE INN, A COLORADO CORPORATION, JAMM LTD., A COLORADO LIMITED PARTNERSHIP AND VAIL VILLAGE INN ASSOCIATES, A COLORADO GENER{L PARTNERSHIP RECORDED JANUARY 3.I983 IN BOOK 35I AT PAGE 324. TERMS, CONDITIONS AND PROVISIONS OF ACREEMENT RECORDED SEPTEMBER 09. I983 IN BOOK 367 AT PA,GE 833. CONVEYANCE OF EASEMENTS BETWEEN VAIL VILLAGE INN, INC., A COLORADO CORPORATION AND F&L VAIL VILLAGE INN PARTNERSHIP, A COLORADO CENERAL PARTNERSHIP RECORDED JULY IO. I984 IN BOOK 388 AT PAGE 86I . DECLARATION OF PARTIAL VACATION OF EASEMENT IN CONNECTION WITH SAID EASEMENT RECORDED JULY 25, I 985 IN BOOK 420 AT PAGE 74 I. TERMS, CONDITIONS AND PROVISIONS OF DECLARATION OF EASEMENTS AND RIGHTS RECORDED FEBRUARY 04, I988 IN BOOK 478 AT PAGE 377. TERMS, CONDITIONS AND PROVISIONS OF DECI,ARATION CONCERNING PARKING WITHIN SPECIAL DEVELOPMENT DISTRICT 6 RECORDED JULY I O, 1984 IN BOOK 388 AT PACE 856, TERMS, CONDITIONS AND PROVISIONS OF DECLARATION OF EASEMENTS RECORDED DECEMBER I7, I992 IN BOOK 596 AT PAGE 908 AND AS SHOWN ON ALTA/ACSM SURVEY PREPARED JULY 26, I996 BY EAGLE VALLEY SURVEYINC, INC.. JOB NO. 854-5. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE RECORDED PLAT OF VAIL VILLACE FIRST FILINC. EASEMENT AND RIGHT OF WAY AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC., IN INSTRUMENT RECORDED NOVEMBER I9, 197I IN BOOK 222 AT PACE 32I. AND AS SHOWN ON THE CONDOMINIUM MAP RECORDED NOVEMBER 19, I982 IN BOOK 349 AT PAGE I I. EASEMENT CRANTED TO HOLY CROSS ELECTRIC ASSOCIATION. INC.. IN INSTRUMENT RECORDED JANUARY 2I, I983 IN BOOK 352 AT PAGE 397, THOSE PROVTSIONS, COVENANTS AND CONDITIO}{S, EASEMENTS AND RESTRICTIONS, WHICH ARE A BURDEN TO A CERTAIN CONDOMINIUM UNIT, AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER I9, I982, IN BOOK 349 AT PAGE I 2. EASEMENT BETWEEN VILLAGE INN PLAZA CONDOMINIUM ASSOCIATION, A COLORADO NON-PROFIT CORPORATION, VAIL VILLACE INN, INC., A COLORADO CORPORATION, AND F & L VAIL VILLAGE CO_DOCS_A #149815 vl PARTNERSHIP, A COLORADO GENERAL PARTNERSHIP IN DOCUMENT RECORDED ruLY IO, 1984 IN BOOK 388 AT PAGE 862. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON T}IE RECORDED CONDOMINIUM MAP OF VILLAGE INN PLAZA. UTILITY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC. IN INSTRUMENT RECORDED JANUARY 2I, I983 IN BOOK 352 AT PAGE 396, ENCROACHMENT AND ROOF OVERHANG OF VILLAGE INN PLAZA PHASES I AND II ONTO SUBJECT PROPERTY AS SHOWN ON IMPROVEMENT LOCATION CERTIFICATE BY EACLE VALLEY SURVEYING. INC.. JOB NO. 8s4-5, DATED JULY 26, 1996. NOTE: EASEMENT AGREEMENT IN CONNECTION wlTH SAID ENCROACHMENT WAS RECORDED JULY 10, I984 IN BOOK 388 AT PAGE 86I . TERMS, CONDITIONS AND PROVISIONS OF ENCROACHMENT AND VIEW AGREEMENT RECORDED DECEMBER 22, I989 IN BOOK 520 AT PACE t 67. TERMS, CONDITIONS AND PROVISIONS OF EASEMENT ACREEMENT RECORDED APzuL 14,1992IN BOOK 577 AT PAGE 628. TERMS, CONDITIONS AND PROVISIONS OF RESTRICTIVE COVENANTS RECORDED APRIL 23, I992 IN BOOK 578 AT PACE ]68 AND RERECORDED APRIL 30. I992 IN BOOK 578 AT PAGE 996. TERMS, CONDITIONS AND PROVISIONS OF DEED OF EASEMENT RECORDED MAY I8, 1994 IN BOOK 640 AT PACE 621. I EXISTIN.LEASESANDTENAN.IES. CO_DOCS_A #149815 v1 ot o |1o o r-DISCLOSURE STATEMENT FOR VAIL PLAZA CLUB THE STATE OF COLORADO HAS NOT PREPARED OR ISSUED THIS DOCUMENTNOR HAS IT PASSED ON THE MERITS OF THE SUBDIVISION DESCRIBf,D HEREIN. This disclosure contains important matters to be considered in acquiring a Club Estate invail Plaza club. The statements contained herein are only su-maiy in nature. Apurchaser should refer to all references, documents and exhibits hereto. and contract sales materials for complete information. In connection with the purchase of a Club Estate pursuant to the Preconstruction Purchase Agreement for Vail plaza Club (the .EUfSh4!g_Ag99!q9U',), rhe ..EUrShalgI" (as defined in the Purchase Agreement), acknowledges that the following information has been disclosed to the Purchaser as required by the Colorado Real Estate Co-mmission. Capitalized terms used below without further definition shall have the meanings given to them in the Purchase Agreement or in the Declaration for Vail Plaza Hotel Resort Club, a condominium, to be recorded in the real property records of Eagle county, colorado (the ..Declaration"). l. Develoner. The name and address of the Developer (hereinafter "Sgllq") is VarlPtezn DeveloPMENT, LLC, a Colorado limited liability company, 12 Vail Road, Suite 200,Vail, Colorado 81657. 2. Resort Club Colorado. Location of club. The vail Plaza club (the "cfu!") is located at vail plaza Hotel (the "Proiect"), --..--, Town of Vail, County of Eagle, and State of 3. Club Features and Amenities. (a) Club Units and Club Weeks. Subject to Seller's Special Declarant Rights under the Declaration, the Club will include up to fifty (50) Club Units, any or all of which iray be-submitted to a program of deeded ownership interests wherein a purchaser has the exclusivi right to use and occupy a club unit during specific weeks (each, a ..elubluegk'). The deeded ownership interest conveyed to a Purchaser as a Club Estate in a Club Unit is a'fee ownership "timespan estate" as defined in C.R.S. $ 38-33-110(8), and as such is a separate and distinit interest in real property. The Club does not involve an exchange program, although the Association has the power to institute such a program. (b) Specific Amenities and Amenities Arrangement. Seller intends that a health spa with exercise equipment, saunas, hot tubs, and an outaoor swimming pool will be available for use by Club Estate Owners pursuant to a certain amenities risi agreement('amenities Use ngreemm") between the Association and the Spa Unit Owner. Seller iscurrently the Spa Unit Owner and has entered into an agreement with Vail plaza Hotel Management, LLC, a Colorado limited liability company f.UeUegllg agg!t,'), to manage and operate such amenities. Pursuant to the Amenities Use Agreement, the Spa Unit Ownir and CO_DOCS_A #149513 vs Managing Agent are obligated to make use of such amenities available to the Club Estate Owners so long as the Association pays a monthly fee for use of such amenities to the party entitled thereto under the Amenities Use Agreement. The Association will collect CluL Assessments from its Members to pay the fee owed under the Amenities Use Agreement. Seller maylerminate its agreement with Managing Agent and either operate and manage the amenities itself or.engage a third party of its choosing to operate and manage the same. Siller anticipates completion of the amenities described above prior to the sale of the first Club Estate to a Purchaser and has obtained and will obtain third party financing for the construction of the Project. (c) Available Parking. The Project will include a parking area. Pursuant to the terms of the Amenities Use Agreement, Seller, the current Parking Unit bwner, is obligated to make one (l) urueserved, assigned parking space available to Club Estate Owners during the Club Estate Owners' respective Club Week subject to and on the terms more specifically set forth in the Declaration and Amenities Use Agreement, including payrnent of a monthly fee -from the Association to the party entitled thereto under the Amenities Use Agreemint. The Association will collect Club Assessments from its Members to pay the ParkingUnit Owner for the continued use and availability of parking spaces on the Froject for its Members. The Agreement befween Seller and Managing Agent provides that Managing Agent will manage and operate the Parking Unit. However, Seller may terminate its Agreement with Managing Agent and either operate and manage the Parking Unit itself or engage a third party of its choosing to manage and operate the same. (d) Commercial Activitv. The Project will include Commercial Units, a Hotel Unit, a Restaurant Unit, and a Convention Unit, any of which may be used as or include a restaurant, bar, retail shops, and any other use permitted by law and under the Declaration, but none ofthe specified uses are guaranteed, as further described in the Declaration. 4' Club Estates. Seller intends to offer for sale Club Estates in one bedroom. two bedroom, three bedroom, and penthouse Club Units. Seller reserves the right to offer one, two, thtee, or all four of the Club Estate options in specified residential condominium units based upon demand by potential purchasers of the Project. Seller, or the operator of Vail Plaza Hotel,will own an interest in each of the CIub Units. During certain portions of the year, the Club Units will be operated by Vail Plaza Hotel and used by such hotel's guests. The entity owning such interest in Club Units is responsible for paying Assessments and fees attributaLle to iti interest in the Club Units. The Club Units are numbered 202,203,207,212,21g, 301-303, 307, 312,318,334,342,345-348,401-403,405,406p-408p,409,410,412,427,435,43g,440,441p, 442P,501P,502,503p,504p,505p,506p,507,515,521,527,601p-604p,605,606p,and607p. 5. Soecial Districts. To Seller's knowledge, the Project is not subject to any special districts, and none are proposed to which the Purchaser may be subject as disclosed in the Purchase Agreement. To Seller's knowledge, no special district has defaulted on any obligation or.has.filed for bankruptcy and no such actions are pending. Seller is not in default oir any obligation or pa).rnent to any special district. Seller is responsible for paying special district feei and taxes prior to closing, ifany. CO_DOCS_A #149513 v5 I 6 No Jud€rnents. There are no judgments nor administrative orders issued against Seller, the Association or the managing entity which are material to the club. 7. Licensed Brokers. All sales within Colorado shall be made by brokers and salespersons licensed by the State of Colorado unless specifically exempted pursuant to C.R.S. $12-61-101(4). The Cooperating Broker, ifany, identifred on the signature page ofthe Purchase Agreement is not an agent ofSeller or sub agent ofseller's Broker and Purchaser acknowledges that Purchaser's relationship with Seller's Broker and Cooperating Broker (which may include Buyer Agency or Transaction-Broker) has been previously disclosed to Purchaser in a notice from each broker to Purchaser. 8. Access and Utilities. Legal access to the Project shall be available by a public street known as Vail Road. A survey of the Project has been made and survey monuments are in place as shown on the Plat. Water and sanitary sewer, gas, electricity, heat, telephone and cable will be completed and available at the Project prior to Closing. The cost of these services is an overall expense of the Association and each Purchaser pays a portion of the cost as part of the annual Assessments. The Project will have air conditioning systems and central heating, which will be new. 9. Zoning. The Town of Vail, its Planning and Environmental Commission and the Eagle County Community Development Department, have jurisdiction over the use of the property underlying the Project. Each Club Unit is zoned as a part of Special Development District 6, which allows residential resort use, including short-term rentals and time-shares and associated amenities. Purchasers should contact the Planning and Environmental Commission or the Community Development Department for further information regarding restrictions on the use of Club Units. 