HomeMy WebLinkAboutlanduse case.ts.Prospector Lodge.1983.0
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016 Prospector Lodge
Timeshare Project
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CASELOAD SUMMARY SHEET
City of Aspen
No. _ 212 "O�
Staff:
PROJECT NAME: &L4qz1
oe x /LC
APPLICANTPhone:
REPRESENTATIVE: Phone: ��7J '��CI�6
TYPE OF APPLICATION:
(Fee)
I. GMP/SUBDIVISION/PUD (4 step)
1. Conceptual Submission
($1,840)
2. Preliminary Plat
($1,120)
3. Final Plat
($ 560)
II. SUBDIVISION/PUD (4 step)
1. Conceptual Submission
($1,290)
2. Preliminary Plat
($ 830)
3. Final Plat
($ 560)
III.EXCEPTION/EXEMPTION/REZONING (2 step)
($1,010)
IV. SPECIAL REVIEW (1 step)
($ 465)
1. Special Review
2. Use Determination
3. Conditional Use
REFERRALS: Date Referred:,
Attorney
Engineering Dept.
Housing
Water
City Electric
FINAL ROUTING:
V Attorney
�/ Building
Sanitation District
Mountain Bell
Parks
Holy Cross Electric
Fire Marshall/Building Dept.
Engineering �
Other
Date Routed:
School District
Rocky Mtn. Nat.Gas
State Hgwy. Dept.
Fire Chief
Other Cle
DISPOSITION:
CITY P&Z REVIEW:
CITY COUNCIL REVIEW:
A A .4
CITY P&Z REVIEW:
CITY COUNCIL REVIEW:
P,v--7 .
Ordinance No.
Ordinance No.
1. The applicant will amend the condominium plat to include
the following:
a. Reference encroachment license granted by Council
for the rock facade stairs on the north frontage;
b. Indicate book and page of easements for the transformer
in any vaults or pedestals on the property;
2. The applicant's landscape plan will require final approval
of compliance by the Parks Director. The plan should be
augmented to include the following:
a. The additional sidewalk spur on the west end of the
alley;
b. Irrigation of the planting areas along the west and
north frontages to maintain trees in those locations.
3. The applicant must provide sixteen (16) on -site underground
parking spaces.
4. The project must include amenities as proposed including
a sundeck on the third floor, on -site parking, lobby, and
unit amenities including a hot tub, sauna, wet bar and
masonry fireplace.
5. Occupancy by a timeshare owner is limited to thirty (30)
days between December 18 and Harch 26.
6. No prohibited marketing practices will be allowed including
the giving of gifts in a deceptive manner, use of public
malls or streets for sale, phone solicitations to visitors
at other lodges, or the giving of transportation, lodging
or other gifts valued in excess of $100.00.
7. The nineteen (19) renovated units found in the Prospector
must each be split into fifty-two (52) weeks. Seven (7)
weeks must be reserved for the maintenance of the project.
Four (4) of these seven (7) weeks must be used exclusively
for maintenance with no rentals or other uses allowed.
Two of the four (4) weeks must be in the spring while the
remaining two (2) weeks must be in the fall. The remaining
forty-five (45) weeks must be sold as proposed in three
(3) week timeshare packages. Each three (3) week package
must contain a peak summer/off -winter week, and an off
season week in either the spring or the fall.
8. No right -to -use timeshare leasehold •rill be allowed. All
Prospector timeshare interest sales must be on a fee ownership
basis.
9. Timber Run Fealty and Terry Liming as Plan Manager and
local contact will be responsible for the marketing program
for the Prospector. The marketing program identified in
the timeshare application must be adhered to.
10. As proposed, the applicant must establish four (4) banking
accounts for operation of the budget system. Proof that
these accounts have been established must be documented
Page 3
to the City of :aspen when such accounts are established.
11.. The issuance of a Certificate of Occupancy will be sufficient
to meet the requirements of Section 20-24(F)(2) of the
Code regarding the useful life of mechanical and electrical
equipment in the Prospector.
12. The mandatory two (2.) month deposit and any down payments
made in conjunction with the purchase of a timeshare unit
must be held in an escrow account until closing or the
issuance of a Certificate of Occupancy, whichever is later.
The escrow agent must be a title company in Aspen, a neutral
third party.
13. No closing will be allowed until at least eight (8) of
the total fifteen (15) timeshare packages are sold for
any given unit.
14. When closing occurs, the declarant as well as the new timeshare
owners must then begin to pay their quarterly assessment
fees for that unit. For any unsold units the developer
is responsible for operating costs.
15. The Interior Reserve Fund and the Exterior Reserve Fund,
both expenditures itemized in the maintenance/assessment
fees, cannot be reduced or suspended during the first five
(5) years after the first closing. A].1 other expenditure
items used in the calculation of the assessment fees can
be adjusted with the approval of the Board of I•tanagers.
The money designated for the reserve funds must always
be held in escrow to be used as needed for interior and
exterior repairs and maintenance. Designated monies going
into the reserve fund (estimated at $10,000 per year) cannot
be reduced or eliminated until the fund has accumulated
$50,000.
16. The Prospector timeshare units are limited to six (6) occupants
at any one time.
17. The applicant will submit a fifty (50) year deed -restriction
for the employee unit (f6108) meeting the form and standards
of the Attorney's Office.
18. The owners are required to own the common areas and common
amenities in the Prospector Lodge and this must be reflected
in the appropriate documents.
19. The Board of Managers must designate a local managing agent.
20. One deed must be conveyed for each three week package so
that weeks are never sold individually.
21. References must be made throughout the application and
exhibits attached to indicate that the project is subject
to all of the requirements in Section 20-24 as well as
the State Timeshare Lases which are already specified in
the application and attachments.
22. The financing for the Prospector must be expressly subject
to all restrictions placed on the project.
23. The applicant must provide satisfactory handicap access
to the first level of the Prospector Lodge by installation
of a handicap lift or by such other means as may be approved
by the Aspen Building Department. In addition, the applicant
shall make two (2) units on the first level of the Prospector
Lodge suitable for handicap use.
24. The plan manager or the managing anent must apply for and
show evidence to the City of a Colorado State Sales Tar.
Page 4
be applicable to any short term rental of these units.
A required real estate transfer tax will apply to initial
and subsequent sales of the timeshare interest and will
be collected as is done in any other real estate transaction.
25. The Prospector Disclosure Statement, the Prospector Condominium
Documents entitled Fractional Estate Declaration, the Prospector
Articles of Incorporation of the Fractional Owners Association,
and the By -Laws of. the Association as well as a sample
purchase contract must all be amended to reflect the conditions
of approval placed on the Prospector through the approval
process. The Planning Office and the City Attorney's Office
must both review and approve the final documents to ensure
the changes and clarifications are accurately made.
26. Any further updating or amending of the approved timeshare
documents must be approved through the City according to
the requirements of Section 20-24 of the subdivision regula-
tions.
27. The declarant may rent unsold units but the rental money
must go toward any maintenance which may be necessary as
a result of the unit's use as a rental.
28. The applicant must clarify throughout the timeshare application
references to timeshare units versus references to timeshare
interests.
29. Thirty percent (30%) of the qualified voters (present or
represented by proxy) of the Factional Owners Association
must be present to obtain a quorum.
30. The owners may not lease the common elements or amenities
(excluding the employee unit) which they own as was proposed
in the application.
31. To ensure compliance with the proposed marketing program,
the applicant agrees to post with the City suitable security
in the amount of a $20,000 irrevocable letter of credit.
32. Full details of the RCI exchange program (cost, procedures,
other projects involved, confirmation percentages, etc.)
must be provided to the purchasers of Prospector timeshare
interests.
33. Assessment fees cannot be increased without written notice
being given to the owners thirty (30) days prior to the
effective date of the increase. Such written notice must
explain the reason for the increase and document the need
for the increase.
34. The applicant must submit to the Finance Director the license
fee required by Section 20-24(S) of the Municipal Code,
to be paid on a pro rata basis for the remainder of 1984,
currently estimated at $2950.00. Prior to obtaining the
license from the Finance Director, the applicant must first
pay the outstanding fees owed to the Planning Office, currently
estimated at $2990.00. The applicant shall annually obtain
a new license from the Finance Director on or before January
1st of each subsequent year.
•
MEMORANDUM
TO: Bill Drueding
FROM: Alan Richman
RE: Prospector Lodge
DATE: October 17, 1984
� L (A�, w,j
By this memo, I am responding to your memo to me of OCtober 9, 1984
requesting that the Planning Director allow the covering of two
existing stairwells at the front entrance of the Prospector. According
to Section 24-3.3 (c) of the Municipal Code, the Planning Director may
authorize minor changes to an approved conditional use without an
additional public hearing by P&Z. Based on the information submitted to
me, I believe this request falls within the parameters of this section,
and hereby authorize you to move forward with Building Permit Review
and issuance.
MEMORANDUM
TO: Alan Richman, Planning Department
FROM: Bill Drueding, Zoning Enforcement Officer
RE: The Prospector Lodge
DATE: October 9, 1984
The Prospector has applied for a building permit to cover two existing
stairwells at the front entrances for safety reasons. This would keep
the snow off these stairwells. The Prospector has told me that this
minor change would be OK'd by Collette for H.P.C., since very little of
the addition is visible, if any.
As per Patsy Newbury, the total additional F.A.R. resulting from the
enclosed roof covering would be 74.25 sq. ft. (counting only z of each
stairway), and 154 sq. ft. landings would result.
The Prospector is located in the CC zone, and is conditional use. I
believe Sec. 24-3.3(c) gives the Planning Director the authority to grant
minor expansions of a conditional use without further P & Z approval.
Encluded with this memo are the proposed plans.
The Building Department feels this change is minor and is a benefit for
safety reasons, and would therefore approve this change. We do need
in writing, the Planning Department approval.
Copies:
Patsy Newbury
Jim Wilson
jr
CITY 0-ky", ASPEN
130 �-,outh galena street
aspen, colorado 31611 �a��
303-925 -2020 D -
,_.
V 31964
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November 30, 1984
Mr. Gideon Kaufman
611 West Main Street
Aspen, Colorado 81611
Dear Mr. Kaufman:
I have reviewed your letter dated November 26, 1984 concerning
the Prospector Lodge gift certificate marketing program. The
$50 gift certificate is within the $100 gift restrict per the
timeshare regulations. The solicitation of clients will occur
on private property and not on city streets or malls. Solicita-
tion of clients on city streets or malls is prohibited by the
timeshare regulations.
The city's approval of the Prospector gift certificate marketing
program will be limited to a 90 day timeframe from the date of
this letter. If you wish to continue the program beyond the 90
day period please submit a written request that I may review.
The timeshare regulations require that all approved timeshare
projects file their marketing plan with the city. I have copies
of brochures on the Prospector Lodge at Aspen. Would you please
outline in narrative form your marketing plan and keep me informed
of any changes in that plan.
Sincerely,
Ronald L. Mitchell,
Assistant City Manager
RLM:klm
xc: Harold L. Schilling, City Manager
Paul Taddune, City Attorney
Alan Richman, Acting Planning Director
r�
EDWARDS & TADDUNU
ATTORNEYS AT LAW
BARRY D. EDWARDS
PAUL J. TADDUNE
August 31, 1984
W. Michael Clowdus, Esq.
Pendelton & Sabian, P.C.
Seventeenth and Grant Building
Suite 1000
303 East Seventeenth Avenue
Denver, Colorado 80203
Dear Mike:
p[E@[Eader-,
Al1G 3 1 M 'V
0
600 EAST HOPKINS. SUITE 304
ASPEN, CO 81611
1303) 925-9180
❑ CITY HALL OFFICES:
130 SOUTH GALENA STREET
ASPEN. CO 81611
13031 925.3247
With regard to the materials forwarded under cover of your July
31, 1984, I have the following comments:
I. GENERAL MATTERS:
1. A fifty-year deed restriction for the employee unit
designated at No. 108 should be submitted for my review and
approval. Gideon is familiar with deed restriction forms which
have been approved by my office. A fully executed deed restric-
tion should go on record with the timeshare instruments.
2. Your client must provide a $20,000 irrevocable letter of
credit to insure compliance with the proposed marketing program.
The standard letter of credit form referencing the applicable
requirements of Section 20-24 of the municipal Code should be sub-
mitted to my office for approval.
3. Arrangements should be made to tender the $5,000 license
fee to the City.
4. Have we entered into an encroachment license which was
approved on November 8, 1982?
To adequately protect that City with regard to insur-
ance, I have been requesting the following insurance endorsement:
"It is hereby understood and agreed that this insurance
policy may not be cancelled nor the intention not to
renew be stated by surety until thirty (30) days after
receipt by the City of Aspen by registered mail of a
• 0
EDWARDS & TADDUNE
Letter to W. Michael Clowdus, Esq.
August 31, 1984
Page Two
written notice of such intention to cancel or not to
renew."
The above language should be added to Paragraph "5" of
the Encroachment License and an executed copy should be tenedered
to the City. A copy of what I have reviewed is enclosed for your
reference.
II. FRACTIONAL ESTATE DECLARATION:
1. Section 1-10 (page 2-3): The definition of fractional
estate should refer to the fact that each 1-15th interval encom-
passes three "use weeks". Along the same line, Section 1-20 (on
page 1) should refer to the fact that each timeshare estate com-
prises three use weeks.
2. Article VII pertaining to the employee housing unit
(page 6) should refer to the fact that the employee housing unit
is subject to the employee housing deed restriction discussed
above. The last paragraph of this article (on page 7) should read
"shall be restricted to use as employee housing for employees of
the association or the managing agent as may be permitted by the
employee housing deed restrictions entered into pursuant to the
requirements of Section 24-11.4(b)(3) of the Municipal Code of the
City of Aspen."
3. Article IX (page 7) should read that a fractional estate
may be held and owned in any real property tenancy relationship
recognized under the laws of the State of Colorado "and as per-
mitted by the subdivision regulations of the Municipal Code of the
City of Aspen."
4. With reference to Article XXVII (page 11) and Article
III (page 5), please keep in mind that I am still pondering the
Code language requiring that all common elements be entitled in
the association. At this point, I am inclined to agree (and am
seeking support from the Planning Office) that the Code provision
may be satisfied by the requirement that each owner must be a
member of the homeowners association and have a proportionate fee
simple interest in the common elements.
5. Article XX, regarding assessments for common expenses
(at page 15): The Planning Office has advised that a condition of
your approval is that "assessment fees cannot be increased without
written notice being given to the owners thirty (30) days prior to
EDWARDS & TADDUNE
Letter to W. Michael Clowdus, Esq.
August 31, 1984
Page Three
the effective date of the increase. Such written notice must
explain the reason for the increase and document the need for the
increase." This condition is not addressed in Article XX.
6. Section 27.1 (page 25): The first sentence should read
"each lodge unit may be used and occupied for first-class lodge
purposes only; ...", not "first-class residential purposes".
7. Section 28.1 (page 26): The nineteenth line should tie
in the requirements of Section 20-24 of the Municipal Code of the
City of Aspen as follows: "... Marketing thereof as may be per-
missible pursuant to the terms of this declaration, Section 20-24
of the Municipal Code of the City of Aspen, and other applicable
law."
8. Section 28-3 (page 27): Reference should be made that
each fractional estate consists of three use weeks.
9. Article XXXI. The general provisions should refer to
the requirements of the timesharing provisions of the Municipal
Code of the City of Aspen.
10. I would like to see some language in the fractional
estate declarations indicating that the owner of a timeshare
interest irrevocably designates the homeowners' association and
the managing agent as an agent for service of process pursuant to
Section 20-24(I)(3)(b).
11. Section (I)(3)(c) requires that "each timeshare interest
with a multiple ownership shall be required to designate one
managing agent as the spokesman and voter for all of the owners
involved." The declaration does not seem to cover this require-
ment.
12. Some reference should be made that the project is
governed by the application for timesharing submitted by the
developer.
III. ARTICLES OF INCORPORATION:
I have no comments with respect to this document except to
note with regard to Article XII (page 5) that the formation of the
association provides for only management, maintenance and care of
fractional units might be at odds with requirement of the code
that the association should be the title owner. Additionally,
i •
EDWARDS & TADDUNE
Letter to W. Michael Clowdus, Esq.
August 31, 1984
Page Four
this article should perhaps refer to the fact that the association
is going to own the employee housing unit.
IV. BYLAWS OF THE PROSPECTOR FRACTIONAL OWNERS ASSOCIATION:
No comments.
V. FRACTIONAL ESTATE PURCHASE CONTRACT:
1. The escrow agent referred to in Paragraph "A" (page 1)
should be identified, so that we can determine that the escrow
agent be a neutral third party not having any intererst in the
purchase and sale transaction. I believe that the timeshare
application identified an Aspen title company as escrow agent.
2. Paragraph 12 (page 4) should indicate that the purchaser
may terminate the contract within ten calendar days following his
"execution" of the purchase contract, rather than the date of the
purchase contract.
VI. STATE OF COLORADO DISCLOSURE STATEMENT:
I do not have any comments with regard to this document
except to observe, once again, that the state rescission provi-
sions permit rescission within ten days after the purchaser "exe-
cutes" the purchase agreement, not necessarily the date of the
purchase contract.
VII. CITY OF ASPEN DISCLOSURE STATEMENT:
1. Paragraph "(f)" should read that the City of Aspen
restricts occupancy in a unit to not more than thirty days between
December 18 and March 20.
2. Paragraph "(h)". As stated previously an executed
license agreement should be delivered to the City.
3. Paragraph "(j)". The last sentence should read that the
association "shall require an owner to deposit an amount equal to
three months of the assessment for common expenses ...".
4. With reference to paragraph "(k)", I believe that a bud-
get estimating the fraction estate's share of the assessment
should be appended to the disclosure statement or referenced with
EDWARDS & TADDUNE
Letter to W. Michael Clowdus, Esq.
August 31, 1984
Page Five
particularity. I also note that the purchase contract does not
contain a budget amount.
5. With reference to paragraph "(q)", this paragraph should
be written to indicate that the purchaser has a ten-day right of
rescission from the date of execution of the contract.
6. With reference to paragraph "(r)", does this mean that
the project will proceed to closing on a lodge "unit" basis or
only after all of the units have sold a minimum of eight of the
fifteen fractional estates?
7. With reference to paragraph "(y)", the language of this
paragraph will again be dependent on how we determine satisfaction
with the requirements that the homeowners' association be title
owner for the common elements.
VIII. MISCELLANEOUS DOCUMENTS:
I have also reviewed the RCI guide, the federal disclosure
statement, the promissory note, the form of deed of trust to be
used to secure the note, the security agreement, and the revised
copy of the annual budget of the Prospector Fractional Owners
Association, and have no comments with respect to these docu-
ments.
Please feel free to call after you have had an opportunity to
review and consider my comments.
Ver truly yours,
Paul J.taddune
City Attorney
PJT/mc
Enc.
cc: Gideon I. Kaufman, Esq.
;Alan Richman
W. MICHAEL CLOWDUS
PENDLETON F6 SABIAN, P. C.
ATTORNEYS AND COUNSELORS AT LAW
SEVENTEENTH AND GRANT BUILDING
SUITE 1000
303 EAST SEVENTEENTH AVENUE
DENVER,COLORADO 80203
August 28, 1984
TELEPHONE: (303) 839-1204
TELECOPIER: (303) 831-0786
TWX:910-931-0407
Mr. Paul J. Taddune, Esq. VIA FEDERAL EXPRESS
City Attorney
City of Aspen
130 S. Galena
Aspen, Colorado 81611
Re: Alan Richman's August 23, 1984 Memorandum
Relating to the Prospector Documents
Dear Paul:
I have had an opportunity to review the above -described
memorandum (the "Richman Memorandum") and believe that I have been
able to locate provisions in the documents which expressly deal
with the conditions Mr. Richman covers. Enclosed for your
reference is this firm's May 23, 1984 memorandum (the "Compliance
Memorandum") regarding compliance of the Prospector project
instruments with the requirements as set forth in Alice Davis'
August 22, 1983 memorandum to the Aspen City Council (the "Davis
Memorandum"). Although the conditions have been renumbered in the
Richman Memorandum the conditions in issue remain unchanged. The
following is organized based upon the conditions as numbered in
the Richman Memorandum with cross-references to same conditions as
set forth in the Davis Memorandum and in the Compliance
Memorandum.
12. Condition No. 12 is numbered as condition No. 14 in the
Davis memorandum and the Compliance Memorandum. The mandatory
two -month deposit has been changed to the three month deposit and
is not collected until closing of the Sale, at which time it will
be deposited into a homeowner's association reserve account
established pursuant to condition No. 10 of the Richman
Memorandum. Since it is collected only at closing and is
immediately deposited in the homeowner's association reserve
account, there is no necessity for an escrow. With respect to
down payments made by purchasers pursuant to the Fractional
Estate Purchase Contract, all such down payments will be held by
Transamerica Title Company in an escrow account pursuant to the
0
Mr. Paul J. Taddune, Esq.
City Attorney
August 28, 1984
Page 2
escrow agreement referenced in the Purchase Contract. A copy of
the Escrow Agreement is enclosed for your review.
14. Condition No. 14 of the Richman Memorandum appears as
condition No. 16 in the Davis Memorandum and in the Compliance
Memorandum. Sections 20.1 and 20.2 of the Declaration address the
condition; however, we have previously discussed with you the
possibility of not requiring Owners to commence paying assessments
until they are entitled to occupancy. This issue has arisen
because we are selling units for occupancy beginning no earlier
than November or December of this year and we feel it unfair to
have Owners paying assessments for periods prior to the time that
they have any possibility of use. The Declarant remains
responsible pursuant to Section 20.2 of the Declaration for
payment of the total monthly costs of operating and maintaining
the common elements until such time as the Owners commence paying
their assessments at which time the Declarant as well must begin
paying its assessments. In our prior telephone conversation you
indicated that this proposal seemed reasonable. I would
appreciate confirmation of your position on this.
17. This condition appeared as condition No. 19 in the Davis
Memorandum and Compliance Memorandum. Although I think Article
VII of the Declaration serves as an adequate restriction of record
for the Employee Housing Unit, we would be more than happy to
place the restriction in the Deed conveying the Employee Housing
Unit from the Developer to the Association.
18. This condition appeared as condition No. 20 in the Davis
Memorandum and the Compliance Memorandum. Pursuant to the
requirements of the Davis Memorandum the common areas and
amenities of the project are owned by the condominium unit owners
as appurtenances to the Fractional Estates and are managed by the
Association.
20. This condition appeared as Condition No. 22 in the Davis
Memorandum and the Compliance Memorandum. The sections of the
the Declaration, the Purchase Contract and the disclosure
statement referenced in paragraph 22 of the Compliance Memorandum
address the requirement of one deed for each three week package.
In addition, Section 28.1 of the Declaration provides that "[i]n
no event, however, shall a Fractional Owner convey or encumber
less than a Fractional Estate as defined herein, or attempt to
subdivide a Fractional Estate into lesser interests."
PEN DLETON 8 SAB IAN, P. C.
• 0
Mr. Paul J. Taddune, Esq.
City Attorney
August 28, 1984
Page 3
27. This condition appeared as condition No. 29 in the Davis
Memorandum and the Compliance Memorandum. Section 20.2 of the
Declaration requires the Declarant to apply rents from unsold
units toward maintenance.
31. You should be able to confirm with the City Clerk that
a $20,000 irrevocable letter of credit was received by the City of
Aspen on June 6, 1984. Enclosed is a copy of the Time Share
License as issued with the receipt noted thereon.
33. This condition appeared as condition No. 37 in the Davis
memorandum and the compliance memorandum. Section 4.4(iv) of the
Bylaws of the homeowners' association covers this requirement.
If you have any questions about my responses to the issues
raised in the Richman Memorandum, please do not hesitate to call.
As you may know sales are proceeding at the Prospector and
our client hopes to be able to meet the pre -sale requirements
imposed by the City of Aspen and our lender and commence closings
in one of the units during the first week of September.
Therefore, your final approval of the project documents so that we
may record them prior to those closings is imperative. I look
forward to hearing from you with respect to all of these matters.
Very truly yours,
W. Michael Clowdus
WMC:pkm
Enclosures
cc: L. Vernon Cagle
Alan Richman (w/ enclosures)
Gideon Kaufman, Esq. (w/ enclosures)
PENDLETON 8 SABIAN, P. C.
PENDLETON 8 SABIAN, P. C.
ATTORNEYS AND COUNSELORS AT LAW
TELEPHONE: (303) 839-1204 SEVENTEENTH AND GRANT BUILDING
TELECOPIER: (303) 831-0786 SUITE 1000
TWK910-931-0407 303 EAST SEVENTEENTH AVENUE
DENVER,COLORADO 80203
May 23, 1984
TO: Aspen Planning and Zoning Commission
FROM: Pendleton & Sabian, P.C.
RE: Compliance of The Prospector Project Instruments
With the Requirements as Set Forth in Alice Davis'
August 22, 1983 Memorandum to the Aspen City Council
(the "Memorandum")
This memorandum sets forth the sections and. provisions in
the Disclosure Statement for The Prospector (the "Disclosure
Statement"), Fractional Estate Declaration for The Prospector
(the "Declaration"), the Articles of Incorporation of The
Prospector Fractional Owners' Association (the "Articles"),
the Bylaws of The Prospector Fractional Owners' Association
(the "Bylaws"), and the Fractional Estate Purchase Contract
(the "Purchase Contract") (collectively hereinafter referred
to as the "Project Instruments") which satisfy the requirements
as set forth in the Memorandum relating to the Project Instruments.
Sections of the Memorandum and the Project Instruments are
referred to by the designated section numbers in the documents
for easy reference.
Memorandum Section Project Instrument Provision
6. Thirty -day occupancy limita- Section f of the Disclosure State-
tion. ment provides for such a thirty -day
limitation.
8. Division of Units into 52 Section 1.10 of the Declaration
weeks; requirements for Main- divides each Fractional Estate
tenance Weeks. into 52 Use Weeks. Section 1.15
of the Declaration contains the
required provisions concerning
Maintenance Weeks.
8. Requirements for Marketing Section u of the Disclosure State -
Remaining Use Weeks in Three- ment contains the marketing re -
Week Packages. quirements relating to peak winter
season, peak summer/off-winter
and off-season weeks.
age 2 ,
May 23, 1984
Memorandum Section
9. No right -to -use timeshare
leasehold will be allowed.
