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HomeMy WebLinkAbout2883 Timber Creek Drive 5B 10B.pdf:It BALCOMB &GREEN WATER LAW I REAL ESTATE I LITIGATION I BUSINESS ESH 1953 August 31, 2018 Eric M. Theile Office (970) 945-6546 eric@balcombgreen.com Town of Vail -Design Review Board (ORB) Department of Community Development 75 South Frontage Road West SENT U.S. MAIL, FIRST CLASS CERTIFIED, RETURN RECEIPT REQUESTED Vail, CO 81657 Re: Notice regarding Units B-5 and B-10 of Timber Creek Lodges Condominiums, 2883 Timber Creek Drive, Vail, Colorado Pending Litigation in District Court, Eagle County (Case No. 2017 CV 30280) Dear Sir or Madam, This office represents the individual unit owners of Units B-5 and 8-10 of the Timber Creek Lodges Condominiums located at 2883 Timber Creek Drive, Vail, Colorado. Our clients and the Timber Creek Lodges Condominium Association are involved in litigation in the above-refenced case. Included with this letter are copies of some of the relevant pleadings. The District Court litigation involves several questions oflaw, including who has the authority to permanently remove any parts of the structures comprising the Timber Creek Lodges Condominiums. This issue is hotly contested. In light of the pending litigation, it would be inappropriate and reckless for any permit to issue for the removal of any portion of the buildings of Timber Creek Lodges Condominiums. My clients' position is that the owners of the Units in Building Bown the common elements, jointly and severally. See, FIRST SUPP. DEC. (1981) ir,r 1 & 2 (attached). These elements include the log beams. Therefore, no log beams of Building B may be removed without the unanimous co nsent of all owners of Building B, which owners have not given that consent. My clients take the position that no entity or person has any authority to apply for the removal of any portion of Building B except the owners of Building B, acting together. My clients take the position that the Homeowners Association has no standing to make such application. If you have any questions, please don't hesitate to contact our office. Eric M. Theile cc: clients/ Enclosure Town of Vail Attorney's office/ Enclosure ASPEN I BASALT I GLENWOOD SPRINGS LAMAR Post Office Box 790 I Glenwood Springs, Colorado 81602 800.836.5928 I 970.945.6546 I BalcombGreen.com DISTRICT COURT, EAGLE COUNTY, COLORADO Court Address: 885 Chambers A venue P.O. Box 597 Eagle, CO 8 1631 Telephone No.: (970) 328-6373 Petitioner: MICHAEL GLADKIN AS SPECIAL TRUSTEE OF THE VICTORIA A. GLADKIN REVOCABLE TRUST V. Respondent: TIMBER CREEK LODGES CONDOMINIUM ASSOCIATION Attorneys for Petitioner: Robe1t C. Gavrell, Atty. No. 37045 Eric M. Theile, Atty. No. 49708 BALCOMB & GREEN, P.C. 818 Colorado A venue Glenwood Springs, CO 8160 I Phone: (970) 945-6456 email: rnavrell@balcombiueen.com; eric@balcomb2reen.com A. COURT USE ONLY A. Case No. 2017 CV Div.: PETITION FOR DECLARATORY JUDGMENT Petitioner, Michael G ladkin as Special Trustee of the Victoria A. Gladkin Revocable Trust ("Petitioner"), by and through his attorneys, Balcomb & Green, P.C., submits this Petition for Declaratory Judgment, and in support thereof states as follows: I. P ARTIES, J URISDICTION, AND VENUE. 1. The Timber Creek Lodges Condominiums ("TCL") is a condominium complex located at 2883 Timber Creek Drive, Vail, Colorado. 2. Petitioner is an owner, in Trust, of Unit B-10 at TCL (·'Unit B-1 0"). Eagle County District Court Case No. 2017 CV Glad/...in v. Timber Creek Lodges Condominium Association PETITIONFORDECLARATORY JUDGMENT 3. Respondent, Timber Creek Lodges Condominium Association ("Respondent"') is the homeowners' association for TCL. 4. This proceeding is a petition for declaratory judgment brought pursuant to C.R.S. § 13-51-101 and C.R.C.P. 57. This Court has jurisdiction over this matter pursuant to C.R.S. § 13-51-104 and C.R.C.P. 57(a). II. SUM~IARY OF D ECLARATORY JUDGMENT REQUESTED. 5. Petitioner requests that this Court review the Complete Declaration and Plat Maps (defined below) for TCL, and enter Declaratory Judgment confirming the legal status of an attached physical structure associated with Unit B-10. Unit B-10 has an exterior cantilevered balcony located off the second story on its south side, supported by thick log beams which extend from within Unit B-10 (hereinafter the '·Balcony"). Petitioner contends that, under the Complete Declaration and the Plat Maps, the log beams which undergird the Balcony (hereinafter the "Balcony Beams"), as well as the (I) the planking that sits atop the Balcony Beams, (2) the balustrades that suITound the perimeter of the Balcony, and (3) any and all associated hardware affixing the same to the Balcony Beams (hereinafter the "Balcony Elements") are all Limited Common Elements. 6. The Petitioner further contends that because the Balcony is comprised of Limited Common Elements, his ownership of the same is in common with the other owners of units within Building '·ff' of TCL, as provided for by the First Supplemental Declaration (defined below). Accordingly, Petitioner seeks an order in Declaratory Judgment confirming that Respondent has no right to unilaterally remove or materially modify any portion of the Balcony, Balcony Beams, or Balcony Elements, as a matter of law. 2 Eagle County District Court Case No. 2017 CV Gladkin v. Timber Creek lodges Condominium Association PETIT10N FOR DE CLARA TORY JUDGMENT 7. The Petitioner further contends that because the Balcony is comprised of Limited Common Elements, the Respondent has a duty to maintain, repair or replace the same, and, if damaged, a duty to restore the same to substantially the same condition before the damage. 8. The Court's Declaratory Judgment related to the Balcony, Balcony Beams, and Balcony Elements will assist the members of TCL, generally, as well as to the Petitioner and Respondent, specifically, in confinning each's respective ownership interests in the same, and each's repair / maintenance / restoration obligations related to the same, moving forward. Ill. STATEMENT OF R ELEVA,'ff FACTS AND LAW. 9. A photo of the Balcony associated with and attached to Unit B-10 is embedded, below. The photo was taken by an engineering firm hired by Respondent. 10. TCL is governed by the Declaration for Vail Intermountain Swim and Tennis Club Condominiums, as amended (hereinafter the "Complete Declaration"). The Complete Declaration is comprised of the original Condominium Declaration for Vail Intermountain Swim and Tennis Club, recorded in the records of the Eagle County Clerk and Recorder at Reception 3 Eagle County District Court Case No. 2017 CV Gladkin v. Timber Creek Lodges Condominium Association PETITION FOR DECLARATORY JUDGMENT No. 194541 on Feb. 1, 1980 (the "Original Declaration) (attached as Ex. 1); a "First Supplement' to the same, recorded at Reception No. 220884 on June 16, 198 l (the ·•First Supplemental Declaration") (attached as Ex. 2); and a "First Amendment" to the same, recorded at Reception No. 200801243 on Jan. 18, 2008 (attached as Ex. 3)1• 11. The Complete Declaration refers to two Plat Maps, which together outline and describe all the Units that comprise TCL. The original Plat Map, referred to by the Original Declaration, was recorded at Reception No. 194542 on February I, 1980 (the "First Plat Map") (attached as Ex. 4). A second Plat Map, referred to by the First Supplemental Declaration, was recorded at Reception No. 220935 on June 16, 1981 (the '·Supplemental Plat Map") (attached as Ex. 5).2 A. Definition of Terms. 12. The Original Declaration defines "General Common Elements" to include "[t]he foundations, columns, girders, beams, supports, main wells, roofs, stairs, sidewalks and driveways of the building." Ex. 1, § l (d)(2) (emphasis added). 13. The Original Declaration defines the ·'Building" as "a building improvement comprising a pa11 of the property." Ex. 1, § 1 (k) ( emphasis added). 14. The Original Declaration defines the "Property" as "the land, buildings, all improvements and structures thereon and all rights, easements and appurtenances belonging thereto." Ex. 1, § l(f). 1 Exhibits 1, 2, and 3 are all certified copies, making each of them self-authenticating under CRE 902(4). 2 Exhibits 4 & 5 are also certified copies, making each of them self-authenticating under CRE 902(4) also. 4 Eagle Countv District Court Case No. 2017 CV G/adkin v. Timber Creek Lodges Condominium Association PETITION FOR DECLARATORY JUDGMENT 15. The Original Declaration defines "Limited Common E lements" as "those parts of the general common elements reserved for the exclusive use of the owner of a condominium unit." Ex. 1, § l(e). 16. The Original Declaration provided that the "Condominium Map" "shall consist of and set forth (1) the legal description of the surface of the land, together w ith designation of and separate legal descriptions of any project common elements and general common elements; [ and] (3) floor plans and elevation plans of the building built or to be built thereon showing the location, the unit designation and the linear dimensions of each unit, and the designation of the limited common elements .... ·· Ex. 1, § 2. B. Disagreement in Ownership of General Common Elements under the Original Declaration and the First Supplemental Declaration. 17. The Original Declaration provides that "[t)he general common elements shall be owned in common by all of the owners of the units and shall remain undivided." Ex. 1, § 8 ( emphasis added). 18. The Original Declaration further provides that the "Declarant reserves the right to file said Map in one or more documents and [to] add additional property to said project by amendment to this Declaration and the filing of a supplemental Map." Ex. 1, § 2, il4. 19. The Original Declaration further provides that the "Declarant expressly reserves the right to enlarge this condominium project by constructing additional buildings containing condominium units and other improvement on separate real estate ... which units and lands shall become a part of this condominium project by duly recorded Supplements to this Declaration and the Map." Ex. 1, § 29(a). 5 Eagle County District Court Case No. 2017 CV Gfadldn v. Timber Creek Lodges Condominium Association PETITION FOR DECLARATORY JUDGMENT 20. The Original Declaration further provides that "[ e ]xcept as is provided in Paragraphs 3 and 4 of this Declaration, all of the provisions contained in this Declaration shall be applicable to such additional condominium units." Ex. I ,§ 29(c). 21. The First Supplemental Declaration explains that "this Supplemental Declaration shall consist of six condominium units located in Building "B", as more fully described in Exhibit "B" hereto and shown on the First Supplement to the Condominium Map." Ex. 2, p. 1. 22. In disagreement with the Original Declaration, the First Supplemental Declaration provides that "[t]he improvements located in the subject property described in Exhibit ''A" hereto are hereby divided into six separate condominium units each consisting of one unit with the interest in the general common elements and limited common elements of Building Bas shown on the First Supplement to the Condominium Map. and as more fully described on Exhibit "B" hereto." Ex. 2, § 1 (emphasis added). 23. The First Supplemental Declaration further provides that ·'[n]o part of the general common elements, which are part of Building B shall be owned by the owners of condominium in Building A .... " Ex. 2, § 2. 24. Exhibit B to the First Supplemental Declaration provides that the interest held by Unit B-10 in Building B is 17.59%, comprising 1,244 sq. ft. total. Ex. 2, p. 5. 25. The First Supplemental Declaration further provides that "[ e ]xcept as otherwise provided herein, all terms, conditions, easements, restrictions, uses, limitation, reservations and obligations set forth in said Declaration as recorded are incorporated herein and made a part hereof." Ex. 2, § 5. 6 Eagle County District Court Case No. 2017 CV Gladkin v. Timber Creek lodges Condominium Association PETITION FOR DECLARATORY JUDGMENT 26. Page 2 of the Supplemental Plat Map depicts the Balcony attached to Unit B-10 from an aerial perspective, identifying it as an "LCE Deck." See Ex. 5, p. 2. The Balcony is depicted as extending from the Unit a distance of 6.35 feet, and being 13.50 feet wide. See id. 27. Page 3 of the Supplemental Plat Map, depicting the Balcony attached to Unit B- l O from a side-view, cutaway perspective, again identifies the Balcony as an "LCE Deck." See Ex.5,p.3 C. Repair and Restoration of Common Elements under the Complete Declaration. 28. The Original Declaration provides that Respondent has the reasonability to inspect, maintain, repair, or replace any general common elements, to prevent damage to general common elements or limited common elei:nents. Ex. 1, § 14. 29. In case of damage, the Original Declaration fu1ther provides that "[r]estoration of ... damaged improvements shall be to substantially the same condition as that of the improvements prior to the damage." Id. 30. The Original Declaration imposes no duty on any owner to maintain common elements or limited common elements, of any kind. See Ex. 1, § 15 ("'Owners' Maintenance Responsibility of Unit"). IV. PETITION FOR D ECLARATORY FOR R ELIEF. (Declaratory Judgment) 3 1. The facts alleged hereinabove, without limitation, support Petitioner's Petition for Declaratory Judgment regarding the legal rights, status, and relations of the parties and their real property as described hereinabove. 