10. Common Interest Communitv. The Project is a common interest community pursuant to Article 33.3, Title 38, Colorado Revised Statutes. ll' Fees. Purchaser is responsible for payment of the Annual Assessment for the Club Estate purchased. Pursuant to C.R.S. $38-33.3-316 (8), an estimate of the Annual Assessments is set forth in the Purchase Agreement. The Annual Assessment for each Club Estate is calculated by multiplying the factor for the Club Estate on Exhibit D of the Declaration by the total expenses of Vail Plaza Club shown on the Budget. The Annual Assessments pay for the management and operation of all Club facilities and amenities which management and operation are the responsibility of the Association and for amenities available through the Amenities Use Agreement. In addition to the above estimated Assessments, Owners are charged fees for housekeeping services, incidental charges attributable to day{o-day occupancy (such as long distance telephone charges), and for other products and services available through the Club and Vail Plaza Hotel. Such fees will generally be based on the actual cost to the Association. Purchaser shall also pay an amount for reserves for working capital at Closing as specified in the Purchase Agreement. Other than the Assessments (ai dehned in the Declaration), the fees described in this paragraph, and the fees described in Section 3 above, there are no other Assessments to be paid by the Club Estate Owners to the Association. Purchaser's assessments and fees may be changed, increased or decreased in accordance with the Declaration. CO_DOCS_A #149513 v5 t 12- Budeet. A copy of the Association's projected Budget for 2006 is attached to this Disclosure Statement. There are no services provided or expenses paid by Seller that are not reflected in the Budget and which may subsequently become Common Expenses. There are no additional fees or charges for use of the amenities except as specifically described in this Disclosure Statement. The Declaration provides for an Assessment on all Club Estates to fund an operating budget for repair and replacement of furniture, fixtures, appliances, carpeting and utensils. There are no current outstanding obligations in favor of or against such funds. Annual financial statements are prepared for the Association and made available to the Ou'ners. 13. Association. Each Owner will be a member of the Association and may participate in decisions of the Association as provided in the Declaration. Membership in the Association is mandatory for all Owners. The iloard of Directors of the Association controls and disburses the funds of the Association. The Association is responsible for the overall: (i) management, administration, and operation of the Project, including maintenance of all Common Elements; (ii) maintenance, operation and administration of Vail Plaza Club; and (iii) for the maintenance, repair and replacement as needed of all personal property consisting of fumiture, fixtures and equipment in the Club Units. At this time, Seller has voting control of the Association. There is a Period of Declarant Control of the Association during which Seller (also known as the Declarant) or persons designated by the Declarant, may appoint or remove the officers or members of the Board of Directors of the Association. The Period of Declarant Control commenced upon filing of the Articles of Incorporation of the Association and shall terminate no later than the first to occur of (a) 60 days after conveyance of 75% of the Club Units that may be created to Owners other than Declarant, (b) rwo years after Declarant's last conveyance of a Club Unit in the ordinary course ofbusiness, or (c) two years after any right to add new Club Units was last exercised. The Declarant may voluntarily surrender the right to appoint and remove officers and members of the Board of Directors before the period of Declarant Control terminates. In any transfer of Seller's interest as the Declarant to any third person, the third person shall assume the obligations of Seller as Declarant. Seller shall not have any financial interest nor will it potentially derive any income or profit ffom the Association. Seller does not have a right to bonow or authorize borrowing from the Association. The Board of Directors of the Association controls and disburses the funds of the Association. 14. Manager. The Association has engaged the Managing Agent to manage the Project, including the Club, on behalf of the Association. The Association will pay the Managing Agent a fee in connection with its management services. The initial term of the agreement with Managing Agent is or will be through November l, 2026; however, such agreement provides, or shall provide, that the Association can terminate the agreement upon 90 days notice during the 12 months following the expiration of the Period of Declarant Control and either party may terminate upon 6 months notice given on or before March 1 to terminate as of September I in any year the agreement is in effect. The Managing Agent's address is 12 Vail Road, Suite 200, Vail, Colorado 81657. Seller is an affiliate of Managing Agent and its member has a financial interest in Managing Agent. 15. Reserves. A maintenance reserve fund will be established and will be cash funded. There are no outstanding obligations in favor of or against the reserve funds. Seller does not have a right to borrow or to authorize bonowing from this fund. The Purchaser will receive a periodic accounting from the Association in accordance with the Declaration. I co_Docs_A #149513 v5 16. Insurance. The Association shall maintain property and casualty insurance on the Club Units, commercial general liability insurance against claims and liabilities arising in corurection with the ownership, existence, use or management of the Club, and fidelity insurance on all persons who control or disburse funds of the Association. 17. Mechanics' Liens. The mechanics' lien law of Colorado may authorize enforcement of a lien by selling the entire Club Unit. 18. Gas and Mineral Riehts. Colorado has a history of mineral mining as well as gas and oil exploration. Your title commitrnent or title policy has an exception (usually found in Schedule B) that grants the recorded and legal right to extract minerals and/or oil and gas from the land on which the Project is located and affecting your interest in the Club Unit. THE SIJRFACE ESTATE MAY BE OWNED SEPARATELY FROM THE UNDERLYING MINERAL ESTATE, AND TRANSFER OF THE SURFACE ESTATE DOES NOT NECESSARILY iNCLT]DE TRANSFER OF THE MINERAL RIGHTS. THIRD PARTIES MAY HOLD INTERESTS IN OIL, GAS, OTHER MINERALS, GEOTHERMAL ENERGY OR WATER ON OR UNDER THE PROPERTY, WHICH INTERESTS MAY GTVE THEM RIGHTS TO ENTER AND USE THE PROPERTY. For information on regulation of the oil and gas industry and the protection of public health, safety and welfare, the environment, and mineral owners' correlative rights, contact: The Department of Natural Resources The Colorado Oil and Gas Conservation Commission at 1120 Lincoln St.. Suite 801, Denver, CO 80203, Main office (303)894-2100 email: dnr.ogccr@state.co.us or visit their web site at www.dnr.state.co.usioil-gas/. or The Colorado Division of Mining and Geology, 131 Sherman St., Rm 215, Denver, CO, (303)866-3567, Fax (303)832-8106, or visit their web site at: www.dnr.state.co.us/edo/mining.html Note: Private contracts between the mining or drilling company and the land owner or owner's association may effect the jurisdiction of the Department of Natural Resources. 19. Resale Restriction. An Owner may not convey title to an Owner's Club Estate to a third party during the Restriction Period under the Declaration; provided, however, that Seller will waive the Resale Restriction if the Owner desiring to sell the Club Estate lists the Club Estate with Seller's Broker for sale as part of Seller's marketing program, as further described in Section 24.12 of the Declaration. Initial Initial CO_DOCS_A #149513 v5 ll Prciected 2006 Budgetforvail plaza Ctub V., lncome Vail Plaza Club Assessment Income Total lncome Exoenses allocated to Vail Plaza Club Front Desk Reservations Telephone General & Administration Payroll Taxes and Benefits Maintenance Housekeeping Laundry Management Fee Housekeeping Amenities Taxes Utilities (Gas, Electricity, Water) Insurance Exterior Maintenance and Reoairs Common Assessments Reserves* Spa and Parking Fee Allocation of Building Budget Miscellaneous Iotal Expenses *Reseryes: Floor coverings, furnishings, operating equipment. Pe.centaqe lnterest 3.602.655 n s $ $ $ $ $( $ o D $ $ i $ $ $ $ $ 200,000 150,000 65,000 200,000 184,000 125,000 350,000 121,000 215,000 70,000 150,000 687,000 70,000 150,000 125,000 250,000 171,000 370,000 Club Unit 1.22721 1.62064 1.63026 1.27534 1.71649 1.23523 1.64039 1.67497 1.28958 1.43001 1.45008 1.47520 1.47520 ,t 4478F 1.43608 1.89295 't.62194 1.26330 Annual Dues $ 46,310.67 $ 61,157.36 $ 61,520.3S $ 48,126.9s $ 64,774.41 $ 46,613.32 $ 61,902.66 $ 63,207.59 $ 48,664.30 $ 53,963.64 $ 54,721.0? $ s5,668.96 $ 55,668.S6 $ 58,776.s6 $ 54,192.70 $ 71,433.40 $ 61,206.42 $ 47,672.58 218 212 207 203 202 318 312 307 303 302 301 348 347 346 345 342 334 412 3 #152347 v.2 v-Club Unit 410 409 408P 407P 406P 405 403 402 401 442P 441P 440 439 435 427 507 506P 505P 504P 503P 502 501P 527 521 515 601P 602P 603P 604P 605 606P 607P Total: Percentaqe lnterest Annual Dues $ 72,405.12 $ 60,097.72 $ 83,963.82 $ 110,326.58 $ 115,805.92 $ 66,711.43 $ 81,300.76 $ 64,9ss.92 $ 63,624.20 $ 121,677.73 $ 11s,594.98 $ 6s,606.09 $ 50,633.02 $ 68,694.11 $ 73,460.23 $ 64,592.90 $ 87,960.12 $ 117,380.67 $ 96,2s0.84 $ '105,643.47 $ 70,949.24 $ 100,492.43 $ 97,013.12 $ 73,842.88 $ 75,8s5.75 $ 105,126.48 $ 102,175.48 $ 77,261.81 $ 76,820.29 $ 60,778.86 $ 118,228.23 $ 114,838.36 1.91870 1.59256 2.22500 2.92360 3.06880 1.76782 2.15443 1.72130 1.68601 3.22440 3.06321 1.68553 1.34175 1.82036 1.94666 1 .71 168 2.33090 3.1 't 053 2.55060 2.79950 1.88012 2.66300 2.57080 1.95680 2.01o',t4 2.78580 2.70760 2.04740 2.03570 1.61061 3.1329S 3.04316 100.00 #152347 v.2 oo o o o o ESCROWAGREEMENT VAIL PLAZA CLUB -. ,"f,HIS l-S-cRow A9REEMENT (this "AgeEmelt-) is rnde and entered into as ofthe '0' day of November' 2004, by and uetween ven n-nze DevEr.opMplvr, LLC, aColoradolimited liability company ('!erei'), and r,cNDiirucuaneNrercoMpAr.ry c.agent'). RECITALS A Seller is developing a condominiun project known as Vail ptaza elu6 11lrc"Blgiegl") located in Eac! county, colorado. The project is more flrlly descnbed in theCondominium Declaration for Vail iluza H"tJ n"sort Club, a condominium (the ..Declaratjen,), to be recorded in the office of the clerk and Recorder of Eagle county, iolorado, and as nray bearnended fiom time to time- capitalized terrns not defined f,erein have the meanings ascribed tothem in the Declaration. B' Seller intends to sell timespan estates including an undivided interest in a ClubYd ("9!S:s"tel") at the Project. Seiier will enter into cintracts for the sale of zuch clubEstates ("Pugbas9- 4ggemgnt5'j wttr purchasers ("Purshase$") prior to the completion of tlreProject' club Estates which are the suiject or ru"t, p*.h* egreements are refbrred to rrereinas "PIgSgld_QIUb_Estde$ - C' Purchasers of Presold Club Estates will deposit eamest money as provided in theirrespective Purchase Agreements t'Eaoes-Morcr'). egent has agreeJ to act as escrow agentwith respect to such Eamest Money tti,e -Bcpgq[Sf D' Agent and Seller intend for this Agreement to satisfi the requirements ofColorado Real Estate Commission Rule S_20. Now THEREFORE' for good and valuable consideratiorl the receipt and sufficiency ofwhich are hereby acknowledged, the parties agree as follows: AGREEMENT . l' Deposit Accowt. Subject to the provisions of this Agreenrnt and the purchase Agreements, Agent will collect all beposits in accordance wittr eacrr purchaser,s purchase fer. eelnent and deposit the Deposits in the escrow account or accounts established by Agent at afederally insured financial institution reasonably acceptable to Seller (collectively, the"aqgeu4"). The Account sbal be in the nanr oi Rgent, * "*-* agent for seuer. Unlessprwiously disposed of by Agent pursuant to this Agreenrent, all Deposits shall be deposited intothe Account within one (l) business day afterieceipt by Agent The Account shall beesablished !t th" sole plrpose of holding Deposits from purchaiers. Except for any minimumarnount required to be deposited to open theAccount, no firnds other than Deposits sball bedeposited therein The Deposits rnud u" maintained in the Account or in other investrnentsacceptable to the Colorado Real Estate Commission as directed by Seller. Any reasonable bank co_Docs_A 1150655 € t or. tlird Party costs charged to Agent in connection with maintaining the Account shall bereimbursed by Seller. 2' Release of Deposits' All Deposits shall be held by Agent until the earlier of (i)termination of the applicablg Purchase egreenrent and delivery oritt" t*""t Money to the partyentitled thereto as directed by Seller or delivery to a successor agent as contemplated byParagraph 4 of this Agreemgnti(ii) closing of the purchase of a presofi club Estate pusuant tothe terms of the Purchf.':.ryhrr" agr""t*nt; or (iii) Agent's election to interpread theEarnest lr4oney, as provided in paragraph 6 of this efr"r"nt Sener shall p**pit ;ot.aAgent of rescission or termination of any eurctrase Agreement. Each zuch notice shall specifrthe name and address of the parfy who islntitled to receive the Earnest Money as a resuh of suchtermination Agent shall promptty deliver the Eamest Money to the party specified in the notice,withil, the time required !v t$ rurctrase Agreenrent, or applicable- law. Notwithstanding anyprovision to the contrary herein, Agent shall- release to Sellir any or all Deposits requestla UySeller, upon Seller obtaining a letter of credit or a bond payable to Agent for the purpose ofinsuring completion of the improvenents, utilities, roads arrd amenities ttt Selter is obligated tocglnlele with regard to the Project and to protect Purchasers' interests in the Depositsl eg"otshall.release the requested Deposits to seller within three (3) business days of the date Sellerprovides Agent with evidence that such letter of credit or bond was received and is acceptable tothe Colorado Real Estate Commission 3' Reliance gn Seller's Ngtice. Agent shall be entitled to rely on any notice given bySeller pursuant to this Agreement without firtt". inquiry, and Seller snan injemnify irA notAAgent harmless from all tiability, loss, darnage, or expense, inctuding reasonable attomeys, fees, 1c-t1ned by Agent as a rezuh of its reliance on any iuch notice and' good frith perfonlance oiSeller's instructions contained in any such notice. 