10. Plan Manager responsible
for marketing; local contact.
Project Instrument Provision
Section 1.10 of the Declaration
defines Fractional Estate as a
present estate in fee simple in
a Lodge Unit.
Section b of the Disclosure State-
ment designates Terry Liming as the
Plan Manager. Mr. Liming is also
hereby designated as the local
contact for communications purposes.
Section c of the Disclosure State-
ment designates Timber Run Realty
as the marketing entity.
14. Escrow requirement for Section A of the Purchase Contract
downpayments; designation of will designate a "neutral" Aspen
escrow agent. title insurance company to be the
required escrow agent to retain
purchase money deposits until closing
or Unit availability, whichever later
occurs. This provision is also set
forth in Section n of the Disclosure
Statement.
15. No closing will be allowed This pre -sale requirement is set
until eight of the fifteen forth in Section 1 of the Purchase
timeshare packages are sold Contract and in Section r of the
for each Unit. Disclosure Statement.
16. Commencement of Payment Section 20.1 of the Declaration pro-
of Quarterly Assessment Fees. vides that the obligation commences
as of the date of the closing of the
sale of the first Fractional Estate,
while Section 20.2 of the Declaration
obligates the Declarant to pay assess-
ments on Fractional Estates owned by
it after such date.
17. Reserve Fund Requirements. Section 20.2 of the Declaration re-
quires the Interior Reserve and the
Exterior Reserve Funds to be estab-
lished and maintained. This provision,
as well as Section 4.4.iv of the Bylaws,
provides that the assessment fees can
be adjusted upon the approval of the
Board of Managers.
PEN D LETON F3 SAB IAN, P. C.
i
3 •
23, 1984
7
•
Memorandum Section
18. Occupancy Limitation.
19. Deed Restriction for the
Employee Unit.
20. Ownership of Common Areas
and Amenities.
21. Local Managing Agent.
22. One Deed for each three-
week package.
Project Instrument Provision
Section as of the Disclosure Statement
requires the Association to promulgate
a rule restricting occupancy to six
persons.
Article VII of the Declaration re-
quires this Unit to be conveyed to
the Association by General Warranty
Deed.
Such areas are owned as appurtenances
to the Condominium Units, as provided
in Section 1.7 of the Declaration.
Section 1.17 of the Declaration defines
the Managing Agent as a person or firm
licensed by the City of Aspen, while
Section 16.4 requires the Board of
Managers to delegate certain duties
and powers to such a Managing Agent.
The three-week requirement is set
forth in Section 1.10 and Section
28.3 of the Declaration, in the
first paragraph of the Purchase
Contract, and in Section g of the
Disclosure Statement.
23. References to Section 20-24 These references are set forth in
and the State Timeshare Laws. the recitals to the Declaration,
Section g of the Disclosure State-
ment, and Section 12 of the Purchase
Contract.
27. The Project Instruments
must reflect the conditions
of approval.
29. Rental of Unsold Units.
31. Thirty percent Quorum
Requirement.
32. The Owners may not lease
the Common Elements.
These amendments are as noted herein.
Section 20.2 of the Declaration re-
quires the Declarant to apply rents
from unsold Units toward maintenance.
This requirement is set forth in
Section 2.3 of the Bylaws.
This restriction is set forth in
Section 17.13 of the Declaration.
PENDLETON 8 SABIAN, P. C.
�1
MEW
4
;y 23, 1984
Memorandum Section
Project Instrum10 ent Provision
34. Disclosure of RCI Exchange Such disclosure will be provided as
Program. required by Rule S-24 of the Regula-
tions applicable to Subdivision
Developers of Timeshare Projects
promulgated by the Colorado Real
Estate Commission.
36. Ability to Remove Managers The ability of the Owners to remove
by Majority Vote of the Owners. the Managers is provided in Section
4.9 of the Bylaws.
37. Increase of Assessment Fees. Section 4.4.iv of the Bylaws requires
30 day5' prior notice of such increase
to the Owners.
PEN D LETON 8 SAB IAN, P. C.
! 0
ESCROW AGREEMENT
This Escrow Agreement, dated as of , 19_, is by
and between Merit Investment Co. (of Aspen), Inc. (hereinafter
called "Seller"), and Transamerica Title Insurance Company, 601 E.
Hopkins, Aspen, Colorado 81611 (hereinafter called "Escrow
Agent") .
WHEREAS, Seller intends to sell Fractional Estates in that
certain proposed timeshare project known as The Prospector, a
Condominium (the "Fractional Estates"), as defined in the
Fractional Estate Declaration for The Prospector, a Condominium;
and
WHEREAS, each purchase contract for a Fractional Estate (the
"Contract") will require the purchaser thereunder (the
"Purchaser") to provide an earnest money deposit (the "Deposit")
to be held in escrow pending the satisfaction of the conditions
precedent to the closing of the purchase and sale of the
Fractional Estate; and
WHEREAS, Seller desires to have each Deposit to be provided
by a Purchaser pursuant to a Contract held in escrow by Escrow
Agent until the closing of the purchase and sale of the Fractional
Estate or the availability of the subject Fractional Unit (herein
so called) for occupancy, whichever later occurs, or until such
other time as the Deposit is to be released to Seller or Purchaser
pursuant to the terms and conditions of the Contract.
NOW, THEREFORE, in consideration of the covenants and
agreements contained in this Escrow Agreement, Seller and Escrow
Agent hereby agree as follows:
1. Escrow Agent. Seller hereby establishes, appoints and
designates Escrow Agent as the escrow agent for the purposes
herein set forth, and Escrow Agent hereby accepts the appointment
as escrow agent upon the terms and conditions herein set forth.
2. Retention of Funds. Seller hereby agrees that each
deposit provided by a Purchaser pursuant to a Contract shall be
deposited by Escrow Agent in an interest -bearing account with
, or such other bank or savings and loan
association as may be designated by Seller, until (i) the closing
of the purchase and sale of the Fractional Estate as contemplated
by Contract, or (ii) Seller's certification that the Fractional
unit is available for occupancy, whichever later occurs.
Notwithstanding the foregoing, in the event that Seller notifies
Escrow Agent (i) that either Seller or Purchaser has failed to
satisfy its obligations as set forth in the applicable Contract
and (ii) that the other party has elected to terminate such
Contract, then in such event Escrow Agent shall return to Seller
the Deposit provided pursuant to such Contract so that the Deposit
may be disposed of in the manner provided in the Contract.
3. Non -Liability of Escrow Agent. In the event of any
controversy involving the parties or any third person with respect
to the subject manner of this escrow agreement, its terms or
conditions, Escrow Agent shall not be required to determine the
same or to take any action in order to resolve such controversy,
but may await settlement of such controversy by judicial
proceeding or otherwise, as the Escrow Agent shall determine,
and/or Escrow Agent may deposit any documents or money in its
possession with the District Court in and for the County of
Pitkin, State of Colorado, and thereafter be relieved of any
liability hereunder. In the event of such controversy involving
the parties to this escrow agreement, or any third party, Escrow
Agent shall not be held liable for interest or damages and shall
not be responsible to make a determination of such controversy.
4. Termination of Escrow. This escrow agreement shall
terminate upon the earlier to occur of (i) the closing of the
sales of 285 Fractional Estates, or (ii) 30 days' written notice
from one party to the other of its desire to terminate this escrow
agreement.
5. Escrow Fees. Seller and Escrow Agent expressly agree
that Escrow Agent's compensation for its services hereunder is
included in the $25.00 closing fee that will be charged by Escrow
Agent for each closing of a purchase and sale of a Fractional
Estate during the term of this agreement.
IN WITNESS WHEREOF, Seller and Escrow Agent have set their
hands and seals this _ day of , 19_
SELLER:
MERIT INVESTMENT CO. (OF ASPEN), INC.
By:
By:
ESCROW AGENT:
TRANSAMERICA TITLE INSURANCE CO.
By:
-2-
*
*
* APPLICATION FOR CIT OF AS!'EN TIMESHARE PROJECT LIC NSE, AS REQUIRED BY
* SECTION 20-24 OF THE MUN]CIPAL CODF OF THE CITY OF ASPEN
* *
1. NAME OF TIMESIARE PROJECT: The Prod-cctoi
2. MAILING ADDRESS: P.O. Box 3678
Aspen, Colorado 8.1612
3. LOCATION ADDRESS: 301 East layman Avenue
Aspen, Colorado
4. BUSINESS TELEPIIONE NUMBER(S) 303-92C-2030
5. MANAGER OF TIMESHARE PROJECT:
Name(s) Phone Number(s)
Terry Liming 303-920-2030
Jan Manning 3 03-9 2 0-2 030
6. PRINCIPAL(S) OF TIMESHARE PROJECT:
Name(s) Phone Number(s)
L. Vernon Cagle 402/734-7555
President Merit Investment Co.
Address(es)
_Box 3678
Aspen, CO 81612
L-.bx 3678, Aspen, Colorado 81612
Addresses)
Box.,12189, Omaha, 11B 68112
Tharos Schober 303-726-9455 Box 318, 1,1inter Park, CO 80482
7. NUMBER AND TYPE OF UNITS IN TIMESHARE PROJECT:
Number of Units Type (studios, oi,e-bedroom, etc.)
—19 1 bedroom
1 1 bbdroom-manager unit
TOTAL 20
8. COMPUTATION OF TIMESHARE PROJECT LICENSE FEE SUBMITTED WITH PIArPRCffX.0N,
First Year of License Issuance $13.70 x no. of days remaining in calendar year
Total 1st Year License Fee $13.70 x 216 ' _ $2959. 00 0.V. �
Subsequent Year(s) License Fee - $5,000.00 R�ee: per( B1( C r+y di Ash„
o S" �zs I Y.
9. ALSO SUBMITTED WITH THIS APPLICATION IS THE SUM OF $20,000 CASH OR $20,000 IRREVOCABLE
LETTER OF CREDIT IN THE FAVOR OF THE CITY OF ASPEN I7OR THE PURPOSES OF SECURING THE
TIMBSHARE PROJECT'S RESPONSIBILITY FOR TIIE CITY'S POTENTIAL LEGAL FEES AND EXPERT
WITNESS FEES IN TIIE EVENT OF THE TIMESHARE PROJECT'S DEVIATION FROM THE APPROVED
MARKETI!;G PLAN AND SALE TECHNIQUES. iZCtCvec' .�y C::Y rf AS �►� u•� blr:�aY.6J,{,t
Project
10. APPLICATION PREPARED AND SUBMITTED BY�.
. i Manager Sa
`s gnat re-- title d te'
APPROVAL BY CITY OF ASPEN CITY COUNCIL:
I, Kathryn S. Koch, duly appointed and actin City Clerk her certify that
the foregoing application for a City of Aspen Timeshare Project License was ac.ci
by th City Council. of the City o Aspen, Colorado, at. .� meeting held on day
of
`� 198
};at hryn Koch, i:ity :lcrlc
0
•
MEINGRANDUM
TO: Pau- _ _ c,dune
FROM: Alan Richman
RE: Propsector Documents
DATE: August 23, 1984
I have reviewed the package of documents submitted in response to
condition # 25 in the Propsector approval. According to my review,
most of the applicable conditions of approval have been properly
addressed. However, I note the following conditions which I do not
believe are not expressly dealt with in these documents (although
possibly addressed elsewhere).
12. "The mandatory two (2) month deposit and any down payments
made in conjunction with the purchase of a timeshare unit
must be held in an escrow account until closing or the
issuance of a Certificate of Occupancy, whichever is later.
The escrow agent must be a title company in Aspen, a neutral
third party." Status - not addressed.
14. "When closing occurs, the declarant as well as the new
timeshare owners must then begin to pay their quarterly
assessment fees for that unit. For any unsold units the
developer is responsible for operating costs." Status - not
addressed.
17. "The applicant will submit a fifty (50) year deed -restriction
for the employee unit (#108) meeting the form and standards
of the Attorney's Office." Status - This should be submitted
for our review.
18. "The owners are required to own the common areas and common
amenities in the Prospector Lodge and this must be reflected
in the appropriate documents." Status - your comments seem
to have this one covered. From talking to Alice, I have
found that our intent was to insure that the owners don't
have to pay rent to use common facilities. She also thinks
that there may be a legal question which Gideon raised about
state legislation prohibiting the owners from possessing
these common areas.
20. "One deed must be conveyed for each three week package so
that weeks are never sold individually." Status - not
clearly stated in documents although purchase contract
shows 3 spaces for the weeks being purchased.
27. "The declarant may rent unsold units but the rental money
must go toward any maintenance which my be necessary as a
result of the unit's use as a rental" Status - not addressed.
31. "To ensure compliance with the proposed marketing program,
the applicant agrees to post with the City suitable security
in the amount of a $20,000 irrevocable letter of credit."
Status - not addressed - has this been done?
33. "Assessment fees cannot be increased without written notice
being given to the owners thirty (30) days prior to the
effective date of the increase. Such written notice must
explain the reason for the increase and document the need
for the increase." Status - not addressed.
As an aside, I have received a request from Gideon and Terry that they
be permitted to package their 3 week intervals to respond to an
unexpected demand for summer weeks. Therefore, they would like to sell
•
a package of 2 summer weeks and one spring/fall week to one client,
which would allow a package of two prime ski and one spring/fall week
to be sold to another person. I feel this combination is in keeping
with Council's intent that packages not be sold which only market the
winter and responds to our uniquely strong summer attraction. Therefore,
by this comment I authorize the Prospector to proceed with the marketing
of such an arrangement.
Please let me know if you want to meet to discuss any of my comments.
cc: Gideon Kaufman
2
M
N
GIDEON I. KAUFMAN
DAVID G. EISENSTEIN
Alan Richman
Planning Office
City of Aspen
130 S. Galena
Aspen, CO 81611
Re:
Dear Alan:
LAW OFFICES
GIDEON I. KAUFMAN
BOX 10001
315 EAST HYMAN AVENUE
ASPEN. COLORADO 81611
August 8, 1
D r-
r�oe[E-,n
AUG 1 0 JQRA
Prospector -- Merit Investment Company
TELEPHONE
AREA CODE 303
925-8166
I write this letter to confirm my conversation
with you and your conversation with Terry Liming concerning
the sales of winter and summer weeks at the Prospector.
Reiterating our conversation and also the conversation that
I had with Alice Davis I believe that the intention of the
language in the memo to City Council concerning the
packaging of summer, winter and off-season weeks was to
assure that the winter season was not marketed to the
exclusion of the summer and off-season. I feel that with
the unique summer season of Aspen there are as many people
who prefer the summer weeks as would like winter weeks. I
feel a market package to summer people and winter people not
only meets with the intent of the ordinance but also
addresses the unique Aspen market and enables us to
accommodate summer as well as winter tourists. If this
letter does not accurately reflect your understanding or if
you have any questions about this interpretation please
contact me. Otherwise I will assume my understanding is
correct and advise my clients to proceed.
I appreciate your help and consideration in this
matter and we look forward to working together with the City
on any questions that come up concerning the timeshare at
the Prospector.
Very truly yours,
LAW OFFICES OF GIDEON I. KAUFMAN,
a Professional Corporation
By �jj
Gide Kaufman
GK/kl �'
Unit
Week
Number
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30 `
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
1983
Jan. 2 - Jan. 9
Jan. 9 - Jan. 16
Jan. 16 - Jan. 23
Jan. 23 - Jan. 30
Jan. 30 - Feb. 6
Feb. 6 - Feb. 13
Feb. 13 - Feb. 20
Feb. 20 - Feb. 27
Feb. 27 - Mar. 6
Mar. 6 - Mar. 13
Mar. 13 - Mar. 20
Mar. 20 - Mar. 27
Mar. 27 - Apr. 3
Apr. 3 - Apr. 10
Apr. 10 - Apr. 17
Apr. 17 - Apr. 24
Apr. 24 - May 1
May 1 - May 8
May 8 - May 15
May 15 - May 22
May 22 - May 29
May 29 - June 5
June 5 - June 12
June 12 - June 19
June 19 - June 26
June 26 - July 3
July 3 - July 10
July 10 - July 17
July 17 - July 24
July 24 - July 31
July 31 - Aug. 7
Aug. 7 - Aug. 14
Aug. 14 - Aug. 21
Aug. 21 - Aug. 28
Aug. 28 - Sep. 4
Sep. 4 - Sep. 11
Sep. 11 - Sep. 18
Sep. 18 - Sep. 25
Sep. 25 - Oct. 2
Oct. 2 - Oct. 9
Oct. 9 - Oct. 16
Oct. 16 - Oct. 23
Oct. 23 - Oct. 30
Oct. 30 - Nov. 6
Nov. 6 - Nov. 13
Nov. 13 - Nov. 20
Nov. 20 - Nov. 27
Nov. 27 - Dec. 4
Dec. 4 - Dec. 11
Dec. 11 - Dec. 18
Dec. 18 - Dec. 25
Dec. 25 - Jan. 1
CALENDAR YEAR
1984
Jan. 1 - Jan. 8
Jan. 8- Jan. 15
Jan. 15 - Jan. 22
Jan. 22 - Jan. 29
Jan. 29 - Feb. 5
Feb. 5 - Feb. 12
Feb. 12 - Feb. 19
Feb. 19 - Feb. 26
Feb. 26 - Mar. 4
Mar. 4 - Mar. 11
Mar. 11 - Mar. 18
Mar. 18 - Mar. 25
Mar. 25 - Apr. 1
Apr. 1 - Apr. 8
Apr. 8 - Apr. 15
Apr. 15 - Apr. 22
Apr. 22 - Apr. 29
Apr. 29 - May 6
May 6 - May 13
May 13 - May 20
May 20 - May 27
May 27 - June 3
June 3 - June 10
June 10 - June 17
June 17 - June 24
June 24 - July 1
July 1 -July 8
July 8 - July 15
July 15 - July 22
July 22 - July 29
July 29 - Aug. 5
Aug. 5 - Aug. 12
Aug. 12 - Aug. 19
Aug. 19 - Aug. 26
Aug. 26 - Sep. 2
Sep. 2 - Sep. 9
Sep. 9 - Sep. 16
Sep. 16 - Sep. 23
Sep. 23 - Sep. 30
Sep. 30 - Oct. 7
Oct. 7 - Oct. 14
Oct. 14 - Oct. 21
Oct. 21 - Oct. 28
Oct. 28 - Nov. 4
Nov. 4 - Nov. 11
Nov. 11 - Nov. 18
Nov. 18 - Nov. 25
Nov. 25 - Dec. 2
Dec. 2 - Dec. 9
Dec. 9 - Dec. 16
Dec. 16 - Dec. 23
Dec. 23 - Dec. 30
Dec. 30-Jan. 6
1985
Jan. 6 - Jan. 13
Jan. 13 - Jan. 20
Jan. 20 - Jan. 27
Jan. 27 - Feb. 3
Feb. 3 - Feb. 10
Feb. 10 - Feb. 17
Feb. 17 - Feb. 24
Feb. 24 - Mar. 3
Mar. 3 - Mar. 10
Mar. 10 - Mar. 17
Mar. 17 - Mar. 24
Mar. 24 - Mar. 31
Mar. 31 - Apr. 7
Apr. 7 - Apr. 14
Apr. 14 - Apr. 21
Apr. 21 - Apr. 28
Apr. 28 - May 5
May 5 - May 12
May 12 - May 19
May 19 - May 26
May 26 - June 2
June 2 - June 9
June 9 - June 16
June 16 - June 23
June 23 - June 30
June 30 - July 7
July 7 - July 14
July 14 - July 21
July 21 - July 28
July 28 - Aug. 4
Aug. 4- Aug. 11
Aug. 11 -Aug. 18
Aug. 18 - Aug. 25
Aug. 25-Sep. 1
Sep. 1 - Sep. 8
Sep. 8 - Sep. 15
Sep. 15 - Sep. 22
Sep. 22 - Sep. 29
Sep. 29 - Oct. 6
Oct. 6 - Oct. 13
Oct. 13 - Oct. 20
Oct. 20 - Oct. 27
Oct. 27 - Nov. 3
Nov. 3 - Nov. 10
Nov. 10 - Nov. 17
Nov. 17 - Nov. 24
Nov. 24 - Dec. 1
Dec. 1 - Dec. 8
Dec. 8 - Dec. 15
Dec. 15 - Dec. 22
Dec. 22 - Dec. 29
Dec. 29 - Jan. 5
1986
Jan. 5 - Jan. 12
Jan. 12 - Jan. 19
Jan. 19 - Jan. 26
Jan. 26 - Feb. 2
Feb. 2 - Feb. 9
Feb. 9 - Feb. 16
Feb. 16 - Feb. 23
Feb. 23 - Mar. 2
Mar. 2 - Mar. 9
Mar. 9 - Mar. 16
Mar. 16 - Mar. 23
Mar. 23 - Mar. 30
Mar. 30 - Apr. 6
Apr. 6 - Apr. 13
Apr. 13 - Apr. 20
Apr. 20 - Apr. 27
Apr. 27 - May 4
May 4 - May 11
May 11 - May 18
May 18 - May 25
May 25 - June 1
June 1 - June 8
June 8 - June 15
June 15 - June 22
June 22 - June 29
June 29 - July 6
July 6 - July 13
July 13 - July 20
July 20 - July 27
July 27 - Aug. 3
Aug. 3 - Aug. 10
Aug. 10 - Aug. 17
Aug. 17 - Aug. 24
Aug. 24 - Aug. 31
Aug. 31 - Sep. 7
Sep. 7 - Sep. 14
Sep. 14 - Sep. 21
Sep. 21 - Sep. 28
Sep. 28 - Oct. 5
Oct. 5 - Oct. 12
Oct. 12 - Oct. 19
Oct. 19 - Oct. 26
Oct. 26 - Nov. 2
Nov. 2 - Nov. 9
Nov. 9 - Nov. 16
Nov. 16 - Nov. 23
Nov. 23 - Nov. 30
Nov. 30 - Dec. 7
Dec. 7 - Dec. 14
Dec. 14 - Dec. 21
Dec. 21 - Dec. 28
Dec. 28 - Jan. 4
1987
Jan. 4- Jan. 11
Jan. 11 - Jan. 18
Jan. 18 - Jan. 25
Jan. 25 - Feb. 1
Feb. 1 - Feb. 8
Feb. 8 - Feb. 15
Feb. 15 - Feb. 22
Feb. 22 - Mar. 1
Mar. 1 - Mar. 8
Mar. 8 - Mar. 15
Mar. 15 - Mar. 22
Mar. 22 - Mar. 29
Mar. 29 - Apr. 5
Apr. 5 - Apr. 12
Apr. 12 - Apr. 19
Apr. 19 - Apr. 26
Apr. 26 - May 3
May 3 - May 10
May 10 - May 17
May 17 - May 24
May 24 - May 31
May 31 - June 7
June 7 - June 14
June 14 - June 21
June 21 - June 28
June 28 - July 5
July 5 - July 12
July 12 - July 19
July 19 - July 26
July 26 - Aug. 2
Aug. 2 - Aug. 9
Aug. 9 - Aug. 16
Aug. 16 - Aug. 23
Aug. 23 - Aug. 30
Aug. 30 - Sep. 6
Sep. 6 - Sep. 13
Sep. 13 - Sep. 20
Sep. 20 - Sep. 27
Sep. 27 - Oct. 4
Oct. 4 - Oct. 11
Oct. 11 -Oct. 18
Oct. 18 - Oct. 25
Oct. 25 - Nov. 1
Nov. 1 - Nov. 8
Nov. 8 - Nov. 15
Nov. 15 - Nov. 22
Nov. 22 - Nov. 29
Nov. 29 - Dec. 6
Dec. 6 - Dec. 13
Dec. 13 - Dec. 20
Dec. 20 - Dec. 27
Dec. 27 - Jan. 3
� so
PROSPECTOR
Week Selection Chart
PROSPECTOR FRACTIONAL ESTATE OWNERS HAVE THREE OCCUPANCY
WEEKS EACH YEAR. THIS ENABLES EVERYONE TO BE EQUAL OWNERS.
THE CHOICES OF WEEKS ARE MADE ON A FIRST COf E , FIRST SERVED
BASIS AT THE TIME OF PURCHASE. EACH OW14ER CREATES HIS OWN
PACKAGE BY USING ONE REEK FROM EACH SEASON: PRIME SKI,
SUTIEP./FRINGE SKI AI4D SPRING/FALL.
CHOOSE ONE
CH90SE ANY ONE
CHOOSE ANY ONE
PRIME SKI
SLJfltSER/FP.IfrE SKI
SPRING/FALL
51
*14
APRIL
15
APRIL
52 CHRISTMAS
25
JLNE
16
1
26
17
2
27
18
MAY
3
28
JLLY
19
4
29
20
5
21
JUVE
6 FEBRUAPY
k,3V
ALGIIS T
22
7
52
23
8
33
24
9
34
39
SEPTE�IBER
10 MARCH
35
40
11
36
SEPTEfTER
41
OCTOBER
1.2
37
42
13
38
43
*50
DECENSER
44
45
NOVEct-13ER
46
47
48
DECEP3ER
49
*EXCEPTION: PURCHASERS OF WEEKS 13 OR. 51 HAVE FIRST 0-1010E
REGARDING 14 OR 50 RESPECTIVELY.
SEVEN WEEKS WILL BE LEFT OVER AFTER THE PURCHASERS HAVE CHOSEN
THEIR WEEKS AT WHICH TIME THEY MILL BE DEEDED TO THE HOMEO;?NERS
ASSOCIATION FOR MAINTEW3CE.
M
M
PENDLETON 8 SABIAN, P. C.
ATTORNEYS AND COUNSELORS AT LAW
W. MICHAEL CLOWDUS
Paul J. Taddune, Esq.