32. Petitioner seeks declaratory judgment, pursuant to §§ 13-51-101, et seq. and 7 Eagle County District Court Case No. 2017 CV Glad/..,in v. Timber Creek Lodges Condominium Association PETITION FOR DECLARATORY nJDGMENT C.R.C.P. 57, confirming as follows: a. The Balcony as described hereinabove, including both the Balcony Beams and the Balcony Elements, is a "Limited Common Element'' appurtenant to Unit B-10, as that term is used in the Complete Declaration; b. Petitioner's ownership interest in said Balcony amounts to an undivided 17.59%, together with the other unit owners of Building B, as described by the First Supplemental Declaration; c. Respondent has a duty and obligation to maintain, repair, and/or replace the Balcony, to the extent the Balcony has suffered damage; d. In making any restoration of the Balcony, Respondent is obligated to restore it to substantially the same dimensions as outlined by the Supplemental Plat Map; and e. Respondent has no authority to unilaterally remove ( e.g., saw off) any portion of the Balcony, Balcomb Beams, or Balcony Elements associated with Unit B-10, or to replace the Balcony with a different balcony of materially diminished dimensions. WHEREFORE, Petitioner requests the above described relief for all the above described reasons. Petitioner further seeks an order in Declaratory Judgment from this Court that Respondent must be estopped and precluded from allocating to Petitioner's account with TCL any of the costs and attorney fees incurred by TCL in pursuing this action. C.R.S. 38-33.3- 123(1 )( d)(II). To the extent Respondent opposes any of the relief sought herein, Petitioner is entitled to all costs of this action as the prevailing party, pursuant to, without limitation, C.R.S. § 13-51-114. 8 Eagle County District Court Case No. 2017 CV Gladkin 1•. Timber Creek Lodges Condominium Association PETITION FOR DECLARATORY JUDGMENT Dated this 16th day of November 2017. Petitioner's Address: 3413 N. 85th Street Scottsdale, Arizona 85251 Respectfully submitted, BALCOMB & GREEN, P.C. Isl Robert C. Gavrell Robert C. Gavrell Attorney for Petitioners 9 ~- . ' . . . . _!. . I -: ·,.'· . , ' ... . ~ :;._.,. ·~ 1 Book 29e Page 150 Recorded at ltt)O A.M. 1'eb 1, 19!10 -~ R~corder: Johnnette Phillips, Eagle County CONDOMINIUM DECLARATION FOR VAIL INTERMOUNTAIN SWIM AND TENNIS CLUB CONDOMINIUMS KNOW ALL MEN BY THESE PRESENTS, THA'l' WHEREAS, Trahern Investments, Ltd,, a Colorado Corporation ands. H. Cole Construction, Inc., a Colorado Corporation (herein- after called "Declar,ant•) are the owners of real estate situated in the County of Eaglo, State of Colorado (hereinafter called "subject land")· as is more fully described i n Exhibit "A" attached hereto. WHEREAS, Declarant desires to establish a condominium pro- ject under and pursuant to the Condominium Ownership Act of the State of Colorado, as amended1 and WHEREAS, Declarant does hereby establish a plan for the ownership of separate fee simple estates consisting of the area of space contained in each of the units in the building improve- ment, and the co-ownership by the individual and separate owners thereof, as tenants in co111111on, of certain of the remaining real and personal property hereinafter defined and referred to as the general common elements, and the ownership by an association of such owners of certain other real and personal property, herein- after defined and referred to as the project common elements; NOW THEREFORE, Declarant does hereby publish and declare that the following te.r111s, covenents, conditions, easements, restrictions, uses, limitations and obligations shall be d~emed to run with the land, shall be a burden and a benefit to Declarant, their successors and assigns and any per son acquiring or owning an interest in the real property and improvements, their successors, grantees, heirs, executors, administrators, deviseee and assigns. 1. Definitions. Unless the context shall expressly provide otherwise, the following definitions shall apply: (al "Condominium Unit• means an individual airspace unit together with the interest in the general and unlimited comon elements appurtenant to such unit. (b) "Owner" means a person, fir111, corporation, partnership, association or otberlegal entity, or any combination thereof, owning one or more condominium units. (cl "Project Common Elel'l\ents• means and includes property of any kind owned by the Association of Unit owners, as hereinafter defined, and used or reserved for the common use of the members of such Association and their guests; such property may include, by wasy of illustration and without limitation on the generality of the foregoing, vacant land, parking areas, recreational facilities, yards, gardens, sidewalks or paths, driveways, barbecue and picnic areas, equipment, materials, or other property and easements and rights necessary or convenient thereto. (d) "General Common Elements" means and includes all of the following not defined above a project common elements: EXHIBIT 1 (1) The land on which a building is located; (2) The foundations, colUIIIZlS, girders, beams, supports, main walls, roofs, stairs, sidewalks and driveways of the building; (3) The installations of central services in- cluding water, heating and utilities and in general, all apparatus, equipnient and materials existing for comroon use incidental to a building; and (4) All other parts of the property and easements and rights necessary or convenient to a building's existence, maintenance and safety, or nornally in common use. (el "Limited Common Elements• means those parts of the general COlll'nOn element• reserved for the exclusive use of the owner of a condominiUl'II unit. (f) "Entire Premises": •Premises", •Project" or "Property• means and includes the land, buildings, all improvements and structures thereon, and all rights, easements and appurtenances belonging thereto. (g) "Condominium Project• means all of the land and improvements initially and subsequently submitted to this Declaration. (h) •common Expenses• means and includes: (1) All sums lawfully assessed against the general common elements or the project co111110n elements; expenses of adninistration and management, maintenance, repair or replacement of the general col'IIIIIOn elements or the project COtllnOn elements; and expenses declared co11111on expenses by the unit owners. (2) Direct Expenses: "Direct expenses" shall mean and include those expenses paid by the Condominiwn Association which are calculated or detern.ined by the number or size of units and are directly attributable or allocable to each unit, such as trash removal, management, water and/or sewer. Such direct expenses shall be billed or assessed directly to each owner with common expenses and be a part of the assessment. (i) •Association of Unit owners" or "Association" means the Vail Intermountain Swim and Tennis Club Condominium Association, a Colorado non-profit corporation, the Certifi~ cate of Incorporation and By-Laws of which shall govern the administration of this condominium project, and the members of which shall be all of the owners of the condominium units of this condominium project. (j) "Map" or "Plans" means and includes the engineering survey of the land locating thereon all of the improvements, the floor and elevation plans and any other drawing or diagram- matic plan depicting a part of or all of the improvements. (k) "Building" ~eans a building improvement comprising a part of the property. (l) (1) •unit" means the undivided air space which is contained within the finished perimeter walls, floor, ceilings, windows and doors. 2. Condominium Map. The Map shall be filed for record prior to the first conveyance of any condominium unit. Such Map shall consist of and set forth (l) the legal description -2- t. '. . .. ,•.;. ~ f: .... ', ,. ' • ~ I ... -". 'J,. of the surface of the land, together with designation of and separ3te legal descriptions of any project co111111on elements and general common elements; (2) the linear measurements and loca-tion, wit.h reference to the exterior boundaries of the land, of the building and all other improvements built or to be built on said land by Declarant: (3) floor plans and elevation plans of the building built or to be built thereon showing the location, the unit designation and the linear dimensions of each unit, and the designation of the limited common elements; (4) the elevations of the unfinished interior surfaces of the floors and ceilings, and the linear measurements showing the thickness of the perimeter walls. The Map shall contain a certificate of registered architect or licensed professional engineer certifying that the Map theretofore filed, or the amended Map or Map filed simultan- eously therewith, fully and accurately depicts the layout, measurements and location of all of the improvements, any project common elements and general coll1Jllon elements, the unit designations, and the dimensions of such units and the elevations of the floors and ceilings. In interpreting the Map the existing physical boundaries of each unit as constructed shall be conclusively presumed to be its boundaries. Declarant r·eserves the right to amend the Map, from time to time, to conform same to the actual physical location of the constructed improvements and to any changes, modifications or alterations. Declarant reserves the right to file said Map in one or more documents and add additional property to said project by amendment to this Declaration and the filing of a supplemented Map. 3. Division of Property Into Condominium Units. The real property and improvements to be constructed thereon are hereby divided into the following fee simple estates: ;. The real property described in Exhibit "A" and the improvements thereon are hereby divided into the fee simple estates described on Exhibit "B" hereto. Each such estate shall consist of the separately designated apartment units, the undivided percentage interest in and to the general common elements appurtenant to each unit, and the limited common ele- ments, if any, appurtenant to each unit, as is set forth therein. ueclarant reserves the right to (i) physically combine the space within one unit with the space within one or more adjoining units; (ii) to combine a part of or combination of parts of the space within one unit with part or parts of the space within one or more adjoining units; and (iii) to divide into separate units the space of one unit. The aggregate of divided and undivided interests in the general common elements resulting therefrom shall be reflected by an amendment to Exhibit "B" hereof and to the Hap. 4. Inseparability of a Condominium Unit. Each unit and the undivided interest in the general common elements and the limited common elements, if any, appurtenant thereto shall be inseparable and may be conveyed, leased, encumbered, devised or inherited only as a condominium unit. 5. Description of a Condominium Unit. Every deed, lease, mortgage, trust deed, will, or other instrument may legally describe a condominium unit by its identifying unit number, followed by Vail Intermountain Swim and Tennis Club Condominiums with further reference to the recorded Declaration and Map. -3- r Every such description shall be deemed good and sufficient for all purposes to convey, transfer, encumber or otherwise affect the general collUl)()n elements and the limited common elements reserved for use with such condomini11111 unit, and also to convey the right of ingress and egress to and from said unit and the limited common e lements adjacent thereto . 6. Se arate Assessment and Taxation -Notice to Assessor. Declarant sha g ve wri tten not ce tote Eag e County Assessor of the creation of condominium ownership of this property, as is provided by law, so that each unit and its appurtenant undivided interest in the general common elements shall be deemed a separate parcel and subject to separate assessment and taxation, as shall be the project common elements. 7. '.!'.!lli· A condominium unit may be held and owned by more than one person as joint tenar,ts or as tenants in common, or in any real property tenancy relationship recognized under the laws of Colorado. 8. Nonpartitionabilit! of General Common Elements. The general common elements sha 1 be own&~ In common by all of the owners of the units and shall remain undivided, and no owner shall bring any action for partition or division of the general common elements. Nothing contained her~in shall be construed as a limitation of the right of partitio.1 of a condominium unit between the owners thereof, but such partition shall not affect any ot~er condominium unit. 9. Use of General and Limited common Elements. Each owner shall be entitled to exclusive ownersfiip and possession of his unit. Each owner has the exclusive possession of his unit. Each owner has the exclusive right to use the limited co111111on elements appurtenant to his unit. Each owner may use the general common elements and the project common elements in accordance with the purposes for which any such elements are intended without hindering or encroaching upon the lawful rights of the other owners. 10. Use and Occupancy. All units shall be used and occupied principally for residential purposes by the owner, by the owner's family or the owner's guests and tenants. Declarant and its employees, representatives, agents, and contractors may maintain a business and sales office, construction facilities and yards, model units and other facilities required during the construction and sales period. 11. Easements for Encroachments. If any portion of the general comrnon elements now or fiereafter encroaches upon a condominilll11 unit or units, or upon the project coinmon elements, a valid easement for the encroachment and for the maintenance of same, so long as it stands, shall and does exist. If any portion of a unit now or hereafter encroaches upon the general common elements, the project common elements or upon an adjoi.ning unit or units, a valid easement for the encroachment and for the maintenance of same, so long as it stands, shall and does exist. If any portion of the project co111111on elements now or hereafter encroaches upon a condominium unit or units, or upon the general coaunon elements, a valid easement for the encroach- ment and for the ma~ntenance of same, so long as it stands, shall and does exist. For title or other purposes, such encroachments and easements shall not be considered or determined to be encumbrances either on the general co111111on elements or the condominium units. Declarant hereby specifically limits use of thP- common areas adjacent to and underlying Gore Creek to fishi~g -4- . ' '" . . . . ~ ·. ' by use of fly rods and flies only and further requires that all fish caught while fishing on common areas shall be released and returned to Gore Creek. All persons while fishing on said common area-adjacent to or underlying Gore Creek shall in addition comply with all laws, rules and regulations of the Colorado Department of Wildlife. This covenant may be enforced by oeclarant, the members of the Association or any member of the public. •.. .,J oeclarant has on behalf of the Association entered into a contract with the Intermountain Swim Club for membership rights which shall be conveyed with each condominium unit and which shall run with each unit and not severable. Pursuant to said contract,• the Association is obligated to make monthly or periodic membership payments which are and shall be assessed as a part of common expenses. In the event said Intermountain Swim Club shall be acquired by a statutory recreation district, the owners of the units, through the Association, shall be obligated to purchase passes for the use of swimming and tennis facilities. 