4' Termination of this Agreement. This Agreement shall terminate on the first toocclr of (i) a subsequent written agreement between Sellir and Agent; or (ii) the appointnrent UySeller of a successor escrow agent and the transfer to such succe-ssor'of all nrnas 'nela by fuenthereunder. After terminatiorq Agent slrall not collect or receive any new Deposits, but thisAgreement shall remain in effect with respect to Deposits held by Agent under purchase Agreernents pendmg at the time of terminatio4 until all such Deposits are transferred to seller ora successor closing agent, as appropriate. 5' No Liability of Agent. Agent shall not be personally liable for any act it rnay door omit to do hereunder as escrow agent, while acting in good faith and in the exercise of itslwnbest judgment, and any ""1 d"_* or omitted by it pursuant to the advice of its own attorneys ;heii be conclusive evidence of such -good faith. Agent shall not be liable for loss or the outlaw'mg ofany rights under any statute of limitations or by reason of laches with respect to any documentsor papers deposited with it' Agenl shall be under no duty or obligation to ascertainthe identity,authority or rights ofthe parties executing or delivering br porpo"ning to execute or deliver anydocuments or papers or-payments deposited or provided foi nereunOer. Agent assunes noresponsibility or liability for the vatidity or sufficiency of any documents or papers or payrnents deposited or provided for hereunder. I co_Docs_A #150655 € o I 6' Actions During a Dispute. In the event of any dispute between Seller, anyPurcluser, or any third party as to the facts of any alleged defrult, any Deposit, tle vatiCty orinterpretation of a Purchase Agreement, or any other frct or matter tlUrog to the transactionbetween Seller and Purchaser: (a) Agent shall be under no obligation to act, except under process or order ofcourt, or until it has been adequately indemnified to its satisiactioq and shall sgstain noliabilfiy for its failure to act pending zuch process or court order or indemnification- IfAgent obeys or complies with any zuch procesg order, judgrnent or decree of any court itshall not be liable to Ty of the parties to any Purchase Agreement, or to any otherperson' firm or corporation by reason ofsuch compliance, not*itl"trttaing that any suchprocess' order, judgment or decree is zu@uently reversed, modifie{ un"oU"O, sei aside or vacatd or is found to have been issued or entered without jurisdiction - (b) Agent may, in its sole and absolute discretioq deposit the property described herein or so much thereof as remains in its hands with tirc then Clerlq ot "tiniClerh of the District Court in Eagle Counfy, Colorado, and interplead the parties to thiapplicable Purchase Agreernent. Upon so depositing such property and filing its complaint in interpleader, Agent shall be relieved of all liability undei the terms hereif asto the property so deposited. 7. Indemnification If Agent is not at ftult and if a Purcbaser asserts 6 slaim againstAgent arising out of any act pursuant fs this Agreenrnt, Seller shall indemnify and fo-rever defend Ag9nt, payurg all costs, including reasonabli attorneys' fees, and hold Agent harmless onaccount ofany and all losses, judgrnent and damages. In adiition, Seller agrees to pay attorneys' fees and associated costs reasonably incuned by Agent to enforce this irdenmity. - 8' Purchase Agreement Forrn Agent hereby acknowledges that it has reviewed tlteform ofPurchase Agreement and Agent hereby agrees to act as Escrow Agent thereunder. 9' Notices. Any notices authorized or permitted pursuant to this Agreement shalt gg in writing, addressed as follows: f, Ifto Seller:Daymer Corporation N.V. 12 Vail Road, Suite 200 Vail, CO 81657 Attn: Connie Dorsey with a copy to: Ballard Spahr Andrews & Ingerso[ LLp If to Agent: 1225 lTth Street. Suite 2300 Denver, Colorado 80202 Attn: W. Michael Clowdus, Esq. Land Title Guarantee Company 108 S. Frontage Road. W.#203 Vail, Colorado 81657 Attn: Escrow Coordinator co_Docs_A {1506s5 l2 Notices shall be decmed given: (a) if personalll derivered, upon receipt; (b) if sent bycertified mail' return receip requeqted, rlny*igrrr (48j hours "ft"; th; deposit of same in anyunited states mail post office box in t'he ttut" t which the notice is addressed or seventy-two(7.2.) hour.s after deposit inany such post office box other than in tt",tui" to which the notice isaddressed' posrage prepaid, addressed * J rortt, "b";;; l"i if int .,rra frcsimire, uponconfirmation of transmission' and (d) if sent via overnight mail witrrin one (l) day after deliveryto the applicable overnight commereialdelivery service for overnight delivery. The addressesand addressees for the purpose of this Paragraih 9 may be "n""sf iy giving written notice ofsuch change in the manner herein providei for giving notice. unless and until such writtennotice is received, the last address and addressee stated by written notice, or as provided herein ifno written notice of change has been sent or receivd tirtt u" deemed io continue in effect forall purposes hereunder. 10' waivers. Any waiver by a party ln any instance of any noncompliance by theother of any obligations or responsibilities herein shall not be deemed u *uin", of other instancesor of any remedies for such noncompliance. All waivers must be in writurg and signed by anauthorized representative ofthe party i".k g the waiver. l1' Severabifity..lf any clause or provision of this Agreement is held to be illegalinvalid or unenforceable under present or future laws, the remaind-er of this Agreement shall notbe affected thereby, and in lieu of each clause or pro_vision of this Agreement that is illegalinvalid or unenforceable, tlrgre $all be added, as part of this Agreement,-a clause or provision assimilar in temE to such illegal invalid or unenforceable "1";;;;;;vision as may be legalvalid, and enforceable. 12' Countemarts. This Agreement and any amendments rnay be executed in one ormore counterparts, each of which shall be deemed an original and all of which together shallconstitute one agreement. 13' Anrendments' This Agreement rnay not be amended or modified except upon thewritten consent ofall the parties hereio. .14' .99u"''ing !?*.- This- Agreement shall be govemed by and construed inaccordance with the laws of the State of Colorado. [REMATNDER OF THE PAGE INTENTIONALLY LEFT BLANK] co_Docs_A #150655 v2 IN WITNESS WHEREOF, the parties bave executed this Agreenrent to be effective theday and year first above written VAIL PLAZA DEVELOPMENT, LLC, a Colorado limited liability company Daymer Corporation N.V., a Netherlands Antilles corporation By: Its:Sole LAND TITLE GUARANTEE COMPANY 1,/, Bu, -{'c;c'q Z NATDC - Its: Authorized Aeent / co_oocs_A fi 50655 ta oo o o o TAB J Mortgagee Lease Provisions Pursuant to the terms of the Preconstruction Purchase and Sale Agreement form (Tab F) and the Escrow Agreement (Tab I), Club Estates will not be sold subjectio any construction financing mortgage and mortgagee release provisions will be included in the loan documents glc,umbering the Project. Vail Plaza Development, LLC, is currently negotiating the terms of a $75 million construction loan to be made in the Spring of 2005. Please contact us if you have any questions or concerns regarding this matter. CO_DOCS_A #152502 vl oo o o o AMENITIES USE AGREEMENT THIS AMEMTIES USE AGREEMENT (this 'Agreement') is made and entered into this - day of 200_, between VerL pleze, DEVELopMENT, LLC, a colorado limited liability company ("Developer"), and Van- PI-aza CoNooMrNtuM AssocrAl'roN. INc.. a Colorado nonprofit corporation (the ..Association"). RECITALS A. Developer is the owner of condominium units within Vail Plaza Hotel Resort Club, a condominium ("Project"), including the "Spa Unit" and "Parking Unit" described in the Condominium Declaration of Vail Plaza Hotel Resort Club, a condominium ("Declaration") and the map of the Project ("Map") each to be recorded in the Clerk and Recorder's Office of Eaele Countv. Colorado. B. The Spa Unit includes amenities and facilities of the Proiect includins a health spa, with hot (collectively, Project. tubs, saunas, exercise equipment, and an outdoor swimming pool and deck area the "Amenities"). The Parking Unit consists of a parking garage facility on the C' The Association desires to secure for the owners of Club Estates (its "Members") the right to use the Amenities and a sufficient number of parking spaces within the Parking Unit for one parking space per Club Unit to be available for use by the Members during tht Club Week that Members are entitled to use of their respective Club Unit ("Parking Spaces") upon the terms and conditions hereof. D. Capitalized terms, used, but undefined herein, shall have the meanings given them in the Declaration. AGREEMENT - l. Completion Date. Developer is completing the Amenities and Parking Spaces as a part of the development of the Project at Developer's sole cost and expense. It ii anticipated that the Amenities and Parking Spaces wilt be substantially completed on or about November 30, 2006, subject, however, to delays occasioned by circumstances beyond Developer's control, such as acts of God, strikes, catastrophes, or other matters which interfere with Developer, its contractors, subcontractors, or materialmen. 2' Ownership and Manasement. At all times, Developer, or its successors and assigns, will own the Spa Unit and Parking Unit. Neither the Association nor any of its Members shall have any proprietary or ownership interest in any portion of the Spa Unit or the Parking Unit. Developer is responsible for operating, managing and maintaining the Spa Unit and Parking Unit. Developer has or intends to enter into a Hotel Management and Operation Agreement with Vail Plaza Hotel Management, LLC, a Colorado limited liability company ("ManageC'), to operate, manage and maintain the Amenities and Parking Spaces on behalf of Developer. The Association acknowledges that the operation, management and maintenance of the Amenities and Parking Spaces may be delegated to any other party as Developer may select and engage for that pulpose. Any party engaged for such pu{pose shall agree to use its best CO_DOCS_A #151601 v5 efforts-.to manage' operate and maintain the Amenities and Parking Spaces in accordance with prevailing practices and standards for a five star hotel and in complianci with all applicable laws. 3. Members' fueht to Use, a. Grant of Risht. Developer hereby grants to the Association and through it, its Members, the right to use the Amenities and Parking Spaces on the terms and conditions set forth herein. b. Acceptance of Rieht. The Association, on behalf of its Members, hereby accepts the non-exclusive right for its Mlmbers to use the Amenities and parking Spaces, agreeing to obey and comply with all of the Rules and Regulations (defined below) of Oeveloper and/or Manager, and all of the terms and conditions of thiJAgreement, as long as this Agreement is in effect and the Amenities and parking Spaces are in existence. 