City Attorney
City of Aspen
130 S. Galena
Aspen, CO 81611
SEVENTEENTH AND GRANT BUILDING
SUITE 1000
303 EAST SEVENTEENTH AVENUE
DENVER,COLORADO 80203
HAND DELIVERED
July 31, 1984
RE: Merit Investment Co. (of Aspen), Inc. --
Final Project Documents
Dear Paul:
TELEPHONE: (303) 839-1204
TELECOPIER: (303) 831-0786
TWX:910-931-0407
Since the City of Aspen approved the application of
Merit Investment Co. (of Aspen), Inc. ("Merit"), to operate
The Prospector as a timeshare project, we have had to make a
number of changes to the project documents which were previously
submitted to and approved by the City of Aspen. The changes in
these documents have been made to comply with the requirements
of Merit's permanent lender, Security Pacific Finance Corp., to
update the documents in order to accurately reflect the current
status of the project, or to make the documents internally
consistent. In our view, none of the changes affect compliance
of the project documents with the requirements of the Aspen
Code or of the conditions of the City Council's approval of the
project.
In order to facilitate your review of the final project
documents, as contemplated by paragraph 25 of Alan Richman's
May 29, 1984 Memorandum to the City Council (the "Memorandum"),
we enclose copies of the following documents blacklined to
indicate the changes that have been made:
1. Fractional Estate Declaration for The Prospector;
2. Articles of Incorporation of The Prospector Fractional
Owners' Association;
Paul J. Taddune, Esq.
July 31, 1984
Page 2
3. Bylaws of The Prospector Fractional Owners'
Association;
4. Fractional Estate Purchase Contract;
5. State of Colorado Disclosure Statement;
6. City of Aspen Disclosure Statement;
7. RCI Guide, which explains the exchange program
(new document) ;
8. Federal Disclosure Statement;
9. Promissory Note to be used in connection with the
seller carryback financing (the "Note");
10. Form of Deed of Trust to be used to secure the
Note;
11. Form of Security Agreement to be used to encumber
the furnishings and furniture in order to provide additional
security for the Note (new document); and
12. Revised copy of the annual budget of The Prospector
Fractional Owners' Association.
In order to facilitate the review of these documents by
the Aspen City Planning Office, as contemplated by the Memorandum,
we are simultaneously transmitting a duplicate set of the
enclosed documents to Collette Penne for her review.
Since our client intends to begin its marketing efforts
by the end of this week, we would appreciate your prompt review
to the enclosed documents.
Please let me know if I may answer any questions concerning
the enclosed documents.
Very truly yours,
p6e�—1
W. Michael Clowdus
WMC:mg
En losures
cc Aspen City Planning Office (Attn: Collette Penne)
Merit Investment Co. (of Aspen), Inc. (L. Vernon Cagle, President)
Ms. Janet Manning
PENDLETON 8 SABIAN, P. C.
t `�
FRACTIONAL ESTATE DECLARATION
FOR
THE PROSPECTOR, A CONDOMINIUM
This Declaration of Covenants, Conditions and Restrictions
(hereinafter "Declaration"), is made and executed in Pitkin
County, Colorado, this day of , 1984, by Merit
Investment Co. (of Aspen), Inc., a Colorado corporation,
(hereinafter "Declarant") pursuant to the provisions of the
Colorado Condominium Ownership Act as amended.
WHEREAS, Declarant is the owner of certain real property
situate in the County of Pitkin, State of Colorado, as more
particularly described in Exhibit A attached hereto and hereby
incorporated by reference (the "Property");
WHEREAS, Declarant desires to establish a Fractional Estate
project to be known as The Prospector, a Condominium, upon the
Property and to sell and convey the same to various purchasers
subject to the covenants, conditions and restrictions herein
reserved to be kept and observed; and
WHEREAS, Declarant desires and intends by filing this
Declaration to submit the Property and all buildings, structures
and other improvements thereon, together with all appurtenances
thereto, to the provisions of the Colorado Condominium Ownership
Act and Section 20-24 of the Municipal Code of the City of Aspen
as a Fractional Estate project and to impose upon said property.
mutually beneficial restrictions under a general plan of
improvement for the benefit of all of the Lodge Units and the
Owners thereof;
NOW, THEREFORE, Declarant does hereby publish and declare
that the Fractional Estate project described above shall be held,
conveyed, hypothecated, encumbered, leased, rented, occupied and
used subject to the following terms, covenants, conditions,
easements, restrictions, uses, limitations and obligations, all of
which shall be deemed to run with the land, shall be a burden and
a benefit to Declarant, its successors and assigns and any person
acquiring or owning an interest in the Project and improvements,
their grantees, succcessors, heirs, executors, administrators,
devisees or assigns.
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ARTICLE I
DEFINITIONS
Unless the context shall expressly provide otherwise:
Section 1.1. "Fractional Owners' Association" or
"Association" means The Prospector Fractional Owners' Association,
a Colorado corporation not -for -profit, its successors and assigns,
the Articles of Incorporation and Bylaws of which, together with
this Declaration shall govern the administration of this Project,
the members of which shall be all of the Owners of the Lodge
Units.
Section 1.2. "Board of Managers" means the governing body of
the Association, elected as hereinafter provided, to carry out the
obligations of the Association.
Section 1.3. "Common Elements" means and includes all items
defined as General Common Elements and Limited Common Elements.
Section 1.4. "Common Expenses" means and includes expenses
of administration, operation and management of the Project, and
the expense of maintenance, repair or replacement of the General
Common Elements and all other expenses declared Common Expenses by
provisions of this Declaration and the Bylaws of the Association.
Section 1.5. "Condominium Map" or "Map" means the map of The
Prospector, a Condominium.
Section 1.6. "Condominium Project" or "Project" means all of
the Property and improvements subject to this Declaration.
Section 1.7. "Condominium Unit" or "Lodge Unit" means the
fee simple interest in and title to a Unit, together with the
undivided interest in the General Common Elements appurtenant
thereto and the exclusive right to use any Limited Common Element
assigned thereto on the Condominium Map as designated by the
provisions relating to Limited Common Elements within this
Declaration.
Secton 1.8. "Declarant" means Merit Investment Co. (of
Aspen), Inc., its successors and assigns.
Section 1.9. "Declaration" means the Fractional Estate
Declaration for The Prospector, a Condominium, together with all
supplements and amendments thereto of record.
Section 1.10. "Fractional Estate" means a time -span estate
consisting of an undivided interest of not less than one -fifteenth
(1/15), as tenant -in -common, in the present estate in fee simple
in a Lodge Unit together with the right to possession and
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occupancy of the Lodge Unit during the Use Weeks defined herein.
The sum of the "Use Weeks" and "Maintenance Weeks" in a
Lodge Unit dedicated to Fractional Estate Ownership shall equal
fifty-two (52) weeks.
Section 1.11. "Fractional Owner" or "Owner" means any person
or entity vested with legal title to a Fractional Estate during
his designated Use Weeks.
Section 1.12. "Fractional Unit" means a Lodge Unit which is
dedicated to Fractional Ownership pursuant to Article XXVIII of
this Declaration.
Section 1.13. "General Common Elements" mean and include the
Property and all easements and rights appurtenant thereto; the
structural components of the building; amenities including the
third floor sun deck and covered parking spaces; and all other
parts of the Property and the improvements thereon necessary or
convenient to its existence, maintenance and safety which are
normally and reasonably in common use, including the air above the
Property, all of which shall be owned by the Owners as
tenants -in -common, the Owner of a Unit having an undivided
percentage interest in such General Common Elements as is provided
hereinafter.
Section 1.14. "Limited Common Elements" mean those parts of
the General Common Elements which are either limited to and
reserved for the exclusive use of an Owner or are limited to and
reserved for the common use of more than one but fewer than all of
the Owners.
Section 1.15. "Maintenance Week" means seven or more Use
Weeks designated by Declarant, by notice duly recorded, as
Maintenance Weeks. Maintenance Weeks shall be appurtenant to the
Fractional Estates in a Fractional Unit and the transfer of a
Fractional Estate shall transfer to the grantee an interest in the
Maintenance Weeks without further reference thereto; provided,
however, that the Fractional Owners' Association shall have a
superior and prior right to use, possess and occupy the Fractional
Unit during the Maintenance Weeks in order to service, clean,
repair, maintain and refurbish the Fractional Unit and for such
other purposes as the Fractional Owners' Association may deem
necessary or desirable. At least two Use Weeks in the fall and
two Use Weeks in the spring shall be designated as Maintenance
Weeks for each Fractional Unit.
Section 1.16. "Manager" means a member of the Board of
Managers.
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Section 1.17. "Managing Agent" means a person or firm
licensed by the City of Aspen to whom the Board of Managers has
delegated certain of its administrative and management functions.
Section 1.18. "Mortgagee" means a mortgagee, holder, insurer
or guarantor of any first mortgage on a Fractional Estate or a
Lodge Unit.
Section 1.19. "Unit" means an individual air space Unit
which is contained within the perimeter walls, floors, ceilings,
windows and doors of such Unit as shown on the Condominium Map to
be filed for record in the office of the Clerk and Recorder of the
County of Pitkin, Colorado, together with all fixtures and
improvements therein contained, but not including any of the
structural components of the building, if any, within a Unit.
Section 1.20. "Use Weeks" mean a period of exclusive
possession and occupancy of a Fractional Unit. Use Weeks are
computed as follows:
Use Week No. 1 is the seven days commencing at noon
on the first (specify day) of each calendar
year. All other Use Weeks are calculated by working
forward from Use Week No. 1. All extra days which
accumulate become a part of Use Week No. 52 as
established by the calendar prepared by the Fractional
Owners' Association. Use Weeks run from noon on the
first (specify day) of the Use Week to noon on
the last day of the Use Week; provided, however, that
the right of possession and occupancy shall not commence
until 4:00 p.m. local time on the first day of the Use
Week and shall end at 10:00 a.m. on the last day
thereof; and provided further, however, that if Use Week
No. 51 as so computed does not include Christmas Day,
then Use Week No. 51 shall extend until and shall end on
Christmas Day,
All Use Weeks in a Lodge Unit shall be computed on
the same basis and, except as otherwise provided
herein, shall commence and end at the same time and day
of the week, according to this paragraph.
ARTICLE II
CONDOMINIUM MAP
Section 2.1. Filing. The Map shall be filed for record
prior to the conveyance of a Fractional Estate to a purchaser.
The Map shall depict and show at least the following: the legal
description of the Property and a survey thereof; linear
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measurements and the location of all improvements on the Property
with reference to the exterior boundaries of the Property; the
location of the Units within the improvements both horizontally
and vertically and the Unit designations; the dimensions of the
Units; the elevations of the unfinished floors and ceilings as
constructed; the location of the General Common Elements and
Limited Common Elements; the thickness of the common walls between
or separating the Units; and the location of any structural
components or supporting elements of a building located within a
Unit. The Map shall contain a Certificate of Survey by a
registered land surveyor certifying that the Map fully and
accurately depicts the location and dimensions of all buildings
and other improvements, easements and rights -of -way of record or
known to the surveyor and that there exist no encroachments by or
on the Property except as specifically set forth on the Map. The
Map also shall contain a certificate of a registered land
surveyor, a registered professional engineer or a licensed
architect'Acertifying that the Map substantially depicts: the
location of the Units within the buildings both horizontally and
vertically and the Unit designations; the dimensions of the Units;
the elevations of the unfinished floors and ceilings as
constructed; the location of the General Common Elements and
Limited Common Elements; the thickness of the common walls between
or separating the Units; and the location of any structural
components or supporting elements of a building located within a
Unit. Such certificate shall also certify that such Map was
prepared subsequent to substantial completion of the Units and of
the improvements. Any amendment to the Map shall set forth a like
certificate when appropriate.
In interpreting the Map, the existing physical boundaries of
each separate Unit as constructed shall be conclusively presumed
to be its boundaries.
Section 2.2. Declarant's Right to Amend. Declarant reserves
the right until August 1, 1989, to amend the Map without the
approval of any Owner or mortgagee, to conform it to the actual
location of any of the constructed improvements, to establish,
vacate and relocate easements and to designate General Common
Elements as Limited Common Limits. Thereafter, such rights shall
be reserved to the Board of Managers of the Association.
ARTICLE III
DIVISION OF PROPERTY
The Property is hereby divided into twenty (20) fee simple
estates, each such estate consisting of one Lodge Unit. The
General Common Elements shall be held in common by the Owners of
Lodge Units in the percentages set forth in Exhibit B attached
hereto and incorporated herein by this reference. Declarant
hereby submits all of the Lodge Units in the Project, except the
Employee Housing Unit, to the plan of Fractional Ownership set
forth in Article XXVIII.
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ARTICLE IV
LIMITED COMMON ELEMENTS
Certain portions of the General Common Elements are reserved
for the exclusive use of the individual Owners of the respective
Units, and such areas are referred to as "Limited Common
Elements". Any balcony or deck which is solely accessible from,
associated with, and attached to a Unit, and any fixture or
personalty located thereon, without further reference thereto,
shall be deemed Limited Common Elements and shall be used in
connection with such Unit to the exclusion of the use thereof by
the other Owners of the General Common Elements, except by
invitation.
ARTICLE V
INSEPARABILITY OF A LODGE UNIT
Each Unit, the appurtenant undivided interest in the General
Common Elements and the appurtenant Limited Common Elements shall
together comprise one Lodge Unit, shall be inseparable and may be
conveyed, leased, devised or encumbered only as a Lodge Unit.
ARTICLE VI
RIGHTS NOT RESERVED BY DECLARANT
The Declarant specifically does not reserve any right to:
(i) lease the General or Limited Common Elements to the
Association; (ii) to accept a lease from the Association for the
General or Limited Common Elements; (iii) to accept franchises or
licenses from the Association for the provision of central
television antenna or like services; and (iv) to retain the right,
by virtue of continued Association control or otherwise, to veto
acts of the Association or to enter into management agreements or
other contracts which extend beyond the date the Owners obtain
majority control of the Association.
ARTICLE VII
EMPLOYEE HOUSING UNIT
Prior to the first conveyance of a Fractional Estate to the
initial purchaser thereof, the Declarant shall transfer to the
Association by general warranty deed the following Lodge Unit:
Unit 108, according to the Fractional Estate
Declaration and Map for The Prospector of record,
Pitkin County, Colorado.
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So long as the separate condominium estates created by this
Declaration continue as described in Article XXX, this Lodge Unit
shall be restricted to use as employee housing for employees of
the Association or the Managing Agent,Aor such other purpose as
the Association may deem consis en with Section 24-11.4(b)(3) of
the Municipal Code of the City of Aspen.^
ARTICLE VIII
SEPARATE ASSESSMENT AND TAXATION - NOTICE TO ASSESSOR
All taxes, assessments and other charges of the State of
Colorado or of any political subdivision or of any special
improvement district or of any other taxing or assessing authority
shall be assessed against and collected on each Lodge Unit
separately and not on the Project as a whole, and each Lodge Unit
shall be carried on the tax records as a separate and distinct
parcel. For the purposes of valuation for assessment, the
valuation of the Common Elements shall be apportioned among the
Lodge Units in proportion to the appurtenant undivided interests
in the Common Elements. The lien for taxes assessed on any
Lodge Unit shall be confined to that Lodge Unit. No forfeiture or
sale of any Lodge Unit for delinquent taxes, assessments or other
governmental charges shall divest or in any way affect the title
to any other Lodge Unit. The Declarant shall deliver a written
notice to the County Assessor as required by the Condominium
Ownership Act, setting forth descriptions of the Lodge Units, and
shall furnish all necessary information with respect to such
apportionment of valuation for assessment. Said notice shall
reauest that all tax bills be forwarded to the Association.
ARTICLE IX
OWNERSHIP - TITLE
A Lodge Unit or a Fractional Estate may be held and owned by
more than one person as joint tenants or as tenants -in -common, or
in any real property tenancy relationship recognized under the
laws of the State of Colorado.
ARTICLE X
NON-PARTITIONABILITY OF GENERAL COMMON ELEMENTS
The General Common Elements shall be owned 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,or of any Lodge Unit or Fractional Unit.
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ARTICLE XI
USE OF GENERAL COMMON ELEMENTS
Each Owner shall be entitled to exclusive ownership and
possession of his Fractional Estate. Each Owner may use the
General Common Elements in accordance with the purpose for which
they are intended, without hindering or encroaching upon the free
exercise of the lawful rights of the other Owners.
ARTICLE XII
COMBINATION AND RESUBDIVISION OF UNITS
Neither the Declarant nor any Owner shall be able to combine,
divide or subdivide any Unit or interest therein so as to convey
or to create more than one Unit therefrom or to enlarge any Unit
beyond its original perimeters.
ARTICLE XIII
EASEMENTS
Each Lodge Unit in the Project shall be subject to the
following easements:
Section 13.1. Owners' Rights in Limited Common Elements.
Each Owner, his family and such Owner's guests, shall have the
exclusive right to use and enjoy the Limited Common Elements
designated herein, in the Map or in the initial deed from the
Declarant as appurtenant to the Unit owned by such Owner.
Section 13.2. Easement for Access, Support and Utilities.
Each Owner shall have a nonexclusive easement for access between
his Unit and the public roads and streets, along halls, corridors,
stairs, elevators and sidewalks, and for access to other easements
which are a part of the General Common Elements. Each Owner shall
have a nonexclusive easement in and over the Common Elements
including those that are within the Unit of another Owner, for
horizontal and lateral support of his Unit, and for utility
service to his Unit, including but not limited to water, sewer,
gas, electricity, telephone and television service.
Section 13.3. Easement for Encroachments. If any portion of
the General or Limited Common Elements encroaches upon a 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 Unit encroaches upon the General or Limited
Common Elements, or upon an adjoining Unit or Units, a valid
easement for the encroachment and for the maintenance of same, so
long as it stands, shall and does exist. Such encroachments and
easements shall not be considered and determined to be
encumbrances either on the General or Limited Common Elements or
the Units. Encroachments referred to herein include, but are not
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limited to, encumbrances caused by error in the original
construction of any improvements, by error in the Map, by
settling, rising or shifting of the earth, or by changes in the
position of Project caused by repair or reconstruction, but
specifically do not include encumbrances caused by the intentional
act of any Owner.
Section 13.4. Easement for Repairs, Maintenance and
Emergencies. Some of the General Common Elements are, or may be,
located within a Unit or may be conveniently accessible only
through a Unit or Limited Common Element. The Association,
Managing Agent, and each Owner shall have an easement, which may
be exercised for any Owner by the Association or the Managing
Agent as his Agent, for access through each Unit and to all
General Common Elements and Limited Common Elements, from time to
time, during such reasonable hours as may be necessary for the
maintenance, repair or replacement of any of the General Common
Elements located therein or accessible therefrom or for making any
repairs therein necessary to prevent damage to the General Common
Elements or to another Unit. Damage to the interior or 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 Owners. No
diminution or abatement of Common Expenses assessments shall be
claimed or allowed for inconvenience or discomforts arising from
the making of repairs and improvements or for action taken to
comply with any law, ordinance or order of any governmental
authority. Restoration of the damaged improvements shall be to
substantially the same condition in which they existed prior to
the damage. The foregoing notwithstanding, if any such damage is
the result of the carelessness or the negligence of any Owner,
then such Owner shall be solely responsible for the costs and
expenses of repairing such damage.
ARTICLE XIV
OWNERS' RESPONSIBILITY FOR UNIT
All maintenance, repair and refurbishment shall be the
responsibility of the Association. An Owner shall do no act nor
any work that will impair the structural soundness or integrity of
any improvements or impair any easement. An Owner shall promptly
report any defect or necessary repair to the Association or
Managing Agent and shall not attempt to repair or alter any item
in the Unit except as reasonably necessary in an emergency
situation to prevent further damage to the Unit.
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ARTICLE XV
TERMINATION OF MECHANIC'S LIEN RIGHTS
No labor shall be performed or materials furnished and
incorporated in a Unit with the consent or at the request of the
Owner or his agent without the consent of the Association. No
such labor or material shall be the basis for filing of a lien
against the Fraotional Estate of any other Owner not expressly
consenting to or requesting the same, or against the General
Common Elements.
ARTICLE XVI
ADMINISTRATION AND MANAGEMENT; ASSOCIATION; MANAGING AGENT
Section 16.1. General Provisions. The Association will be
formed as a Colorado not- or -pro it corporation to manage the
General Common Elements as provided in this Declaration and to
further the interests of all Owners of Fractional Units in the
Project. The Association shall have all powers necessary or
desirable to effectuate such purposes. Subject to the provisions
of this Declaration, the administration and management of the
Association shall be governed by the Articles of Incorporation and
Bylaws thereof. An Owner of a Fractional Estate, upon becoming an
Owner, shall be a member of the Association and shall remain a
member for the period of his ownership.
Section 16.2. Votin . A Fractional Owner shall be entitled
to a vote, the size of which vote shall be based upon each
Fractional Owner's undivided interest as tenant -in -common in the
Fractional Unit. Voting by proxy shall be permitted.
Section 16.3. Management. The affairs of the Association
shall be managed by a Board of Managers as is provided in the
Articles of Incorporation and Bylaws of the Association.
Notwithstanding anything to the contrary provided herein, until
the date by which title to one hundred percent (100%) of the
Fractional Estates in the Project have been conveyed by Declarant
to the initial purchasers, or until August 1, 1989, whichever
first occurs, the members of the Board of Managers shall be
appointed by the Declarant and shall serve at the pleasure of
Declarant and need not be Owners. The Declarant shall have the
option at any time to turn over control of the Board of Managers
to the Fractional Owners upon sixty (60) days' prior notice.
Section 16.4. Managing Agent; Offices. The Board of
Managers may by resolution delegate certain of its duties, powers
and functions to a person or firm which will act as Managing
Agent. A portion of the General Common Elements including
improvements thereon may be used by either the Association or both
the Association and Managing Agent as and for offices in
connection with administration and management.
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ARTICLE XVII
POWERS AND DUTIES OF THE ASSOCIATION
By way of enumeration and without limitation the Association
shall have the following powers and duties:
Section 17.1. Association as Attorney -in -Fact for Owners.
The Association is hereby irrevocably appointed attorney -in -fact
for the Owners separately and collectively, to manage, control and
deal with the interest of such Owner in the General Common
Elements so as to permit the Association to fulfill all of its
duties and obligations hereunder and to exercise all of its rights
hereunder, to deal with the Project upon its destruction or
obsolescence as hereinafter provided and to grant utility and
other easements and rights of way through any portion of the
General Common Elements. The acceptance by any Fractional Owner
of any interest in any Lodge Unit shall constitute an appointment
of the Association as attorney -in -fact as provided above and
hereinafter. The Association shall be granted all of the powers
necessary to govern, manage, maintain, repair, administer and
regulate the Project and to perform all of the duties required of
it. Notwithstanding the above, unless at least seventy-five
percent (75v) of the first Mortgagees of the Fractional Estates,
(based upon one (1) vote for each first Mortgage owned or held),
and Fractional Owners (other than Declarant) have given their
prior written approval, the Association shall not be empowered or
entitled to:
i. by act or omission, seek to abandon or
terminate the Project;
ii. by act or omission seek to abandon,
partition, subdivide, encumber, sell or
transfer any of the General or Limited Common
Elements;
iii. use hazard insurance proceeds from
loss to the improvements for other than
repair, replacement or reconstruction of such
improvements; or
iv. change the pro rata ownership
interest or obligation of any Lodge Unit
for the purpose of levying assessments or charges, or
allocating the proceeds of hazard insurance or
condemnation awards, or in order to alter the percentage
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of ownership interest of a Fractional Unit in the
General Common Elements.
Section 17.2. General Common Elements. The Association
shall provide for the care, operation, management, maintenance,
repair and replacement of the General Common Elements. Without
limiting the generality of the foregoing, said obligations shall
include the keeping of such General Common Elements in good,
clean, attractive and sanitary condition, order and repair;
removing snow and any other materials from such General Common
Elements which might impair access to the Project or.the Units;
keeping the Project safe, attractive and desirable; and making
necessary or desirable alterations, additions, betterments or
improvements to or on the General Common Elements. The
Association shall provide reasonable written notice to all
affected Owners, at their registered addresses as provided in
Article XXIX hereof, of all matters affecting the Project.
Section 17.3. Coordination of Occupancy. The Association
shall coordinate the plans of Fractional Owners for moving their
personal effects into and out of the Fractional Units with a view
toward scheduling such move so that there will be a minimum of
inconvenience to other Fractional Owners.
Section 17.4. Service Requests. The Association shall
maintain business -like relations with Fractional Owners whose
service requests shall be received, considered, and recorded in a
systematic fashion in order to show the action taken.
Section 17.5. Maintenance. The Association shall cause each
Fractional Unit to be maintained in a first class manner and
condition. The Fractional Owners' Association shall determine the
color scheme, decor and furnishing of each Fractional Unit as well
as the proper time for redecorating and replacement thereof.
Section 17.6. Invoice Expenses. The Association shall bill
each Fractional Owner for the expense of occupancy of a Fractional
Unit during said Fractional Owners' Use Weeks, which the
Association determines are the individual expenses of the
particular Fractional Owner including, but not limited to:
long-distance and other extraordinary telephone charges;
extraordinary repairs or charges for damages to the Fractional
Unit, its furniture, furnishings, equipment, fixtures, appliances
and carpeting caused by a Fractional Owner or his guest; n other
charges rendered by the Managing Agent on behalf of the particular
Fractional Owner; andnmaid service.
Section 17.7. Collection of Fees. The Association shall
collect the assessments provided for in Article XX.
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Section 17.8. Title. The Association shall accept from the
Declarant, conveyance oT—title to the Employee Housing Unit as
provided for in Article VIZ.
Section 17.9. Calendar of Use Weeks. The Association shall
prepare a calendar of Use Weeks which shall at all times establish
the dates of each Use Week at least five (5) years into the
future.
Section 17.10. Other Association Functions. The Association
may undertake any activity, function or service for the benefit of
or to further the interests of all, some or any Owners of Units on
a self-supporting, special assessment or common assessment basis.
Such activities, functions or services may include but are not
limited to the providing of police or similar security services
and the providing of garbage and trash collection services.
Section 17.11. Labor and Services. The Association (i) may
obtain and pay for the services of a Managing Agent to manage its
affairs, or any part thereof to the extent it deems advisable, as
well as such other personnel as the Association shall determine to
be necessary or desirable for the proper operation of the Project,
whether such personnel are furnished or employed directly by the
Association or by any party with whom or with which it contracts;
(ii) may obtain and pay for legal, accounting and other
professional services necessary or desirable in connection with
the operation of the Project or the enforcement of this
Declaration; and (iii) may arrange with others to furnish
lighting, heating, water, trash collection, sewer service and
other common services.
Section 17.12. Property of Association.