12. Termination of Mechanic's Lien Ri hts and Indemnifica- tion. Subsequent tote comp etion o the l.11lprovements described on the Map, no labor performed or materials furnished and incor- porated in a unit with the consent or at the request of the owner thereof or his agent or his contractor or subcontractor shall be the basis for filing of a lien against the unit of any other owner not expressly consenting to or requesting the same, or against the general coffll'ilon elements owned by such other owners, agents or the project common elements. Each owner shall indemnify and hold harmless each of the other owners and the Association from and against all liability a~ising from the claim of any lien against the unit of any other owner or against the general common elements or the project common elements for construction performed or for labor, material, services"or other products incorporated in or otherwise attributable to the owner's condo- minium unit at such owner's request. 13. Administration and Management. The administration and management of this condominium property shall be governed by the Articles of Incorporation and By-Laws of Vail Intermountain Swim and Tennis Club Condominium Association, a non-profit Colorado corporation hereinafter referred to as the "Association". An owner of a condominium unit, upon becoming an owner, shall be a member of the Association and shall remain a member for the period of his ownership. No person shall be a member. unless he is an owner. An exclusive Agent for the operation and management of this condominium project may be appointed by the Association. 14. Reservation For Access-Maintenance, Repair and Emergencies. The owners shall have the irrevocable right, to be exercised by the Managing Agent or Board of Directors of the Association, to have access to each unit from time to time during reasonable hours as may be necessary for the inspection, maintenance, repair or replacement of any of the general common elements therein necessary to prevent damage to the general or limited common elements or to another unit or units. Damage to the interior of any part of a unit resulting from the maintenance, repair, emergency repair or replacement of any of the general common elements or as a result of emergency repairs within another unit at the instance of the Association shall be a common expense of all of the owners; provided, how- ever, that if such damage is the result of the negligence of a unit owner, then such unit owner shall be responsible for all of such damage. Restoration of the damaged improvements shall be to substantially the same condition as that of such improve- ments prior to the damage. -s- : .. ,. . " 15. owners ' Maintenance Responsibility of Unit. For purposes of maintenance, repair, alteration and remodeling, an owner shall be deemed t o own the windows, doors, interior non- supporting walls, the materials (such as but not l imited to plaster, gypsum dry walls, panel ing, wallpaper, brick, stone, paint, wall and f~oor tile, and flooring, but not including the subflooring) making up the finished surfaces of the perimeter walls, ceilings and floors within the unit and t he unit doors and windoes, The owner shall not be deemed to own any utilities running through his unit which serve more than one unit except as a tenant in colll!l1on with the other owners. Such right to repair, alter and remodel shall carry the obligation to replace any finishing materials removed with similar or other types or kinds of finishing materials of equal or better quality. An owner shall maintain and keep the jnterior, including the fixtures, of his own unit in good taste and repair. All fixtures and equipment installed within the unit commencing at a point where the utility lines, pipes, wires, conduits or systems (which for brevity are hereafter referred to as •utilities") enter the unit shall be maintained and kept in repair by the owner thereof. An owner shall do no act nor any work that will impair the structural soundness or integrity of the building or impair any easement or hereditament. 16. Compliance With Provisions of Declaration and By-Laws. Each owner shall comply strictly with the provisions of this Declaration, the provisions of the Articles of Incorporation and By-Laws of the Association, and the decisions and resolutions of the Association adopted pursuant thereto as the same may be lawfully amended from time to time. Failure to so comply shall be grounds for an action to recover sums due and for damages or injunctive relief or both, maintainable by the Managing Agent or Board of Directors in the naJUe of the Association on behalf of the owners or, in a proper case, by an aggrieved owner. 17. Revocation or Amendment to Declaration. This Declaration shall not be revoked nor shall any of the provisions herein be amended unless sixty-six and two-thirds percent (66-2/3\) or more of the owners (based on aggregate ownership in the project measured by one vote for each unit) and all of the holders of any recorded mortgages or deeds of trust covering or affecting any or a ll condominiwn units una~imously consent and agree to such revocation or amendment by ·instrument(s) duly recorded; however, the percentage of the undivided interest in the general common elements appurtenant to each unit, as expressed in this Declaration, sh~ll have a permanent character and shall not be altered without the consent of all of the condominium unit owners as expressed in a duly recorded amendment to this Declaration. Nothing herein shall be construed to restrict or otherwise effect Declarant's rights to enlarge this project pursuant to Paragraph 29 hereof. 18. Assessment For Common Expenses. All owners shall be obligated to pay the assessments imposed by the Board of Direc- tors of the Association to meet the common expenses and other direct expenses. The assessments shall be based on a pro rata allocation of coll\lllOn expenses according to each owner's fractional or percentage interest in and to the general common elements, together with any and all direct expenses attributable to the unit. Assessments for the common expenses, including insurance and direct expenses attributable to the unit, shall be paysble at such time and in such manner as the Board of Directors of the Association may from time to time direct. Contribution for periodic installments shall be pro- rated if the ownership of a condominium unit con;nences on a day -6- '. ,., other than the first day of the assessment period. The assessments made for common expenses and direct expenses attributableto the units shall be based upon the aggregate cash requirements which the Board of Directors of the Association shall from time to time determine are necessary to provide for the payment of all estimated expenses growing out of or connected with the administration, operation and maintenance of the condominium project, including the common elements, which expenses will include, but will not necessarily be limited to, taxes and special assessments not separately assessed; premiums for fire insurance with extended coverage, vandalism and malicious mischief endorsements attached, issued in the amount of the maximum replacement value of all of the condominium units (including surfaces of perimeter walls, floors and ceilings; doors, windows and other elements or materials comprising a part of the units)i casualty and public liability and other insurance premiums; landscaping and care of grounds, maintenance, repairs and renovations; swim club dues; trash collections; wages; water charges; legal and accounting fees; management fees, expenses and liabilities incurred by the managing agent or Board of Directors under or by deficit remaining from a previous period; the creation of a reasonable contingency or other reserve or surplus funds; and costs and expenses relating solely to the common elements. The omission or failure of the Board of Directors to fix the assessment for any month shall not be deemed a waiver, modification, or a release of the owners from their obligation to pay such assessment. The Board of Directors may not mak~ an assessment for capital expenditures for an improvement or addition to the common elements in excess of $25,000.00 without the approval of the owners of seventy five per cent (75%) or more of the general common elements. 19. Insuran·ce. The Managing Agent or Board of Directors shall obtain and maintain at all times insurance of the type and kind provided hereinabove, and protecting for such other risks, of a similar or dissimilar nature, as are or shall hereafter customarily be covered with respect to other apartment or condominium buildings, similar project common elements, fixtures, equipment and personal property similar in construction, design Md use, issued by responsible insurance companies author- ized to do business in the State of Colorado, The basic fire and extended coverage insurance on condominium units and the general COlffllOn elements insurance shall be carried in the blanket policy form naming the Association as the insured, which policy or policies shall identify the interest of each condominium unit owner and which shall provide for a standard, non-contributory mortgagee clause in favor of each first mortgagee, and shall further provide that it cannot be cancelled by either the insured or the insurance company until after ten days' prior written notice to each first ~ortgagee. The Managing Agent or Board of Directors shall, upon request of any first mortgagee, furnish a certified copy of such blanket policy and the separate certifi- cate identifying the interest of the mortgagor. All policies of insurance shall provide that the insurance thereunder shall be invalidated or suspended only in respect to the interest of any particular owner guilty of a breach of warranty, act, omission, negligence or non-compliance with any provisions of such poli~y, including payment of the insurance premium applicable to that 01,mer 's interest, or who permits or fails to prevent the happenins-of any event, whether occurring before or after a loss, which \•nder the provisions of such policy would otherwise invalidate or s1:spend the entire policy, but the insurance under any such policy, as to the interests of all other insured owners not guiltJ of any such act or omission, -7- :· . -~ r ... ~ .. . .,.. ' ~ .. ,. 't ';.,• - shall not be invalidated or suspended and shall remain in full €orce and effect. Determination of maximum replacement value of all condominium units for insurance puposes shall be made annually by one or more written appraisals, copies of which shall be furnished forthwith to each mortgagee of a condominium unit. In addition, each owner shall be notified of such appraisals. 20. LiabilitS For Assessments, All owners .shall be obligated to pay t e estirMted assessments imposed by the Board of Directors or Managing Agent of the Association to meet the common expenses and direct expenses. Except for direct expenses, which shall be billed directly on a unit basis, the assessments shall be made pro rata against the owners of each · •' unit based on the ratio of floor area of such unit to (1) the floor area of all units in the individual building, in the case of expenses for general common elements and (2) to the floor area of all units within the project existing at the time such assessment shall be due, in the case of expenses for project common elements, in all cases loft areas shall be added to the floor area of each unit. Assessments for the estimated common expenses, including insurance, shall be due monthly in advance on the first day of each month, and shall draw interest at eighteen per cent (18\) per annum if not paid within fourteen (14) days of such due date. The Managing Agent or Board of Directors shall prepare and deliver or mail to each owner an itemized quarterly statement · ·· showing such owner's share of actual expenses for common expenses, including taxes and assessments with respect to project common elements, and also itemizing accumulations for estimated future expenses. Contributions for monthly assessments shall be prorated if the ownership of a condominium unit commences on a day other than the first day of~ month, Any first mortgagee, upon request, shall be given written notice by the Association or Managing Agent at any time its mortgagor fails to pay any such assessment within fourteen (14) days of the due date. No owner may exempt himself from liability for his contribution towards the common expenses or swim and tennis club payments by waiver or the use or enjoyment of any of the general co!l'lllon elements or project common elements, or by abandonment of his unit. 21. Lien ent of Common E enses. All sums assessed but unpaid or t e share o comrnon expenses c argeable to any condominium unit, including interest, shall consitute a lien thereon superior (prior) to all other liens and encumbrances except: (al Tax and special assessment liens in favor of any assessing unit; and (bl All sums unpaid on a first mortgage or first deed of trust of record, including all unpaid obligatory sums as may be provided by such encumbrance, and including additional advances made thereon prior to the arising of such a lien. To evidence s uch a lien the Board of Directors or Managing Agent may, but shall not be required, to prepare a written notice setting forth the amount of such unpain indebted- ness, the name of the owner of the condominium unit ~nd a de- scription of the condominium unit. Such a notice shall be signed by one of the Board of Directors or by the Managing Agent and may be recorded in the office of the Clerk and Recorder of the County of Eagle, State of Colorado. Such lien for the common expenses shall attach from the date of the failure of payment ,, j -~ ' . •, .. , . ! ! of the assessment, and may be enforced by foreclosure on the defaulting owner's condominium unit by the Association in like manner as foreclosure on a mortgage or deed of t r ust on real property. In any such foreclosur e , the owner shall be required to pay the costs and expensds of such proceedings, the costs and expenses for filing the notice or c l aim of lien and all reasonable attorney's fees. The owner shall also be required to pay the Association a reasonable rental for the condominium unit during the period of foreclosure, and the Association shall be entitled to a receiver to collect the same. The Association shall have the power to bid in the condominium unit at foreclosure sale and to acquire and hold, lease, mortgage and convey same . The amount of the co1M1on expenses assessed against each condominium unit shall also be a debt of the owner thereof at the time the assessment is made. Suit to recover a money judg- ment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing same. Any encumbrancer holding a lien on a condominium unit may pay any unpaid co1m1on expenses payable with respect to such unit, and upon such payment such encumbrancer shall have a lien on such unit for the amounts paid of the same rank as the lien of his encumbrance. 