4. Fee for Use. a. Obligation to pay Fee. The Association agrees to pay to Developer, or Manager if Developer so directs, a monthly fee for the use of the Amenities and Parking Spaces (the "Fee") from the Association's Club Assessments. The Association will begin to pay the Fee on the date the first Club Estate is conveyed from the Developer to a Member. b. Calculation of Fee. The total cost to maintain, repair, and op€ratethe Spa Unit and the Parking Unit is refened to collectively herein as the "Maintenance Expenses"' Developer will subtract from the Maintenance Expenses the amount of fees received from other parties entitled to use of the Spa Unit (other than personal treatments and services from the health spa, if any) and Parking Unit. The annual amount of the Fee will be fifty-seven percent (57%) of the net Maintenance Expenses plus fifty-seven percent (57%) of an annual rental fee to the Parking Unit and Spa Unit Owner for the right to use the Amenities and parking Spaces (the "Rental Fee"). The Rental Fee will be $300,000.00 in the initial year the Association beings to pay the Fee. The Rental Fee shall be adjusted every three (3) years based on the Consumer Price Index increase during the prior three (3) year period. Th" bul*"" of any Maintenance Expenses not included in the Fee and not otherwise piiA tnrougtr charges, fees, and dues of other parties entitled to use of the Amenities and Parking Spaces -will be the responsibility of Developer (in addition to that portion of the Fee allocable to Developer as the owner of any unsold Club Estates or Club Units). By December 1 of each year that this Agreement is in effect, Developer or Manager shall submit to the Association a budget for the Maintenance Expenses for the following year, showing the items of estimated Maintenance Expenses and the Fee for such year. The Fee shall be addid to and collected as a part ofthe Club Assessments under the Declaration and paid to Developer on essentially the same schedule as the colllmon expenses are billed to the Members, unless the parties mutually agree to a different schedule. At the end of each calendar year during the term hereof, Developer shall determine the actual amount of Maintenance Expenses and either assess the Association or credit against the next ensuing Fee, as the case may be. In the event that during any given year this Agriement is in effect for less than a full year, the amount of the Fee shall be p.orated between the jarties. 5. Other Users. The Association acknowledges that, pursuant to the terms of certain agreements, easements, and other documents of record in ttre Ctert< and Recorder's Office CO_DOCS_A #151601 v5 of Eagle County, Colorado or documents, agreements, or insffuments that are not of record but that are available during normal business hours at Developer's principal place of business for review, other parties besides the Members are entitled to use of the Spa Unit and the parking Unit. The Association further acknowledges and agrees that the Spa Unit and Parking Unit ma! be made available in the future to additional parties, including tire general public, ln the sole discretion of Developer on such terms and conditions and upon luy*"nt of such fees as Developer may determine. 6. Restrictions on Use. The Members are entitled to use of the Amenities, and one (l) Parking Space (either assigned to the Member upon check-in, or, if the Parking Unit requires valet or as it may otherwise designate a Parking Space for a Member) during ttrJ Ctub Week(s) the Member is entitled to the use and occupancy of their respective Club Unit. The Association must at all times keep Developer, or Manager, as applicable, apprised of the identification of each Member, so that the Members will be allowed aicess to the Spa Unit and Parking Unit. Members' guests may also use the Amenities and Parking Space to the same extent as the Members, subject to the Rules and Regulations. The number of guests permitted to use the Amenities is limited to the number of persons allowed to occupy a Club Unit of the t)?e in which the Member owns an interest. Only the guests identified and designated by a Mem-ber and only actual occupants of the Member's Club Unit shall be entitled to use rights in the Amenities and Parking Space. Members may use the Amenities and Parking Spaces solely for their intended purposes. Specifically, the Parking Spaces may be used solely for parking. The outdoor pool and health spa facilities (other than the commercial portion of the health spa) may be used solely for recreational purposes. Nothing contained herein or in any other provision of this Agreement shall be deemed to preclude the creation of other rights to use the Amenities and Parking Spaces or limitations on the use of the Amenities and Parking Spaces upon such terms and conditions as Developer may determine. 7. Automatic Right to Use. No separate assignment or conveyance instrument of the right to use the Amenities and Parking Spaces shall be necessary to transfer such right to the grantee of a Member, or other successor-in-interest to a Club Unit or Club Estate, the non-exclusive beneficial interest in the Amenities and Parking Spaces and the interest, duties and obligations hereunder shall be transferred automatically upon passage oftitle and the right of the former Member shall be extinguished. 8. Repair and Maintenance of Amenities. Developer or the Manager, shall cause the Spa Unit and Parking Unit to be maintained, repaired, expanded, equipped, re- equipped, furnished and refumished to the quality standards substantialiy equal to a hve star hotel containing such facilities. Developer will initially equip and furnish the Spa Unit at its sole expense. Thereafter, all costs related to the general upkeep, maintenance and repair of the Amenities will constitute Maintenance Expenses. Developer acknowledges and agrees that in order to obtain a hrst class recreation area of the tlpe contemplated herein, it will be necessary from time to time to acquire additional equipment or facilitiesind to replace aging and obsolet! equipment' The cost of all such additions and replacements, may be made on iperiodic basis to minimize costs in any given year and will be part of the Maintenance Expenses. 9. Rules and Regulations. Developer or the Manager, shall establish and adopt rules and regulations goveming the use, operation and enjoyment of the Spa Unit and CO_DOCS_A #151601 v5 I Parking Unit (the "Rules and Regulations"), including the method and hours of operation, the facilities and services offered therein, and other facilities and services to which Members may be entitled. A copy of the Rules and Regulations and all changes thereto shall be fumished to the Association upon adoption or change. 10. Cessation of Operations. Subject to intemrptions for repairs and maintenance, Developer agrces that the Amenities will be continuously operated and maintained and the Parking Spaces will be continuously maintained as provided herein until at least the earlier of five (5) years from the date the Association begins to pay the Fee. In the event Developer wishes, for any reason, to close the Spa Unit and/or Parking Unit or cease operations after such time, it shall give at least one hundred eighty (180) days notice of such fact to the Association, which will then have the right and option to assume, at its expense, responsibility for the operation, management and maintenance of the Spa Unit and/or Parking Unit as provided in this Section 10 (the "Option"), provided, the Association is current in its obligations to Developer under this Agreement or will be by the time it exercises the Option. The Association has no right to demand assumption of the operation, management and maintenance responsibilities of the Spa Unit or Parking Unit, other than if Developer desires to cease operations of the same. The Association shall exercise the Option by giving written notice to Developer of its desire to exercise the Option within sixty (60) days after receipt of notice from Developer of Developer's intent to close the Spa Unit and/or Parking Unit or cease operations of either or both. Developer shall then lease the Spa Unit and/or Parking Unit to the Association on a year-to-year basis at an annual rental of three hundred thousand dollars ($300,000.00). Said rental amount shall be payable in equal installments quarterly. The Association shall pay, in addition to rent, all costs of operations, maintenance, repair, taxes, assessments of every kind and description, utilities, insurance costs (for coverages in an amount adequate to cover the full replacement cost of the Spa Unit and/or Parking Unit, as applicable), and all other expenses and costs associated with such areas of the Project. Provided it is not in default of its obligations hereunder or in the lease in effect, the Association shall have the option to renew the lease for successive one year periods by giving notice to Developer not later than sixty (60) days prior to the expiration of the then current lease year. The Option may be exercised only with respect to the entire Spa Unit and/or the entire Parking Unit, unless Developer, in its sole option and discretion, consents to lease less than the entire Unit, and in such event the rental amount will be negotiated by the parties hereto based on the fair market value of the area leased. If the Association does not exercise the Option and ifDeveloper ceases operations and closes the Spa Unit and/or Parking Unit, this Agreement shall terminate and the parties will be released from any further obligations hereunder, except any obligations for past due or owing amounts from one party to the other as provided herein. ln the event the Association assumes control and operation of any portion of the Spa Unit or Parking Unit as provided herein, it agrees, to the extent it maintains applicable facilities, to honor the then existing rights of other parties entitled to use thereof (including, but not limited to, the Vail Plaza Penthouse Unit Owner, and the guests and invitees of the Hotel Unit Owner) as provided in contracts or other agreements befween said parties and the Developer and the Association shall be entitled to receive all fees and payments chargeab le thereunder. ll. Conveyance of Amenities. Developer agrees that, in the event it sells or leases the Spa Unit, or the Parking Unit, or any part thereof, during the term of this Agreement, the grantee or lessee shall be required to comply with all material terms of this Agreement or, if CO-DOCS_A #151601 v5 Developer intends to sell or lease to a party that will not agree to comply with the terms of this Agreement, then the Association and the Members hereundir, shall havi u tight of first refusal topurchase or lease the Spa Unit and/or Parking Unit, or any part thereof,L provided in this Section I I ("Right of First Refusal"). In the event Developer ieceives a bona fide offer for the purchase or lease of the Spa Unit and/or Parking Unit, whith offer Developer desires to accept, Developer shall first deliver to the Association written notice setting forth all of the terms and conditions ofthe proposed sale or lease and offering to sell or lease, as the case may be, the Spa Unit and/or Parking Unit to the Association upon the same terms and conditions as set forthln the offer. The Association shall have the period of thirty (30) days after receipt of the notice inwhich to elect to exercise its Right of Fint Refusal, by delivering notice of such fact to Developer and concurrently therewith depositing with Develop.. or urry broker or escrow agent designated in the offer, any earnest money or other similar consideration as required by the olfer. The closing of the sale or effective date of the lease shall be within thirty (30) days after Developer's receipt of such notice or the date specified in the offer, whichever is later. If the Association does not exercise its Right of First Refusal and Developer proceeds with the sale or lease, the transferee or lessee shall not, thereafter, be bound by the Asiociation's Right ofFirst Refusal and the same shall not apply to any sale or conveyance pursuant to a foreclosure or deed in lieu of foreclosure of any First Mortgagee of the projeci. 12. Destruction of the Project. In the event of damage to or destruction of the Project by hre or other casualty for which insurance money from policies maintained by Developer shall be payable, such insurance money shall be payable to Developer. If Developer decides to proceed with rebuilding or repairing the Spa Unit and Parking Unit, ttris Agreement shall remain in full force and effect. In the event of the total destruction olthe Project, including the Spa Unit and Parking Unit, the provisions of the Declaration regarding total destruction o1 the.Project shall apply and this Agreement shall terminate with neithir party having any further obligations to each other, except as accrued prior to the date of the total destruition of the Project. 13. Compliance with Governmental Resulations. Developer covenants and agrees that it will perform such acts and do such things as shall be lawfully required by anypublic body having jurisdiction over the same in order to comply witn ait requi.ements of sanitation, fire, hazard, zoning, transportation and other similar requirements designed to protect the public with respect to the Spa Unit and Parking Unit. Any such complian." "*p"rrr" incuned or accruing after November 30, 2006 is and shall be an item of Maintenance Expenses. 