A. The Association may pay for, acquire and hold
tangible and intangible personal property and mdy dispose of the
same by sale or otherwise. Subject to the rules and regulations
of the Association, each Owner and each Owner's family and guests
may use such property.
B. The Association may hold title to the Employee
Housing Unit and a proportionate share in all Common Elements as a
result of such ownership.
C. Upon termination of fractional estate ownership of
the Project and dissolution of the Association, if ever, the
beneficial interest in any such property shall be deemed to be
owned by the then Fractional Owners as tenants -in -common in the
same proportion as their respective interest in the General Common
Elements.
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Section 17.13. Association's Right to Lease and License General
Common Elements. The Association shall not have the right to
lease or license any part of the project except the Employee
Housing Unit.
Section 17.14. Mortgagee Inspection. The Association shall
grant to each first Mortgagee of a Unit the right to examine the
books and records of the Association at any reasonable time.
Section 17.15. Rules and Regulations. The Association shall
have the right to adopt such Bylaws and to promulgate such
reasonable rules and regulations as it deems necessary or
desirable to effectuate the intent and to enforce the duties and
obligations set forth in the Declaration and the Articles of
Incorporation and Bylaws of the Association.
Section 17.16. Enforcement by Association. The Association
may suspend any Owner's voting rights in the Association or the
right of an Owner to use the General Common Elements during any
period or periods during which such Owner fails to comply with the
Association's rules and regulations, or with any other obligations
of such Owner under this Declaration. The Association may also
take judicial action against any Owner to enforce compliance with
such rules, regulations or other obligations or to obtain damages
for noncompliance to the extent permitted by law.
Section 17.17. Implied Rights. The Association shall have
and may exercise any right or privilege given to it expressly by
this Declaration, or reasonably to be implied from the provisions
of this Declaration, or given or implied by law, or
which may be necessary or desirable to fulfill its duties,
obligations, rights or privileges.
ARTICLE XVIII
INSURANCE
Section 18.1. Polices. The Managing Agent, or if there is
no Managing Agent then the Board of Managers, shall obtain and
maintain at all times to the extent possible fire insurance with
extended coverage in the amount of the aggregate maximum
replacement value of all the Units and all personal property
placed in the Units by Declarant or the Association; casualty and
public liability insurance; business interruption insurance, if
reasonably available, sufficient to provide comparable alternative
,accommodations tor Owners for one year during any reriod of d__ama e
and/or reconstruction of the Project; and insurance covering such
other risks, of a similar or dissimilar nature, as are or shall
hereafter customarily be covered with respect to other timeshare
projects issued by a responsible insurance company or companies
authorized to do business in the State of Colorado. The insurance
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shall be carried in blanket policy form naming the Association the
insured, as attorney -in -fact for all of the Owners, which policy
or policies shall identify the interest of each Fractional Owner
as set forth herein, and which policy or policies shall provide a
standard, non-contributory mortgagee clause in favor of each first
Mortgagee, and that the policy cannot be cancelled or
substantially modified without thirty days' prior written notice
to the Association, each Owner and each first Mortgagee. The
public liability insurance shall be in such limits as may from
time to time be determined and shall cover each Owner, each member
of the Board of Managers and the Managing Agent. Such public
liability coverage shall also cover cross liability claims of one
insured against another and shall contain waivers of subrogation.
All such policies shall contain such other provisions deemed
necessary and desirable by the Board of Managers to protect the
interest of the Association and all the Owners in the Project.
Section 18.2. Owner Policies Permitted. Each Owner may
obtain additional insurance at his own expense for his own benefit
provided that all such policies shall contain waivers of
subrogation and provided, further, that the liability of the
carriers issuing insurance to the Association hereunder shall not
be affected or diminished by reason of any such insurance carried
by any Owner. Insurance coverage on personal property belonging
to the Fractional Owner shall be the responsibility of the Owner
thereof.
ARTICLE XIX
COMPLIANCE WITH PROVISIONS OF DECLARATION, ARTICLES OF
INCORPORATION AND BYLAWS OF THE ASSOCIATION
Each Owner shall comply strictly with the provisions of this
Declaration, the Articles of Incorporation and Bylaws of the
Association, and the decisions, rules and resolutions of the
Association as lawfully adopted or amended. Failure to comply
with any of the same 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 Managers in the
name of the Association on behalf of the Owners or, in a proper
case, by an aggrieved Owner.
ARTICLE XX
ASSESSMENTS FOR COMMON EXPENSES
Section 20.1. Owner's Obligation. All Owners shall be
obligated to pay the estimated pro rata assessments imposed by the
Board of Managers of the Association to meet the Common Expenses.
The assessments shall be made pro rata according to each
Fractional Owner's, including the Declarants, undivided interest
as tenant -in -common in the Fractional Unit. Such assessments
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shall be due and payable pursuant to a schedule established by the
Board of Managers beginning as the date of the closing of the sale
of the first Fractional Estate in a Fractional Unit.
Section 20.2. Calculation of Assessments. The assessments
made for Common Expenses shall be based upon the cash requirements
deemed to be such aggregate sum as the Board of Managers of the
Association shall from time to time determine is to be paid by all
of the Owners to provide for the payment of all estimated expenses
growing out of or in connection with the maintenance and operation
of the Common Elements and Fractional Units; provided, however,
that for a period of five ( 5 ) years following the closing of the
sale of the first Fractional Estate in a Fractional Unit the
amount budgeted for interior reserves shall not be less than
$1,500.000 per Fractional Unit and the amount budgeted for
exterior reserves shall not be less than $526.00 per Fractional
Unit; provided further, that the amount budgeted for exterior
reserves shall not be reduced or eliminated until at least
$50,000.00 has accumulated in the exterior reserve fund. All such
reserve amounts shall be placed in an interest bearing escrow
account. Such sum shall include but shall not be limited to:
expenses of management; real estate and other taxes and special
assessments; premiums for insurance; telephone; firewood;
landscaping and care of grounds; lighting and heating; repairs,
replacement and renovations of Common Elements, and all furniture
and furnishings located in the Fractional Unit and used for the
operation thereof, including but not limited to furniture,
fixtures, appliances, carpeting, window coverings and utensils;
trash collections; wages; water charges; legal, accounting and
other professional fees; expenses incurred by the Association to
make available to the Owners, by lease or membership, health
facilities, physical fitness facilities, or other amenities_;
expenses and liabilities incurred by the Managing Agent or Board
of Managers under or by reason of this Declaration; any deficit
remaining from a previous period; the creation of a reasonable
contingency and replacement funds as well as other costs and
expenses relating to the General Common Elements or incurred in
the normal operation of the Project which is attributable to the
operation of the Lodge Unit as a Fractional Unit. In making the
assessments for Common Expenses pursuant to this Section 20.2. the
Association shall assess each Owner for a fraction of the real
estate and other taxes and special assessments levied against the
Project which is proportionate to the product of the Owner's
undivided interest in the fee to his Fractional Unit multiplied by
the percentage interest in the General Common Elements appurtenent
to such Fractional Unit. Declarant shall have no obligation to
pay the estimated Common Expense assessment on Fractional Units
owned by Declarant until the closing of the sale of the first
Fractional Estate in such Fractional Unit or until Declarant turns
over control of the Association to Fractional Owners, whichever
first occurs; provided, however, that should Declarant rent
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unsold Fractional Units the proceeds of rental shall be applied to
the cost of maintenance resulting from the rental. Declarant
shall, however, pay to the Association a sum equal to the
difference between the monthly cost of operating and maintaining
the Common Elements, exclusive of reserves, and the amount of
assessments payable by other owners. The Association may require
an Owner, other than Declarant, upon the acquisition of a
Fractional Estate, either from Declarant or from a previous Owner,
to deposit with the Association up to an amount equal to three (3)
times the amount of the then current monthly assessment for Common
Expenses, which sum shall be used for worRing capital and/or to
establish the initial replacement reserves. Such deposit shall
not relieve an Owner from making the regular payments of the
assessment for Common Expenses as the same becomes due. Upon
transfer of his Fractional Estate, an Owner shall be entitled to a
credit from his transferee for any unused portion thereof.
Section 20.3. Failure to Fix Assessment. The omission or
failure of the Board of Managers to fix the assessment for any
year shall not be deemed a waiver, modification or release of the
Owners from their obligation to pay.
ARTICLE XXI
OWNER'S PERSONAL OBLIGATION FOR PAYMENT OF ASSESSMENTS
The amount of the assessment shall be the personal and
individual debt of the Owner. No Owner may exempt himself from
liability for the assessment by waiver of the use or enjoyment of
any of the General Common Elements or by abandonment of his real
property interest. In the event of default in the payment of the
assessment, the Owner shall be obligated to pay interest and late
charges at the rate and in the amount set by the Board of Managers
from the due date of the assessment together with all expenses,
including attorneys' fees, incurred in the collection thereof.
Suit to recover a money judgment for unpaid Common Expenses shall
be maintainable without foreclosing or waiving the lien securing
same.
ARTICLE XXII
ASSESSMENT LIEN
Section 22.1. Lien Priority. All unpaid sums assessed for
the share of Common Expenses chargeable to any Fractional Estate
shall constitute a lien on such Fractional Estate superior to all
other liens and encumbrances, except only for:
i. tax and special assessment liens
on the Unit in favor of any governmental entity;
and
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ii. 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.
Section 22.2. Notice; Enforcement. To evidence such lien,
the Board of Managers or the Managing Agent shall prepare a
written notice of lien assessment setting forth the amount of such
unpaid indebtedness, the name of the Owner of the Fractional
Unit and a description of the Fractional Estate. Such notice
shall be signed by one member of the Board of Managers or by one
of the officers of the Association or by the Managing Agent, and
shall be recorded in the office of the Clerk and Recorder of the
County of Pitkin, Colorado. Such lien for the Common Expenses
shall attach from the date of the failure of payment of the
assessment. Such lien may be enforced by the foreclosure of the
defaulting Owner's Fractional Estate by the Association in like
manner as a mortgage on real property subsequent to the recording
of a notice or claim thereof. In any such proceedings the Owner
shall be required to pay the costs, expenses and attorneys' fees
incurred for filing the lien, and, in the event of foreclosure
proceedings, all additional costs, expenses and reasonable
attorneys' fee incurred. The Owner of the Fractional Estate being
foreclosed shall be required to pay to the Association the
Assessments for Common Expenses for the Fractional Estate during
the period of foreclosure, and the Association shall be entitled
to appoint a receiver to collect the same. The Association shall
have the power to bid on the Fractional Estate at foreclosure or
other legal sale and to acquire and hold, lease, mortgage, vote
the votes appurtenant to, convey or otherwise deal with the same.
A. Default Notice to First Mortgagee. The Association
shall give written notification, upon request, to any first
Mortgagee of any default in the performance by an individual Owner
of any obligation under the Declaration, or Articles of
Incorporation and Bylaws of the Association which is not cured
within sixty (60) days.
B. Unpaid Assessments After Foreclosure. Any first
Mortgagee who obtains title to a Fractional Estate pursuant to
foreclosure of the mortgage or deed of trust, or by a deed in lieu
thereof, will not be liable for such Fractional Estate's unpaid
assessments which accrue prior to acquisition of title to such
Fractional Estate by the Mortgagee.
ARTICLE XXIII
JOINT LIABILITY FOR COMMON EXPENSE UPON TRANSFER OF
LODGE UNIT
Section 23.1. Grantee's Liability. The grantee of a
Fractional Estate, except a first Mortgagee who acquires title by
foreclosure or a deed in lieu of foreclosure, shall be jointly and
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severally liable with the grantor 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 the grantee's right to recover from the grantor the
amounts paid by the grantee therefor; provided, however, that upon
payment of a reasonable fee, and upon written request, any such
owner or prospective grantee shall be entitled to a written
statement from the Association setting forth the amount of the
unpaid assessments, if any, with respect to the subject Fractional
Estate, the amount of the current assessment for Common Expenses,
the date that such assessment becomes due, which statement shall
be conclusive upon the Association. Unless the request for such a
statement shall be complied with within ten (10) days, then such
requesting grantee shall not be liable for, nor shall the
Fractional Estate conveyed be subject to, a lien for any unpaid
assessments against the subject Unit. The provisions contained in
this Article shall not apply upon the initial transfer of the
Fractional Estates by Declarant.
Section 23.2. Mortgagee's Liability. Upon payment of a
reasonable fee and upon the written request of any Owner or any
mortgagee or prospective mortgagee of a Fractional Estate, the
Association shall issue a written statement setting forth the
amount of the unpaid assessments on Common Expenses, if any, with
respect to the subject Unit, the amount of the current assessment
and the date that such assessment becomes due, which statement
shall be conclusive upon the Association in favor of all persons
who rely thereon in good faith. Unless the request for a
statement of indebtedness shall be complied with within ten (10)
days, all unpaid Common Expenses which become due prior to the
date of making such request shall be subordinate to the lien of
the person requesting such statement.
ARTICLE XXIV
MORTGAGING A LODGE UNIT - PRIORITY
Any Owner shall have the right from time to time to mortgage
or encumber his Fractional Estate or Lodge Unit by deed of trust,
mortgage or other security instrument. A first mortgage shall be
one which has first and paramount priority under applicable law.
An Owner of a Fractional Estate may create junior mortgages on the
following conditions: (i) that any such junior mortgages shall
always be subordinate to all of the terms, conditions, covenants,
restrictions, uses, limitations, obligations, lien for Common
Expenses and other obligations created by this Declaration, the
Articles of Incorporation and the Bylaws of the Association; and
(ii) that the mortgagee under any junior mortgage shall release,
for the purpose of restoration of any improvements upon the
mortgaged premises, all of his right, title and interest in and to
the proceeds under all insurance policies upon said premises which
insurance policies were effected and placed upon the mortgaged
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premises by the Association. Such release shall be furnished
forthwith by a junior mortgagee upon written request of the
Association, and if not furnished, may be executed by the
Association as an attorney -in -fact for such junior mortgagee.
ARTICLE XXV
DAMAGE, DESTRUCTION, OBSOLESENCE, OR CONDEMNATION
Section 25.1. Association as Attorney -in -Fact. This
Declaration does hereby make mandatory the irrevocable appointment
of an attorney -in -fact to deal with the Project upon its
destruction, repair or obsolescence. Title to any Fractional
Estate is declared and expressly made subject to the terms and
conditions hereof, and acceptance by any grantee of a deed or
other instrument of conveyance from the Declarant or from any
Owner or grantor shall constitute appointment of the
attorney -in -fact herein provided. All of the Owners irrevocably
constitute and appoint the Association their true and lawful
attorney in their name, place and stead for the purpose of dealing
with the Project upon its destruction or obsolescence as
hereinafter provided. As attorney -in -fact, the Association, by
its President and Secretary or Assistant Secretary, shall have
full and complete authorization, right and power to make, execute
and deliver any contract, deed or any other instrument with
respect to the interest of an Owner which is necessary and
appropriate to exercise the powers herein granted. Repair and
reconstruction of the improvement(s) as used in the succeeding
sections means restoring the improvement(s) to substantially the
same condition in which it existed prior to the damage, with each
Unit and the Common Elements having substantially 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, restoration or replacements unless the Owners
and all first Mortgagees agree not to rebuild in accordance with
the provisions set forth hereinafter.
Section 25.2. Fully Insured Damage to Improvements. In the
event of damage or destruction due to fire or other disaster, the
insurance proceeds, if sufficient to reconstruct the
improvement(s), shall be applied by the Association, as
attorney -in -fact, to such reconstruction, and the improvement(s)
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 improvement(s).
Section 25.3. Special Assessment. If the insurance proceeds
are insufficient to repair and reconstruct the improvement(s), and
if such damage is not more than seventy-five percent (75%) of the
Project, not including land, such damage or destruction shall be
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promptly repaired and reconstructed by the Association, as
attorney -in -fact, using the proceeds of insurance and the proceeds
of an assessment, for any deficiency to be made against all of the
Owners and their Fractional Estates. Such deficiency assessment
shall be a Common Expense and assessed pro rata according to each
Owner's percentage interest in the Common Elements and shall be
due and payable within thirty (30) days after written notice
thereof. The Association shall have full authority, right and
power, as attorney -in -fact, to cause the repair or restoration of
the improvements using all of the insurance 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 Owner and a lien on his Fractional Estate and may be enforced
and collected as provided herein. In addition thereto, the
Association, as attorney -in -fact, shall have the absolute right
and power to sell the Fractional Estate of any Owner refusing or
failing to pay such deficiency assessment within the time
provided. If not so paid, the Association shall cause to be
recorded a notice that the Fractional Estate of the delinquent
Owner shall be sold by the Association, as attorney -in -fact,
pursuant to the provisions of this Article. The delinquent Owner
shall be required to pay to the Association the costs and expenses
for filing the notices, interest on the amount of the assessment
and all reasonable attorneys' fees. The proceeds derived from the
sale of such Fractional Estate shall be used and disbursed by the
Association, as attorney -in -fact, in the following order:
i. for payment of taxes and special
assessment liens in favor of any governmental assessing
entity and customary expenses of sale;
ii. for payment of the balance of
the lien of any first mortgage;
iii. for payment of unpaid Common
Expenses and all costs, expenses and fees incurred
by the Association;
iv. for payment of junior liens and
encumbrances in the order of and to the extent of
their priority; and
V. the balance remaining, if any,
shall be paid to the Owner.
Section 25.4. Reconstruction or Liquidation. If more than
seventy-five percent (75%) of the Project, not including land, is
destroyed or damaged, and -if the Owners representing an aggregate
ownership interest of seventy-five percent (75%) or more of the
General Common Elements, do not voluntarily, within one hundred
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eighty (180) days thereafter, make provisions for reconstruction,
which plan must have the^approval or consent of seventy-five
percent (75%) of the first Mortgagees, the Association shall
forthwith record a notice setting forth such fact or facts, which
shall be executed by the Association's President, Secretary or
Assistant Secretary, and the entire remaining Project shall be
sold by the Association, pursuant to the provisions of this
paragraph, as attorney -in -fact for all of the Owners, free and
clear of the provisions contained in this Declaration, the Map,
Articles of Incorporation and Bylaws of the Association. The
insurance settlement proceeds shall be divided by the Association
according to each Owner's percentage interest in the Common
Elements, and such divided proceeds shall be paid into separate
accounts, each such account representing one of the Lodge Units.
Each such account shall be in the name of the Association, and
shall be further identified by the Fractional Estate designation
and the name of the Owner. From each separate account the
Association, as attorney -in -fact, shall forthwith use and disburse
the total amount of each of such accounts, without contribution
from one account to another, toward the partial or full payment of
the lien of any first mortgage against the Unit represented by
such separate account. Thereafter, each such account shall be
supplemented by the apportioned amount of the proceeds derived
from the sale of the entire Project. Such apportionment shall be
based upon each Owner's percentage interest in the Common
Elements. The total funds of each account shall be used and
disbursed, without contribution from one account to another, by
the Association, as purposes and in the same order as is provided
in section 25.3.
If the Owners representing an aggregate ownership interest of
seventy-five percent (75%) or more of the Common Elements adopt a
plan for reconstruction, which plan has theAapproval of seventy-
five percent (75%) of the first Mortgagees, then all of the Owners
shall be bound by the terms and other provisions of such plan.
Any assessment made in connection with such plan shall be a Common
Expense and paid pro rata according to each Owner's percentage
interest in the Common Elements, and shall be due and payable as
provided by the terms of such plan, but not sooner than thirty
(30) days after written notice thereof. The Association shall
have full authority, right and power, as attorney -in -fact, to
cause the repair or restoration of improvements using all of the
insurance 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 Owner and a lien on his Fractional
Estate and may be enforced and collected as is provided herein.
In addition thereto, the Association, as attorney -in -fact, shall
have the absolute right and power to pay such assessment within
the time provided, and if not so paid, the Association shall cause
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to be recorded a notice that the Fractional Estate of the
delinquent Owner shall be sold by the Association. The delinquent
Owner shall be required to pay to the Association the costs and
expenses for filing the notices, interest at the rate of ten
percent (10%) per annum on the amount of the assessment and all
reasonable attorneys' fees. The proceeds derived from the sale of
such Fractional Estate shall be used and disbursed by the
Association, as attorney -in -fact, for the same purposes and in the
same order, as is provided in section 25.3.
Section 25.5. Reconstruction of Common Elements. The Owners
representing an aggregate ownership interest of eighty-five
percent (85%) or more of the Common Elements may agree that the
Common Elements are obsolete and adopt a plan for the renewal and
reconstruction, which plan has the^approval of seventy-five
percent (75% of the first Mortgagees of record at the time of the
adoption of such plan. If a plan for the renewal or
reconstruction is adopted, notice of such plan shall be recorded,
and the expense of renewal and reconstruction shall be payable by
all of the Owners as Common Expenses; provided, however, that an
Owner not a party to such a plan for renewal or reconstruction may
give written notice of objection to the Association within fifteen
(15) days after the date of adoption of such plan and demand that
such Unit be purchased by the Association for the fair market
value thereof. The Association shall then have thirty (30) days
thereafter within which to cancel such plan. If such plan is not
cancelled, the Fractional Estate of the requesting Owner shall be
purchased.
A. Determination of Price. If such Owner and the
Association can agree on the fair market value thereof, then such
sale shall be consummated within thirty (30) 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 commencement date from which all periods of time
mentioned herein shall be measured. Within ten (10) days
following the commencement date, each party shall nominate in
writing an appraiser and give notice of such nomination to the
other party. If either party fails to make such a nomination, the
appraiser nominated shall, within five (5) days after default by
the other party, appoint and associate with him another appraiser.
If the two designated or selected appraisers are unable to agree,
they shall appoint another appraiser to be umpire between them, if
they can agree on such person. If they are unable to agree upon
such umpire, each appraiser previously appointed shall nominate
two appraisers and from the names of the four appraisers so
nominated one shall be drawn by lot by any judge of any court of
record in Colorado, and the name so drawn shall be such umpire.
The nominations from whom the umpire is to be drawn by lot shall
be submitted within ten (10) days of the failure of the two
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•
appraisers to agree, which, in any event, shall not be later than
twenty (20) days following the appointment of the second
appraiser.
B. Decision Binding. The decision of the appraisers
as to the fair market value, or in the case of their disagreement,
then such decision of the umpire, shall be final and binding. The
expenses and fees of such appraisal shall be borne equally by the
Association and the Owner. The sale shall be consummated within
fifteen (15) days thereafter, and the Association, as
attorney -in -fact, shall disburse such proceeds for the same
purposes and in the same, order as is provided in section 25.3,
except as modified herein.
Section 25.6. Eminent Domain Proceedings. In the event any
part or all of the Common Elements are the subject of an eminent
domain proceeding or the threat thereof, the Board of Managers
shall have the authority to prosecute or to compromise the
proceeding. The Board of Managers shall also determine whether or
not to apply any sums payable with respect to the taking, to the
repair, or replacement thereof. Any sums not so applied shall be
distributed to the Owners according to section 25.3.
ARTICLE XXVI
REVOCATION OR AMENDMENT TO DECLARATION
This Declaration shall not be revoked unless all of the
Owners and all of the holders of any recorded mortgage or deed of
trust covering or affecting any or all of the Lodge Units
unanimously consent and agree to such revocation by instrument(s)
duly recorded. This Declaration shall not be amended unless the
Owners representing an aggregate ownership interest of
seventy-five percent (75%) or more of the General Common Elements
and seventy-five percent (75%) of the holders of any recorded
mortgage or deed of trust covering or affecting any or all
Fractional Estates unanimously consent and agree to such amendment
by instrument(s) duly recorded; provided, however, that except as
provided in the Article relating to the combination and
resubdivision of Units, the percentage of the undivided interest
in the General Common Elements appurtenant to each Unit, as
expressed in this Declaration, shall have a permanent character
and shall not be altered without the consent of all of the Unit
Owners expressed in an amended Declaration duly recorded.
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ARTICLE XXVII
RESTRICTIVE AND AFFIRMATIVE COVENANTS
Each Owner, upon purchase of a Lodge Unit, submits to the
restrictions and/or obligations of this Article.
Section 27.1. Use and Occupancy. Each Lodge Unit may be
used and occupied for first class residential purposes only;
provided, however, Declarant reserves the right to use one or more
of the Units and the Common Elements as sales offices and for
marketing purposes during the sales period, which period shall be
deemed to continue until theMate by which title to one hundred
percent (100%) of the Fractional Estates in the Project, as
expanded, have een conveyed by Declarant to the initial
purchasers, or until August 1, 1989, whichever first occurs.
Section 27.2. Animals. No animals of any kind shall be
raised, bred or kept on the Property, except pursuant to rules and
regulations adopted and amended by the Association; provided,
however, that nothing herein contained shall be construea to
require the Association to permit animals to be reared, bred or
kept in the Project.
Section 27.3. Restricted Modifications. No modification of
the Unit, the interior of the Unit, or Common Elements shall be
changed in appearance without the consent of the Board of
Managers. No unsightly object or nuisances shall be erected,
placed or permitted to remain on the Project, nor shall the
Project be used in any way or for any purpose which may endanger
the health or unreasonably disturb the Owners of any Lodge Unit or
any occupant thereof. The foregoing covenants shall not apply to
the business activities, signs and billboards or the construction
and maintenance of the improvements by the Declarant, its agents,
contractors or assigns during the construction and sales period,
nor to the Association, its successors and assigns, in furtherance
of its powers and purposes as hereinafter set forth.
Section 27.4. Restrictions of Record. Restrictions of
record encumbering the Property are hereby incorporated by
reference. The recording data for recorded easements and licenses
appurtenant to, or included in, the Project or to which any
portion of the Project is or may become subject, is set forth in
Exhibit D attached hereto and incorporated herein by this
reference.
Section 27.5. Nuisances. No nuisances shall be allowed on
the Property, nor any use or practice which is the source of
annoyance to residents or which interferes with the peaceful
enjoyment or possession and proper use of the Property by its
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residents. All parts of the Property shall be kept in a clean and
sanitary condition, and no rubbish, refuse or garbage shall be
allowed to accumulate nor any fire hazard to exist. No Owner
shall permit any use of his Fractional Unit or make use of the
General Common Elements which will unreasonably increase the rate
of insurance upon the Project.