22. Liability For Common Expense Ubon Transfer of Condo- minium unit. Upon payment of a r easona le fee not to exceed twenty-f ive dollars ($25.00) and upon the written request of any owner or any mortgagee or prospective mortgagee of a ccndominiurn unit, the Association, by its Managing Agent or Board of Directors , shall issue a written statement setting forth the amount of the unpaid common expenses, if any, with respect to the subject unit, the amount of the current monthly asseaament and the date such assessment becomes due, any credit for advance payments or for prepaid items, including but not limited to insurance premiums and such statement shall be con- clusive upon the Association in favor of all persons who rely thereon in good faith. If such statement of indebtedness is not issued within ten (10) days of the request, all unpaid common expenses with respect to the subject unit due prior to the date of such request shall be subordinate to the lien of. the person requesting such statement. The grantee of a unit shall be jointly and severally liable with the granter for all unpaid assessments against the latter for his proportionate share of the common expenses up to the time of the grant or conveyance, without prejudice to t he grantee's right to recover from the granter the amounts paid by the grantee t herefor; provided, however, that upon payment of a reasonabl e fee not to exceed fifteen dollars ($15.00), and upon written request, any prospective grantee shall be entitled to a statement from the Managing Agent or Board of Directors, setting forth the amount of the unpaid assessments, if any, with respect to the subject unit, the amount of the current monthly assessment and the date that such assessment becomes due, any credit for advanced payments or for prepaid items, including but not limited to insurance premiums, and such state~ent shall be conclusive upon the Association. If such statement of indebted- ness is not issuedv.l.thin ten (10) days of such request, then such grantee shall not be liable for, nor shall the unit conveyed be subject to liens for any assessments against the subject unit unpaid at the date of the request. The provision of this para- graph shall not apply upon the initial transfer of condominium units by Declarant. 23. Mortgaging a Condominium Unit -Priority. Any owner shall have the right from tune to tune to mortgage or encumber his interest by deed of trust, mortgage or other security in- strument. A first mortgage shall be one which has first and -9- , :.·· paramount priority under applicable law. The owner of a condo- minium unit may create junior mortgages on the foll owing conditions: (a) Any such junior mortgages shall always be sub- ordin~te to all of the terms, condi tions, covenants, restrictions, uses, limitations, obligations, l iens for common expenses, and other obligations created by-this Declaration, the Certificate of Incorporation and the By-Laws; and (b) The mortgagee under any junior mortgage shall rP.l ease, for the purpose of restoration of any improvements upon the mortgaged premises, a l l of his right, title and int erest in and to the proceeds under all insurance policies upon said pre~ises which insurance pol icies were effected and placed upon the mortgaged premises by the Association. Such release shall be furnished forthwith by a junior mortgagee upon written request of the Association. 24. Association as Attorney-In-Fact. This Declaration hereby makes mandatory the irrevocabl e appointment of an attorney-in-fact to deal with the property upon its destruction or obsolescence. Title to any condominium unit hereunder shall be expressly subject to the ter111s and conditions hereof, and acceptance by any grantee of a deed from the Declarant or from any owner shall effect appointment of the attorney-in-fact herein provided. Al l of the owners irrevocably constitute and appoint' Vail Interrnountain Swim and Tennis Club Condominium Association, a Colorado non-profit corporation, their true and lawful attorney in their name, place and stead for the purpose of dealing with the property upon its destruction or obsolescence as is hereafter provided. As attorney-in-fact, the Association, by its presi- dent, shall have full and complete authorization, right and power to make , execute and deliver any contract, deed or any other instrument necessary or appropriate to exercise the power herein granted with respect to the interest of any condOlllinium unit owner. Repair and reconstruction of the improvements as used in the succeeding subparagraphs means restoring any such improvements to a condition substantially the same as prior to the damage, with each unit and the general and limited co111111on elements having the same vertical and horizontal boundaries as before. The proceeds of any insurance collected shall be available to the Association for the purpose of repair, restorati on or replace- ments unless the owners of the building affected and all affected first mortgagees agree not to rebuild in accordance with the provisions set forth hereinafter. (a) In the event of destruction due to fire or other disaster, the insurance proceeds, if sufficient to recon- struct the improvements, shall be applied by the Association, as attorney-in-fact, to such reconstruction and the improvements shall be promptly repaired and reconstructed. The Association shall have full authority, right and power, as attorney-in-fact, to cause the repair and restoration of the improvements. (bl If the insurance proceeds are insufficient to repair or reconstruct the improvements, and if such damage rendere1 not more than one-half (1/2) of the previously existing units destroyed or seriously damaged, upon the unanimous approval or consent of every first mortgagee affected, such damage or destruction shall be prQmptly repaired and reconstructed by the Association, as attorney- in-fact, using the proceeds of insurance and the proceeds of an assessment to be made against all of the affected -10- r ·· owners and their condominium units. Such deficiency assessment shall be a common expense and made pro rata according to floor area ratios in the manner provided herein above in paragraph 20, and shall be due and payable within thirty days after written notice thereof. The Association shall have the authority to cause the repair or restoration of the improvements using all of the insur- ance proceeds for such purpose notwithstanding the failure of an owner to pay the assessment. The assessment provided for herein shall be a debt of each own~r and a lien on his condomini11111 unit and may be enforced and collected as is provided in Paragraph 21. In addition thereto, the Associa- tion, as attorney-in-fact, sh~ll have the absolute right •:-,.., to eell the condomioium unit of any owner refusing or f ng to pay such deficiency assessment within the ti ovided, and if not so paid, the Association shall c to be recorded a notice that the condominium unit of the delinquent owner shall be sold by the Association. The proceeds derived from the sale of such condominium unit shall be used and disbursed by the Association, as attorney- in-fact, in following order: (1) For payment of the balance of the lien of any first mortgage; (2) For payment of tax and special a&sessment liens in favor of any assessing entity; (3) For payment of unpaid common expenses; (4) For payment of junior liens and encumbrances in the order of and to the extent of their priority; and (5) The balance remaining, if any, shall be paid to the prior condominium unit owner. (c) If more than one-half (l/2} of the previously existing units in a building are destroyed or seriously damaged, and if the owners of one-half (1/2) of the units, or more, do not voluntarily, within one hundred (100} days thereafter, make provisions for reconstruction, such plan must have the unanimous approval or consent of every affected first mortgagee, the Association shall forthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Association's presi- dent, the entire remaining premises shall be sold by the Association, as attorney-in-fact for all of the owners, free and clear of the provisions contained in this Declaration, the Map and the By-Laws. The insurance settlement proceeds shall be collected by the Association, and such proceeds shall be divided by the Association according to each unit owner's interest (as such interest appears on the policy or policies), and such divided proceeds shall be paid into a se?arate account representing each condominium unit. Each such account shall be in the name of the Association, and shall be further identified by the number of the unit and the name of the owner. From each separate acccunt, the Association, as attorney- in-fact, shall use and disburse the total amount of each of such funds, without contribution from one account to another, toward the partial or full payment of the lien of any first mortgage against the condominium unit represented by such separate account. There shall be added to each such account the apportioned amount of the proceeds derived from the sale of the entire property. Such apportionment shall be based upon floor area ratios as provided in Paragraph 20 . The total funds of each account shall be used and disbursed, without contribution from one -11- , .. ' ,-,. i I • r ,. l· ·.· ... +, ~· ·;_··."' ...• •! • account to another by the Association, as attorney-in-fact, for the same purposes and in the same order as provided in Subparagraphs (b) (1) through (5) of this Paragraph. If the owners of one-half (l/2) of the affected units, or more, adopt a plan for reconstruction, which plan has the unanimous approval of all first mortgagees, then all of the owners shall be bound by the terms and other provisions of such plan. Any assessme~t made in connection with such plan shall be a common expense and made pro rata according to floor area ratios' as provided in Paragraph 20 and shall be due and payable as provided by the terms of such plan, but not sooner than thirey (30) days after written notice thereof. The A~sociation shall have the authority to cause the repair or restoration of the improvement using all of the insurance proceeds for such purpose notwithstan1ing the failure of an owner to pay the assessment. The assessment provided for herein shall be a debt of each owner and a lien on his condominium unit and may be enforced and collected as is proviued in Par.agraph 21. In addition thereto, the Association, as attorney-in-fact, shall have the absolute right and power to sell the condominium unit of any owner refusing or failing to pay such assessment within the time provided; and if not so paid, the Association shall cause to be recorded a notice that the condominium unit of the delinquent owner shall be sold by the Association. The proceeds derived from the sale of such condominium unit shall be used and disbursed by the Association, as attorney- in-fact, for the same purposes and in the same order as provided in Subparagraphs (b) (1) through (5) of this Para- graph. (d) owners of three quarters (3/4) or more of the units affected , upon the unanimous approval or consent of all affected first mortgagees, may agree that the general common elements of the property are obsolete and that the same shoul d be renewed or reconstructed. In such instance, then the expense thereof shall be payable by all of the owners of such general common elements as common expenses; provided, however, that any owner not agreeing to such renewal or reconstruction may give written notice to the Association that such unit shall be purchased by the Association for the fair market value thereof. If such owner and the Association can agree on the fair market value thereof, then such sale shall be consummated within thirty days thereafter. If the parties are unable to agree, the date when either party notifies the other that he or it is unable to agree with the other shall be the "commencing date" from which all periods of time mentioned herein shall be measured. Within ten (10) days following the commencing date, each par.ty shall nominate an appraiser in writing, and shall give notice of such nomination to the other party; any such appraiser shall be a realtor and qualified to make appraisals of condominium and similar property in Eagle Counr.y, Colorado. If either party fails to make such nomination, the appraiser nominated shall, within five (5) days after default by -the other party, appoint and associate with him another similarlr qualified appraiser. If the two appraisers designated by the parties, or selected pursuant hereto in the event of the default of one ~arty, are unable to agree, they shall appoint another similarly qualified appraiser to be ar.bitrator between them, if they can agree on such person. If they are unable to agree ~pon such arbitrator, then the matter shall be settled pursuant to the rules of the American Arbitration Association. The decision of the appraisers as to the fair market value, or in the case of their disagreement, then such decision of the arbitrator shall be final and binding. -12- J. ~ I • The expenaee and fees of such appraisers or arbitrator or both shall be borne equally by the Association and the owner. The sale shall be conswnmated within fifteen (15) days thereafter, and the Association, as attorney-in-fact, shall disburse such proceeds as is provided in Subparagraphs (bl (l) through (5) of this Paragraph. (e) owners of three quarters of thr. affected units may agree that the general common elemen~s of the property are obsolete and that the same should be sold. Such agree- ment must have the unanimous approval of every affected first mortgagee. In such instance, the Association shall forthwith record a notice setting forth such facts, and upon the recording of such notice by the Association's president, the entire affected premises shall be sold by the Association, as attorney-in-fact for all of the affected owners, free and clear of the provisions contained in this Declaration, the Map and the By-Laws. The sales proceeds shall be apportioned between such owners on the basis of each owner's percentage interest in the general common elements, and such.apportioned proceeds shall be paid into separate accounts representing each condominiu~ unit, Each such account shall be in the name of the Association, and shall be further identified by the number of the unit and the name of the owner. From each separate account, the Association, as attorney-in-fact, shall use and disburse the total amount of such accounts, without contribution from one account to another, for the same purposes and in the same order as is provided in Subpara- gmphs (b) (1) through (5) of this Paragraph. 