14. Lawful Use. Developer covenants and agrees that, during the term of this Agreement, it will conform to and observe all applicable ordinances, rules, statutes, laws and regulations relating to the Spa Unit and Parking Unit and the use thereof, and will not during such time permit the same to be used for any illegal or immoral purpose, business or occupation] provided, that a violation of this Section shall operate as a breach of this Agreement only in thi event that the Spa Unit, Parking Unit, or any portion thereof, shall be closed by the proplr legal authorities by reason of having been usecl for an illegal or immoral purpose, business or occupation, and Developer has failed to abate such condition or has failed to take responsible steps to obtain such abatement within fifteen (15) days after such closing. [n the event of failute on the part of Developer constituting a breach of this Agreement, the Association shall be entitled to bring an action at law against Developer for compliance with the provisions of this CO_DOCS_A #151601 v5 Section. Such rights shall exist only after the expiration of fifteen (15) days after the Spa Unit, Parking Unit, or a portion thereo{ is closed by proper legal authorities, as described hereinabove, upon written notice and demand for the abatement of such condition. 15. Term. Unless sooner terminated in accordance with the provisions hereof, the term of this Agreement shall be for a period of years, commencing with the date hereof and continuing during the term of the Declaration as provided therein unless terminated prior thereto pursuant to the terms of the Declaration. 16. Maintenance Expenses. The following are included as items Maintenance Expenses, in addition to all other items specified elsewhere in this Agreement, purposes of determining the Fee: a. Maintenance and Renair. All sums necessary to keep and maintain or cause to be kept and maintained the Amenities and Parking Spaces, and all appurtenances thereto belonging or appertaining, in good and substantial repair and upkeep, in a clean and sanitary condition, and in a manner that is consistent with the Project's operation as a first-class resort, all sums for supplies and labor costs (other than employees of Developer or Manager and any required worker's compensation insurance on such employees) relative to such maintenance, repair and upkeep, and, all sums necessary so as to keep and maintain the Amenities and Parking Spaces in compliance with all applicable statutes, ordinances, regulations, orders, licenses and other laws. Not included as items of maintenance and repair are capital improvements and expenditures, personnel costs (other than for labor as provided above), and rebuilding and reconstruction. b. Insurance. The proportionate share of all (i) premiums for general liability, property damage, and fire insurance, and (ii) premiums for all additional insurance covering the Spa Unit and Parking Unit, excluding worker's compensation insurance and including, without limitation, public liability insurance maintained by Developer on the Spa Unit and Parking Unit, for such purposes, in such amounts and with such carriers as Developer, in its sole judgment and discretion, may determine. All such policies shall contain waiver of subrogation clauses as required by the Declaration. c. Taxes. All taxes levied or assessed at any or all times during the term of this Agreement by any and all impositions, iiens for public improvements, special charges and assessments, and, in general, all taxes and tax liens in the nature of taxes, which may be assessed against the Parking Unit and Spa Unit, against all personal property and fixtures thereon or which may hereinafter be placed thereon, including all taxes which are assessed by any govenrmental authority, including but not limited to a village, town, city, state, county, national, special drainage, school, special district or other taxing district or otherwise. d. Utility Charges. All charges for utilities for the Spa Unit and Parking Unit, whether supplied by a public or private firm, including all charges for water, gas, electricity, telephone, sewer and any other type of utility or any other type of service charge or deposit for such services. e. Other Expenses. Any sums expended by Developer to carry out or enforce this Agreement, any sums that Developer may advance by reason of non-payment by the Association of any portion of the Maintenance Expenses. The Association acknowledges that once the Association begins to pay the Fee, there shall not be any abatement or suspension of the CO_DOGS_A #151601 v5 of for I obligation to pay the Fee in the event any portion of the Spa Unit or Parking Unit cannot be used for any period of time, whether by reason of fire or other casualty o, cuur". It is expressly understood and agreed that the Association and its Members shalf in no event be entitled to c-ompensation or damages on account of any inconvenience or iurnoyance in making repairs and that no allowance or deduction whatsoever from the Fee shall be made nor shall thii Agreement become terminable by the Association in the event of partial or complete destruction of or damage to the Spa Unit or Parking Unit even though the Members may be inconvenienced or deprived of use thereby, so long as in the event of complete destruction ordamage, Developer agrees to diligently repair or reconstruct the Spa Unit and parking Unit. 17. Default by Association. In the event the Association shall fail to perform its obligations hereunder or shall fail or refuse to collect and pay the Fee or any part thereot then Developer may give written notice to the Association of its default and. if the Association does not make a full payment of all sums due to Developer with interest on the overdue amount at the greater of twelve percent (12%) or the highest per annum rate permitted by law (the "Default Rate") within sixty (60) days of such notice, Developer may terminate this Agreement. Developer shall have the right, at its sole option, to suspend the rights hereunder of, and deny access, use and enjoy.rnent of the Amenities and Parking Spaces to, the Association (and therefore to all Members) if such default continues uncured for a period of sixty (60) days after Developer's written notice to the Association. If suspended as provided herein, such rights may be restored to the Association only upon payment in full of all amounts owed, including interest thereon at the Default Rate. Nofwithstanding the foregoing and without waiving the same, Developer shall have a right to bring an action at law against the Association for the payment of any sums owing for the Fee, or any portion thereol together with interest at the Default Rate and together with reasonable attomey's fees aud court costs to and through all trial and appellate levels. 18. Liens on the Spa Unit or parking Unit. a. Liens by the Association. The Association acknowledges that it has no power to incur any indebtedness giving a right to a lien ofany kind or character upon the right, title and interest of Developer in and to the Spa Unit or Parking Unit and that no person shall ever be entitled to any lien directly or indirectly derived through or under the Association, its agents or servants, or on account of any act or omission of the Association. All persons contracting with the Association, or any person furnishing materials or labor to the Association, as well as all persons whomsoeveq shall be bound by this provision of this Agreement. Should any such lien be filed, the Association shall cause the same to be discharged by paying such lien or by filing a bond or otherwise as permitted by law within thirty (30) days, and shall assess each Member a share of the cost of obtaining the discharge of the lien. b. Liens by Developer. Except as provided herein, this Agreement and_the rights and obligations ofthe parties hereunder, shall not be subordinate to any mortgages or deeds of trust now existing or hereafter arising, or to any consolidations, extensions, ren"*"ls, modifications, amendments, or replacements thereof, other than first mortgages or deeds of tnrst, which contain provisions agreeing to be bound by this Agreement and to not disturb the Association's, and through itthe Members', rights hereunder, itbeing the express intent of this Section that any mortgagee, or counterpart thereof under any deed of trust, succeeding to Developer's interest in the Spa Unit and Parking Unit shall not be entitled to terminate, cancel, CO_DOCS_A #151601 v5 suspend or modify this Agreement solely by reason of said foreclosure. All mortgagees, and counterparts thereofunder deeds oftrust, shall be bound by and subject to this proviiion ofthis Agreement. Notwithstanding the foregoing, the Association acknowledges and accepts the first lien on the Project held by a construction lender and evidenced by instruments and doiuments of record between such lender and Developer, as borrower, and other related documents executed in connection with Developer's construction of the Project. It is the Association's understanding tfrat once the Project is completed, Lender will agree to be bound by this Agreement and not disturb the Association's rights hereunder. Developer agrees to keep the Spatnit and parking Unit free and clear ofany and all other liens and encumbiances ofany nature whatsoever, and all persons contracting with Developer, or any other person furnishing materials or labor to Developer, as well as all persons whomsoever, shall be bound by this provision of the Agreement. Should any such lien be filed, Developer shall cause the same to -be discharged by Puytlg such lien or by filing a bond or otherwise as permitted by law within thirty (30) days or by diligently prosecuting a defense of said lien claim in a court of competent jurisdiction. c. Subordination of Liens and Provisions. This Agreement, shall, at all times, be automatically and unconditionally junior and subordinate to the Declaration and the Map and any amendments and supplements thereto, notwithstanding that the Declaration and the Map may be recorded subsequent to the date of this Agreement. 19. GeneralProvisions. a. Assignment by Developer. The Association acknowledges and agrees that Developer may freely assign its rights and obligations under this Agreement. Notice of any assignment shall be given to the Association within thirty (30) days aftei the assignment. Failure to give the Association notice required by this Section will not affect the validity of the assignment, provided this Agreement is not materially and adversely affected by such assignment and is enforceable against assignee in accordance with the terms hereof. b. Covenants to Bind Successors and Assisns. The covenants and agreements contained in this Agreement shall be binding upon and shall inure to the benefit of Developer and its successors and assigns, the Association and its successors and assigrrs, and all persons including Members claiming by, through or under the Developer and the Association. c. Waiver. No waiver of a breach of any of the covenants of this Agreement shall be considered to be a waiver of any succeeding breacir of the same covenant. d- Notices. AII notices required by law and this Agreement to be given by one party to the other shall be in writing, and effective if delivered by certified mail, return receipt requested, addressed to Developer at the place where the Fee undei this Agreement is then being paid, or at such other address as Developer may, by notice in writing, designate to the Association and by personal delivery or by certified mail, retum receipt requested, addressed to the Association at the Project, or at such other address as the Association mav. bv notice in writing, designate to Developer. e' Goveming Law. The laws of the State of Colorado shall govern the validity, enforceability, construction and interpretation of this Agreement. f. Recording. This Agreement shall not be recorded and it shall be a default by the Association of the temrs of this Agreement if the Association or any of its Members causes this Agreement to be recorded. CO_DOCS_A #151601 v5 t g. Entire Agreement. This Agreement contains all the covenants andagreements of the parties hereto with respect to the sudect matter hereof and replaces and _supersedes any prior agreements or understandings beween the Association (and through it, the Members, and each of them) and Developer. h- Amendments. This Agreement may be amended only in writing signed by the Developer and by the Association, its Eoard of Directors, or its Members