Section 27.6. Prohibited Use. No immoral, improper,
offensive or unlawful use shall be permitted or made of the
Property or any part thereof. All valid laws, ordinances and
regulations of all governmental bodies having jurisdiction shall
be observed.
Section 27.7. Leases and Rental Agreements. All rental
agreements for Fractional Estates shall be subject to the
requirements of this Declaration and the Bylaws and rules of the
Association.
ARTICLE XXVIII
FRACTIONAL OWNERSHIP
Section 28.1. Plan of Fractional Ownership. Declarant
hereby submits all of the Lodge Units in the Project, except the
Employee Housing Unit, to the plan of Fractional Ownership set
forth in this Article. The provisions of this Article XXVIII
relate to all Lodge Units and shall govern the ownership of
Fractional Estates in said Lodge Units and the rights, duties and
obligations of Fractional Owners for so long as a Lodge Unit
remains a Fractional Unit. The Project and the plan of Fractional
Ownership are further described in the Disclosure Statement
provided pursuant to the requirements of Section 20-24(F) of the
Municipal Code of the Citv of Aspen, a co of which Disclosure
Statement is attached hereto as Exhibit E ( the "Disclosure
Statement"). Declarant reserves the right to amend the Disclosure
Statement, without the prior approval of any Owner or Mortgagee,
upon compliance with the terms and conditions set forth in Section
20 24(F) (3) of the Municipal Code of the City of Aspen, and
otherwise to implement such chances in the Project or the
marketing thereof as may be permissible pursuant to the terms of
this Declaration and applicable law. Except as otherwise set
forth in the Disclosure Statement, a purchaser may acquire more
than one () Fractional Estate and thereafter convey or encumber
each Fractional Estate so acquired separately. In no event,
however, shall a Fractional Owner convey or encumber less than a
Fractional Estate as defined herein, or attempt to subdivide a
Fractional Estate into lesser interests. The provisions of this
Declaration shall apply to the Fractional Estates created
hereunder; provided, however, in the event of an inconsistency
between this Article XXVIII and the remaining provisions of the
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Declaration with respect to the ownership of a Fractional Estate
and the rights, duties, and obligations of Fractional Owners, then
the provisions of this Article XXVIII shall control.
Section 28.2. Separate Estates. Each Fractional Estate
shall constitute an estate in re -a -property separate and distinct
from all other Fractional Estates in the Unit and other Units,
which estate may be separately conveyed and encumbered. By
acceptance of a deed to a Fractional Estate, each Fractional Owner
waives his right to bring a suit for partition except in
accordance with the provisions of this Declaration.
Section 28.3. Legal Description of a Fractional Estate. A
contract for sale of a Fractional Estate written prior to t e
filing for record of this Declaration and the Map may legally
describe a Fractional Estate as follows:
An undivided interest as
tenant -in -common in Unit , according
to the Fractional Estate Declaration for
The Prospector and the Map thereof to be
filed for record, together with the
exclusive right to possession and
occupancy of said Unit during Use Weeks
, and
Subsequent to the filing of the Map and recording of the
Declaration, every contract for sale, deed, lease, mortgage, trust
deed, or other instrument relating to a Fractional Estate will
legally describe the Fractional Estate as follows:
An undivided interest as
tenant -in -common in Unit , according
to the Fractional Estate Declaration for
The Prospector recorded ,
1984, at Reception No. and the Map
thereof recorded on the day of
, 198 , together wi h the
exclusive right to possession and
occupancy of said Unit during Use
Weeks , and , commencing at
noon on the first of the Use
Week and ending at noon of the last day
of the Use Week.
Every such description shall be good and sufficient for all
purposes to sell, convey, transfer and encumber or otherwise
effect a Fractional Estate and all common elements and limited
-27-
common elements and easements appurtenant thereto. Such legal
description shall also convey to the grantee named in the document
an undivided interest in all furniture and furnishings then
located in the Fractional Unit and used for the operation thereof
in the same ownership interest as the Fractional Owner's undivided
interest as tenant -in -common in the Fractional Unit, as well as
any furniture and furnishings thereafter acquired for the
Fractional Unit. The transfer of an interest in a Fractional
Estate shall transfer to the grantee ownership of all of the
transferor's undivided interest in such personal property without
further reference thereto.
Section 28.4. Acceptance of Plan of Fractional Ownership;
Enforcement; Indemnification. By acceptance of a deed to an
Fractional Estate a Fractional Owner agrees to be bound by the
terms and conditions of the Declaration, specifically including,
but not limited to, the provisions of this Article XXVIII. In
addition to the foregoing, in the event any Fractional Owner fails
to vacate an Fractional Unit after termination of his Use Weeks or
otherwise uses or occupies or prevents another Fractional Owner
from using or occupying a Use Week, that Fractional Owner shall be
shall be deemed to have waived any notices required by law with
respect to any legal proceedings regarding the removal eviction or
ejection; and shall pay to the Fractional Owner entitled to use
the Fractional Unit during such wrongful occupancy, as liquidated
damages for the wrongful use of the Fractional Unit, a sum equal
to two hundred percent (200%) of the fair rental value per day for
the Fractional Unit wrongfully occupied as determined by the
Fractional Owners' Association in its sole discretion for each
day, or portion thereof, including the day of surrender, during
which the Fractional Owner wrongfully occupies a unit; plus all
costs and reasonable attorneys' fees involved in the enforcement
of this provision which amount may be collected by the Fractional
Owners' Association in the manner provided herein for the
collection of assessments.
Any Fractional Owner who suffers or allows a Mechanic's Lien,
Federal tax or other lien to be placed against his Fractional
Estate or the entire Lodge Unit shall indemnify, defend and hold
each of the other Fractional Owners harmless from and against all
liability or loss arising from the claim of such lien. The
Fractional Owners' Association shall enforce such indemnity by
collecting from the Fractional Owner who suffers or allows such a
lien the amount necessary to discharge the lien and all costs
incidental thereto, including reasonable attorneys' fees. If such
amount is not promptly paid, the Fractional Owners' Association
may collect the same in the manner provided herein for the
collection of assessments.
IFTO
ARTICLE XXIX
REGISTRATION BY OWNER OF MAILING ADDRESS
Each Owner shall register his mailing address with the
Association, and except for monthly statements and other routine
notices, all other notices or demands intended to be served upon
an Owner by the Association or Managing Agent shall be either hand
delivered or sent by either registered or certified mail, postage
prepaid, addressed in the name of the Owner at such registered
address. All notices, demands or other notices intended to be
served upon the Board of Managers of the Association or the
Association shall be sent by certified mail, postage prepaid, to
303 East Seventeenth Avenue, Suite 1000, Denver, Colorado 80203,
to the attention of W. Michael Clowdus, until such address is
changed by a notice to all Owners. Each Owner appoints the
Association as designated agent for service of process and all
notices pertaining to the Fractional Estate.
ARTICLE XXX
PERIOD OF CONDOMINIUM OWNERSHIP
The separate condominium estates and Fractional Estates
created by this Declaration and the Map shall continue until this
Declaration is revoked in the manner and as is provided in Article
XXVI relating to revocation or amendment of this Declaration or
until terminated in the manner and as is provided Article XXV
relating to damage, destruction, obsolesence or condemnation of
the Project.
ARTICLE XXXI
GENERAL
Section 31.1. Severability. If any of the provisions of
this Declaration or any section, sentence, clause, phrase or word,
or the application thereof in any circumstance, be invalidated,
such invalidity shall not affect the validity of the remainder of
this Declaration, and the application of any such provision,
section, sentence, clause, phrase or word in any other
circumstance.
Section 31.2. Colorado Condominium Ownership Act. The
provisions of the Condominium Ownership Act are hereby
incorporated by reference into this Declaration; provided,
however, that the provisions of this Declaration shall be
paramount to the provisions of the Condominium Ownership Act where
permissive variances are permitted. Otherwise, the provisions of
the Condominium Ownership Act shall prevail.
Section 31.3. Gender and Number. Whenever used herein,
unless context shall otherwise provide, the singular number shall
-29-
include the plural, the plural the singular, and the use of any
gender shall include the other gender.
IN WITNESS WHEREOF, Declarant has duly executed this
Declaration this day of , 1983.
DECLARANT:
Merit Investment Co. (of Aspen),
Inc. a Colorado corporation.
By:
L. Vernon Cagle, President
STATE OF COLORADO )
)SS:
COUNTY OF )
The foregoing instrument termed Fractional Estate Declaration
for The Prospector was acknowledged before me this day of
19 by L. Vernon Cagle as President of Merit
Investment Co. (=Aspen), Inc., a Colorado corporation.
Witness my hand and official seal.
My commission expires:
(SEAL)
Notary Public
Address:
ISM
EXHIBIT A
Lots A, B, C and D
Block 82
City and Town Site of Aspen,
According to the Map Recorded
December 16, 1959 Under Reception No. 109023,
Pitkin County, Colorado
•
is
Unit t No.
101
102
103
104
105
106
108
201
202
203
204
205
206
207
208
301
302
303
304
305
(Employee Housing Unit)
EXHIBIT B
Interest in Common Elements
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
1/20
• 0
EXHIBIT C
TO THE
FRACTIONAL ESTATE DECLARATION
FOR
THE PROSPECTOR
*USE WEEK
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
*"Use Week" means a period
tional Unit. Use
USE WEEK
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
49.
50.
51.
52.
of exclusive possession and occupancy
Weeks are computed as follows:
of a Frac
Use Week No. 1 is the seven days commencing at noon on the
of each year. All other Use Weeks are
first All extra days
calculated by working forward from Use Week No. 1'as established
art of Use Week No. �
which accumulate become a P the Association. Use Weeks run from
by the calendar prepared by
of the Use Week to noon on eof
noon on the first provided, however, that the right
last day of the Use Week; p
possession and occupancy shall not commeofcthen•
Use Week and shall
local time on the first thereof, and
end at 10:00 a.m. on the last
Provided further, however, that if Use Week No. 51 as ha co ute
oes not inc u e C ristmas DahDayen Use Week No. 51 shal
extend until and end on Christmas
9 •
EXHIBIT D
TO THE
FRACTIONAL ESTATE DECLARATION
FOR
THE PROSPECTOR
1. Terms, provisions and obligations as contained in
Notice of Historic Designation recorded in the real property
records of Pitkin County, Colorado, in Book 295 at Page 515.
2. A seven foot by ten foot easement for the existence
and maintenance of a transformer located at the southeastern
corner of the Property will be granted to the City of Aspen
in the Condominium Map to be filed pursuant to Article II of
this Declaration.
3. A license for certain encroachments of the Project
onto property of the City of Aspen was approved by the Aspen
City Council on November 8, 1982. It is anticipated that this
license will be memorialized by means of a written agreement
which, when executed, will be recorded in the real property
records of Pitkin County, Colorado.
rI
11
EXHIBIT E
[Disclosure Statement]
ARTICLES OF INCORPORATION
OF
THE PROSPECTOR FRACTIONAL OWNERS' ASSOCIATION
The undersigned natural person hereby establishes a
not -for -profit corporation pursuant to the Colorado Nonprofit
Corporation Act and adopts the following Articles of
Incorporation.
ARTICLE I
NAME
The name of this corporation shall be The Prospector
Fractional Owners' Association (the "Association").
ARTICLE II
DURATION
This Association shall have perpetual existence.
ARTICLE III
PURPOSES
The objects and purposes for which this Association is formed
are as follows:
i. to be and constitute the Association to
which reference is made in Article XVII of the
Fractional Estate Declaration for The Prospector
(the "Declaration"), to be recorded in the records
of the Clerk and Recorder of Pitkin County,
Colorado, pursuant to C.R.S. 1973, § 38-33-101 to
-111, as amended, and to perform all obligations
and duties of the Association and to exercise all
rights and powers of the Association; and
ii. to provide an entity for the furtherance
of the interests of all Fractional Owners with the
objective of establishing and maintaining The
Prospector as a prime Fractional Ownership Project
of the highest possible quality and value and
enhancing and protecting its value, desirability
and attractiveness.
0 •
ARTICLE IV
POWERS
In furtherance of its purposes, this Association shall have
all of the powers conferred upon corporations not -for -profit by
the statutes and common law of the State of Colorado in effect
from time to time, including all of the powers necessary or
desirable to perform the obligations and duties and exercise the
rights and powers of the Association under the Declaration which
will include, but shall not be limited to, the following:
i. to make and collect assessments for Common
Expenses;
ii. to enforce the terms, covenants,
restrictions, conditions, uses, limitations and
obligations set forth in the Declaration and in the
Bylaws of this Association and to make and enforce
rules and regulations as provided therein; and
iii. to engage in activities which will
actively foster, promote and advance the interests
of all Fractional Owners.
ARTICLE V
MEMBERSHIP
Section 5.1. General. This Association shall be a
membership Association without certificates or shares of stock.
There shall be one class of membership, and each Owner of a
Fractional Estate shall be a member.
Section 5.2. Voting. Each member shall have the voting
rights set forth in the Declaration on all matters in which
members are entitled to vote. Each member, or group of members,
owning a Fractional Estate shall be entitled to a vote, the size
of each vote being based on the undivided interest as
tenant -in -common in the Fractional Unit as set forth in the
Declaration.
Section 5.3. Non -Assignability. A member of this
Association shall not assign, encumber or transfer his membership
in any manner and shall automatically cease to be a member upon
termination of his ownership interest in his Fractional Estate.
1WZ
Section 5.4. New Membership. Upon conveyance of a
Fractional Estate to a new Fractional Owner or group of Fractional
Owners, each such new Fractional Owner shall automatically become
a member of this Association.
Section 5.5. Multiple Estates. Members shall have the right
to be or become Fractional Owners of more than one Fractional
Estate.
Section 5.6. Suspension. This Association may suspend the
voting rights of a member for failure to comply with the rules and
regulations of this Association or with any other obligations of
Fractional Owners under the Declaration or Bylaws of this
Association.
Section 5.7. Bylaws. The Bylaws of this Association shall
contain provisions setting forth the rights, privileges, duties
and responsibilities of its members.
ARTICLE VI
BOARD OF MANAGERS
Section 6.1. Management and Control. The business and
affairs of this Association shall be conducted, managed and
controlled by a Board of Managers. The Board of Managers shall
consist of that number of persons set forth in the Bylaws of this
Association, all of whom shall be members of this Association.
Notwithstanding anything to the contrary provided herein, until
all of the Fractional Estates in the project, as expanded, have
been sold (meaning that title to said Fractional Estates have been
conveyed by the Declarant), or until August 1, 1989, whichever
first occurs, the members of the Board of Managers shall be
appointed by the Declarant and need not be Fractional Owners;
Declarant shall have an option at any time to turn over control of
the Board of Managers to the Fractional Owners at any meeting of
this Association called for that purpose.
Section 6.2. Manner of Election. Except as provided in
section 6.1 above, members of the Board of Managers shall be
elected by the members of this Association in the manner set forth
in the Bylaws of this Association.
Section 6.3. Removal. Managers may be removed and vacancies
filled in the manner set forth in the Bylaws of this Association.
-3-
•
Section 6.4. Members. The names and addresses of the
members of the first Board of Managers who shall serve until their
successors are duly qualified, are as follows:
NAME ADDRESS
L. Vernon Cagle P. O. Box 7534
Omaha, Nebraska 68107
Jeffrey L. Cagle P. 0. Box 1356
Winter Park, Colorado 80482
Harold C. Hansen 129 South McKenna
Gretna, Nebraska 68028
Any vacancies in the Board of Managers occurring before the first
election of Managers shall be filled by the remaining Managers.
ARTICLE VII
OFFICERS
The Board of Managers may appoint a President, one or more
Vice Presidents, a Secretary, a Treasurer and such other officers
as the Board believes will be in the best interest of this
Association. The officers shall have such duties as may be
prescribed in the Bylaws of this Association and shall serve at
the pleasure of the Board of Managers.
ARTICLE VIII
CONVEYANCES AND ENCUMBRANCES
Subject -to -the terms and conditions of the Declaration,
Association property may be conveyed or encumbered by authority of
the Board of Managers or by such person or persons to whom such
authority may be delegated by resolution of the Board.
Conveyances and encumbrances shall be by an instrument executed by
the President or a Vice President and attested by the Secretary or
an Assistant Secretary, or executed by such other person or
persons to whom such authority may be delegated by the Board.
ARTICLE IX
INITIAL REGISTERED OFFICE AND AGENT
The Association shall serve as the Owners' designated agent
for service of process and all notices pertaining to the timeshare
interest. The initial registered office of the Association for
such purposes shall be 303 East Seventeenth Avenue, Suite 1000,
Denver, Colorado 80203. The initial registered agent shall be
W. Michael Clowdus.
-4-
ARTICLE X
AMENDMENTS
Amendments to these Articles of Incorporation shall be
adopted by majority vote of the Board of Managers; provided,
however, that no amendment to these Articles of Incorporation
shall be contrary to or inconsistent with the provisions of the
Declaration.
ARTICLE XI
MANAGER'S FUNCTIONS
This Association, by its Board of Managers, shall obtain and
pay for the services of a Managing Agent to administer and manage
the affairs of this Association and be responsible for the
operation, maintenance, repair and the improving of the Fractional
Units, and to keep the same in good, attractive and sanitary
condition, order and repair. The cost of such services shall be
borne by the members as provided in the Declaration and in the
Bylaws of the Association.
ARTICLE XII
GENERAL
This Association is formed exclusively to provide for the
management, maintenance and care of the Fractional Units within
The Prospector. The Association is not formed for pecuniary
profit or financial gain, and no part of the Association's net
earnings, profits or income is distributable to or shall inure to
the benefit of its members, directors or officers or any other
private individual except to the extent permitted under the
Colorado Nonprofit Corporation Act.
ARTICLE XIII
DISSOLUTION
Upon the dissolution of the Association, the balance of all
assets after payment of all liabilities and obligations of the
Association shall be disposed of exclusively for purposes within
these Articles of Incorporation.
-5-
ARTICLE XIV
INCORPORATION
L. Vernon Cagle, acting as the incorporator under the
Colorado Nonprofit Corporation Act, signs and acknowledges these
Articles of Incorporation for such Association on the date
indicated herein below.
INCORPORATOR:
L. Vernon Cagle
STATE OF COLORADO )
ss:
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 1983, by L. Vernon Cagle.
My commission expires:
Witness my hand and official seal.
Notary Public
Address:
• 0
BYLAWS
OF
THE PROSPECTOR FRACTIONAL OWNERS' ASSOCIATION
The name of the corporation shall be The Prospector
Fractional Owners' Association ("Association").
ARTICLE I
OBJECT
Section 1.1. Purpose. The purpose for which the
Association is forined is to govern the Fractional Ownership
Project ("Project") situated in the County of Pitkin, State of
Colorado, described in the Fractional Estate Declaration for The
Prospector.
Section 1.2 Acceptance. All present or future Fractional
Owners, tenants, future tenants or any other person that might use
the facilities of the Condominium Project in any manner are
subject to the regulations set forth in these Bylaws. The mere
acquisition of any interest in a Fractional Estate or the rental
of a Use Weeks in the Condominium Project or the mere act of
occupancy of any of the Fractional Units will signify that these
Bylaws are accepted, ratified and will be complied with.
Section 1.3 Definitions. The following terms when used in
these Bylaws shall have the meanings ascribed to them in Article I
of the Declaration for the Prospector: "Declarant", "Residence",
"Declaration", "Project", "Map", "Common Elements", "Limited
Common Elements", "Condominium Unit" or "Lodge Unit", "Common
Expenses", "Owner", "Association", "Board of Managers", "Manager",
and "Managing Agent", "Fractional Estate", "Fractional Owner",
"Fractional Unit", "Maintenance Week", "Use Week", "Fractional
Owners' Association".
ARTICLE II
MEMBERSHIP, VOTING, MAJORITY OF OWNERS, QUORUM, PROXIES
Section 2.1 Membership. Any person or becoming a
Fractional Owner of a Fractional Estate shall automatically become
a member of the Association and be subject to these Bylaws. Such
5/23/84
membership shall terminate without any formal Association action
whenever such person ceases to own a Fractional Estate, but such
termination shall not relieve or release any such former
Fractional Owner from any liability or obligation incurred through
or in any way connected with the Association during the period of
such ownership and membership in the Association , or impair any
rights or remedies which the Board of Managers of the Association
or others may have against such former Fractional Owner and member
arising out of or in any way connected with such ownership and
membership and the covenants and obligations incident thereto.
Section 2.2. Voting. The Fractional Owners of each
Fractional Estate shall be entitled to a vote, the size of which
vote shall be based upon the undivided interest of the Fractional
Owner as tenant -in -common in the Fractional Unit. The aggregate
of all of the undivided interests submitted to and making up the
total of Fractional Estates shall be considered one hundred
percent (100%) for such voting purposes. Except as otherwise
specifically provided, as affirmative vote of the members
representing a majority of the total votes present, either in
person or by proxy, shall be required to transact business.
Section 2.3. Quorum. Except as otherwise provided in these
Bylaws, the presence in person or by proxy of member holding
thirty percent (30%) of the votes entitled to be cast shall
constitute a quorum. An affirmative vote of a majority in
interest of the members present, either in person or by proxy,
shall be sufficient to transact the business of the meeting.
Section 2.4. Adjourned Meetings. If any meeting of the
members of the Association cannot be organized because a quorum of
thirty percent (30%) has not attended, the members present, either
in person or by proxy, may adjourn said meeting until a future
date not to exceed ten (10) days, at which time a quorum of twenty
percent (20%) shall be required to transact the business of the
meeting. In the event that at such second meeting a quorum of
twenty percent (20%) has not attended, the members present, either
in person or by proxy may adjourn said meeting until a future date
not to exceed ten (10) days, at which time a quorum of ten percent
(10%) shall be required to transact the business of the meeting.
Section 2.5. Proxies. Votes may be cast in person or by
proxy. Proxies must be filed with the Secretary before the
appointed time of each meeting.
-2-
ARTICLE III
ADMINISTRATION
Section 3.1. Association Responsibilities. The Fractional
Owners will constitute the Association, who will have the
responsibility of administering the Project through a Board of
Managers and Managing Agent.
Section 3.2. Place of Meetings. Meetings of the Association
shall be held at such place as the Board of Managers may
determine.
Section 3.3. Annual Meetings. The first annual meeting of
the Association at which the Owners shall elect the Board of
Managers, shall beheld within one hundred twenty (120) days after
( i ) the date by which title to one hundred percent ( 1 00% ) of t e
Fractional Estates in the Project have been sold, or (ii)
August 1, 1989, or (iii) notice from Declarant ot the exercise of
its Option o tern over control of the Association to the Owners,
whichever first occurs. Thereafter, the annual meetings
Association shaii be held in the month of November on a day and at
a time designated by the Board of Managers of each succeeding
year.
Section 3.4. Special Meetings. It shall be the duty of the
President to call a special meeting of the Association as directed
by resolution of the Board of Managers or upon presentation to the
Secretary of a petition signed by Fractional Owners representing
at least one-third of all votes. The notice of any special
meeting shall state the time and place of such meeting and the
purpose thereof. Any such meeting shall be held within thirty
(30) days after receipt by the President of such resolution or
petition.
Section 3.5. Notice of Meetings. It shall be the duty of
the Secretary to mail a notice of each annual or special meeting,
stating the purpose thereof as well as the time and place it is to
be held, to each Fractional Owner of record, at least ten (10) but
not more than thirty (30) days prior to such meeting. The mailing
of a notice by regular mail shall be considered notice served.
Section 3.6. Performance of Functions by Declarant. Until
all of the Fractional Estates in the Project, as expanded, have
been sold (meaning title to said Fractional Estate have been
conveyed by the Declarant), or until August 1, 1989, whichever
first occurs, the rights, duties and functions of the Board of
Managers shall, at the Declarant's option, be exercised by a Board
of Managers consisting of three (3) individuals appointed by
Declarant who need not be Fractional Owners. The Declarant Rhal 1
-3-
have the option at any time to turn over control of the Board of
Managers to the Fractional Owners upon sixty (60) days' prior
notice.
ARTICLE IV
BOARD OF MANAGERS
Section 4.1. Number and Qualification. Until the first
annual meeting of the Association at which the Owners shall elect
the Board of Managers as provided in Section 3.3 hereof, the
affairs of the Association shall be overned b a Board of
Managers appointe v the Declarant. At the first meeting of the
Association at which the Owners elect the Board of Man ers, there
shall be elected to the Board of Managers five (5) Fractional
Owners and thereafter the Board of Managers shall consist of five
(5) Fractional Owners.
Section 4.2. Election of Board Members. The respective
candidates for the Office of Manager shall be elected by members
who own Fractional Estates. A majority of the eligible votes
cast, either in person or by proxy, shall determine an election of
a Manager.
Section 4.3. Powers and Duties. The Board of Managers shall
have the power and duties necessary for the administration of the
affairs of the Association and for the operation and maintenance
of a first class Condominium Project.
Section 4.4. Other Powers and Duties. Without limitation,
the Board of Managers shall be empowered and shall have the duties
as follows:
i. to administer and enforce the covenants, conditions,
restrictions, easements, uses, limitations, obligations and all
other provisions set forth in the Declaration and supplements
thereto, submitting the properties to the provisions of the
Colorado Condominium Ownership Act;
ii. to establish, make and enforce compliance with such
reasonable house rules as may be necessary for the operation, use
and occupancy of the Project with the right to amend same from
time to time. The Fractional Owners may, either at any annual
meeting or at a special meeting called for such purpose, amend the
house rules and may adopt new house rules. House rules amended or
adopted by the Fractional Owners may only be changed by the
Fractional Owners. A copy of all such house rules shall be
delivered or mailed to each member promptly upon adoption
thereof;
iii. to at all times keep the Project in good order,
condition and repair;
:E-C
iv. to fix, determine, levy and collect assessments for
Common Expenses to be paid by each of the Fractional Owners, which
fee includes the proration for Common Expenses of the entire
premises and Project; to adjust, decrease or increase the amount
of the assessments for Common Expenses based on current needs and
past operating history, provided that no increase in such
assessments shall be effective until thirty (30) days' prior
written notice thereof, including an explanation of the reason(s)
for such increase, shall have been provided to each Owner; to levy
and collect special assessments whenever in the opinion of the
Board of Managers it is necessary to do so in order to meet
increased operating or maintenance expenses or costs, or
additional capital expenses or because of emergencies;
V. to maintain a working capital account which shall be
treated as an escrow account for each individual Fractional
Owner;
vi. to collect delinquent assessments by suit or
otherwise and to enjoin or seek damages from a Fractional Owner as
is provided in the Declaration and these Bylaws;
vii. to protect and defend the entire premises from
loss and damage by suit or otherwise;
viii. to borrow funds for any purpose in connection
with their duties and to execute all such instruments evidencing
such indebtedness as is expressly authorized, including mortgages
and other security agreements;
ix. to establish a bank account or accounts for the
common treasury and for all separate funds which are required or
may be deemed advisable;
X. to keep and maintain full and accurate books and
records showing all of the receipts, expenses or disbursements and
to permit examination thereof at any reasonable time by each of
the Fractional Owners and their mortgagees;
xi. to meet at least semi-annually;
xii. to designate the personnel necessary for the
maintenance and operation of the Fractional Units through a
Managing Agent; and
xiii. in general, to carry on the administration of
this Association and to do all of those things necessary and
reasonable for operation of the Project.