25. Personal Pro ert For Cotumon Use and Pro'ect Common Elements. Pr or to the rat conveyance o any con om n um unit, oeclarant shall execute and deliver a bill of sale to the Association, transferring all items of personal property lo- cated on the entire premises and furnished by Oeclarant, which property is intended for the common use and enjoyment of the condominium unit owners and occupants. The Association shall hold title to such property for the use and enjoyment of the condominium unit owners and occupants. No owner shall have any other interest or right thereto and all such right and interest shall absolutely terminate upon the owner's termination of ownership of his condo~inium unit. No later than simultaneously with the first conveyance of any condominium unit, Declarant shall execute and deliver proper instruments to convey the project common elements to the Association. The Association shall hold title to such property for the use and enjoyment of the condominium unit owners and occupants. No owner shall have any other interest or right thereto and all such right and interest shall absolutely terminate upon the owner's termination of ownership of his condominium unit. The project c~nmon elements shall be managed by the Association or its designated Managing Agent and all management decisions with respect thereto shall be made by the Association or its designated Managi.n;I Agent provided, however, that policy decisions with resepct to and general specifications of any facility costing twenty-five thousand dollars ($25,000.00) or more and to be constructed on the project cOll\Jllon elements shall be submitted to the owners and shall be decided by majority vote with the owner of each unit having voting strength .proportional to the ratio of the surface area of his unit, including lofts above five feet in head height only, to the total surface a r ea of the units existing at the time of such vote. Costs and expenses, taxes and assessments, insurance proceeds, sale pro- ceeds, and other proceeds with respect to the project common elements shall be apportioned between the owners on the basis hereinabove provided. -13- 1 " , ~ .. , -r ~ t"' l,r-• .. . . 26. Mailing of Notices. All notices, demands or other notices intended to be served upon an owner shall be sent by ordinary or certified mail, postage prepaid, addressed in the name of such owner in care of the unit number and building address of such owner. All notices, demands or other notices intended to be served upon the Managing Agent or the Board of Directors of the Association shall be sent by ordinary or certi- fied mail, postage prepaid, to Vail Intermountain Swim and Tennis Club Condominium Association at P.O. Box 820, Vail, Colorado 81657. Any first mortgagee, upon request, shall be entitled to notice from the Association or Managing Agent under the same circumstances as its mortgagor. 27. Arbitration Re uired For An Claim Hereunder. Except as otherwise ere n prov1 e, any controversy or claim arising out of or relating to this Declaration, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in ay Court having jurisdiction thereof. 28. Period of Condominium Ownership. The separate condominium estates created by this Declaration and the Map shall continue until this Delcaration is revoked pursuant to Paragraph 17 of this Declaration or until termination pursuant to Subparagraphs (cl and (e) of Paragraph 27 of this Declaration. 29. Reservation to Enlarge Condominium Project. (a) Declarant expressly reserves the right to enlarge this condominium project by constructing additional buildings containing condominium units and other improvements on separate real estate described in Exhibit C hereto, which units and lands may become a part of this condominium project by duly recorded Supplements to this Declaration and the Map. It is the Declarants intention that there shall be no more than 40 units and that said units shall be completed on or before January 31, 1987. (b) In form and substance, any such supplement to this Declaration shall provide for the division of such additional real property and improvements into condominium units in form substantially similar to that of this Delcaration. Each unit shall be identified by number, and each building shall be identified by a symbol or designation dissimilar to any other building under this Declaration and the Map. The undivided interests in and to the general common elements appurtenant to each such unit shall not be a part of the general common elements of the condominiU111 units described in and initially created by this Declaration and the Map, provided, however, that project common elements may be created for the use and benefit of all owners in the project. The undivided interests in the general common elements shall have a permanent character and shall not be altered without the consent of all of the condominiU111 unit owners affected, which agreement shall be expressed in a duly recorded Amendment to this Declaration. •.' , ,; (c) Except as is provided in Paragraphs 3 and 4 of this Declaration, all of the provisions contained in this Declaration shall be applicable to such additional condominium units. Common 1 expenses of such additional units shall be separately assessed, and all insurance policies shall cover only such additional condominium units, except as may be convenient with respect to project common elements. 1 (d) Referring to Paragraph 27 of this Declaration relating to destruction and obsolescence and Paragraph 31 relating to · condemnation, only the owners and first mortgagees of the condominium units affected (damaged, destroyed, obsolete or condemned) shall be entitled to vote upon the happening or -14- occurrence of any of the events contemplated under and by the provisions set forth in said Paragraphs 27 or 31, and ~he Subparagraphs thereof. The initially constructed condomin111111 improvements and any additional condominium improvements shall be a part of the whol e project, but each such separately c~n- structed and submitted condominium improvement, together with its general common elements, shall be considered a separate condominium for the purpose of said Paragraphs 27 and 31, and the · aggregate interests of each of such separately constructed condominium imorovements shall be considered one hundred per cent (1001) for such voting purposes. (e) Except as is provided in Subparagraph (d) of this Paragraph each condominium unit owner shall be entitled to vote his percentage or fractional interest in and to the general co111'110n elements and project common elements, and the aggregate of all of the undivided interests submitted to and making up the total condominium project shall be considered one hundred per cent (1001) for such voting purposes. (f) Oeclarant reserves the right to create easements through, on and over the Project Common Elements as described in the Condominium Map and defined herein or as added by sup- plements to said Map or this Declaration or utility purposes, for ingress, egress or parking and for such other purposes as are consistent with the Condominium development. 30. Parking Areas Reserved. The automobile parking areas ad- joining the condominium units shall be under the control and supervision of the Declarant and/or the Association and the owners of the units shall be entitled to a minimum of two (2) parking spaces per unit for their use and for the use of their guests. The specific parking spaces and/or area may be relocated from time to time in order to permit and to allow the continued develop- ment and enlargement of the condominium project. Subject to the provisions herein set forth, the owners shall have such parking privileges on that part of the unimproved portion of the said property described hereinabove. 31. Condemnation. If at any time or times during the continuance of the ownership pursuant to this Declaration, all or any part of the common areas or any condominium unit or units shall be taken or con.•:,mned by any public authority or sold or otherwise disposed of in lieu of or in avoidance thereof, the following provisions of this Article shall apply: (a) Proceeds. All compensation, damag~s or other proceeds therefrom, the S1.llll of which is hereinafter called the "Condemnation Award" shall be payable to the Association. (b) complete Taking. (1) In the event that all of the common areas are taken or condemned or sold or otherwise disposed of, in lieu of or in avoidance thereof, the condemnation award shall be apportioned among the owners in the same percentages as provided for the payment of assessments and payment of said apportioned amounts shall be made payable to the owner and the first mortgagee of his lot jointly. (2) On the basis of the principal set forth in the last preceding paragraph, the Association shall as soon as practicable determine the share of the condemnation award to which each owner is entitled. (c) Partial Takin~. In the event that less than the entire common area is ta en or condemned, or sold or other- wise disposed of in lieu of or in avoidance thereof, the condemnation award shall first be applied by the Association to the rebuilding and replacement of those improvements on -15- t .. . . . . the COffllllon area damaged or taken by the condemning public authority, unle•• •eventy-five per cent (751) of the owners and the firat mortgagee• of each unit agree otherwise. Any surplua of the award or other portion thereof not used for rebuilding and replaC8Dlent, shall be u•ed by the Association for the future maintenance of the c011111on area and exterior maintenance of the units. 32. General. (a) If any of the provisions of this Declaration or any paragraph, sentence, olau1e, phra•e or word, or the application thereof in any circum1tance be invalidated, 1uch invalidity •hall not affect the validity of the remainder of thi1 Declaration, and the application of any such pro- visions, paragraph, sentence, clau1e, phrase or word in any other circwn1tances shall not be affected thereby. (b) The provisions of this Declaration shall be in addition and aupplemental to the Condominium ownership Act of the State of Colorado as amended and to all other provisions of lav. (c) Whenever used herein, unless the context shall otherwise provide, the singular number ahall include the plural, the plural the singular, and the use of any gender shall include all genders. IN WITNESS WHERE~ Declarant has duly executed thia Declaration this /8' day of ~,vv;k7 , 19.8,Q_. Trahern Inveatments, Ltd. :, ~:,oJ:J:D}t 4J .I : STATE OF COLORADO) ) 88. COUNTY OF EAGLE ) S, H. Cole Construction, Inc. a Colorado Corporation olM Subscribed and sworn to before me this~ day of ~&V(\W:I , 1~, by T Cftlli!{l§ ~JJBJ!. aa president o Trahern Investments, Ltd., an by • d. C OL<; as president of s. H. Cole Construction, Inc. Witness my hand and official seal. My convni as ion expires: _ .... m ....... A ...... 'f_ ... ;_3_1-.-.... , ... 9 ....... :B ..... I ___ ...,..__,_ .. (Seal) Q.--, ,,.· le QO(~~,;:~, ~ ! :-, ~ .... :~~-i ·_ i . ; ,·. ,(;'/''• ~.•\ : . : • -.• • I" V ' • • ><{\)·:,·;·::·\:~){. -16- •. ', ,._ !, ., , . . . EXHIBIT A TO CONDOMINIUM DECLARATION FOR VAIL INTERMOUNTAIN SWIM AND TENNIS CLUB CONDOMINIUMS . 'llW1' ~ P.R'.lPERri DESCRIBED AS rot.t.Cl-1S: A TR?CI' a IA'I> B,l>,n(i A PORl'ICN CF VAIL Il~~ O:."VUCFH:l?l' SUBDIVISim, mo:::,; ' AS FillD IN BCXJ( 218 >tr PJGE 82, lNOER ~CN ro. llJ672 IN 'lHE GrICE CF 'DIE F>Q.E o:LU.Y a£RX k~ RtX:ORO~, NlD A PNCEL CF IA~ LYllJG sex.mt CF INIB.RS"rA'i'E HIQ{,'U\Y 70 A.-.0 ~ CR SAID VJUL Dm::.R-OU:tJ>.DI 0::.·-VEJ...c:lc'H:.:2'11' SlJBDIVISIQ-1 ru..o:K 4. SA.tD 'l'RICI' CF IA"iD 1iE:ING }ca: P.ARI'IOJtARLY OESCRIBl:D N3 FO' ... W·S: E::.Gn;:.n~ 'I<! 'IHE tO~IE.I\SI' ~ CF I.Or 2 IN SAID VAIL Th'"IERl-U,'N~.lN D:.V"cJ..o?.·Wl' S\J3DMSICN BI..CCK .c, nea s 62• 26' 10" w A!.CN:; ~ NOK'ulENI.Y LINE: CF SAID SU&>I- VISICN A DIS'Ih~ CF <93.00 Fu:t 'iO 'lHE NO~~ Cl)~ <:if 1ilr 8 CF SAID Su:IOI- VISICN AIID 'lliE Ti{.lE POINT Ci! 2=13Il\."lIN..; 'l.Hr..!,O: S 31 °10'06" £ AI..OX:. 'lHE FJ\STi:RIX LlHE CE' SAI1> 0 I.Or 8 A DISTA!.Q; Ci! <8,42 ~; 'llID-0:.: AI.a-lG 'JHE ~ LD.E CF s.z.m Wt 7 FOR 'lllE FOLtamx. ·n-o 0:X.,~1 l) S (;5•00102~ EA DIS'l.1-.'0.: CE' llS.35 f'".cEr; 2) S 27•35100" E A DIS-.u,N::E CF 105.00 FEEl' 'l'O A POINI' CF D~'"ECI'ICN Wl'.ili 'lHE NJim-::..~ RIG!l'-CF-\-u.Y ~ CE iCD~O< JO~, A PIATlE) 50 Fror l'illlc: RIGrl'- 0:-~ JN SAID VAIL lNJz:R.OJ:,".11.IN IE.VEI.O?J-0\'l' SU30IVISICN; 'Ili"F.N:E >1.0JG S..f\I.D »o,-""'110-:RLY RIGfl'·<.lr-\00 In:E FOR 'l.HE FOT,LO·~ SIX O:X.il-SI-S: l) 95. 38 FU.'T Aff:J!G 'lliE AfC CF A O.,'HVE '10 ~:HE RIGiT, ll.7'\Vm:; A Cu."1.'ill\L 1-:x.;r..£ OF 24°59141", A AAOI\S CF 218.65 Eu.'I J.sr> A OlORD l\'H!Oi .S.::.~.R; S 89°49'39" WA Dl S'l.1'.'a CP 94.63 FEf.T; 2} N 77'(0121" W A OISTJ,.!