holdin!at least two-thirds (2/3) of the total votes of Members exclusive of the votes held by th! Developer. i. Headings: Construction. The section and other headings containedin this Agreement are for reference urrd "on*.oi"nce only and shall not affect in iny way the meaning or interpretation of this Agreement or any provision hereof. Whenever used in thisAgreement, unless the context shall otherwis" prouidi, the singular shall include the plural, theplural the singular, and the use ofany gender shall incrude bothlenders. j. Severability. If any term or provision of this Agreement shalllawfully be held or declared to be invalid, illegal or unenforceable, such term or provision shallbe deemed deleted to the extent necessary and the validity of the other terms and provisions hereof shall not be affected thereby.k. Countemarts. This Agreement may be executed in one or morecounterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. o [REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANKI CO_DOCS_A #151601 v5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day andyear fust above written. VAIL PLAZA DEVELOPMENT, LLC, A Colorado limited liability company Waldir Prado Its: Manager VAIL PLAZA CONDOMINILIM ASSOCIATION, INC., a Colorado non- profit corporation Print Name: Its: CO_DOCS_A #151601 v5 By: l0 oe o o o a MANAGEMENT AGREEMENT This MANAGEMENT AGREEMENT (this .iA,greement',), effective as of the,rvrr'r r A\rr\_c,D1vl't\ r (mls -Agreement,,), ettecttve as of the day of200_' is between VAIL pLAzA coNDoMrNruM Assocr.ATroN, INc.,-a colorado lolnroft _corporation (the "Association'), and ver pr,qze HorEL MANAGEMET.IT, LLC, aColorado limited liability company (,.Manager"). A. Ven Puze ("Developer"), has plans RECITALS DEvELoII,GNT, LLC, a Colorado limited liability companyto construct on certain real property located at itrL:,"J,Tl"J*i:Tffi "};JT'fr1*::""#J,#area" residences, a hotel and related facilities, ana tni Vail Plaza Club (the .ilub'), "orrsistirrg oTfifty (50) club units, and related common areas (colrectively, the "projecf'). B. Developer intends to market up to 1,400 club Estates in the club. TheAssociation has been formed to mana8e and operate the Club, and to own the personal propertfwithin the Club Units. - C' Manager has experienced personnel for property management with the expertiseand resources to manage the project and the CIub. D' The Association desires to engage Manager to perform management seryices forthe Association relating to the project and thJClub. E' Any capitalized but undefined terms have the meaning given to such terms in theCondominium Declaration of Vail Plaza Hotel Resort Club to be redrded in the Office of theClerk and Recorder of Eagle County, Colorado (the..Declaration',). AGREEMENT NOW THEREFORE, in consideration of the mutual promises of the parties as hereinafter set forth, the parties agree as follows: 2006, and expire at midnight on November 1,2026 (the;Term")n unless sooner terminated asprovided hereunder. 2. Manaqement Services. A. Proiect. Pursuant to Section 11.1 of the Declaration, the Association isresponsible for the administration and operation of the Project and the managemsnt, control,maintenance, repair, replacement, and improvement of the Common Elernents and LimitedCommon Elements and must use cornmercially reasonable efforts to keep the same in good,clean, athactive, and sanitary condition, ordei and repair. The Association hereby *!ug",Manager to perform such duties of the Association on behalf of the Association. CO_DOCS_A #151593 v2 o B' Club. Pursuant to Section 24.6 of the Declaration, the Association isresponsible for the adminish.ation and management of the Club. The Association hereby "ngug",Manager to perform the duties of the Association on behalf of the Association with r"jrra tl it "Club, including, without limitation" the following; (i) coordinate the plans of mqnbers for moving their personal effectsinto and out of Club Units with a view towards scheduling such moves, so that there will be aminimum of inconvenience to other Members; (ii) cause each Club Unit to be maintained in a first class manner andcon-ditign assisting the Association in determining the color scherne, decor, and fumishing ofeach Club Unit as well as the proper time for t"furbirh*"nt, redecorating, and replacoientthereof; (iii) bill each Mernber for the expense of occupancy of a Club Unit fyng which occupancy the Association determines the indlvidual expenseJ of the particularMember, including, but not limited to, long-distance and other extraordinary telephone charges,extraordinary repairs or.charges for damage to a Club Unit, the CtuU U*i F""rirdg;;equipment, fixtures, appliances, and carpeting caused by a Member or a Member,s guest-orpermitted occupant' firewood, and maid r"-i"" in addition to the standard maid serviceprovided for each Club Week and included within the Club Assessment provided for in Article24 of the Declaration; (iv) collect the Club Assessment: (v) . establish, subject to modification at any time, publish, andadministq (a) a list of sen/ices to be offered by the Association to the Members, the cost ofwhich shall be included in the Club Assessments; (b) such other rules and regulations as theAssociation deems necessary or desirable, specificaily including, but not limit;d to, fines andreskictions on use and occupancy if a Membir is not current on Assessments or is otherwise inviolation of the provisions of Article 24 of the Declaration; and (c) if applicable, a ReservationProcedure as provided for in Article 24 of theDeclaration; (vi) upon the vote of more than a Majority of Owners and the approvalor consent of more than fifty percent (50%) of Eligible First Mortgagees, establish, suiject tomodification at any time, publish and administer procedures for the iental of Club'Estates byoylers; and enter into, on behalf of the Association, separate rental agreements with ownerssubject to the limitations in Section 24.6 of the Declaration: (viD prepare the Club Calendar; (viii) enter into license agreements or other like agreernents with respectto the operation, management, maintenance and/olr benefits related to the ituu; (ix) enforce the remedies for non-payment of the Club Assessments setforth in Article 24 of the Declaration: and CO DOCS A #151593 v2 I (x) . establish, subject to modification at any time, publish a list of andadminister any services to be offered by thJ Association to the club i\4embers, the cost of whichshall be included in the Assessment foiOwners of Club Estates. Manager shall supervise and manage the total operations of the Club under the name"vail Plaea club" and for the account of th-e Association in a m€rnner consistent with standardsof a five star quality hotel. Such supervision and managernent shall be in accordance with theRules and Regulations of the Association as amended from time to time and all applicable lawsand regulations. C' Association Innut. The Association, through its Board of Directors, shallhave the right to make recommendations respecting day+o-day oierations of the project and theClub which Manager shall give due consideration. - If Manager elects not to follow suchrecommendation, then Manager shall provide an explanation outlining the reasons for itsdecision. D' Perform-ance of Services. The Association agrees that, with respect to theperformance of all the general .*ug*"rt G*ices of the projecl and the club, ir"irairg th"contracting for services and supplies required for the operation of tfr" r..1""t *d th" Cluf,@utexcluding the employment of poto*"I;, Manager itrrtt 1to the extent that it is acting inaccordance with this Aq"q9n!) be acting solely as the agent of the Association, and to theextent applicable' the Club- whileacting as agent of the clu6, Manager shall be u"ti"g,or"ry io.the club's account and upon the club's crealt. wtrite acting as ag;nt of the Association withregard to managernent and operation of the Project, Manaler str-att te acting solely for theAssociation's account and upon the Association's credit. - E' Alrtho.rity to Neeotiate and Purchase. In recognition and in furtherance ofthe agency relationship hereby "."ut"d, thi ar*"iution uuthorizes fr*** in conformity withthe Association's annual !-udg."t (the '?roject Budget') and the annual budget relating to thellut f'ct1t Budget') (collectively, theProject Budgerand club Budget arereferred to as the"Budgets") to (i) negotiate service conhacts ior the Pioject and the ctuU', (il) make purchases forthe account of the Project *{ t$ Club and upon the credit of the Association of all supplies,services, and merchandise as, in Manager's opinion, are consistent with the then current d;g;;and are necessary for the proper operation and servicing of the Project and the club, (iii) tot"T1Y". all such supplies, services, and merchandise for th-e account oittre rrolect and the.Cl'ub,and (iv) to ernploy and colsume all such supplies, services, and merchandise in the maintenanceand operation of the Prdect and the Club. ^other than the Hotel Management and operationAgreement between Developer- and Manager regarding the operation *-d ,rr*ug"111-ri ;a ;;vail Plaza Hotel, Manager shall not, without the-prior i,.ritt"n "onr"nt of the Association, enterinto any contracts or ilrangem€nts of any nature pursuant to this Agreement or otherwisepertaining to the Project or the Club with any affiliates of Manager. ! F' Third Partv Claims' The Association authorizes Manager, as a part of thegoteral management of the Project, to settle on such terms and conditions as Manager shall deernin the best interest of the Association" any and all third party claims or dernands arising out of theoperation of the Project and the club, whether or not legal action has been instituted, suchsettlement to be on the Association's behalf and in the Association's name but not to exceed CO DOCS A #151593 v2 twenty thousand dollars ($20,000) for each such claim or demand and the Association agrees that }ch sums shall be paid out of the Association's accounts and be an operating experie of theAssociation, or if the sums paid relate solely to a Club matter, then paid out of the Club'saccounts and be an operating expense ofthe Club. 3. Compensation. As compensation for the services to be rendered hereunder, and inaddition to the direct costs of Manager that are charged as operating expenses of the Club or theAssociation, the Associatiol $a! pay Manager an annual manug"-"ot fee of $150,000 (One Hundred Fifty Thousand and No/Dollars) ("Management Fee"). The Managernent Fee shall bepaid to Manager in monthly installments equal to li 12 of the annual Management Fee on the firstday of each month during the Term. The Management Fee shall be piorated for any partial months this Agreement is in effect. Manager is authorized to pay the lr,ianagernent Fee to itselffrom th-e operating accounts of the Club ana the Association, piovided it has not been notified ofany default as elsewhere provided herein. The Association ihatl allocate the Management Feebetween the Club and the Project and such allocation shall be fair and reasonable based on thetime and resources used to benefit the Club versus the project as a whole. 