Section 4.5. No Waiver of Rights. The omission or failure
of the Association or any Owner to enforce the covenants,
conditions, restrictions, easements, uses, limitations,
-5-
obligations or other provisions of the Declaration, the Bylaws or
the regulations and house rules adopted pursuant thereto, shall
not constitute or be deemed a waiver, modification or release
thereof, and the Board of Managers or the Managing Agent shall
have the right to enforce the same thereafter.
Section 4.6. Managing Agent. The Board of Managers shall
employ for the Association a Managing Agent at a compensation
established by the Board to perform the duties listed in section
4.4; provided, however, that any agreement for professional
management of the project may not exceed three years and shall
provide for termination by either party without cause and without
payment of a termination fee on sixty (60) days or more written
notice, or with cause and without payment of termination fee on
thirty (30) days or more written notice. The Contract of
Employment shall specify the Managing Agent's duties of management
and maintenance.
Section 4.7. Election and Term of Office. At the first
annual meeting of the Association, the term of office of three (3)
Managers shall be fixed for one (1) year and the term of office
for two (2) Managers shall be fixed for two (2) years. At the
expiration of the initial term of office for each respective
Manager, his successor shall be elected to serve a term of two (2)
years. The Managers shall hold office until their qualified
successors have been elected and hold or attend their first
meeting.
Section 4.8. Vacancies. Vacancies on the Board of Managers
caused by any reason other than the removal of a Manager by a vote
of the Association shall be filled by vote of the majority of the
remaining Managers, even though they may constitute less than a
quorum; and each person so elected shall be a Manager until a
successor is elected at the next annual meeting of the
Association. Each vacancy shall be filled consistent with the
qualifications set forth in section 4.1.
Section 4.9. Removal of Managers. At any regular or special
meeting of the Association duly called, any one or more of the
Managers may be removed with or without cause by a majority in
ownership interest of the Fractional Owners, and, consistent with
the qualifications set forth in section 4.1, a successor may be
elected at that time to fill the vacancy thus created. Any
Manager whose removal has been proposed by the Fractional Owners
shall be given an opportunity to be heard at the meeting.
Section 4.10. Organization Meeting of Managers. The Board
of Managers shall hold an organization meeting within ten (10)
days after the annual meeting of the Association at such place as
shall be fixed by the Board of Managers at said annual meeting,
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and no notice shall be necessary to the incumbent or the newly
elected Managers in order legally to constitute such meeting,
providing a majority of the whole Board shall be present.
Section 4.11. Regular Meetings. Regular meetings of the
Board of Managers may be held at such time and place as shall be
determined by a majority of the Managers, but at least two (2)
such meetings shall be held during each fiscal year. Notice of
regular meetings of the Board of Managers shall be given to each
Manager, personally or by mail, telephone or telegraph, at least
three (3) days prior to the day named for such meeting.
Section 4.12. Special Meetings. Special meetings of the
Board of Managers may be called by the President and Secretary on
five (5) days' notice to each Manager, given personally or by
mail, telephone or telegraph, which notice shall state the time,
place and purpose of the meeting. Special meetings of the Board
of Managers shall be called by the President or Secretary in like
manner and on like notice on the written request of at least two
(2) Managers.
Section 4.13. Waiver of Notice. Before or at any meeting of
the Board of Managers, any Manager may, in writing, waive notice
of such meeting and such waiver shall be deemed equivalent to the
giving of such notice. Attendance by a Manager at any meeting of
the Board of Managers shall be a waiver of notice by him of the
time and place thereof. If all Managers are present at any
meeting of the Board of Managers, no notice shall be required and
any business may be transacted at such meeting.
Section 4.14. Board of tanagers' Quorum. At all meetings of
the Board of Managers, a majority of the Managers shall constitute
a quorum for the transaction of business, and the acts of the
majority of the Managers present at a meeting at which a quorum is
present shall be the acts of the Board of Managers. If, at any
meeting of the Board of Managers, there be less than a quorum
present, the majority of those present may adjourn the meeting.
At any such adjourned meeting, any business which might have been
transacted at the meeting as originally called may be transacted
without further notice. A Manager may attend a meeting of the
Board of Managers by telephone or other electronic medium.
Section 4.15. Fidelity Bonds. The Board of Managers may
require that all officers and employees of the Association
handling or responsible for Association funds furnish adequate
fidelity bonds. The premiums on such bonds shall be paid by the
Association.
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ARTICLE V
FISCAL MANAGEMENT
Any Fractional Owner or Mortgagee shall have the right to
inspect all records maintained by or on behalf of the Board of
Managers during convenient week -day business hours.
ARTICLE VI
COMMITTEES
The Board of Managers may appoint the following committees:
Executive Committee, Nominations Committee, Maintenance Committee,
Audit Committee, and such other committees as in the judgment of
the Board of Managers are necessary.
ARTICLE VII
OFFICERS
Section 7.1. Designation. The officers of the Association
shall be a President, a Vice -President, a Secretary, and a
Treasurer, all of whom shall be elected by and from the Board of
Managers, and such assistant officer positions as the Board of
Managers may, from time to time, direct be filled. Assistant
officers need not be Board members. The Office of Assistant
Secretary need not be a member of the Association or a Board
member.
Section 7.2. Election of Officers. The officers of the
Association shall be elected annually by the Board of Managers at
the organization meeting of each Board of Managers and shall hold
office at the pleasure of the Board of Managers.
Section 7.3. Removal of Officers. Upon an affirmative vote
of a majority of the members of the Board of Managers, any officer
may be removed, either with or without cause, and his successor
elected at any regular meeting of the Board of Managers, or any
special meeting of the Board called for such purpose.
Section 7.4. President. The President shall be the chief
executive officer of the Association. He shall preside at all
meetings of the Association and of the Board of Managers. He
shall have all of the general powers and duties which are usually
vested in the office of president of an association, including but
not limited to the power to appoint committees from among the
Fractional Owners except as is otherwise provided in these Bylaws,
as he may in his discretion decide is appropriate.
Section 7.5. Vice President. The Vice President shall have
all the powers and authority and perform all the functions and
duties of the President in the absence of the President, or if the
President is unable to exercise such powers and functions or
perform such duties for any reason.
Section 7.6. Secretary. The Secretary shall keep all the
minutes of the meetings of the Board of Managers and the minutes
of all meetings of the Association; shall have charge of such
books and papers as the Board of Managers may direct; and shall,
in general, perform all the duties incident to the Office of
Secretary.
The Secretary shall compile and keep up to date at the
principal office of the Association a complete list of members and
their registered mailing addresses. Such list shall also show
the number or other appropriate designation of the Use Week(s)
owned by such member opposite each member's name. Such list shall
be open to inspection by members and other persons lawfully
entitled to inspect the same at reasonable times during regular
business hours.
Section 7.7. Treasurer. The Treasurer shall cause to be
furnished to him monthly a copy of the receipts and disbursements
in proper accounting form. The Treasurer may delegate the
responsibility for the deposit of all monies and all valuable
effects to the Managing Agent, and the Treasurer, from time to
time, shall review such deposits.
ARTICLE VIII
INDEMNIFICATION OF OFFICERS, MANAGERS AND MANAGING AGENT
Section 8.1. Indemnification. The Association shall
indemnify each Manager, officer, Managing Agent, their respective
successors, personal representatives and heirs, against all
losses, costs and expenses, including counsel fees, reasonably
incurred by them in connection with any action, suit or proceeding
to which they may be made a part by reason of being or having been
a Manager, officer, or Managing Agent of the Association, except
as to matters as to which such person(s) shall be finally adjudged
in such action, suit or proceeding to be liable for gross
negligence or willful misconduct. In the event of a settlement,
indemnification shall be provided only in connection with such
matters covered by the settlement as to which the Association is
advised by counsel that the person to be indemnified has not been
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guilty of gross negligence or willful misconduct in the
performance of his duty as such Manager, officer or Managing Agent
in relation to the matter involved. The foregoing rights shall
not be exclusive of other rights to which such Manager, officer or
Managing Agent may be entitled.
Section 8.2. Common Expense. All liability, loss, damage,
cost and expense incurred or suffered by the Association by reason
of or arising out of or in connection with the foregoing
indemnification provisions, shall be treated and handled by the
Association as a Common Expense.
ARTICLE IX
OBLIGATION OF THE OWNERS
Section 9.1. Notice of Lien or Suit. A Fractional Owner
shall give notice to the Association of every lien or encumbrance
upon his Fractional Unit, other than for taxes and special
assessments, and notice of every suit or other proceeding which
may affect the title to his Fractional Unit, and such notice shall
be given within five (5) days after the Fractional Owner has
knowledge thereof.
Section 9.2. Damage. A Fractional Owner shall be obligated
to reimburse the Association promptly upon receipt of a statement
for any expenditures incurred by the Association in repairing,
replacing or restoring any General Common Element or the interior
or any part of Fractional Unit damaged as a result of his
negligence or the negligence of his tenants or agents.
Section 9.3. Mechanic's Lien. Each Fractional Owner agrees
to indemnify and to hold each of the other Fractional Owners
harmless from any and all claims of mechanic's lien filed against
other Fractional Units and the appurtenant General Common Elements
for labor, materials, services or other products incorporated in
the Fractional Owner's Fractional Unit. In the event such a lien
is filed and/or a suit for foreclosure of mechanic's lien is
commenced, the Board of Managers may require such Fractional Owner
to deposit with the Association cash or negotiable securities
equal to one and one-half (1 1/2 ) of the amount of such claim plus
interest for one (1) year together with the sum of One Hundred
Fifty Dollars ($150.00), which latter sum may be used by the
Association for any losses, costs and expenses incurred, including
attorneys' fees. Except as is otherwise provided, such sum or
securities shall be held by the Association pending final
adjudication or settlement of the claim or litigation.
Disbursement of such funds or proceeds shall be made by the
Association to insure payment of or on account of such final
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judgment or settlement. Any deficiency shall be paid forthwith by
the subject Fractional Owner, and his failure to so pay shall
entitle the Association to make such payment, and the amount
thereof shall be a debt of the Fractional Owner and a lien against
his Fractional Unit which may be foreclosed as is provided in the
Declaration. All costs, losses and expenses incurred by the
Association shall be forthwith reimbursed to it by such Fractional
Owner(s).
Section 9.4. General.
A. Each Fractional Owner shall comply strictly with
the provisions of all legal and other documents affecting his
Fractional Unit and the General Common Elements, including these
Bylaws.
B. Each Fractional Owner shall always endeavor to
observe and promote the cooperative purposes for which the Project
was built.
Section 9.5. Use of Units. All Fractional Units shall be
utilized only for residential occupancy by the Fractional Owner,
his family and guests and by persons renting the Fractional
Units.
Section 9.6. Use of General Common Elements and Limited
Common Elements. Each Fractional Owner may use the General Common
Elements and the Limited Common Elements of the completed Project
in accordance with the purpose for which they were intended
without hindering or encroaching upon the lawful rights of the
other Fractional Owners. Such General and Limited Common Elements
include hot tubs, saunas and sun deck. Use of such facilities
shall not involve any fee or change in addition to the regular
assessment. Each Fractional Owner in the Project shall be
entitled to the use of those parts of the General Common Elements
such as walks and other such facilities, all of which are intended
to enhance the utility and value of each of the Condominium Units
in the Project.
Section 9.7. Right of Entry.
A. A Fractional Owner shall grant the right of entry
to the Managing Agent or to any person authorized by the Board of
Managers in case of an emergency originating in or threatening his
Fractional Unit, whether the Fractional Owner is present at the
time or not.
B. A Fractional Owner shall permit other Fractional
Owners, or their representatives, when so required, to enter his
Fractional Unit for the purpose of performing installations,
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alterations or repairs to the mechanical or electrical services,
provided that request for entry is made in advance and that such
entry is at a time convenient to the Fractional Owner. In case of
an emergency, such right of entry shall be immediate.
ARTICLE X
AMENDMENTS TO BYLAWS
These Bylaws may be amended by majority vote of the Board of
Managers of the Association at a meeting duly constituted for such
purpose. The Fractional Owners may, at any annual meeting, or a
special meeting called for such purpose, amend these Bylaws. Any
such amendment adopted by the Fractional Owners may only be
changed by the Fractional Owners.
ARTICLE XI
MORTGAGES; SALES
Section 11.1. Notice to Association. A Fractional Owner who
intends to sell or mortgage his Fractional Unit shall notify the
Association through the Managing Agent or the Secretary of the
Board of Managers prior thereto, giving the name and address of
his Purchaser or Mortgagee. The Association shall maintain such
information in its files.
Section 11.2. Notice of Unpaid Assessments. The Association
shall report any unpaid assessments due from the Fractional Owner
within ten (10) days of the request of a Fractional Owner,
Purchaser or Mortgagee of a Fractional Estate.
ARTICLE XII
EVIDENCE OF OWNERSHIP, REGISTRATION OF MAILING
ADDRESS AND REQUIRED PROXIES
Section 12.1. Proof of Ownership. Any person on becoming a
Fractional Owner shall furnish to the Managing Agent or Board of
Managers a photocopy of a certified copy of the recorded
instrument vesting that person with an interest or ownership which
instrument shall remain in the files of the Association. A member
may be deemed not to be in good standing and may be denied the
right to vote at any annual or at a special meeting of members
unless this requirement is first met.
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Section 12.2. Registration of Mailing Address. Fractional
Owners shall by written notice to the Association specify his
mailing address to be used by the Asociation and/or Managing Agent
for the mailing of monthly statements, notes, demands and all
other communications.
Section 12.3. Required Proxies. If title to a Fractional
Estate is held by more than one person or by a firm, corporation,
partnership, cooperative association, association, other legal
entity or any combination thereof, such Fractional Owners shall
execute a proxy appointing and authorizing one (1) person or
alternate persons to attend all annual and special meetings of
members and thereat to cast whatever vote the Fractional Owner
himself might cast if he were personally present. Such proxy
shall be effective and remain in force unless voluntarily revoked,
amended or sooner terminated by operation of law; provided,
however, that within thirty (30) days after such revocation,
amendment or termination, the Fractional Owner shall reappoint and
authorize one person or alternate persons to attend all annual and
special meetings as is provided by this section. The requirements
contained in this Article XII shall be first met before a
Fractional Owner shall be deemed in good standing and entitled to
vote at any annual or special meeting of members.
ARTICLE XIII
ABATEMENT AND ENJOINMENT OF VIOLATIONS BY UNIT OWNERS
The violation of any rule or regulation adopted by the Board
of Managers, or the breach of any Bylaw, or the breach of any
provisions of the Declaration, shall give the Board of Managers or
the Managing Agent the right, in addition to any other rights set
forth therein (i) to enter the Fractional Unit in which, or as to
which, such violation or breach exists and to summarily abate and
remove, at the expense of the defaulting Fractional Owner, any
structure, thing or condition that may exist therein contrary to
the intent and meaning of the provisions thereof, and the Board of
Managers or Managing Agent shall not be deemed liable for any
manner of trespass or any other civil or legal violation; and (ii)
to enjoin, abate or remedy by appropriate legal proceedings,
either at law or in equity, the continuance of any breach.
ARTICLE XIV
NON-PROFIT
This Association is not organized for profit. No member,
member of the Board of Managers or person from whom the
Association may receive any property or funds shall receive or
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shall be lawfully entitled to receive any pecuniary profit from
the operation thereof, and in no event shall any part of the funds
or assets of the Association be paid as salary or compensation to,
or distributed to, or inure to the benefit of any member of the
Board of Managers; provided, however, always (i) that reasonable
compensation may be paid to any member or Manager while acting as
an agent or employee of the Association for services rendered in
effecting one or more of the purposes of the Association; and (ii)
that any member or Manager may be reimbursed for his actual and
reasonable expenses incurred in connection with the administration
of the affairs of the Association.
ARTICLE XV
EXECUTION OF DOCUMENTS
The persons who shall be authorized to execute any and all
instruments of conveyance under the provisions of the Declaration
shall be the President, Secretary or Assistant Secretary of the
Association, and the same persons shall be authorized to execute
promissory notes as is provided in section 4.4.ix of these
Bylaws.
n
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands this day of , 19
BOARD OF MANAGERS
KNOW ALL MEN BY THESE PRESENTS: That the undersigned
Secretary of the corporation does hereby certify that the above
and foregoing Bylaws were duly adopted by the Managers of said
corporation as the Bylaws of said corporation on the day of
, 19 , and that they do now constitute the
Bylaws of said corporation.
ATTEST:
Secretary
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FRACTION ESTATE PURCHASE CONTRACO
THE PROSPECTOR
RECEIVED FROM 01
Purchaser (as joint tenants), the sum of
Dollars ($ ), in
the form of , as earnest money
part payment for the following -described real estate situate in
the County of Pitkin, Colorado, to wit:
An undivided 1/15 interest as tenant -in -common
in Unit , according to the Fractional
Estate Declaration for The Prospector, and Map
thereof to be filed for record, together with
the exclusive right to possession and
occupancy of said Unit during Use Weeks ,
, and , commencing at noon on the
first of the Use Week and ending at
noon of the last day of the Use Week.
Purchaser acknowledges receipt of copies of the Fractional
Estate Declaration for The Prospector, including the Disclosure
Statement required by the City of Aspen which appears as Exhibit E
thereto; the Disclosure Statement Regarding the Condominium
Project; die and ractibna wnersN-fp -an-d--t ie'-xc-hange
-grogram provid-ea—pursuant to the regu a ions of the Colorado Real
Estate Commission; and the Articles of Incorporation and By -Laws
of The Prospector Fractional Owners' Association, all of which are
incorporated herein by reference. Defined terms herein shall have
meanings ascribed to them in the Declaration. Seller reserves the
right to amend or revise such documents to the extent permitted
therein.
Purchaser agrees to buy and Merit Investment
Inc., a Colorado corporation ("Seller"), agrees to
Fractional Estate for a purchase price of $
payable as follows:
Co. (of Aspen),
sell the
A. $ hereby receipted for, to be held
in escrow by until the
closing of this transaction or the availability of the Unit for
occupancy, whichever later occurs.
B. $ , as adjusted for usual and
customary closing costs payable in cash or certified funds at
closing.
*C. A portion of the purchase price is to be paid from the
proceeds of a loan from
, in the amount of , with
interest at the rate of percent per annum amortized
over years (the Loan ). The promissory note
evidencing the Loan shall provide for equal monthly
amortized installments of principal and interest of
$ each, payable in arrears on the first day
of each month commencing , 19 , and shall be
secured by a deed of trust for the benefit of
covering the Fractional Estate and a security agreement covering
the furniture, furnishings, equipment, fixtures, appliances and
utensils presently or hereafter located within the Fractiona
Unit. If the Closing occurs on a date other than the first day of
any month, interest shall be prorated from the Closing Date until
the end of the month and collected by from
Purchaser at Closing. Purchaser shall apply for the Loan within
fifteen (15) days of the date of this contract and shall supply
with such credit information as
requests, shall pay the usual charges therefor and shall execute
all loan documents at closing as required. Purchaser's
obligations under this purchase contract are contingent upon
obtaining the Loan as set forth above.
*Strike if inapplicable.
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This Purchase Contract is subject to the provisions
enumerated below:
1. Closing. The closing of this transaction is
specifically contingent upon the sale of eight (8) of the fifteen
(15) Fractional Estates in the Unit. Seller shall by notice to
Purchaser designate a date of closing of this transaction upon
satisfaction of this contingency not less than five (5) days after
such notice becomes effective, which closing date shall be on or
before , 198. The hour and place of closing shall
also be designated by Seller. A current title insurance
commitment (ALTA) insuring the Fractional Estate in an amount
equal to the purchase price thereof shall be furnished to
Purchaser prior to closing. Seller will deliver the title
insurance policy to Purchaser after closing and pay the premium
thereon. Title shall be merchantable in Seller subject to the
terms, covenants, payments and provisions of the Declaration; the
lien for real estate taxes for the year of closing; and easements,
restrictions, covenants and rights -of -way of record. On the date
of closing, Seller shall execute and deliver to Purchaser a good
and sufficient general warranty deed conveying the Fractional
Estate to Purchaser. Hazard insurance premiums, assessments of
Common Expenses, and real estate taxes and assessments for the
current year (based on the levy for the preceding year and the
most current assessed valuation or estimate of assessed valuation
or estimate of valuation for the Fractional Estate) shall be
apportioned to the date of closing. Purchaser shall pay the one-
half percent (1/2%) Aspen Real Estate Transfer Tax. In addition,
Purchaser shall pay a sum equal to three (3) months' Common
Expenses to the Association at closing, to be maintained as a
reserve for working capital and/or other purposes set forth in the
Declaration. Items of uncompleted construction in the Unit or in
the Common Elements which do not materially affect occupancy of
the Unit shall not delay the closing. A memorandum of the said
items shall be made in writing and signed by Seller and Purchaser
on or before the date of closing. Seller shall complete said
items within a reasonable time thereafter at Seller's expense.
Unless otherwise agreed to in writing, possession of the
Fractional Estate shall remain in Seller until full payment of the
purchase price to Seller. Any encumbrance required to be paid may
be paid from the proceeds of this transaction.
2. Destruction of the Project. In the event the Project is
damaged by fire or other casualty prior to the time of closing in
an amount of not more than ten percent (10%) of the total purchase
price of all the Units in the Project, Seller shall use its best
efforts to repair the same before the date of closing. In the
event such damage cannot be repaired within said time, or if such
damage shall exceed ten percent (10%), this Purchase Contract may
be cancelled at the option of either party. Should both parties
elect to carry out this Purchase Contract despite such damage,
then Seller shall be entitled to all the insurance proceeds
resulting from such damage to be used to repair or reconstruct the
premises. If either party elects to terminate this Purchase
Contract, then Purchaser shall be entitled only to so much of the
insurance proceeds as is required to repay Purchaser's earnest
money payment hereunder without interest.
3. Time of the Essence. Time is of the essence, and if any
payment or other condition hereof is not made, tendered or
performed by either the Seller or Purchaser as herein provided,
then this Purchase Contract, at the option of the party who is not
in default, may be terminated by such party. In the event of such
default by Seller, if Purchaser elects to treat the Purchase
Contract as terminated, then all payments made hereunder shall be
returned to Purchaser without interest. In the event of such
default by Purchaser, if Seller elects to treat the Purchase
Contract as terminated, then all payments made hereunder shall be
returned to Purchaser without interest. In the event, however,
that the non -defaulting party elects to treat this contract as
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being in full force and effect, the non -defaulting party shall
have the right to an action for specific performance and damages.
4. No Representation of an Investment Opportunity.
Purchaser acknowledges that Seller has not represented or offered
the Fractional Estate as an investment opportunity for
appreciation of value or as a means of obtaining income from the
rental thereof; that there is no rental arrangement available to
Purchaser by or through Seller or the Association; that any non -
personal use of the Fractional Estate made by Purchaser will be
solely within the prerogative of Purchaser.
5. Disclosures to Purchaser. Purchaser understands that
his Fractional Estate constitutes for all purposes an estate or
interest in property, separate and distinct from all other
Fractional Estates in the same Unit or any other Unit and that
such estate may be separately conveyed and encumbered. The
foregoing notwithstanding, the Association is responsible for the
payment of property taxes on and maintenance of the Condominium
Unit from the proceeds of the assessments for Common Expenses.
The Association's failure to pay the taxes or failure to pay for
maintenance work performed may result in a tax sale of the entire
Condominium Unit or a mechanic's lien being filed against it.
Further, Purchaser understands that Colorado eviction law and
procedure involves a minimum of ten (10) days and that Purchaser's
only effective remedy against another Fractional Owner who
wrongfully interferes with Purchaser's rights of use and occupancy
in the Unit is the liquidated damage provision of section 28.4 of
the Declaration. Any Fractional Owner who allows or suffers a
mechanic's lien, or other lien against the Unit shall similarly be
subject to the indemnification provision of said section 28.4.
Purchaser's Fractional Estate will be closed when eight (8) of the
fifteen (15) Fractional Estates in the Unit are sold, with the
remaining unsold Fractional Estates being held by the Seller for
sale; no guaranty can be given that the balance of the Fractional
Estates in the Unit will be sold. The Seller will be responsible
for payment of Common Expenses attributable to unsold Fractional
Estates.
6. Other Inclusions. Furnishings are included in the
purchase price and are specified in the inventory attached
hereto. Also included in the purchase price is one-half of the
cost, inc u inq oth the Annual Fee and the Monthly Fees, of a
Full Tennis Membership/Family membership for The Aspen Club, a
health and physical fitness facility, upon the terms and
conditions as set forth in the Aspen Club Application for
Membership, a copy of which Purchaser hereby acknowledges having
received. Said membership is for the period December 1, 1984,
through February 28 1987, and entitles the Purchaser, his family
and guests to use the facilities of the Aspen Club at such time as
said persons are occupying the Purchaser's Fractional Unit. Each
such user shall be responsible for any and all fees, other than
the Annual Fee and the Monthly Fees, incurred in using The Aspen
Club s facilities. One-half of the cost o the Mem ers ip, or
approximately 125.00, will be paid y each Owner as part of the
assessment for Common Expenses.