-0: C2 62. 77 F?..t.'T; 3) 208, 26 Fu:!' ~ 'IliE AJC CE A OT.<.-E 'IO 'lHE J.nT, 111,v.rn:; J\ C!:l<'l'R.l\L A.'v',;IE CF 28"l4'20" N.O A AADil.6 <Ji' 422.55 ••.C::.T; 4) S 74 °05' 19~ \'I A DlSI:"...?CE CF 10. 76 Fr;e.'l'; S) S9. 33 Frer ~ 'IRE: J>.;c CI? A OJR\,"E 'IO 'iHE JUGl'T, H.1\11~ A CENl'AAL J>JQ.£ CF 6610•µ• h'lD A AAOIUS CF S0.95 fttr; 6) N 39'111 30" WA 01.S'l~O.: CF 6S.00 l'r.i'l' '10 A POiln' CF ImER:,7:Ci'ICtl \"il'lli 'IHE Ci:l~ CF OORE ~, ~ N 42'31'08' E 1'.r.a.G S..?uD Cu-m::Rl.!NE CF~~ A DJ..S"".:n!<CE Cl? 176.43 Fu..T; ~ S '9°23'21" EA OISTr!a (F llS.00 Fil:r; 'ilfil-CE N 73•~3•55• £ A DISTil.."la: CF 72.46 FEc:'1· 'IO 'mE 'f",{,'E PODll' CF BEX:.ll~, 00-7J'J-.I?iING 1.162 J<::m:S, HJ~ OR LESS; J...~ D."Cl:71'11,G 'iliE:Ru--.o!: A TR!Cl' CE IA'1> B::IN3 A POiQ'Im CF THE saJ'lR,:fST ~ CE SrX'l'ICN 14, 'lO~IP s sa.n.H, P.LJ~ &l \\.--=.sT a; '11-!E SDl"ili P.RIIQPJI.L HEJUDIA.)l, F.AGlE ClXl."llY, O::,..J:9>m .11:lD 6ED,G 10:<E Pl' .. ~IO.VJ"LY C:SC..'UBm N3 FOU.O~: sromm~ KI: A ron,r \\"':-:EJ.O: 'lli!: WIT.xESS ro.~:::R FOR 11-iE \o,"EST Ct~-<:Jt).~ <XR.ER CF SAID SECTICN 14 £EN""6 N 47'3i1 47" W )075.07 FrZI' Dl~ll', S>.lD POihT BI-.'.Il¥-i A POilll' a.; 'IliE ~ RIGl'.'--0'.;...;...""1,Y L"O-E (F ~maNICI< flu'>D, 'll-iuU l'-Oim-!l,'ES'n::ro..Y >J.£1:C SAID KD~-:DaNIC< ~ ~ THE FQTJU:,...°ING 'lWO caJR5ES: l) N 771 40'21" WA OlS'"C,!-a CE 62.77 Fu:r1 2} 76.55 F'iEr J>:!.f.J.~ ~ A.-:C CF A OJRVE 'IO -nre In"J', H.\VJN:; A W-'lllAL 1,1~...£ CF • 10°22'(8' h'iD A R:\DIUS C2 422.55 ttZr; • % 'll0x::£ N 04•59•ss· EA DIS'I7s!a C2 86.15 Fu:T; 'lHEN::E S 65"001 02" EA D!S'!:i'<..'-CE CF , 176.35 Fll:71 'llIDa S 27°3S'OO" EA DIS'JA"a CF 105.00 FEET 'ID A POD1l' C1'I THE l<XJ:Gli iUG":I!'-CI:•U.X LI!~ <2 Xl?\.","IJ<Th'lC~)Q?D; 'll:'.DCc: 95. 38 F""aT Al.Cl~ 'iliE AFC CF A OJ:M:: 70 'ui!: RIG-n', Ji.l.VDG A c::::ENi1IAL A"Gf2 CF 2'"59'41", A W-.DIUS CF 218.65 FEET l .. 'ID A CO-rD h:-U.Oi B~~ S 99•,c9•39• W 94.63 FE!:."T DISTk'u' '10 ~ POD-Tr CF E::X;Il..'ID-Y.;, cn-n:,'1.Il,'TI-IG le95S SC(A~ F"u'I' ~ o.,35 JCJ{:S, }~ OR lJ'-SS k'ID IE.r..\r.i.]l."G A Kr:T ~I\ OF O. 727 J>CF.i:S, t-CE-E CR USS. & !,,I',, r.:. f.: ~':, v·, i' I;:, ... , II,· f.' . , .. , ..... ,. . . , .. -.. .] . -.mI'1' a J • .... .. ,.; .. -;o:~iuM,.DICLAll.fIOll POR • • • _.•:·••••~ •,,: ;t ':•/->'>• .. l • • • -,• ~ •,.•,-: VAIL . ...,llf,..!-UJi00MM'"'lf-fAD";9ltDI AIID UIBIS ·.CLUB-~QOIID(IIDlVlfl. · • • . . i-~ : • • • •. : • ~:. ~ '_::?· . ., • . : .: . . ' ' .. ,,·. ..:~/~i •• : 't -..,- •.: .: . ~t~~P:(':~ , .. , .. :~,: . ~~:~ -~AL 1,254 . ' .... •; · · . · 26 15 ::_ Unit-2 ... • ~-~',.\'/.:;:-: .· .. : 1/1~·-_,;\t":···:.<•·.. 2l:45 Ull'it, ~ . . . ' : i. • i, ~ :•. ;' .. . : ... ·: : ... >Un.it 4 .::· . •i. · .. ~At, L . -:·· ~· : .•_ .\. 1. • ...... -: ~· ,-• .. ,. . ,• •, ' · .... . . ; ~· ' :· ,• .. . ... : ,. ..... ~ .... . •,• .. . ... . • t''. ,,; .. ,:: .:•.-:. t' ... .. , -~· .... ;. . ~ . , . . ·•· •-; :· 1134. •:• 2~.83 .·.y:a .. .. '.i475g -/ \ _/~ ,;:· \ I.•' ·°fl,'j: .. ,···:·_. . : .. : . ,·• · .. ,. .•_ _. ' _/'.\t~}..o'_\i ·· ·. '. ,..>t·•·;-; ~ •. l: .,, -:.•·~ .. · ,.· -. • •.• ~ :·.J ,,· .,,.. ... :·· •· ~=-:',, .. . ; ··~ . .. • ,_; •' '":, ·; ... -.~. .. ::, . '· . , ):6.37 l~-0-e~' •;:~-( .. •. !•:: •• ··-: • ... ':~ .. ·"' .. . ~ .. . ~ ,. • •A•, ·;~: _.,_ .. ,. ·'· \ .--· .. '-.; ·•. -. ":"' !. . ': . ' ?,, ;. ••,~~ I •-; ~ ·. /-·f ~. . 7. : , ,• ;-. · .. · ....:_: ..... j' ........ . ·-.· . , . •, .:.~·· ~ -I, 1 . - t f , r~ ! ' ~ .. f t: r f· ,. ,. EXHIBIT C TO CONDOMINIUM DECLARATION FOR VAIL INTERMOUNTAIN SWIM AND TENNIS CLUB CONDOMINIUMS A TAACT OF LA:10 BEIIIG A PCJKTr0:J OF VAIL 11/TERI-I0U!:TAIN D~V!:L0PM:.IIT SUBDIV£SI0H BLOCK 4 AS FILED J:I 13/'JCIK 218 AT PAGf 82, UIIOEI< l<fCEPTICIII :lO. 113672 HI TH~ OFF I CE OF lHf E.tGU COUlllY CLERK /\'ID ,moll0ER, AUD A PARCi:L l YHIG SCJUlH CIF . 11/H.l<STATE HIGHWAY 70 A!IO !:ORTH OF SAID VAIL WHRMOIJ!ITAJII 0!'V<L0P"IF:IT SUBDI- VISICJ:-1 BLCICK 4. SATO ll<ACl 81:IUG H0Ki: PA~lJCULAl<LY D!:SCl<IB::D AS fOLLO\olS: BEG[:IIIHIG AT TH( rmkTHEAST C0l<Hi:K OF LOl 2 Iii SAID VAIL J:ITi:IJ.IOU:llAl!I 0EVH0PHi:Nl SUB0IVJSIOU BLOCY. 4, THF.IICF. S 62''26'10" W ALON'; lHf r.:iRTHERLY LINE OF SAID SUBDIVISIOU A DISTAIICf. OF 493.00 Hfl 10 THE NORTHEAST COIW[R OF LOT B OF SAID Sll!!::1VJSJ0:1; lH:.IICE S 31"10'()6" F ALONG lH: fASTERLY l-111~ (JF SAID LOT 8 A 0ISlA:lCE OF 48 .24 FEET; THFIIC!: ALOIIG THF f.ASlERLY LIN~ OF S/\10 LOT 7 FOR TH[ FOLL0WIIIG lWCJ COURSES: l) S 85"'()0'02" EA DISTANCE OF 115.35 F,ET; 2) S 27'35'00" FA DISTANC:. CIF 105.00 FHT TO A POINT OF JNTERSECTIOI! WITH THE IIOkTH~RLY KIGHT-OF-WAY LIN~ or KHIU1Jr:111ICK l(QA!), A PLATlE0 50 FCJ0T !H0f. I< [GlfT-0F-ttAY lil SAIC VA IL r:ml(J.,ou::TA111 Di'Vf.LOPHE!H SUB0l'/IS!Cltl; . -· THfNCl AL0~G SAID NC/liTH?.RLY RIGHT-OF-WAY lllff HIR lHE f'CJll0\.IING F !VF C0URSF.S: l) 95. 38 HH AlOllG THF. ARC OF A CUkV: 10 TH, RIGHT, HAV!IIG A RADTUS Of 218.65 Ff.El AUD A CHORD ~!HICH BEARS 89'4/l'~B" "I A DISTANCE OF 94.63 FEF.T; 2) II 77°40'21" l-1 A DISTANCE CIF 62.77 FEH; 3) 208.26 FE£1 AL0IIG THE ARC OF A CURVC: TO TH< LEFT, 1'.AVWG A CENTRAL ANGLE OF 28~14'2()" AUD A RADIUS OF 422 .55 FEET; 4) S 74°05'19• WA 0ISTAIICE (IF 10.76 FEFT; S) 59.33 FEET AL0:lG TH£ Al(C OF A CURVE .TO THF l(JGHT, HAV1:1G A CENTRAL ANGU OF 66°43' 11" ANO A i,/\!llUS OF 50.95 FFET ; THl':NCE N 39°11' 30" W A 0ISTAIICE OF 231.21 Ff..ET TO A POINT QF INTERSECTION WllH lHf SOUlHERLY RIGHT-OF-WAY lltlF. OF SAI D JiHfkSTATf. HIGH\-IAY 70; THENCf. EASTERLY ALONG !>AID S0U'IH::.RL Y KIGHT-OF-WAY L WE OF IIIHRSTATf HIGHWAY 70 FOR THE F0LLOWWG lHK:E COURSES: )) ti 58°11'06" EA 0JSTANC!: OF 296 .24 FEET; 2) N 59°10'09" EA DISTANCE OF 290.30 FEET; THENCE )67.88 FEET ALOtlG THE ARC OF A VURVf TO THE RIGHT, HAVING A CENTRAL ANGLE OF 03'35'21", A RADIUS OF 2680.00 FF.fl ANO A CHORD WHICH BEAAS . N 62°58'50" EA DISTANCE OF 167.86 FEET; THOICE S 3!'1"11 '30" E A DISlAHCE OF 268.89 FEET TO THE P0HH OF BfGJtltl!NG , C0NTA!NltlG 5.116 ACRfS, HORE OR LESS. ' ., ~ , .. " ,-. FIRST SUPPLEMENT TO CONDOMINIUM DECLARATION . ·FOR VAIL lNTERMOUNTAIN SWIM & 'IENNIS CLUB CONDOMINIUMS This First Supplement to Condominium Declaration for Vail lntermountain Swim & Tennis Club Condominiums is made and ex- ecuted this _a_!"day of ~a a. , 1981 and shall become effective upon recording in the Eagle County records. Whereas, Trahern Investments, Ltd., a Colorado corporation and S.H. Cole Construction, Inc., ~ Colorado corporation, here- inafter called the Declarants, have filed for record in Book ~ at Page ~ of the Ee.gle County records, a Condominium Declaration for Vail Intemountain Swim & Tennis Club Condominiumd; and Whereas, said Declaration has subsequently been amended by a First Amendment to Con_dcoinium Declaration for Vail Intermountain Swim & Tennis Club Condominiums, wherein certain lands originally subjected to said Condominium Declar3tion have now been deleted and conveyed to the Town of Vail for roadway RUrposes; and Whereas, said Declaration, by the terms of paragraph 29, reserves unto the Declarantsthe express right to enlarge said condominium project by rec~r.ding a Supplement thereto and a First Supplt!lllent to the Condominium Map, heretofore filed for record iu the .Eagle County records; and Whereas, Declarants are owners of certain real property which is described in Exhibit "A" hereto, ~hich real -property has been improved and which real property and~improvements thereon are herein referred to as the subject property; and Whereas, Declarants desire to enlarge said condominiUDl project by submitting subject property as described on Exhibit "A" hereto to said condominim project subject to all of the terms and condi- tions of the Condomlnium Declaration e.s originally filed for re- cord and as said Declaration has been amended by the First Amend- ment thereto filed for record, except as hereinafter provided; and Whereas, this Supple~ental Declaration shall consist of six c<'ndominiU111 units located in Building "B". as more fully described in Exhibit "B'' hereto and shown on the First Supplement to the Co11dor1inium ~ap. EXHIBIT 2 , ' .. ,, . , ' ~- . • . ~·· ~: ; ' '. -·-· .. Now, The1efore, the Declaranto do hereby publish and declare that the following terms, conditions, easements, restrictions, uses, limitatf.ona 11nd obligations shall be\ deeiiied to,run with the sub-, . , ject property and shall be a burden ~d/b~n.rf.if to Declaranta, their successors and assigns and to anr, person or entity acquiring or owr,ing an interest in the subject property and i~~ovements thereon 1. and their grantees, suc_cesaors, heirs and ' .. ••.~·igrla. The improvements located'in the subject }~opei"ty described .~ .. .,,::) in Exhibit "A" hereto are hereby d:Lvided in.to six ·1feparate units each consisting of one unit with the interest ln the condominium .. · .',;, ' . .: ... general common elements and limited c011111on elements of !uliding Bas shown on the First Sup_plemen~ to the ,Co_ndominium ~p and as ~~e fully described on Exhibit ''B" hereto, Each such ·condomini\A ~hail. ;. be as described on Exhibit "B~' hereto and shall be identified cm the First Supplement to Condominium Map.a~d by the unit number and building symbol as shown on Exhibit. 0 B" hereto. 2. No part of the general common elements, which are part of Building B ·shall be owned by the owners of condominium unit~ in Building A nor shall owners of condominium units in Building B own any part .of the gene-ral cOl!!IIIOn ··elements which are a · part· of. Building A. 3. The owners of units in -Building B shall, upon conveyance to them of a condominium unit, become members of the Asso.ciati~ of unit owners and be entitled to use with other current·and .. future Association members of the project COIIIDon ~-l•nt's as that term is defined and as are depicte·d on the Condominium Map and First Supplement thereto. 4. Conveyance of the units described herein and ~reated hereby shall be in the same manner as provided in paragraph 5 of the Condominium Declaration using the unit and buildin6 numb~r ~ · provided in Exhibit "B" hereto and aa shown on the First Supple- ment to the Condominium Map. 5. Except as otherwise p-rovided herein, all terms, condi- tions, easements, cestrictions, uses, limitations, reservations and obligations set forth in said Declaration as recorded are inco-rporated herein and made a part hereof. -2 - 6. Declara~ts reserve the right to further enlarge this condominium project as provided in said Decl4ration. .. I• As used herein, Declarants shall mean Trahern Invest- ments, LLd. and S.H. Cole Construction, Inc., their successors and assigns. 8. The provisions of this First Supplement shall be in addition to those provided in Condominium Ownership Act of the State of Colorado 11s ~"'~,,cied and all other applicable provisions of law. In Wi~ness Whereof, the Declarants, by their authorized officers have duly executed this First Supplement the day and first above written. ATTEST: secretary ATTEST: Secretary STATE OF COLORADO) ) COUNTY OF,€~/,,) The foregoing instrument TRAHERN I ---. By:_d_...!...' ~~~!12.....l:~~~~:_,.,. S, H. By:.....::,~~~~~W::~[l._:'E /1,-ll'lday o: :::;TL,ae • 1981 frea ·.dent and C9Ji2>"UUCTION, YR"C., u corporation . .•• ·•··• •¥:iwfJt:Z ":•,,: •. ,/ ~-ll.ion Exvi:rc::: Witness •;·:: "· 41Alrl ·· <" '· • . f ..;/ ~~~Y).\~"1 /(; 'fC.3 !;:i"s::g.:.,.,.-••A,,.~ ~ ~\ ·,., r,,·,~,!o ' ' . 'LJ v v' ' <'> ' ~:-.'" . ·~: ............ ~C r-r c':J"/ hand and official seal. ~~- EXHIBIT B · TO FIRST SUPPLEMENT TO CONDOMINIUM DECLARATION FOR VAIL INTERMO~AIN SWIM AND TENNIS CLUB CONDOMINIUMS BUILDING HO. B .,,. ... - .( ' Unit 5 Unit 6 Unit 7 Unit 8 Unit 9 Unit 10 TOTAL SQUARE FEET PERCENTAGE OF TOTAL 1516 21.44 1078 15.25 1078 15.25 1076 15.22 1078 15.25 llii... 17.59 7070 100.00 EAGLE COUNTY, CO TEAX J SIMONTON 20080124~ Certified to be a true and complete copy of the document recorded in my office: Pg•: 5 04'49'34Pn 011181200E 1· iiii 1fl 111111 IW H rn 11 ~t[d-{([1 .. e B · Clerk, Eagle County CO J ~son~~J'u';y -Dale FIRST AMENDMENT TO CONDOMINIUM DECLARATION FOR VAIL INTERMOUNTAIN SWIM AND TENNIS CLUB CONDOMINIUMS [NOW KNOWN AS TIMBER CREEK LODGES CONDOMINIUMS] ~ST AMENDMENT TO CONDOMINIUM DECLARATION FOR VAIL INTERMOUNTAIN SWIM AND CLUB CONDOMINIUMS (hereinafter referred to as this •first Amendment") is executed to be , as of July 7, 2007 (the "Effective Date"). Recttals )n or about February 1, 1980, the Condominium Declaration for Vail lntermountaln Swim and ~lub Condominiums (the "Declaration") was recorded in the real estate records of Eagle County, ::>. The Declaration (as heretofore supplemented) subjects the Property described in Exhibit "A" I hereto and all improvements thereon (the "Project" or the "Community") to the covenants, 'IS, and restrictions set forth in the Declaration. All capitalized words and phrases used herein and rwise defined herein shall have the meanings assigned in the Declaration. :>n or about January 25, 1980, the Vail lntermountain Swim and Tennis Club Condominium tion, a Colorado non-profit corporation, was formed for the purpose of serving as the Association e Declaration. :>n or about February 14, 1985, the name of the Association was changed to the Timber Creek Condominium Association. The Project has, since such time, been known as Timber Creek Lodges. ~t a regular meeting duly called and held on July 7, 2007 (the MMember Meeting"), the Members vely voted to approve certain amendments to the Declaration, which amendments are set forth rhis First Amendment has been executed and recorded to effectuate the foregoing actions by the s. Amendment 1. Ratification of Name Change to Timber Creek Lodges. The Declaration is hereby d by deleting the phrase "Vail Mountain Swim and Tennis Club" each time it appears in Paragraphs h 32, inciusive. of the Declaration and the title page thereof, and inserting in lieu thereof the phrase Creek Lodges•. 2. Amendment to Paragraph 11 of Declaratlon. Paragraph 11 of the Declaration Is hereby ::l by deleting the last subparagraph thereof in its entirety, being the subparagraph beginning with the ·Oeclarant has on behalf of the Association entered Into a contract with the lntermountain Swim 3. Amendment to Paragraph 17 of Declaration. Paragraph 17 of the Declaration is hereby j by deleting said Paragraph 17 in its entirety and inserting in lieu thereof the following: :"N •O DAVID HA~-rJr-( Ho~~N l\l'ID CoMfP.r,/f o I /r; ·n-1 5-rt-E:e-f ..51"'E . 