4- Amenities. Developer and the Association have entered into an Amenities Use {er..eem9nt dated . , 200- (..Amenities Use Agreement'), wherein Developer isobligated to make certain amenities including parking rpu""i ana a neatttr spa with * orrtrid"pool and other facilities (collectively, the "Amenities") available to the Members. TheAssociation is obligated to pay Developer a fee for the Members' right to use the Amenities. D-eveloper and Manager intend that Manager will operate, manage, anl maintain the Amenities. Manager will create and enforce rules and regulations for the use of the Amenities which will notdiscriminate among the Members and othei parties permitted to use the Amenities (except asrequired by applicable law such as the limitation of thl public's use of the health spa), and wi1 atall times, operate, maintain, and manage the Amenities for the use of the tvtenibers and otherparties permitted to use the Amenities so long as the Amenities Use Agreernent is in effect andso long as Manager continues to be engag-d by Developer, or neiloper's successors andassigns, as owner of the Amenities, to manage the same. 5, Personnel. Manager shall have the right and authority to select and hire suchpersonnel as Manager shall reasonably deern ,l"ceriary for the prop"r operation of the project ryd the Club, provided that Manager shall communicate with-and .""iiu" the advice of thedesignated representative of the Association in connection with the employment or terminationof managernent level personnel. Manager's selection and appointrnent of such personnel and thetErms of their ernployment, including compensation lpioviAed that such -compensation isconsistent with the Budgets), shall be final. The employment of any employee at or for the lpj*t or the Club may be terminated by Manager and Manager's decision in rigard to any suchdischarge shall be final. Manager shall exercise reasonable care in the select6n of qualified, competent, experienced (where practicable) and trustworthy anployees and shall use reasonablediligence in the hiring, discharge or supervision thereof. The salaries and all additional costs ofemployment of personnel ryo"id"d or hired by Manager shall be based on normal compensation standards for facilities in the Vail valley Resort area of Vail, Colorado comparable (in terms ofsize, amenities, seasonality and other aspects) to the Project, and shall be consistent with theBudgets. All employees shall be Manager's onployees for all purposes. All costs ofemplol'rnent of personnel working at the Project shali be charged to the operation of the proiect CO DOCS A #151593 \2 o as an operating expense o1, tgrhe extent personnel working at the Project are engaged solely toperform work benefiting the Club, then as an operating "*pinr" of the "cluu. If aiy-employee ofManager performs services for the Project ot ilub -a fot Manager's operations other than theProject or the club, the costs of emproyment of such employJe shali be equitably p;;;;betwryn the Project, the Club, and such- other operationr of tut*uger and the basis for suchproration shall be provided to the Association. 6. Accounting and Budeeting. A' Books and Records. Manager shall establish and maintain standardaccor'mting and budgeting procedures and maintain complete and accurate books of accounts forthe Project and for the Club' The Association shall have the right at any reasonable time duringnormal business hours__(not later.than two (2) years after tlrmination or expiration of thisAgreement), with five (5) days written notice to Manager, to inspect such records and books atthe place where they are regularly kept. B' P-reparation of Budeets. No later than November I annually during theTerrn, Manager will submit to the Associition a proposed Project Budget and a proposea-ctutBudget for the next fiscal year cornmencing January l. The Budgets siritt oe in substantially theform of and contain the information provided in the Budgets pr{ared by Developer for the firstoperational year of the Project and the Club and witl-include projecied ,"rr"rru"r, operatingexpenses' provision for capital improvements, replacements, reserve funds and ursess-errts. ThJAssociation shall have the right to approve, disapprove or modifu any of the proposedexpenditures set forth in the Budgets. The parties aclnowledge and agree that time is of theessence in the budget preparation and apprwal process and alee to use best efforts to haveapproved Budgets in place no later than Decembei3l of each yel. C' Delayed Adootion of Budgets. If the Association has not adopted anannual Project Budget and/or Club Budget within forty-five (45) days of submission of theannual Budgets by Manager, Manager is iuthorized to pioceed with managernent of the project and the Club based on the previous year's respective annual Budget (the ..Interim Budget,,). Inthe event the Association thereafter ;dopts an-annual Budget for iuch annual period that differs lot ft" lnterim Budget, Manager shali use its best effort"s to -*ug" th" project and the Clubfor the remainder of such annual period based on the Budget uiopt"o by the Association,however, Manager shall not be obligated to dishonor or default on contractual obligations createdpursuant to the Interim Budget. D. . Manager shall beresponsible for operating the Project and the Club in ui"otAu* *ith tle ann-uat upfrou"aBudgets, provided however, that Manager shall not b" ,"sponsible beyond reasonablemanagement practices for line item elements of the Budgets tirat Manager cannot directlycontrol' Manager shall, within thirty (30) days following tie end of each month of the fiscalyear' prepare and submit to the Association a balance sheei and operating statement for the Cluband a balance sheet and operating staternent tbr the Project, comparinj actual results with theBudgets in force. In connection therewith, Manager shall submit recommendations for revisionof the Budgets based on actual results and ciicumstances differing from those utilized inpreparation ofthe Budgets. The Association shall have the right to aiprove or disapprove any CO DOCS A #151S93 v2 e such revisions, but the Association's approval shall not be unreasonably withheld. Within ninety(90) days aftsr the end ofeach fiscal year ofthe Club and Project operations, Manager shall alsodeliver or cause to be delivered to the Association a balance shiet and operatin-g statements "qi!"d by independent certified public accountants, retained by Manago *i reasonably satisfactory to the Association. 7 ' Maintenance . The Association acknowledges that the portion of the project constituting YailPlaza Hotel will be operated as a fiveitar hotel and that it will therefore bemandatory for the Project and its equipment to be maintained and repaired in order to continue operation of the Projecto as a whole, at such standard. The Association authorizes Manager andManager agrees to perform maintsnance required to maintain such standard, subjecito theprovisions of Section 6 above. Manager agrees to use its best efforts to staff the project with experienced and capable personnel to handle routine maintenance, and to train personnll on theProject's equipment and facilities so as to obtain satisfactory performance. 8. Insurance. Manager agrees that during the Term it will obtain bids on behalf ofthe Association from insurance brokers approved by the Association and at all times keep i1force insurance on the Project, the prerniums for which shall be treated as operating expenses ofthe Association' The types and amount of insurance carried shall be in conformity with theapplicable provisions of the Declaration, provided that Manager may recommend additionaltlpes and amount of insurance and coverage to the Association. tvtanager shall be named as anadditional insured on such insurance policies in addition to the Associition, the vternters, anJDeveloper (so long as Developer and its affiliates own or are a Mortgagee on any Unit). Allinsurance required to be obtakred by Manager shall be written by insirance **p*i", with acapital and surplus in an amount acceptable to the Association. During the Term, \4anager shall,at its expense, maintain employee dishonesty or similar fidelity insuraice covering the ictions oiits employees engaged in the managernent and operation of ihe Project. Manager must obtainand maintain-a policy of fidelity insurance in ihe amount of an-aggregate fwo (2) months assessments for the Project, plus reserves, as calculated from the budgets. To the extent insurance prerniums relate solely to the Club and insurance on the Club Unit Fumishings, suchpremiums shall be an operating expense of the Club. 9. Termination. A. Association's Risht to Terrninate. The Association shall have the right toterminate this Agreement prior to the expiration oittt" r"t if any of the following we.rtJstrAt occur and under the following circumstances: . (i) If Manager shall apply for or consent to the appointnent of areceiver, trus.t9e or liquidator of Manager o. of uti or a substantial part of its assets; file avoluntary petition in bankruptcy or commence like proceedings or admiiin writing its inability topay its debts as they come due; make a general assignmeni for the benefit of creditorq fiie apetition or answer seeking reorganization or arrangement with creditors or to take advaniage ofany insolvency law or file an answer admitting thi material allegations of such a petition-fitJ against Manager in any bani<r1ptcy, reorganization, insolvency-or like proceedings; or if anorder, judgment or decree_ shall be entered by any court of competeni lurisaiction, on theapplication of a creditor, adjudicating Manager as bankrupt or insolv^ent or approving a petition CO DOCS A#151593 v2 t seeking reorganization or like relief with respect to Manager or appointing a receiver, trustee or liquidator of Manager or of all or a substanfial part of iti assets,-and such order, judgment or decree shall continue unstayed and in effect for i period ofsixty (60) consecutiu" auyr; then in case of any such event, and upon the expiration of the period of grace applicable thereto, the Term shall expire, at the Association's option, on five (5) days' written notiii to Manager. (iD If Manager shall fail to keep, observe or perform any material covenant, agreement, term or provision of this Agreement to be kept, observed or performed by Manager, and such default shall continue for a period of thirty (:b) days after thi Association gives written notice thereof to Manager, or if such default is one that can be cured but that cannot reasonably be cured within such thirfy-day period, if Manager does not commence to cure such default-promptly and prosecute the curing of such default *ittr att reasonable diligance; then, in case of any such event, and upon the expiration of the period of grace applicable thereto, the Term shall expire, at the Association's option, on five (5) days' *.itt"n notice to vtanager. lq for three (3) consecutive months, the Association has given written notice to Manager oflefauliof a material covenant or agreernent of this lgreernent (but not necessarily the same material covenant or agreement), or if the Association has given written notice to Manager on three (3) separate occasions within a twelve-month period of default of the same material covenant or agreement, then the Association may terminate this Agreement on thirty (30) days' written notice to Manager. (iii) The Association, without cause, may terminate this Agreernent effective Septernber I of any year by giving written notice to tvtanager no later than MLch I of the same year. (iv) The Association shall also have the right, upon ninety (90) daysprior written notice, during the initial twelve (12) month period followingthe expiration of the Period of Declarant Control to cancel and terminate this Agreement. B. Manaeer's Right to Terminate. Manager shall have the right to terminate this Agreonent prior to the expiration of the Term if any of the following events shall occur and under the following circumstances: (D If the Association shall apply for or consent to the appointment of a receiver, tustee or liquidator ofthe Association or ofall or a substantial part ofits assets; file a voluntary petition in bankruptcy or cornmence like proceedings, or admitin writing its inaUitity to pay its debts as they come due; make a general assignment for the benefit of creditors; file apetition or ans\ryer seeking reorganization or arrangement with creditors or to take advaniage of any insolvency law, or file an answer admitting the material allegations of zuch a petition?lJ against the Association in any bankruptcy, reorganization, insolvency or like proceedings or if an order, judgment or decree shall be entered by any court of competent jurisdictioi, on theapplication of a creditor, adjudicating the Association as bankrupt oi insolvent or approving apetition seeking reorganization or like relief with respect to the Association or ffiintini uteceiver, trustee or liquidator of the Association or of all or a substantial part of its-assets, ird such order, judgment or decree shall continue unstayed and in effect for a period of sixty(60) consecutive days; then in case ofany such event and upon the expiration ofthe period ofgru"; I CO DOCS A #151593 v2 I applicable thereto, the Term shall expire, at Manager's option, on five (5) days' written notice tothe Association. (ii) If the Association shall fail to keep, observe or perform anymaterial covenant, agrelnerrt, term or provision of this Agreement to be kept, observed orgerformed by the Association, including ceasing to authori'ze and fund the operation of the l-t91":t at a-five star quality hotel standard, and such default shall continue ror a perioa ortrrirty(30) days after written notice thereof by Manager to the Association, or if zuch default is one thatcan be cured, but that cannot reasonably be cured within such thirty-day period, if theAssociation does not conrmence to cure such default promptly and prosecute the curing of suchdefault with all reasonable diligence; then, in case of -any *"ir "rr"ni and upon the expi-ratio; ;ithe