7. Warranties. Seller warrants the Unit and all general
and limited common elements appurtenant thereto against defective
labor and materials for a period of one (1) year from the closing,
and will repair or replace, at Seller's sole discretion, defective
work as necessary to bring the Unit and appurtenances into
conformity with the requirements of this agreement at its sole
expense; provided however, any latent defects in materials or
workmanship which are not discoverable by the Purchaser prior to
the expiration of one year from the closing shall not be limited
to the one-year period commencing with closing, but will be
limited to a one-year period commencing with the date that such
defect is discovered or should have been discovered in the
exercise of due care; further provided that no claim of breach of
warranty may be made more than three (3) years from closing.
Seller's warranty is strictly limited as follows:
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a. Any defect in an appliance incorporated
in the Unit and appurtenances which is subject to a
manufacturer's or dealer's warranty is limited to
the express warranty given by such manufacturer or
dealer, and Seller's obligations hereunder are
limited to fulfilling the warranty claim procedures
prescribed by such manufacturer or dealer and
reinstalling such applicable as corrected or
supplied by such dealer or manufacturer.
b. All warranty claims must be made promptly
upon discovery by Purchaser and Purchaser must
undertake all reasonable steps to mitigate any
damages to the Unit and appurtenances occasioned by
failure of warranty; in no event will Seller be
responsible for any consequential damages resulting
from any defect in the Unit and appurtenances
unless it fails to remedy such defect within a
reasonable period of time after it is notified of
such defect.
C. THE WARRANTY GIVEN BY SELLER HEREUNDER IS
GIVEN IN LIEU OF ANY WARRANTY WHICH MAY BE IMPLIED
UNDER THIS AGREEMENT OR BY LAW AND ALL OTHER
WARRANTIES NOT EXPRESSLY STATED HEREIN, WHETHER
EXPRESSED OR IMPLIED BY LAW OR OTHERWISE ARE
DISCLAIMED BY SELLER.
8. Prohibition Against Assignment. This Purchase Contract
may not be assigned by Purchaser without the express written
consent of Seller, which consent shall not be unreasonably
withheld.
9. Notices. All notices required hereunder shall be in
writing and shall be hand -delivered or sent by first class mail to
the addresses hereinafter set forth. Any change of address shall
be promptly reported to the other party in the same manner. All
notices so given shall be deemed effective upon deposit in the
United States mail, properly addressed with sufficient postage
thereon.
10. Entire Agreement. This Purchase Contract embodies the
entire agreement between the parties hereto relative to the
subject matter hereof, and there are no oral agreements existing
between the parties which are not expressly set forth herein and
covered hereby. This Purchase Contract may not be amended except
by an agreement in writing executed by both Seller and Purchaser.
11. General. Upon acceptance hereof by Seller, this
agreement shall become a Purchase Contract between Seller and
Purchaser and shall inure to the benefit of and be binding upon
the heirs, successors and assigns of said parties. This agreement
shall be construed in accordance with the laws of the State of
Colorado. The captions used herein are merely for easy reference
and have no effect on the terms and conditions herein.
12. Recission Notice. PURSUANT TO SECTION 20-24(F)(q) OF
THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO, AND SECTION
6-1-105(1)(s)(III) OF THE COLORADO REVISED STATUTES, EITHER PARTY
HAS THE RIGHT TO RESCIND THIS TRANSACTION WITHIN TEN (10) CALENDAR
DAYS FOLLOWING THE DATE OF THIS PURCHASE CONTRACT.
PURCHASER:
(Print or Type Name)
SELLER:
MERIT INVESTMENT CO. (OF ASPEN),
INC., a Colorado corporation
By:
(Signature)
-4-
0
(Signature)
(Date)
PURCHASER'S ADDRESS:
Telephone:
ACCOUNTING INFORMATION:
(Date)
SELLER'S ADDRESS:
MERIT INVESTMENT CO., INC.
P.O. Box 12197
Omaha, Nebraska 68112
Fractional Estate Sales Price $
Payment (Receipted for Herein) $
Additional Payment Due at Closing $
-5-
DISCLOSURE STATEMENT
REGARDING THE CONDOMINIUM PROJECT,
THE PLAN OF FRACTIONAL OWNERSHIP
AND THE EXCHANGE PROGRAM
The following information is provided to the Purchaser
pursuant to the requirements of the Rules for Subdivision
Developers of Time Share Projects promulgated by the Colorado Real
Estate Commission. Defined terms used herein shall have the
meanings ascribed to them in the Fractional Estate Declaration for
the The Prospector, a Condominium, and in the Fractional Estate
Purchase Contract for a Fractional Estate in a Unit in the
Prospector. THE STATE OF COLORADO HAS NOT PREPARED OR ISSUED
THIS DOCUMENT NOR HAS IT PASSED ON THE MERITS OF THE TIME SHARE
PLAN DESCRIBED HEREIN.
I. DISCLOSURES REGARDING THE PROSPECTOR CONDOMINIUM PROJECT
AND THE PLAN OF FRACTIONAL OWNERSHIP
a. The Developer of the Project is Merit Investment
Co. (of Aspen), Inc., whose address is 301 East Hyman Ave., Aspen,
Colorado 81611.
b. The Fractional Estates offered pursuant to the Plan
of Fractional Ownership consist of an undivided one -fifteenth
interest as tenant -in -common in the present estate in fee simple
of a Condominium Unit together with the right of exclusive
occupancy of the Unit during the Owner's "Use Weeks," as defined
in Section 1.20 of the Declaration.
C. The Project includes the following amenities, which
are General Common Elements: lobby area, laundry facilities,
third -floor sun deck and covered parking spaces. In addition,
_ each owner of___a Fractional Estate will obtain a membership which__
_ will entitle the owner, his family and guests to use The Aspen____
Club, a health and physical fitness facility, at such time as said
persons occupy IThe owner s unit` ,for the period December 1, 1984
through February _01___ . _one-half of the cost -of such -
membership, or approximtea $125.00, will be paid by each owner
as__part of the assessment for Common Expenses..
d. Each Fractional Unit in the Project will be divided
into 52 weeks, some of which will be Maintenance Weeks as defined
in Section 1.15 of the Declaration. Each Use Week constitutes a
period of exclusive possession and occupancy of a Fractional Unit,
as more partiuclarly described in Section 1.20 of the
Declaration.
e. PURCHASER MAY RESCIND THE PURCHASE CONTRACT BY
PROVIDING SELLER WITH WRITTEN NOTICE OF SUCH RESCISSION WITHIN
TEN (10) DAYS AFTER THE DATE OF THE PURCHASE CONTRACT.
f. There are no judgments or administrative orders
issued against the Seller which are material to the time-share
plan contemplated in the Declaration.
g. The identity of the managing agent under the time-
share plan has not yet been determined. Section 16.4 of the
Declaration provides that the Board of Managers of the Prospector
Fractional Owners' Association shall, by resolution, delegate
certain duties, powers and functions to a person or firm which
will act as Managing Agent. The powers and duties of the
Fractional Owners' Association or, upon delegation of such powers
and duties, of the Managing Agent, are enumerated in Article XVII
of the Declaration.
h. Seller estimates that the assessments for Common
Expenses which will be assessed against each undivided one -
fifteenth interest in and to a Unit at the time of the closing
under the Fractional Estate Purchase Contract will be
approximately per quarter. Such estimate is provided
for the Purc aser s in ormation as a good faith estimate only, is
not binding upon the Seller, and shall not prohibit or otherwise
restrict the Seller from adjusting the assessment for Common
Expenses in the manner and for the purposes provided in the
Declaration.
i. Pursuant to Article XVIII of the Declaration, the
Association will obtain and maintain at all times, to the extent
possible, fire insurance with extended coverage in the amount of
the aggregate maximum replacement value of all of the Units in the
Project, and casualty and public liability insurance.
j. There are no special assessments, existing or
proposed, to which the Purchaser may be subject. However, each
owner will be responsible for one-half of the cost of a membership
in The Aspen Club, as more fully described in subparagraph c.
above.
k. Section 4.6 of the Bylaws
agreement for professional management of
exceed three (3) years and shall provide
party without cause and without payment
sixty (60) days or more written notice,
payment of a termination fee upon thirty
notice.
provides that any
the Project may not
for termination by either
of a termination fee upon
or with cause and without
(30) days or more written
-2-
1. Colorado mechanics' lien law may authorize
enforcement of the lien by the sale of the entire time-share unit.
The Declaration states that no labor or services shall bg
performed or materials provided which
filing of a mechanic's lien against any Fractional Unit without
the prior consent of the Association.
M. The sales of time-share units within the Project
will be made by brokers and salesmen licensed by the State of
Colorado.
II. DISCLOSURES REGARDING THE EXCHANGE PROGRAM
a. The time-share exchange company providing the
exchange service to the Purchaser of the Fractional Estate is
Resort Condominiums International Inc. ("RCI"), 9333 North
Meridian Street, P.O. Box 80229, Indianapolis, Indiana 46280-
0229.
b. The Purchaser's contract with RCI is separate and
distinct from the Purchaser's contract with the Seller.
C. The Purchaser's participation in the exchange
program is not dependent upon the Seller's continued affiliation
with the exchange program. If the contractual relationship
between RCI and the Prospector is not renewed or is terminated,
the Owner's subscription to RCI may nonetheless remain active so
long as the Project continues to meet the criteria required for
inclusion in the exchange program, and if the Project continues to
recognize exchanges with this program.
d. Following the initial membership period, the
Purchaser' cipa ion in the exchange program is voluntary.
e. The terms and conditions of the Purchaser's
membership with RCI are set forth at page 396 of RCI's Annual
Directory (the "Annual Directory"), and in the attached "Guide to
vacation Exchange" (the "Guide"), copies of both of which will be
provided to Purchaser prior to the execution of the Fractional
Estate Purchase Contract. The terms and conditions as set forth
in the Annual Directory provide that RCI's exchange program may be
changed from time to time by RCI upon notice to its subscribing
members.
f. Subscribing members will be notified in RCI's
publications of any changes in the exchange program and in the
resorts available for exchange.
g. A description of the limitations, restrictions,
accrual rights and priorities employed in the exchange program are
described at pages 354-382 of the Annual Directory, as well as in
the Guide.
-3-
h. All exchanges depend upon the availability of the
Exchange Units, and are processed on a space -available basis.
Therefore, there is no guarantee that a member will receive a
specific exchange request.
i. If a subscribing member's Use Week is assigned and
the choices listed on his or her exchange request form are
unavailable, the member may either: (a) accept available alternate
choices for exchange, or (b) accrue the unused time for subsequent
use.
j. The Seller will pay the Purchaser's membership and
subscription fees for the balance of the calendar year in which
the Closing occurs, and for the calendar year immediately
following the year of the Closing. Effective January 1, 1984, a
one-year subscription to the exchange program's publications and
benefits costs $47.00. An exchange fee of $52.00 for each
exchange other than an Internal Exchange (i.e., an exchange at the
same resort from which the member has deposited vacation time) for
each week for which the Purchaser requests an exchange must
accompany each exchange request; an exchange fee of $12.00 must
accompany each request for an Internal Exchange. Fees may be
changed from time to time upon notice provided in the exchange
program's publications.
k. The names and locations of the resorts
participating in the exchange program are set forth in the Annual
Directory.
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EXHIBIT A
TO THE PROSPECTOR DISCLOSURE STATEMENT
RESUME OF
L. VERNON CAGLE
TIME SHARE AND OTHER EXPERIENCE:
For the past twenty-five years, L. Vernon Cagle has been
involved in the construction, real estate and development
business During the past ten years, one of Mr. Cagle's
companies completed construction Projects in Nebraska and
Colorado vaiued in excess of $25,000 000.00 as outlined in
t e Projects Competel, section of this resume. Other of Mr.
Cag e s companies are involved in acquisition of property for
investment and development and have provided financing
services to purchasers ot tractionalestates in t e Timber
Run Condominiums. In 1980, Mr. Cagle entered the time share
business with the Timber Run Condominiums in Winter Park,
Colorado. This project pioneered the concept of fractional
ownership, which is the most rapidly growing form of real
estate ownership time sharing in Colorado. To date, 50 of
the planned 100 units in the project have been completed.
Other of Mr. Cagle's companies constructed all of the
condominium buildings at Timber Run^ and provided financing
for purchasers of the fractional estates in Timber Run by
originating loans, reviewing credit histories, and preparing,
closing and funding loan transactions. The loans provided to
the Timber Run purchasers have been sold or hypothecated in
order to provide additional financing.
BANK REFERENCES:
Packers National Bank
4710 South 23rd Street
Omaha, Nebraska 68107
Denny Woods - President
Donald Thompson - Executive Vice President
(402) 731-4900
Bank of Winter Park
P. 0. Box 123
Winter Park, Colorado 80482
Larry Chance - President
(303) 726-5531
•
Security Pacific Finance Corporation
3033 South Parker Road, Suite 300
Aurora, Colorado 80014
Garrett Raetz - Branch Manager
(303) 696-7732
PROFESSIONAL REFERENCE:
Braun/Vanderlip/Fulton, Architects
1664 Lafayette Avenue
Denver, Colorado 80218
Jay Vanderlip
(303) 832-4942
LEGAL COUNSEL:
Pendleton & Sabian, P.C.
Suite 1000
303 East Seventeenth Avenue
Denver, Colorado 80203
W. Michael Clowdus
(303) 839-1204
PROJECTS COMPLETED: - 1978-1983
a. Timber Run Condominiums
Winter Park, Colorado
Architect - D. K. Rice & Associates
Denver, Colorado
b. Dental Office/Shopping Center
90th & Fort Streets
Omaha, Nebraska 68152
Owner - Benjamin Nachman, D.D.S.
5156 North 90th Street
Omaha, Nebraska 68152
(402) 572-8000
A-2
• 0
C. Office & Warehouse
Venger Distributing Company
4990 "G" Street
Omaha, Nebraska 63134
Architect - Dana, Roubal, Larson & Associates
Omaha, Nebraska
d. Office Building
9910 North 49th Street
Omaha, Nebraska
Owner - A. Thompson
Architect - Leo A. Daly & Company
Omaha, Nebraska
e. Cooper Creek Square - I - Commercial Shopping Center
Approximately 70,000 sq. ft.
Winter Park, Colorado (Downtown)
Architect - Braun/Vanderlip/Fulton
Denver, Colorado
PERSONAL DATA:
n
Business Address: P. 0. Box 7354
Omaha, Nebraska 68107
Telephone No. (402) 734-7555
A-3
E
EXHIBIT B
TO THE PROSPECTOR DISCLOSURE STATEMENT
RESUME OF
THOMAS A. SCHOBER
CURRENT BUSINESS ACTIVITIES:
President, Midtown Development Corp.
Midtown Development Corp. is a Colorado corporation formed in
1983 to develop a 234 unit Holiday Inn/Condomnium Hotel in
Winter Park, Colorado. Construction and marketing is
anticipated to begin in the Fall of 1984 with completion
scheduled for November of 1985.
PRIOR BUSINESS ACTIVITIES:
Vice President, Director and Shareholder of Colorado Rockies
Development Corporation
Since 1971, Colorado Rockies Development Corporation has
developed and constructed over 450 condominium units in the
Winter Park area.
Vice President, Director and Shareholder of Bradley/Schober
and Associates
Bradley/Schober and Associates was formed in 1971 to market
and manage the units built by Colorado Rockies Development
Corp., and to handle re -sales and general real estate in the
Winter Park area. Prior to 1983 it was the leading real
estate company in Grand County, Colorado, according to
statistics compiled by the Grand County Board of Realtors.
Bank Reference:
Bank of Winter Park
P. 0. Box 123
Winter Park, Colorado 80482
Larry Chance - President
(303) 726-5531
0
Professional Reference:
Atwater and Blodgett
Attorneys at Law
Winter Park, Colorado 80482
Randy Atwater - President
(303) 726-5775
Legal Counsel:
Pendleton & Sabian, P.C.
Suite 1000
303 East 17th Avenue
Denver, Colorado 80203
W. Michael Clowdus
(303) 839-1204
Personal Data:
Business Address: P.O. Box 318
Winter Park, Colorado 80481
Phone Number: (303) 726-9455
B-2
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EXHIBIT C
TO THE PROSPECTOR DISCLOSURE STATEMENT
RESUME OF
TERRY LIMING
Terry Liming is one of the plan managers. His mailin
address is P.O. Box 5432, Snowmass Village, Colorado 81615. Mr.
Limin will oversee and coordinate the securing of all
governmental approvals necessary to implement the Fractional
Estate project as well as the implementation of the marketing and
sales programs. He will be responsible for setting up the initial
budget and method of assessment and dues collection. Mr. Liming
will also serve as the local on -site representative of the
developer to look after the project and accomplish any daily or
other regular functions.
Terry Liming has been involved in the timeshare industry
since 1978 when he began as a salesman and then was promoted to
sales manager for the Snowmass Inn Resort Club. Beginning in
January 1979 and continuing through August of 1980, Mr. Liming
served as the project director for the Snowmass Inn Resort Club.
In August of 1980 he left the Snowmass Inn Resort Club to found
Timber Run Realty, the marketing entity for the project. Mr.
Liming has been the plan manager for the Timber Run Con ominiums,
a fractional ownership condominium, in Winter Park, Colorado,
since the fall of 1980. Mr. Liming serves on the advisory board
for Resort Condominiums International, which has corporate
headquarters in Indianapolis, Indiana -A Mr. Liming has also been a
speaker for the Colorado Association of Realtors on the topic of
timesharing, and spoke on that topic at the Western Slope
Conference of the Colorado Association of Realtors.
REFERENCES
Dick Moebius - Dick Moebius Real Estate - Snowmass Inn Resort
Club - P. 0. Box 5640, Snowmass Village, Colorado 81615 -
(303) 923-3584
John Dehahn - President, Resort Condominiums International -
933 Meridian Street, Indianapolis, Indiana 46280 -
(317) 846-4724
J. David Penwell - Vice President, Corporate Counsel, R.C.I. -
Bozeman, Montana - (406) 587-0693
i
0
Bank of Winter Park - President, Larry Chance - P. O. Box 123,
Winter Park, Colorado 80482 - (303) 726-5531
Joe Chernow - President, Timber Run Fractional Owner's Association
- C.P.A. - President, Yellow Cab Co., Houston, Texas 77098 -
(713) 224-4445
John Cooley - Office Broker, Cooley Investment Co., 521 E.
Hyman Avenue, Aspen, Colorado 81611 - (303) 925-4614
Guy DeCarlo - Office Broker, Snowmass Real Estate Co., P. O.
Box 5000, Snowmass Village, Colorado 81615 - (303) 923-3704
C- 2
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EXHIBIT D
TO THE PROSPECTOR DISCLOSURE STATEMENT
RESUME OF
JANET MANNING
Janet Manning, Administrative Assistant to the Developer, has
for the past four years worked with all aspects of the Timber Run
Fractional Ownership program in Winter Park, Colorado.
Ms. Manning's experience with Timber Run has given her the
knowledge and expertise to act as Plan Manager for The Prospector,
Aspen, Colorado.
Her duties at The Prospector will include, but not be limited
to, the following:
(a) Keeping and maintaining complete and accurate accounting
records.
(b) Providing the Board of Managers with financial
information on a regular basis.
(c) Conducting all day-to-day business as deemed necessary
by the Board of Managers.
References:
Donald E. Thompson
Senior Vice President
Packers National Bank
P.O. Box 7340
Omaha, Nebraska 68107
402-731-4900
Taylor Owen
Executive Vice President
United Bank of Skyline
1055 - 16th Street
Denver, Colorado 80217
303-393-9881
Kenneth Patry, C.P.A.
Deloitte Haskins & Sells
1444 Woodmen Tower
Omaha, Nebraska 68102
402-348-1444
•
Monte Taylor
Attorney at Law
2120 So. 72nd Street
Omaha, Nebraska 68124
402-391-3712
D-2
EXHIBIT E
TO THE PROSPECTOR DISCLOSURE STATEMENT
RESUME OF
TIMER RUN REALTY OF WINTER PARK, COLORADO
The name of the marketing entity is Timber Run Realty. Its
address is P. 0. Box 169, Winter Park, Colorado, 80482. Timber
Run Realty was formed in September, 1980, and was responsible for
the marketing of the Fractional Estates in the Timber Run
Condominiums. The current officers of the company are as
follows:
Jeffrey L. Cagle President
L. Vernon Cagle Vice President
Harold C. Hansen Secretary Treasurer
Thomas A. Schober Assistant Secretary
Mr. Liming will be the Associate Broker for Timber Run Realty
in charge of the company's Aspen o Vie, and will serve as the
sales and marketing director for the sale ot The Prospector
Fractional Estates. Personal references for L. Vernon Cagle,
Thomas A. Schober and Terry Liming may be tound in their
respective resumes which are attached as exhibits to t is
Disclosure Statement.
There are no lawsuits pending or investigations that have
been undertaken against the marketing entity or listing broker.
EXHIBIT F
TO THE PROSPECTOR DISCLOSURE STATEMENT
FINANCING
Merit Investment Co. (of Aspen), Inc., will provide financing
to creditworthy purchasers at favorable rates. It is presently
anticipated that such financing will require from ten percent to
twenty percent or more of the purchase price as a down payment,
will be provided at fixed interest rates ranging from ten percent
to eighteen percent, and will be for a term of up to ten years
from the date of closing. All such terms are subject to variation
as deemed necessary or -Iesiraale by Merit based upon the
purchaser's creditworthiness, current market conditions and rates,
and requirements imposed by lenders involved in the secondary
mortgage market for the loans made by Merit.
• •
THE PROSPECTOR - ASPEN
Annual Cost per Unit
Spa
$ 527.00
Gas
725.00
Water and Sewer
200.00
Electricity
868.00
Building Insurance
403.00
Content Insurance
Liability Insurance
105.00
Cable T.V.
250.00
Trash Collection
46.00
Time Share Tax
Telephone
360.00
Snow Removal
150.00
Exterior Maintenance
250.00
Interior Maintenance
250.00
Condominium Property Management
1,475.00
Firewood
100.00
Common Amenities
30.00
Property Tax
1,200.00
F F & E Reserve
1,500.00
Building Reserve
526.00
Bookkeeping, Telephone, Adr�inistration
250.00
CPA Review
125.00
License Fee
265.00
r •
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A GUIDE TO VACATION EXC�iANGE
This booklet is provided to explain the exchange program made available
by Resort Condominiums International, Inc. ("RCI"). We urge you to review
carefully this information to insure that you understand fully the terms,
conditions, use and operation of the RCI exchange program.
RCI is an Indiana corporation with its principal offices located at
9333 N. Meridian Street, P. O. Box 80229, Indianapolis, Indiana 46280-0229.
The RCI exchange program is coordinated from this principal office location.
Officers of RCI are:
Jon H. DeHaan, President
Christel DeHaan, Executive Vice -President
Gary Chaffee, Vice -President
Larry B. Gildersleeve, Vice -President
M. R. Choate II, Secretary
Pelen McWilliams, Treasurer
Directors of RCI are:
Jon H. Deiaan
Glenn Cunningham
Helen McWilliams
RCI is a wholly -owned subsidiary of Endless Vacation Systems, Inc., a
privately held corporation whose shareholders are Jon H. DeHaan and
Christel DeHaan.
DEFINITIONS
Definitions of certain special words and phrases which you will find in
the text of this booklet are set forth below.
Demand Designation - Vacation time is designated for exchange purposes
as Red (higher demand), White (average demand), and Slue (lesser
demand). You may not request vacation time uhich has a demand
designation greater than the vacation time you deposit in the RCI
SPACEBANK® pool.
Exchange Occupancy - The number of persons who may occupy a unit at a
host resort, based upon the exchange occupancy of the vacation time you
deposit in the RCI SPACEBANK® pool.
Fair Exchange - The RCI Exchange Program operates on this concept which
requires that the demand designation and exchange occupancy of vacation
time requested from the RCI SPACEBANK&I pool cannot exceed the demand
designation and exchange occupancy of vacation time deposited.
Home Resort - The resort location from which vacation time is deposited
into the RCI SPACEBANK® pool.
Host Resort - Zhe resort location at which an RCI Member has received a
confirmed exchange.
RCI Affiliated Fesort A resort location at which RCI has a
contractual relationship with the resort's developer or home owners
association(s).
RCI Member - A person who purchases vacation time at an RCI Affiliated
Resort, executes an RCI Membership Agreement, and is enrolled with RCI.
SPACEBAANKO pool_- The collection of deposited vacation time from which
RCI confirms exchange requests.
Unit Return - A written notice from RCI returning the use of your
deposited vacation time to you. r1he Unit Feturn notice returns your
-2-
SPACE:BANKS pool deposit to you because it was not withdrawn by another
RCI Mew er and you did not receive or cancel a confirmed exchange.
However, you are still eligible to request an exchange in the current
calendar year.
Vacation time - I-eek interval(s) that you purchase or week interval(s)
that you deposit in the RCI SPACEBANK® pool.
RCI IS AN INDEPENDENT EXCHANGE 0CflPANY
RCI makes available an exchange program (the "ICI Exchange program"),
together with related benefits and services, to individuals who purchase at
resort locations with which RCI has a contractual relationship ("Affiliated
Resorts"). The business relationship between RCI and an Affiliate Resort is
governed solely by this contract ("Resort Affiliation Agreement") and no other
relationship exists between RCI and Affiliated Resort developers, sellers, or
managing entities. RCI is an independent exchange service company and is not
owned, operated, or controlled by any Affiliated Resort developer, seller, or
managing entity. Neither RCI nor any of its officers or directors has any
legal or beneficial interest in any developer, seller, managing entity, or
timesharing plan participating in the RCI Exchange Program. The RCI Exchange
Program is designed for intermittent use, so purchasers should select a Home
Resort location, demand designation, and unit occupancy that best meet their
vacation needs. The Exchange privilege should not be the only reason for
making a purchase.
YOUR PARTICIPATION IN THE RCI EXCHANGE PROGRAM
Purchasers of timesharing plans at Affiliated Resorts enter into two
separate contracts, the first with the developer or seller of the timesharing
plan to purchase a timesharing interest, and the second with RCI for
membership and eligibility to participate in the RCI Exchange Progcam
�J
C
(the "RCI Membership Agreement").
The RCI Membership Agreement between you
and RCI is a separate and distinct contract from the agreement between you and
the developer or seller of a timesharing plan.