4co NVE. fl-J CO 0 OJ-02._ !43 1 of 5 1 EXHIBIT 3 17. Amendment of Declaration or Map. (a) Required Votes. Except as provided below in this Paragraph, this Declaration and the Map may be amended by (and only by) the affirmative vote or written consent of a majority of the Owners (measured by one vote for each Condominium Unit), unless a greater percentage is expressly required by the Colorado Common Interest Ownership Act. Provided, however, that any amendment to this Declaration that would change a specific clause or provision hereof that prescribes a certain percentage of affim1ative votes or written consents for actlon to be taken under such clause or provision (such as. by way of example, the 67% voting requirement set forth in Paragraph 18), will require the affirmative vote or written consent of those Owners to whom at least such percentage (as prescribed in such clause or provision) of the votes in the Association are allocated, but not in excess of67%. (b) Amending Documents. An amendment to this Declaration will be effective only upon the occurrence of all of the following events: (i) Approved Writing. The amendment has been reduced to a writing that has been approved (by affirmative vote or written consent) by the applicable required percentage of Owners and by the First Mortgagees, if any, who are required to approve such amendment pursuant to Paragraph 17(d). (ii) Certificate by Association. A written certificate, executed and acknowledged by the president or any other authorized officer of the Association, has been attached to the written amendment which states that such amendment was approved by the applicable required percentage of (x) Owners and (y} First Mortgagees, if any, who are required to approve such amendment pursuant to Paragraph 17(d) hereof. (iii) Recording. The approved written amendment described in Paragraph 17(bXi} hereof, including the certificate described in Paragraph 17(b)(ii} hereof, has been recorded in the real property records of Eagle County, Colorado. (c) Presumption of Validity. No action to challenge the validity of an amendment adopted by the Association pursuant to this Paragraph may be brought more than one (1) year after the amendment is recorded as aforesaid. There will be a presumption subsequent to the recording of an amendment to this Declaration pursuant to this Paragraph 17 that all votes and approvals required to pass the same pursuant to this Declaration were duly obtained (at a duly called meeting of the Association, In the case of votes). In the absence of an action commenced within the foregoing one-year period, such presumption will be deemed conclusive. (d) Consent of First Mortgagees. Any amendment to this Declaration shall also require the approval of a Majority of the First Mortgagees. The following procedures and definitions shall apply with respect to any such approval: (i) The Association shall (x) send a dated, written notice ("Amendment Notice") and a copy of any proposed amendment by certified mail to each Eligible First Mortgagee at the most recent address the Eligible First Mortgagee shall have provided to the Association, and (y} cause the dated notice, together with information on how to obtain a copy of the proposed amendment. to be printed in full at least twice, on separate occasions at least one week apart, in a newspaper of general circulation in the county In which the common interest community is located. The Association may, but is not required to, also send a dated, written notice and a copy of any proposed amendment by certified mail to each First Mortgagee that is not an Eligible First Mortgagee at its most recent address as shown on the recorded deed of trust or recorded 2 !43 2 of 5 assignment thereof. A First Mortgagee that does not deliver to the Association an express written notice of its objection, if any, to the proposed amendment or action within sixty (60) days after the date of the Amendment Notice shall be deemed conclusively to have approved the proposed amendment or action, and the Association may so state in any document. (ii) For these purposes: "Ellglble First Mortgagee" means a First Mortgagee that has given a notice to the Association that states the name and address of such First Mortgagee and the identifying number of the Condominium Unit encumbered by its First Security Interest and requests notice from the Association of any proposed action by the Association or Owners that requires the approval of a specified percentage of Eligible First Mortgagees. "First Mortgagee" means the holder, from time to time, of a First Security Interest on any Condominium Unit as shown by the real estate records of Eagle County. Colorado, Including a purchaser at a foreclosure sale upon foreclosure of a First Security Interest until expiration of the mortgagor's period of redemption. If there is more than one holder of a First Security Interest, such holders will be treated as, and act as, one First Mortgagee for all purposes under this Declaration and the bylaws of the Association. "First Security Interest" means a security interest that has priority of record over all other recorded liens except those liens made superior by statute (such as general ad valorem tax liens and special assessments). "Majority of the First Mortgagees" means First Mortgagees, if any, that hold First Security Interests encumbering at least fifty-one percent (51%) of the Condominium Units (measured on a per-unit basis) that are in fact encumbered by First Security Interests. (e) Percentage Interests in General Common Elements. Notwithstanding anything set forth in this Paragraph 17 to the contraiy, the manner of determining the percentage of the undivided interest in the general common elements appurtenant to each unit, as expressed in this Declaration, shall not be altered without the consent of all of the condominium unit owners as expressed in a duly recorded amendment to this Declaration. . Section 4. Amendment to Paragraph 18 of Declaration. The last subparagraph of Paragraph 18 of the Declaration is hereby amended to read as follows: "The Board of Directors may not make an assessment for capital expenditures for an improvement or addition to the common elements in excess of $25,000.00 without the approval of sixty-seven percent (67%) or more of the owners of units in the project, based on the ratio of floor area of each unit to the floor area of all units within the project. Section 5. Deletion of Paragraph 29 of Declaration. The Declaration is hereby amended by deleting Paragraph 29 thereof in its entirety. 3 ?43 3 of 5 EXECUTED to be effective as of the date first above stated: STATE OF Colo,~J,o COU NTY OF ~ ) ) ss. ) Name: David Martin Title: President: JOEL D CARLMAN NOTARY PUBLIC STATE OF COLORADO Ex;ftS 10 The foregoing instrument was acknowledged before me this itn day of .:ranli'-clri 200,, by David Martin, as President of the Timber Creek Lodges Condominium Association. Witness my hand and official seal. My commission expires: o~/03 / :ioJ D '7 STATE OF _e .... ~ .. L..J/4 .......... c'--,c,-'-d ..... o"--___ ) ~ I I )ss. COUNTY OF JlOU..[tLf C } ii•· ,:n'(;~~Jo{~~~ru.r,nent was acknowledged before me this d.nJ day of ~r\l.~a...--'j 0;!~\~#.inijft;0.0~!"9herty, as Secretary of the Timber Creek Lodges Condominium Association. [,~~y'~fnd official seal. t~rt PLJD\;\": r M~om1"1~m,-~(es: I b ·; 7-.51008 ·: (U1..!., ,;-• ... , ..... c>r "~ . ·.4.· ..... ,. 4 !43 4 of 5 Exhibit "A" (LEGAL DESCRIPTION OF PROPERTY] CONDOMINIUM UNIT 1, BUILDING A CONDOMINIUM UNIT 2, BUILDING A CONDOMINIUM UNIT 3, BUILDING A CONDOMINIUM UNIT 4, BUILDING A CONDOMINIUM UNIT 5, BUILDING B CONDOMINIUM UNIT 6, BUILDING B CONDOMINIUM UNIT 7, BUILDING B CONDOMINIUM UNIT 8, BUILDING B CONDOMINIUM UNIT 9, BUILDING B CONDOMINIUM UNIT 10, BUILDING B Vail lntermountain Swim and Tennis Club Condominiums, according to the Condominium Map (Phase I, Building A) recorded February 1, 1980, in Book 298 at Page 151, and the Condominium Map (Phase II, Building B) recorded June 16, 1981, in Book 324 at Page 620, and according to the Condominium Declaration recorded February 1, 1980, in Book 298 at Page 150, and according to the First Supplement to the Condominium Declaration recorded June 15, 1981, in Book 324 at Page 619, County of Eagle, State of Colorado ?43 5 of 5 5 .. 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I. ~ •·•·r,/ ~IWJIIIC·,• ! ~ ~nOR ~ ";"; J?:.::C: l>:· if/7. ~~ ~ult.~ NOTARY CERTIFICATE H~ar~ ) > -· OOlrl1lff"' UC.Lt > • a'B. l !dli !it.~ ii~ ta -ICOUIC MOICA.llOII ...U ~t:11:D lffl)Q' Mt nu ..t:..."""' ~ L'?8~ ~-••• 1• ..1L,-IT 1,1, CGU .U rl.UllllD"I' C1I' I.I. 0DU COIIITMCtlOII 1111:., .I CIIJIOMIII errwo,.r,nOII ~.,. t, DIUI.Uot:;li.-T l!,,U,ltrell'lOf 'fUIIDII ""'"""""'"'" a ~~llo•• ~ 111Til(;NI NT....,._ ...,lCU,L HAI. , __ IIITUT.UILI( 11!1' CXlfOIJUICIII utlln!~-·,,,. s; ,f~3 TITLE COMPANY CERTIFICATE 11.WN'ff.llCl ttn.a 1-sl~ ~Aln' IOU 11101 CfllTln ™' ~ Mn GNffllltl 'hit TllU.ffM.LL,1#1 -11-f•Jl N.T ,._ 'nlATfln.g TO_.....,_ 1' lll'ftletlt• IC'.l,f'OU Fa~ All'II CU.IJI or AU tA,J:ljl, UtJot, -nc,,•Dt«Jt, Q(ffl d l'Ol\.Mt 10~1 '""'!{.J ..,,.,,,. If,.,. b•l'-11)• ... •.A••·•'" ......,,,.. Ntoa,bf'6 ,.,_, a.,.1: '::,;:-..:,,.tr ::~:~~:~:.::.,,:;:.,,~:-:z .~~~~fl:;~ TJ,! M•nu~..,,n, ~ 1..1.,i,~. 1,._qt!-£,~ TREASURER'S CERTIFICATE I, n!I """"-1JIQID M IDdt CD:Tln ftlt.T i. llll'TIU .ll«MIT Of lilll llOI ill'lltl!DTI ~ .. ":./:!~ ... ~."" kn llfOII tu hM:11.1 or lUJ, •nu, HKlll •• ,. .. rw.A"I.Uotw:UC&iiri,&uiwii CLERK ANO RECORDER'S CERTIFICATE '11111 n,\T 'IWI lll,Q roll ll'()O !IJD Ill ,.., Ol'fl<l, ttr .,..._ CUJ.1 ~ J.ICODflll At :. ?: _;·:,'~;.·~£-.T ,~?:nii.__:• o-1L, .. ~ i U.OCU,5' ~,lf'fil Cl11;C..~ ((l~I '',;J" ~ aa:a.~----f)tl""" •·v#• ~a..,r:,. tl<•tcc!A (:~ I J0,00 ;"<! '"'" • §ll!Jfi!l!'ii @~ ~ 3·,21·6 lg) ... L_ ~ ... .,. I ' .... ~· '.: :_ C I r :_t-1 =-~~~ fl nt ,. 1• i ! M'){ • .. .. 'I • .. ' l .... ·1 J C : J . ! ' -;:' ... : = r :--,-~---r---. ' l_ fl •M >ft UU ~ :. ' I ~ -,_ '--H ' • z ' ;r ·-:--r--~i F O I .... I t i fl ' . "~ I ... : ~ -, T (Ci) r -;-,-_ --II~~ - fl ... -~ !. l ,. N a'•~.::,_.--~ ' • . ~- ! t ""'1 ..-~ I y p .. ~! WU : .-.""' cu ~ ' -.-----.. -,], F ~ ' L I , J •M [ ., ' I ) I ----' . ;~ -L_ _________________ _ ~ ~ ~ @ ~ fl fl ~ 1Ml ft -<I © ~ lg) (gj C z ::; ~ " ,. ..... ·=-----!• " ,. C z ;; !" , .. .. : .. != ~~ l ! i ~ liw ft ~ @ ~ ~ ,_., C z ~ -Ota' ~- DISTRICT COURT, COUNTY OF EAGLE STATE OF COLORADO Court Address: 885 Chambers A venue P.O. Box 597 Eagle, CO 81631 Telephone: (970) 328-6373 Petitioner: DATE FILED: December 22, 2017 4:06 PM FILINb ID: 2834F I F83B77E CASE NUMBER: 20 I 7CV30280 MICHAEL GLADKI AS SPECIAL TRUSTEE OF THE VICTORIA A. GLADKIN REVOCABLE TRUST V. Respondent: T IMB ER CREEK LODGES CONDOMINIUM ASSOCIATION Attorneys for Respondent: Attorneys: Alan D. Sweetbaum, Esq., #13491 Charles W. Westby, Esq., #32520 Address: Sweetbaum Sands Anderson PC 1125 Seventeenth Street, Suite 2 100 Denver, Colorado 80202 Phone No.: (303) 296-3377 Emai 1: asweetbaum@ SweetbaumSands.com cwestby@SweetbaumSands.com A COURT USE ONLY A Case No.: 2017CV30280 Division: RESPONSE TO PETITIO FOR DECLARATORY JUDGMENT AND COUNTERCLAIMS Respondent, T imber Creek Lodges Condominium Association, through counsel, for its Response to Petition for Declaratory Judgment and Counterclaim, states: RESPONSE RESPONSE TO ALLEGATIONS REGARDING PARTIES JURISDICTION AND VENUE 1. Respondent T imber Creek Lodges Condominium Association (the "Association") admits the allegations in paragraph 1 of the Petition for Declaratory Judgment (the "Petition"). 2. Respondent is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 2 of the Petition and, therefore, denies the same. 3. Respondent admits the allegations of paragraph 3 of the Petition. 4. Paragraph 4 or the Petition asserts conclusions of law, including the allegations regarding jurisdiction, that Respondent can neither admit or deny. Any factual allegations in said paragraph are denied. RESPONSE TO ALLEGATIONS RE GARDING SUMMARY OF DECLARATORY JUDGMENT REQUESTED 5. The first sentence of paragraph 5 of the Petition describes Petitioner's claim for relief, which, as such, does not contain any factual allegations that Respondent could admit or deny. If that sentence is intended to allege any facts, they are denied. Respondent admits that there is a cantilevered balcony adjacent to the upper floor of Unit 10 of Building B that is supported by log beams that extend from the floor structure of Unit 10. Respondent denies the remaining allegations of said paragraph. 6. Respondent denies the al legations of paragraph 6 of the Petition. 7. Respondent denies the allegations of paragraph 7 of the Petition. 8. With respect to paragraph 8 of the Petition, Respondent denies that any resolution of this matter constitutes a determination of any other situation of any kind involving any owner of a unit of Timber Creek Lodges Condominiums and the Association, whether in the past, present, or going forward. Respondent denies any remaining factual allegations of said paragraph. RESPO SE TO ALLEGATIO rs REGARDI NG STATEMENT OF RELEVA T FACTS AND LAW 9. Respondent is without knowledge or information suffi cient to form a belief as to the truth or falsity of the allegations contained in paragraph 9 of the Petition and, therefore, denies the sa me. I 0. Respondent admits the allegations of paragraph 10 of the Petition with respect to the Association's Declaration. with the exception of any labels provided fo r such documents that are not found in the documents themselves. 11. Respondent admits that the Plat Maps referred to in paragraph 11 of the Petition pertain to Timber Creek Lodges, which Plat Maps speak for themselves. Respondent denies any characterization of such Plat Maps contained in the allegations of said paragraph 11. 12. With respect to paragraph I 2 of the Petition, the Respondent admits only that the ··Condominium Declaration for Vail lntermountain Swim and Tennis Club Condominiums" (the --Declaration'") speaks for itself. 13. With respect to paragraph 13 of the Peti tion, the Respondent admits only that the Declaration speaks for itself. 14. With respect to paragraph 14 of the Petition, the Respondent admits only that the Declaration speaks for itself. 