period of grace applicable thereto, the Term shall expire at Manager's option on five (5)days' written notice to the Association. (iii) Manager, without cause, may terminate this Agreernent effectiveSepternber I of any year by giving written notice to the Association no later than March I of thes€rme year. C' Te-rmination bv Either Partv. Either party shall have the right to terminatethis Agreement prior to the expiratiott of thG in the w# the project shall be damaged ordestroyed to such an extent that repairs necessary for the Project operations will not be mfre bythe Association (as it is obligated under Section20.l of the Declaration), then this Agreementmay be terminated by eitler ralr hereto upon thirty (30) days' written notice given to the otherparty within ninety (90) days after such damage or destruction. In the event the project will berepaired or rebuilt following such event, the Association shall immediately proceed to make suchrepairs or rebuild the Project, such construction or repairs to commence as soon as feasible andto proceed with due diligence. If the duties of Manager are substantially reduced or increasedduring such repair or rebuilding period, then the Association and Manager shall adjust theManagunent Fee for such period as appropriate. D' EfFect of Termination. In the event of termination pursuant to any of theprovisions of this Section, (i) neither party shall have any further rights, lnctuaing rights topaymenls under this Agreement, except tbr such rights that accrued prifr to the terminati;n andexcept for such rights determined by adjudication, and (ii) all indebtedness of the Association toManager, however arising, shall be due and payable on the efflective date of termination;provided that in the event of the termination of this Agreement by the Association as a result of abreach of or default under this Agreernent by Manager, the Association shall be entitled to set offagainst any indebtedness of the Association to Manager all damages, costs and expenses incurredby the Association arising from such breach or default. E' Inte-mrptior-r of Project Operations. In the event that, due to cause beyond th^e confgl of the parties, the Project's opoutioii *" not feasible according to accepted practicesof good hotel operation in the.reasonubl" judgment of the Association,-Manager shall, uponwritten notice from the Association, close thI Project for periods up to and including onehundred tw€nty (120) days and Manager shall be excused during such time from its obligationlooperate and manage the Project and the Club other than the p"Jo..n*"" of such servicis as arenecessary for prctection and maintenance of the Project. If, at the end of one hundred twentv CO DOCS A #151593 v2 (120) days' the conditions that caused the interruption of the operation have not, in theAssociation's reasonable judgment, ceased or improved sufficientlyio permit the operation ofthe Project in accordance.herewith, this Agreernent may be terminatea by either party heretottpon fifteen (15) days'prior written notice. If Manager's duties are substantially rjuced orincreased during the one hundred twenty day-period, then the Association ana lianager sfratnegotiate a new management fee for such period. The provisions of this subsection shall notapply to normal recurring seasonal closed periods of the Project, if any, between the close of -sfiins and the opening of summer season and the close of fall season andthe opening of skiing atVail. 10. Finances. A. Bank A.ccol.rnts' Manager agrees to maintain in separate accounts atfederally insured banking institutions doing bu-sinesr in th" State of Colorado, approved by theAssociation, in the name of the Association, all moneys received in connection with theoperation of the Pro.ject for and on behalf of the Association (with all reserve funds notimmediatelynecessary for operation of the Project being maintairr"d in r"p*ute interest-bearingaccounts)' Manager agrees to maintain in separate accounts at federally insured bankin;institutions doing business in the State of Colorad-o, approved by the Association, in the name of 9" 91u!' all moneys received in connection with the operation of the Club for and on behalf ofthe Club (with all reserve funds not immediately n"""rrury for operation of the Club beingmaintained in separate interest-bearing accounts). Manager shall use such accounts solely foireceipts and disbursernents of funds of the Associatio.t anO the Club, and shall not commingleany of said funds with other funds. B. Insufficient Funds. ln the event that Association or Club funds are not {equfe to meet payments required hererurder, then Manager shall promptly notifu ttreAssociation of the need for additional funds, the arnount thereof, the date on which required(which may not be less than ten (10) days after the effective date oithe notices), and the pgrposefor which such funds are required, together with the reasons why a shortfall occurred. In theevent that the Association does not fumish the required funds on the date specified in suchnotice, then Manager shall be under no obligation to make the required expendihres; provided,h91vev9r' that Manager may, at its option, udrrunc" such funds * *uy be necessary to meet suchobligations, in which event Manager shall be a creditor of the Association oi the Club, asapplicable, for the amount of any such advance (together with interest thereon at a rate fourpercort (4%) n excess of the prime rate then in effect at wells Fargo Bank, N.A.) and may repayitself the amount of any such advance and interest from any available Association or Club-funis. I l. Expropriation. A' Total Taking. If the whole of the Project shall be taken or condemned inany eminent domain, condemnation, compulsory acquisition or like proceeding by anyc9l!9tent authority for any public or quasi-public o." o. p.r.pore, or if such a portiin tilo*fshall be taken or condemned as to make if imprudent oi unreasonable to use the rernainingportion as a Project of the type and class imme&ately preceding such taking or condemnation]then, in either of such events, the Term shall cease and terminite as of the date on which theAssociation shall be required to surrendsr possession ofthe Project or such portion thereofas a CO DOCS A #15i5g3 vZ I consequence ofsuch taking or condemnation and Manager shall continue to supervise and directthe managernent and operation of the Project until that date. The condernnation award shallbelong solely to the party entitled thereto under the Declaration. B' Partial Taking- Ifonly a part ofthe Project shall be taken or condemnedand the taking or condemnation of such part does not make it unreasonable or imprudent tooperate the rernainder as a Project of the type and class immediately preceding ,u"h tukiog o,condernnation, this Agreement shall not t*ninate, and the entire condemnation award shallbelong to the party entitled thereto under the Declaration. The Association shall apply suchportions of the award as the Association is entitled, if any, as necessary to modiff the prernises so as to permit its continued operation of the project. - 12. Assisment by Manage.r. Manager shall not transfer, assign, pledge or lP:*:** this Agreement or its rigtrts ana Judes hereunder without i-he prior wrinen consentor me Assocratlon. 13. Miscellaneous. A' Ngtices- Any notice, document or other instrument required or permittedto be given or delivered by a party to the other party under any provision of this Agreement mafbe given or delivered by registered or certified mail, return ieceipt requested, addressed to theparty to whom the notice is to be given, or deliveryi is to be made, at its address as shown below.Any such notice, document or other instrument so given or delivered shall be deemed to havebeen given or delivered and effective on the date olreceipt at the address as shown below. Ifnotice is given or any document delivered other than by registered or certified mail, as providJin-the preceding sentence, such notice shall not te Oeernic to have been given or documentdelivered until it is actually received by the parry to whom the notice is given or delivery ismade- The respective addresses of the parties rot tL" porpore of this Agreement are: If to the Association: Vail Plaza Condominium Association, Inc. l2 Vail Road, Suite 200 Vail, Colorado 81657 Attention: Telecopy: and If to Manager: Vail Plaza Hotel Managernent, LLC 12 Vail Road, Suite 200 Vail, Colorado 81657 Attention: Telecopy: CO DOCS A #1S1Sg3 vz l0 t - Either party may change its address for the purposes of this Agreement by giving noticeof such change to the other party in the manner set forth above. B. Inder-nnities' Manager shall indemni& and hoid harmless the Association,Developer, and Mernbers from any ana au demands, claims, actions, suits, penaltier, lorr"r,liabilities, damages and.expenses (including, without limitaiion, reasonable-attomeys, fees,whether incurred at or in preparation for trial, on appeal or otherwise) arising to* o. inconnection with (i) any failure of Manager or any of its Lmployees, agents or representatives toobserve or properly perform Manager;s duties or obligations unae-r this Agresment or (ii)Manager's or any of its employees', agents', or representaiives' negligence, recklessness, willfulmisconduct or illegal acts. The provisions of this subsection shall iurvive the termination orexpiration of this Agreement and shall be in addition to and not a limitation of any other rights orremedies ynfer this Agreement, at law, in equity or otherwise. Developer and the Msrnbers shallbe deerned third party beneficiaries of this suusection. The Association shall indernnifu ana trJaharmless Manager from any and all demands, claims, actions, suits, penalties, losses, liabilities, lamages and expenses (including without limitation, reasonabie^ attomeys, tbes, whether ilcune{ at or in preparation for trial, on appeal or otherwise) arising from or in connection with(i) any failure of the Association ot *y of i1s employees, agents or iepresentatives to observe orproperly perform the Association's duties or obligations under this Agreernent or (ii) theAs.sociation's or any of its ernployess', agents', oirepresentatives' negligence, recklessness,willful misconduct or illegal acts. The provisions of thiJsubsection shall survive the terminationor expiration of this Agreement and shall be in addition to and not a limitation of any other rightsor remedies under this Agreement, at law, in equity or otherwise. C' No Partnership. In performing its duties under this Agreernent, Managershall act as an indepandent contractor of the Associa:tion. Nothing containeJin this Agreemlntshall constitute or be construed to be or create a partnership or joint venture between theAssociation on one part, and Manager, or its successors or assigns, onih" other part. D' Govqrling Law., This Agreernent shall be construed and interpreted inaccordance with the laws of the State of Colorado. E' Anre-ndmeqts. This Agreement carurot be changed or modified except inwriting and acknowledged by both parties to this Agreernent. F' Final Aqreement' This Agreement constitutes all of the understandings and a-greanents of any nature or kind existing between the parties with respect to managernent ofthe Club and the Project. - G' Headings. The paragraph headings herein are for convenience orreference only and axe not intended to-define, limit or Jescribe the scope or intent of anyprovision of this Agreement. H' Degigrrated ReDresentativg. Each of the parties to this Agreement shalldesignate from time to time a person therein cltea such parry's "designated rJpresentative,,)who shall be authorized to deal with the other party to this Agreement. iach party shall al*ayshave a designated representative. Unless notified to the contiary, each party to this Agreernent CO DOCS A #151593 v2 ll shall be entitled to presume that the other party's designated represurtative is fully authorized tomake agreanents and give approvals on Uehalfof such-other party. J' Authority. lach of the persons executing this Agreernent represents thathe has the full and complete authodty to do so on behalf of hr, ,""rp""tiullurty. J. Binding Effect. This respective successors and assiens. Agreement shall bind the parties hereto and their [REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANKI CO DOCS A #1S1Sg3 v2 12 \ IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the datel_ first above written. VAILPLAZA CONDOMINruM VAILPLAZA HOTEL MANAGEMENT,ASSOCIATION, a Colorado nonprofit LLC, aColorado limited liability ";-;;ycorporation By: By:Print Name: Its:Print Name: Its; CO DOCS A #151593 v2 l3 oI o o o