15. With respect to paragraph 15 of the Petition, the Respondent admits only that the Declaration speaks for itself. 2 16. With respect to paragraph 16 of the Petition, the Respondent admits only that the Declaration speaks for itself. 17. With respect to paragraph 17 of the Petition, the Respondent admits only that the Declaration speaks for itself. 18. With respect to paragraph 18 of the Petition, the Respondent admits only that the Declaration speaks for itself. I 9. With respect to paragraph 19 of the Petition, the Respondent admits only that the Declaration speaks for itself. 20. With respect to paragraph 20 of the Petition, the Respondent admits only that the Declaration speaks for itself. 21. With respect to paragraph 21 of the Petition, the Respondent admits only that the "First Supplemental Declaration" speaks for itself. 22. With respect to paragraph 22 of the Petition, the Respondent admits only that the "First Supplemental Declaration" speaks for itself. 23. With respect to paragraph 23 of the Petition, the Respondent admits only that the ''First Supplemental Declaration" speaks for itself. 24. With respect to paragraph 24 of the Petition, the Respondent admits only that the "First Supplemental Declaration .. speaks for itself. 25. With respect to paragraph 25 of the Petition, the Respondent admits only that the "First Supplemental Declaration" speaks for itself. 26. With respect to paragraph 26 of the Petition, the Respondent admits only that the map identified therein speaks for itself. 27. With respect to paragraph 27 of the Petition, the Respondent admits only that the map identified therein speaks for itself. 28. With respect to paragraph 28 of the Petition, the Respondent admits only that the Declaration speaks for itself. 29. With respect to paragraph 29 of the Petition, the Respondent admits only that the Declaration speaks for itself. 30. The Respondent denies the allegations of paragraph 30 of the Petition. RESPONSE TO PETITIO FOR DECLARATORY RELIEF (Declaratory Judgment) 31. Respondent denies paragraph 31 of the Petition. 32. The Respondent denies that the Petitioner is entitled to declaratory relief as alleged in paragraph 32 of the Petition. 3 33. Respondent denies any factual allegations or legal claims asserted in Petitioner's request for relief on page 8 of the Petition. WHEREFORE, Respondent requests that the Petition be dismissed with prejudice and that the Court grant Respondent such other and further relief as the Court deems just and proper. COUNTERCLAIMS Respondent, Timber Creek Lodges Condominium Association (the "Association") by and through its counsel, for its COUNTERCLAIMS against Michael Gladkin as special trustee of the Victoria A. Gladkin Revocable Trust and Victoria A. Gladkin Revocable Trust (collectively ··Gladkin"). states: JURISDICTIO AND VENUE I. The Association is a Colorado corporation. 2. The Court has jurisdiction over this matter pursuant to§ 13-1-124, C.R.S., as the real property at issue is situated in Colorado. 3. The Court has jurisdiction over Gladkin in this matter pursuant to § 13-1-l 24, C.R.S., and because Gladkin has already submitted to the jurisdiction of the Court. 4. The Court has jurisdiction to enter a declaratory judgment pursuant to Article 51 of Title 13 C.R.S. relating to actions for Declaratory Judgment as well as pursuant to C.R.C.P. 57. 5. Venue is proper in this matter because the property at issue is situated in Eagle County, Colorado. GENERAL ALLEGATIONS 6. Timber Creek Lodges Condominium Association is the condominium association for Timber Creek Lodges. 7. There is a deck on the Southside of Unit IO of Building B of Timber Creek Lodges (TLC). 8. Unit lO is constructed in such a way that log beams make up the structure of its upper floor. Said log beams then extend beyond the perimeter of Unit IO several feet to provide the structural support for the deck in a cantilever fashion. 9. According to experts for both the Association and Gladkin, that have examined said log beams and the deck structure of Unit I 0, the portion of said log beams that provides support for the deck is suffering from rot and deterioration such that the structure of the deck is not currently in a structurally safe and sound condition. I 0. According to experts for the Association, there is a realistic potential that the rot and decay being suffered by the portion of the logs beams that provide the support structure for the 4 deck will eventually extend into that portion of the log beams that provide support for the upper Ooor of Unit l 0. 11. Such rot and deterioration of the log beams is caused largely by exposure to water infiltration. 12. The roofline of Unit IO over the deck does not provide cover for the entire deck but lca\'es a number of feet of the portion of the log beams that protrude from the perimeter of Building to support the deck vulnerable to the weather, and especially to rain and snow. 13. The Colorado Common Interest Ownership Act ('·CCIOA") applies in this matter. FIRST COUNTERCLAIM (Declaration that the log beams supporting the deck are General Common Elements) 14. The Association incorporates each of the above allegations of its Counterclaims as if fully set forth herein. I 5. The Association seeks declaratory relief pursuant to Article 51 of Title 13 C.R.S. relating to actions fo r Declaratory Judgment as well as pursuant to C.R.C.P. 57. 16. The Association seeks a decl aration from the Court that the log beams that support the deck are General Common Elements under the Association's governing documents and Common Elements pursuant to CCIOA such, pursuant to the Association's governing documents and CCIOA. that the Association may repair, replace, or modify the deck, in light of its structural condition. in a reasonable manner under the circumstances as it and it's experts deem advisable. 17. Alternatively. the Association seeks a declaration from the Court that under Colorado la\\'. the Associat ion has the right to repair, modify, or replace even a limited common element in an emergency situation for purposes of structural soundness and safety. SECOND CO U TERCLAIM (Declaration Regarding Petitioner's Obligation to Maintain and Repair Deck) 18. The Association incorporates each of the above allegations of its Counterclaims as if fully set forth herein. 19. The Association seeks declaratory relief pursuant to Article 5 I of Title I 3 C.R.S. relating to actions for Declaratory Judgment as well as pursuant to C.R.C.P. 57. 20. The Association seeks a declaration from the Court that if the log beams supporting the deck are determined to be limited common elements, then the Petitioner has the responsibility for maintenance, repair and replacement of the deck, including the log beams, and bears the cost of any such maintenance, repair, and replacement. THIRD COU TERCLAIM (Declaration Regarding Assessment against Unit 10) 21. The Association incorporates each of the above allegations of its Counterclaims as if rutty set forth herein. 5 22. The Association seeks declaratory relief pursuant to Article 5 I of Title 13 C.R.S. relating to actions for Declaratory Judgment as well as pursuant to C.R.C.P. 57. 23. Regard less of whether the Court finds that the log beams that support the deck are gene ral common elements or limited common elements, the Association seeks a declaration from the Court that, pursuant to the Association's governing documents and CCIOA, § 38-33.3- 315(3), C.R.S .. all costs and expenses, including litigation costs, incurred by the Association related to the condition of the log beams and repair, modification, or replacement of the same, may be assessed against Unit IO of Bui lding B. FOURTH COU TERCLAIM (Declaration for Indemnification) 24. The Association incorporates each of the above allegations as if fully set forth herein. 25. The Association seeks declaratory relief pursuant to Article 51 of Title 13 C.R.S. relating to actions fo r Declaratory Judgment as well as pursuant to C.R.C.P. 57. 26. If the Court should determine that the portion of the log beams that protrude from the perimeter of Unit 10 to provide the structural support for the deck should be regarded as limited commo n clements pursuant to the Association's governing documents and CCJOA and that the log beams supporting the deck must be repaired by the Association as Gladkin desires, or may be repaired by Gladkin, then the Association seeks a declaration from the Court such that Gladkin and its successors and assigns indemnify the Association from any claims related to or arising out of the condition of the deck and its structural support, whether any such claims exist now or may arise in the future. W1 IEREFORE, the Association prays for a declaratory judgment against Gladkin as follO\\'S: A. For declarato ry judgment as set forth above in the Association's Counterclaims; B. For all of the Association· s litigation costs incurred in this matter, including but not limited to , expert witness fees, may be assessed against Unit 10 pursuant to the Association's governing documents and CCIOA; and C. For such other and further relief as this Court deems just and proper. Respectfully submitted this 22nd day of December, 2017. SWEETBAUM SANDS ANDERSON PC sf Alan D. Sweetbaum Alan D. Sweetbaum, #13491 6 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of December, 2017, a true and correct copy of the foregoing RESPONSE TO PETITION FOR DECLARATORY JUDGMENT AND COUNTERCLAIMS was fi led and/or served electronically , ia COE-filing as follows: Robert C. Gavrell l:ric M. Thcile BALCOMB & GREEN. P.C. 818 Colorado A venue Glenwood Springs, CO 81601 sl Katherine Roche Katherine Roche 7 DISTRICT COURT, EAGLE COUNTY, COLORADO Court Address: 885 Chambers A venue P.O. Box 597 Eagle, CO 8163 I Telephone No.: (970) 328-6373 Petitioner: MICHAEL GLADKI AS SPECIAL TRUSTEE OF T HE VICTORIA A. GLAD KIN REVOCABLE TRUST A COURT USE ONLY A V. Respondent: TIMBER CREEK LODGES CO DOMINI UM ASSOCIATION Attorneys for Petitioner: Robert C. Gavrell, Atty. No. 37045 Eric M. Theile, Atty. o. 49708 BALCOMB & GREE , P.C. 818 Colorado A venue Glenwood Springs, CO 81601 Phone: (970) 945-6456 email: rgavrelll@balcombgreen.com; eric<'abalcombgreen.com REPLY TO COUNTERCLAIMS Case o. 2017 CV 30280 Div.: Petitioner, Michael Gladkin as Special Trustee of the Victoria A. Gladkin Revocable Trust (''Petitioner'"). by and through his attorneys, Balcomb & Green, P.C., responds to Respondent, Timber Creek Lodges Condominium Association's ("Respondent"') Counterclaims as follows: I. Replv to Counterclaims. The following paragraphs correspond to the paragraphs as numbered in the Counterclaims. I. Admit. 2. Admit. 3. Admit. Eagle County District Court Case No. 2017 CV 30280 Gladkin 1·. Timber Creek lodges Co11domi11i11111 Association REPLY TO COUNTERCLAIMS 4. Admit. 5. Admit. 6. Admit. 7. Admit. 8. Admit. 9. Admit po1tions of the log beams that provide support for the deck are suffering from rot and deterioration, and that the structure of the deck is not currently in a structurally safe and sound condition. Deny the remainder. l 0. Deny for lack of knowledge. 11. Deny for lack of knowledge. 12. Deny for lack of knowledge. 13. Denied inasmuch as this allegation calls for a legal conclusion. 14. Requires no response. 15. Requires no response. 16. The allegation speaks for itself as to what the Association is seeking. Denied as to the Association's Board having any executive power to authorize the permanent physical removal of all or substantially all of a General Common Element. 17. The allegation speaks for itself as to what the Association is seeking. Denied as to the Association's Board having any executive power to authorize the permanent physical removal of all or substantially all of a Limited Common Element. 18. Requires no response. 19. Requires no response. 20. The allegation speaks for itself as to what the Association is seeking. Denied as to the substantive relief requested. 21. Requires no response. 22. Requires no response. 2 Eagle County District Court Case No. 2017 CV 30280 G/adki11 r. Timber Creek Lodges Condominium Association REPLY TO COUNTERCLAIMS 23. The allegation speaks for itself as to what the Association is seeking. Denied as to the substantive relief requested. 24. Requires no response. 25. Requires no response. 26. Deny. II. General Denial. 27. Petitioner denies any factual allegation in the Counterclaims not specifically admitted or denied above. 28. Petitioner denies any statement of law made in the Counterclaims not specifically admitted or denied above on that basis. III. Affirmative Def ens es. 1. Respondent has failed to state a claim upon which relief can be granted. 2. Respondent's claims, in whole or in part, are frivolous and groundless, entitling Petitioner to an award of attorney's fees and costs under C.R.S. § 13-17-102. 3. Respondent's Fourth Counterclaim is defeated by the Economic Loss Rule. IV. Reservation of Rights. The admissions, denials, and defenses stated in this pleading are based upon the information available to Petitioner as of the date hereof. Petitioner reserves the right to amend this pleading or asse11 counterclaims, cross claims, or third party claims as appropriate in light of the progression of this case, and development of further information related thereto. 3 Eagle County District Court Case No. 2017 CV 30280 Gladkin v. Timber Creek Lodges Co11domi11i11111 Association REPLY TO COUNTERCLAIMS WHEREFORE, Petitioner requests the Court deny all relief requested by Respondent, dismiss Respondent's claims with prejudiced, and enter judgment against Respondent for Pelitioner's attorneys' fees and costs pursuant to C.R.S. § 13-17-102 and C.R.S. 38-33.3- 123(1 )( d)(II). Dated this 28th day of December 2017. Respectfully submitted, BALCOMB & GREEN, P.C. Isl Robert C. Gavre/1 Robe11 C. Gavrell Attorney for Petitioners CERTIFICATE OF SERVICE I certify that on December 28, 20 17, I provided a copy of this Reply to Cou11terclai111s via Colorado Courts E-filing as follows: Alan D. Sweetbaum Charles W. Westby Swcetbaum Sands Anderson PC 1125 Seventeenth Street, Suite 2100 Denver, Colorado 80202 Attorneys for Respondent Isl Brenda Ladd Brenda Ladd, Paralegal NOTE: THIS DOCUMENT WAS FILED ELECTRONICALLY. AN ORIGINAL SIGNATURE COPY IS AVAILABLE FOR INSPECTION AT THE OFFICE OF Tl/£ ORIGINATING ATTORNEY, PURSUANT TO COLORADO RULE OF CIVIL PROCEDURE 121,§ 1-26. 4