You are entitled to become an RCI Exchange pram member ("RCI
Member") and to participate in the RCI Exchange pram based upon the
following four conditions: (1) the resort location at which you have
purchased has a contract with RCI (the resort location is an Affiliated
Resort); (2) based upon the terms of that contract the developer has cQmnitted
to RCI, among other things, that the Affiliated Resort will maintain high
qualitative, fiscal, and managerial standards and honor all confirmed RCI
exchanges; (3) the developer or seller arranges at the time of purchase for
your initial participation in the RCI Exchange Program, including submission
of a subscription fee for Eihdless Vacation, the publication chosen by RCI to
communicate information concerning the Exchange program to RCI Muss; �d
_(4) the developer or seller sends a completed RCI Membership Agreement,
together with other pertinent information concerning you and your timeshare
purchase to RCI. Zhe collection and submission to RCI of the foregoing
payment, together with this ownership information allows us to waive the RCI
initial membership fee (currently $150) which is otherwise required for RCI
Member ship.
Your participation in the RCI Exchange program is governed then by two
agreements: the Resort Affiliation Agreement, which is the contract between a
resort developer and RCI, and the RCI Membership Agreement between you and RCI.
If the developer of an Affiliated Resort fails to perform his
contractual obligations, or if the Resort Affiliation Agreement is not renewed
or is terminated either by RCI or the Affiliated Resort, your right to
exchange your timeshare purchase located at that resort terminates.- RCI will
allow existing RCI Members at such a resort to continue to exchange only if
-4-
•
i
(1) that resort maintains the high qualitative, fiscal, and managerial
standards required by the original Resort Affiliation Agreement; and (2) the
resort continues to honor exchange confirmations submitted by RCI. Individual
RCI Memberships may be maintained and renewed by owners at a resort which no
longer has a Resort Affiliation Agreement only if conditions stated above
continue to be met.
Your participation in the RCI Exchange program is governed as well by
the RCI Pla bership Agreement, which you will be asked to sign. Me present
terms and conditions of the RCI Membership Agreement are also set out on
page _ of this booklet. RCI reserves the right to add to, delete, or modify
these terms and conditions, and will notify all RCI Members in Endless
Vacation regarding any such addition, deletion, or modification. The RCI
Membership Agreement requires us to make the RCI Exchange program available to
you, subject to the terms and conditions contained in that agreement, and
requires you to be an RCI Member in order to participate in the RCI Exchange
Program. As an RCI Member your participation in the RCI Exchange pram is
voluntary. E3y signing the RCI Membership
Agreement and agreeing to its terms _
at the time you purchase a timesharing interest, you are eligible to
participate in the RCI Exchange program as an RCI Member for the initial
period arranged by the developer or seller of the Affiliated Resort at which
You purchased (the "Initial Membership"). Following the Initial Membership
period, you must remain an RCI hember to participate in the RCI Exchange
Pram. To insure that you are accurately informed concerning the terms,
conditions, and operation of the RCI Exchange program, as well as Affiliated
Resorts participating -in—the-
program, RCI Members must have a current
subscription to Endless Vacation. Subscriptions to ErxUess Vacation are on a
calendar year basis and all subscriptions expire December 31. If your status
as an RCI Member ceases due to non -renewal and you do not renew your
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subscription within 90 days, you must pay the RCI Initial Membership fee
(currently $150) and resubscribe to Endless Vacation.
Subscription fees effective in 1984 are:
Initial -
$ 47.00 - $64.00
Renewal -
1 year - $ 47.00
3 year - $119.00
5 year - k84.00
The subscription fees set forth above are effective for 1984 only and such
fees are subject to change thereafter at the sole discretion of the publisher
of Endless Vacation. You will be advised in Endless Vacation publications
prior to implementation of any subscription fee rate change.
- - - HOW TO USE THE RCI EXCHANGE PROGRAM
" An exchange may be requested through the RCI Exchange Program only if
an RCI Member first deposits ("hanks") vacation time in one week intervals
( "vacation time") into the RCI SPACEBANKS pool. The RCI Exchange Program
works on a calendar year basis with a "deposit" and "withdrawal" system
similar to a checking accoount. In, order to make a "withdrawal," a Member must
first "deposit" vacation time in the SPACEBANKr& pool from units available for
occupancy as determined by RCI.
Depositing time in the SPACEBANK® pool does not relieve the Member's
obligation to pay any maintenance fee assessment, or similar charge, at his
own resort. Cbnversely,-the receipt of a confirmed exchange does not obligate
the member to pay these fees to the resort into which he is confirmed.
DEPOSITING VACATION TIME
You may bank vacation time with RCI as much as one year and as little
as 14 days before the commencement of each week deposited. However, the RCI
Exchange Program permits three types of banking, each of which is determined
by when and how you bank your vacation time.
1. Standard Banking' - Vacation time must be deposited by an RCI
Member not more than one ear and not less than 60 days before
the commencement of that week by completing and submitting to RCI
a SPACEBANK® deposit card ("SPACEBANK® Card") .
2. late Banking - Vacation time must be deposited by an RCI Member
not more than 59 days and not less than 14 days before the
commencement of that week by completing and submitting to RCI a
SPACEBANK® Card.
3. Instant Banking' - Vacation time must be deposited by an RCI
Member by telephone at the same time an Instant Exchange" (see
- = REQUESTING AN EXCHANGE below) is accepted by that RCI Member.
This vacation time must be deposited no less than 14 days before
the commencement of that week and must be for the same calendar
year as the vacation time accepted through the Instant Dcchange".
The following terms apply to all vacation time deposits:
A. Vacation time located at resorts outside the United States,
Canada, or the Caribbean must be deposited not less than 60 days
prior to the commencement of that vacation time; late Banking"
and Instant Banking" may not, therefore, be used for such
deposits. Scheduling policies observed by resorts located in the
United States, Canada, or the Caribbean may also restrict use of
Late Banking and Instant Banking'. We urge you to contact your'
home resort for information relating to such scheduling policies.
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I
B. Those FCI metiers who own unspecified or "floating" vacation time
must obtain an assignment from the resort at which that vacation
time is owned before it may be banked with RCI.
RCI Members who have deposited vacation time into the RCI SPAC BANK®
pool receive a written deposit acknowledgement from RCI.
ASSIGII= OF DEPOSITED VACATION TIME
Fbllowing receipt of an RCI Member's SPACEPAW& Card or Instant
Banking-, information concerning the deposited vacation time is entered into
the SPACEBANK& pool. Vacation time which is deposited through Standard
Banking', Late Banking", or Instant Banking' may then be assigned by RCI to
another RCI Member. Submission or fulfillment of an exchange request made by
an RCI Member depositing vacation time is not required in order for RCI to
----assign that vacation time to another RCI Member. Once deposited, vacation
time'may be removed from the SPACEBANK® pool only at the written request of
the RCI Member who deposited it. Deposited vacation time may not be removed
if assigned to another RCI Member, or if the RCI Member who deposited it has
received an Exchange Confirmation.
If you utilize the Standard Banking' procedure, and your deposited
vacation time is assigned to another RCI Member, the priority of your exchange
request is increased (see PROCESSING AN EXCHANGE PDDUEST: PROCEDURES AND
PRIORITIES below). If you do not receive a confirmed exchange (or cancel a
confirmed exchange) in the same calendar year as that in which your vacation
time assigned to another RCI Member occurs, you may request an Accrual
Rxchange' in the following calendar year (see RDDUE,SI'ING AN EXCHANGE below)._ - -
a: M
0,
C
If you have utilized the Standard Banking' procedure and your deposited
vacation time is not assigned to another RCI Member, and if you have not
received a confirmed exchange (or cancelled a confirmed exchange), your
deposited vacation time will be returned to you ("Unit Return"). You will
receive a Unit R--turn Notice from RCI 14 days prior to the commencement of
your deposited vacation time and you may use this returned vacation time
yourself.
If you utilize Late Sinking', you are only eligible to request an
exchange in the calendar year in which your deposited vacation time occurs.
late Banking' has a lower exchange priority than Standard Banking' (see
PROCESSING AN EXC IVkWIE REQUEST: PROCE URES AND PRIORITIES below) . Neither an
Accrual
Exchange'
nor an
International
Exchange is available if Late Banking'
is used,
and Unit
Return
does not occur
for vacation time deposited through
Late -Banking'.
- REQT_=ING AN EXCHANGE -
The RCI Exchange Program is based upon the "Fair Exchange" concept.
Fbr exchange purposes, vacation time at each resort is designated as Red
(higher demand), Ydhite (average demand), and Blue (lesser demand). You may
not request vacation time which has a demand designation cEeater than the
vacation time you deposited, although you may request vacation time which has
an equal or lesser demand designation than that deposited. The "Fair
Exchange" concept also applies -to unit occupancy designated for exchange
purposes ("Exchange Occupancy"). The Exchange Occupancy of the unit(s)
requested may equal but cannot exceed the Exchange Occupancy of the unit(s)
deposited. Demand designation and Exchange Occupancy are applicable to all
exchange requests made by RCI Members. However, RCI at its sole discretion
•
E
reserves the riot to waive these restrictions on a case -by -case basis when
processing Instant Exchange' requests.
The deposit of vacation time into the RCI SPACEBANK® pool by an RCI
Member allows the member to request an exchange for the same amount of
vacation time deposited, subject to space availability. The RCI Exchange
Program operates on a calendar year basis: travel dates requested must fall
in the same calendar year as the vacation time deposited, unless the RCI
Member is eligible for an Accrual Exchange' (see "Accrual Exchange` below) .
Exchange requests to RCI may be made in either of two ways: in writing or by
telelphone. Five exchange options are available to RCI Members:
1.
2.
3.
Standard Exxdhangee' - An exchange requested by an RCI Member in
writing by completing and submitting an RCI Exchange Request
Form. A Standard Exchange Request is for resorts located in the
_ United States,
Canada,
and
the Caribbean and
may be made not more
than one year
and not
less
than 30 days prior
to the commencement
of the earliest travel date sought.
International Exchange - An exchange requested by an RCI Member
in writing by ebmpleting and submitting an RCI Exchange Request
Form. An International Exchange Request is for resorts located
outside the United States, Canada, or the Caribbean and may be
made not more than one year and not less than 60 days prior to
the commencement of the earliest travel date sought.
Instant Exchange' - An exchange requested by placing a telephone
call to RCI 29 d ys to 2 days prior to the commencement of the
travel -date sought. —If the RCI member -has not already done so,
vacation time may be deposited at the same time an Instant
Exchange' is requested and confirmed. Chly resorts located in
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the United States,
Canada, and
the
Caribbean may be requested
through the Instant
Exchange',
and
only those RCI Members served
by RCI's Indianapolis office are eligible to use the Instant
Exchange-.
4. Accrual Exchange' - An exchange requested for a travel date(s)
occurring in the calendar year following the calendar year for
which vacation time was deposited. An RCI Member may request an
Accrual Exchange" only if deposited vacation time is assigned and
no Exchange Confirmation against that deposited vacation time is
received or cancelled in the calendar year in which the deposited
vacation time occurs. Vacation time provided to an RCI Member
and owned by an Affiliated Resort developer or seller
( "Supplemental Week") does not qualify the RCI Npsnber who
deposited it to an Accrual Exchange'. An Accrual Exchange"
request may be submitted in writing or by telephone, but must be
for travel dates occurring in the calendar year following the
calendar year for which vacation time was deposited. In order to
request an Accrual Exchange", one must be an RCI Member for the
calendar year in which the travel dates requested for the Accrual
Exchange- occur.
5. Internal Exchange" - An exchange requested at the same resort (or
group of resorts, :if owned by the same Affiliated Resort
developer) from which the RCI Member has deposited vacation
time. An Internal Exchange" may be submitted in writing or by
telephone.
An exchange service fee of $52.00 ( "Exchange Fee") for each week
requested is required by RCI to process all exchange requests in 1984 other
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than an Internal Exchange' request. An exchange service fee of k2.00 is
required for all Internal Exchange' requests ( "Internal Exchange Fee") . The
above exchange fees are applicable only for exchanges processed in 1984 and
may be changed by RCI in subsequent years. RCI Members will receive advance
notification of any such change in Ehdless Vacation publications. Exchange
fees are refunded if RCI is unable to provide an RCI Member a confirmed
exchange.
PROCESSING AN EXCHANGE REQUEST: PROCEDURES AMID PRIORITIES
All exchange requests are entered and searched against available
vacation time contained in the ICI SPACEBANK® pool. RCI's ability to confirm
an exchange request is based upon space availability and RCI cannot guarantee
that it can fulfill specific exchange requests. To increase the likelihood
that -an exchange request will be fulfilled, RCI encourages RCI Members to
provide more than one resort choice and travel date. In the event requested _
;=-resort locations and/or travel dates are not available in the RCI SPACEBANK®
pool, RCI will offer alternative resort locations and/or travel dates which
are available. If deposited vacation time is assigned and requested resort
location(s) and/or travel dates are unavailable, an RCI Member may (a) -accept
alternative resort locations and/or travel dates, or (b) request an Accrual
Exchange' (an Accrual Exchange' may -not be requested if the assigned time is
deposited through late Banking'r).
Processing of an exchange request is determined by the priority of that
exchange request. Exchange requests are prioritized, from highest to lowest,
in the following order: - --__
1. Requests from RCI Members whose vacation time has been assigned
to another ICI Member;
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n
2.
Requests
from
RCI
Members
who seek an Internal Exchange-;
3.
Requests
from
RCI
Members
whose vacation time has not been
assigned to another RCI Member or returned through a Unit Return
Notice, based upon the likelihood that the deposited vacation
time will be assigned to another RCI Member;
4. Requests from RCI Members whose vacation time is returned through
a Unit Return Notice;
5. Requests from RCI Members using late Banking regardless of
whether deposited vacation time has been assigned to another RCI
Because an Instant Exchange" is made simultaneously with Instant
Banking", the above exchange priorities do not apply to Instant Banking".
EXCHANGE CONFIRWffIONS
Resort location/travel date exchange requests received from RCI Members
are entered and searched against space available in the RCI SPACEBANK® pool.
If any resort location/travel date which you request is available, the
computer automatically confirms that exchange request, subject of course to
seasonal demand designation, Exchange Occupancy, and priorities set out
above. As the above exchange request priorities indicate, you may receive an
Exchange Confirmation even if the vacation time which you deposited is not
assigned to another ICI Member.' All exchange confirmations are sent to you in
writing, except Instant Exchange- confirmations, which may be sent in writing
or simply confirmed by telephone. If no resort location/travel date requested
by an RCI Member is available, an RCI Exchange Coordinator will contact you,
either in writing or by telephone, to offer alternative resort locations
and/or.travel dates which are available.. You may accept or reject such an
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alternative resort location(s) or travel date(s). If you accept an
alternative resort location or travel date, you will receive an Exchange
Confirmation. If you receive an Exchange Confirmation and have not received a
Uhit Return Notice, you relinquish all right to use the vacation time which
you deposited with RCI. Vacation time deposited by an RCI Number and against
which RCI has provided an Exchange Confirmation may be used by RCI for
inspection visits or other corporate purposes, if such vacation time is not
assigned to another RCI Member.
Exchange Confirmations may be used only by the RCI Member receiving the
exchange, unless the Exchange Confirmation is given to another person through
the use of an RCI Guest Certificate. An RCI Guest Certificate may be obtained
from the Exchange Department at RCI's principal office in Indianapolis,
Indiana. The fee for an RCI Guest Certificate in 1984 is k 5.00.
You may cancel an Exchange Confirmation only if you notify FCI in
_writing. Your Exchange Fee is not refunded if you cancel an Exchange
Confirmation. If you cancel an Exchange Confirmation more than 30 days prior
to the commencement of the exchange you received, you may request another
exchange without depositing additional vacation time. You must submit an
additional Exchange Fee (or Internal Exchange Fee) and may request another
exchange either in writing or through Instant Exchange If you cancel an
Exchange Confirmation less than 30 days but not more than 14 dam prior to the
oommencement of the exchange yqu received, you may request another exchange
without depositing additional vacation time. However, you must submit an
additional Exchange Fee (or Internal Exchange Fee) and may only request an
Instant Exchange".- If you' cancel an Exchange Confirmation less than 14 days
prior to the commencement of the exchange you received and wish to request
another exchange, you must, for each exchange requested, deposit additional
MM
•
vacation time into the SPACEBANK& pool and submit an additional Exchange Fee
(or Internal Exchange' Fee)."
TE;t-IS AND ODNDITIONS OF ME2,1BERSHIP
1. RCI utilizes Endless Vacation publications as the vehicle through
which it provides information and lists all services to RCI Members.
2. The Membership Agreement signed by a purchaser enrolled in RCI is
a separate and distinct contract from the purchaser's agreement with
the seller of the timesharing plan. RCI is not a real estate offering,
nor is there an agency or ownership relationship between RCI and its
affiliated resorts. RCI is an independent service company. Neither
the company, its officers nor directors has any legal or beneficial
interest in any developing, selling, or managing entity for any
timesharing plan participating in the Exchange Program.
3. All RCI--affiliated resorts are under contract with RCI and arrange
-for the Initial Membership in RCI for their purchasers and also remit
payment of the initial subscription fee for Endless Vacation
publications. In subsequent years, all Members are billed directly for
their Endless Vacation subscriptions. RCI Member status must be
maintained to participate in the RCI Exchange Program. To insure that
RCI Members are accurately informed concerning the terms, conditions
and operation of the ICI• Exchange Program, as well as resorts
participating in that program, RCI Members must have a current
subscription to Endless Vacation. Subscriptions to Endless Vacation
Publications- are on a -calendar year basis and all subscriptions expire
December 31. If status as an RCI Member ceases due to ncnrenewal and
you do not renew your subscription within 90 days, payment of the RCI
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Initial Membership fee of $150 and a current subscription fee for
Endless Vacation is required. Fbllowing the initial membership period,
participation in the RCI Exchange Program is voluntary.
4. All exchanges depend upon the availability of units in the
SPACESANK® pool, and requests can only be confirmed if space is
available. Therefore, RCI cannot guarantee that a Member will receive
a specific choice. If a MAamber's unit is assigned and the choices
listed on his Exchange Request Form are not available, he has the
option of (a) accepting alternate choices that are available or (b)
accruing into the following year. Members submitting a late SPACEBANK®
deposit are not eligible for Accrual. Because RCI operates on a
SPACEBANK& concept, RCI has the right to assign any vacation time
deposited by a Member, even if the Member has not yet received a
confirmed exchange.
5. Vacation time of a Member who has received a confirmed exchange, -
but which is not assigned to another Miember, is not returned to the
Member and may be
used by RCI
for
-inspection visits and other
purposes. If the
Member does
not
receive a confirmed exchange and the
Member's vacation week is not assigned by RCI, then the deposited
vacation time is -returned to him for his own use. (Late SPACEBANK®
deposits are not returned.)_
6. SPACEBANK® deposits acid exchange requests must be made on the forms
provided by RCI. Instant SPACEBANK® deposits and Instant Exchange"
requests are accepted by teleFhone. No one other than RCI may confirm
exchange requests, and confirmations are valid only if confirmed in
writing by RCI.
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7. The RCI Exchange Program works on a calendar year basis with a
"deposit" and "withdrawal" system similar to a checking account. In
order to make a "withdrawal," a Member must .first "deposit" vacation
time in the SPACEBANK® pool from units available for occupancy as
determined by RCI. Depositing time in the SPACEBANKS pool does not
relieve the Member's obligation to pay any maintenance fee assessment,
or similar charge, at his own resort. Conversely, the receipt of a
confirmed exchange does not obligate the member to pay these fees to
the resort into which he is confirmed.
B. The RCI Exchange program operates with a priority system, seasonal
classifications (Time Divisions) and occupancy limits. The exchange
options available and the procedures which govern the Exchange program
are contained in the "How to Use the System" section of this
publication. The exchange accommodations may be different in relation
to unit size, design, furnishings or recreational amenities from those
at the Member's home resort. Members are responsible for the payment
of any expenses incurred as well as any damages caused by them or their
guests while staying in an exchange unit and for the replacement of any
missing items.
9. The RCI Exchange Program is designed for intermittent use, so
purchasers should select the -resort, Time Division and unit size that
best meet their vacation. needs. The Exchange privilege should not be
the only reason for making a purchase.
10. Affiliated resorts still active in sales agree to provide RCI with
unsold vacation time periods. If these vacation time periods are no �- - - -
longer available or become unavailable to the system, Members from that
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C�
resort may only be confirmed into units that are deposited into the
SPACMAWS pool by RCI Members.
11. If the contractual relationship between a resort and RCI is not
renewed or is terminated by either RCI or the resort, Members who own
at that resort may continue to deposit time in the SPACEBANKrs pool and
request exchanges only if the resort maintains the high qualitative,
fiscal and managerial standards required by the RCI Resort Affiliation
Agreement for inclusion in the RCI Exchange Program and if the resort
continues to honor ICI exchanges. These resorts are listed in Endless
Vacation publications as "serving members only" indicated by the symbol
(.) . Persons who own only at such resorts and who allow their Endless
Vacation subscriptions to expire, terminate their membership status and
may no longer participate as members. If a Member's resort no longer
meets the qualitative, fiscal and managerial standards required by RCI,
the Exchange privilege for that Nbmber will cease. An individual who
- - owns only at such a resort may continue in the status of a subscriber
to Endless Vacation publications or request a refund of prepaid
subscription fees for future years, calculated at the annual
subscription rate.
12. A Member's Exchange privilege may be suspended in the event an
affiliated resort at which the Member owns no longer meets RCI's
required standards. Reinstatement of the Exchange privilege will occur
only when the deficiencies have been remedied by the resort. At that
time, a Member whose Endless Vacation subscription is current may use
his Exchange privilege.
13. The terms and conditions of membership, and the Exchange Program
operated by ICI may be changed from time to time, including, but
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without being limited to, fees, benefits, priorities and procedures for
effectuating exchanges. Members are notified in Endless Vacation
publications of any changes and of the resorts available for exchange.
Representations made other than in these publications are not binding
on RCI. Q.irrent publications supersede all prior publications.
14. Members may exchange into the same resort once every four years.
Some resorts do not allow exchanges from other resorts within the same
geographical area. Consult your documents for the home resort to
determine the policies currently in force. Resorts with such
restrictive requirements may be identified by contacting RCI.
15. In the event RCI has confirmed an exchange for a Member, and,
because of fire, storm, earthquake or any other natural disaster or act
of God or other reason beyond RCI's control, the confirmed unit is not
available, the Member waives any and all claims against RCI.
If for any reason a unit that has been deposited into the
- SPACCB pool becomes unusable, the Member who deposited the unusable
unit is not eligible to exchange, and any confirmed exchange held by
the Member will be cancelled.
16. Termination or suspension of the Exchange privilege can occur when
RCI trading rules or the rules pertaining to the host resort are
violated, in the event of abusive behavior toward the host resort or
RCI personnel, or when the Member's unit or the resort facilities no
longer meet RCI's criteria for inclusion in the Exchange Program.
17. RCI's liability for any loss or damage arising out of membership
in or use of the Excchange Program is limited to the annual exchange
fees paid by the Member.
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N
18. 'FAhere available, all discounts and services provided other than by
RCI are subject to change without notice.
19. All published resort information has been obtained from the
respective resorts, and to the best of RCI's knowledge, it is accurate
and complete. RCI is not responsible for errors of commission or
omission in the publication of such information.
20. The Membership Agreement between the Mee b and RCI shall be
governed by the law of the State of Indiana, and venue for any action
at law or in equity initiated pursuant to that Agreement shall be in
Marion County, Indiana.
21. Fees, if any, charged by resorts for the use of amenities are
determined and levied by each resort. These fees may differ among
resorts. Individual RCI Members are responsible for obtaining
information regarding additional amenity fees charged by the host
resort.
22.- If an RCI Member sells a timeshare interest or condominium at an
affiliated resort, _RCI will waive the Initial Membership fee for the
purchaser to participate in the RCI Exchange Program, if the buyer
becomes an RCI Member at the time of purchase.
23. All RCI materials are copyrighted and cannot be rer-roduced in any
form, by r-hot000py or any other means, without prior written permission
from RCI.
TIME-SHARING AND OTHER RESORT IAC'ATIONS PARTICIPATING
IN THE RCI EXCHANGE PROGRAM
(Existing Besort Locations will be Included)
03331
3/20/84
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EXHIBIT E
TO 'rHE FRACTIONAL ESTATE DECLARATION
FOR THE PROSPECTOR
CITY OF ASPEN DISCLOSURE STATEMENT
This Disclosure Statement is promulgated pursuant to the
requirements of Section 20-24(F) of the Municipal Code of the City
of Aspen, Colorado (the "Ordinance"). The lettered paragraphs
below correspond to the lettered subparagraphs of section (F)
which require certain specific disclosures about a timeshare
project, its developer and the way in which it will oe marketed
and operated. Capitalized terms in this Disclosure Statement are
defined in the Fractional Estate Declaration for The Prospector to
which this Disclosure Statement is attached as Exhibit E, or in
the Ordinance.
(a) The Developer. The Prospector is a development of
Merit Investment Co. (of Aspen), Inc., a Colorado corporation, 301
East Hyman Avenue, Aspen, Colorado 81611. Its president, L.
Vernon Cagle, has been in the construction, real estate and
development business for the past 25 years. Another of Mr.
Cagle's companies was the developer of a highly successful
timeshare projec t Timber Run Condominiums in Winter Park,
Colorado, which has served as a prototype for timeshare projects
in several other mountain communities. Mr. Cagle's resume is
attached hereto as Exhibit A. Merit's vice president -marketing,
Thomas A Schober, has been in the construction and real estate
dev business for the past 13 years. Another of Mr.
Schober s com anies was the developer of the Meadow Ridge
Condominiums in Winter Park, Colorado. This extremely successful
development consists of over 450 second -home condominiums, a
com
Sch
e e a e is tacility ana a oar a;
sume is attached hereto
(b) The Plan Manager. Terry Liming, Thomas A. Schober
and Janet Manning are the Plan Managers. Mr. Liming, the on -site
licensed real estate broker, has developed expertise in all phases
of timeshare operation and management and has provided consulting
services to timeshare developers in Winter Park and Mt. Crested
Butte. He was the project director at Snowmass Inn Resort Club
for two years. Mr. Liming's resume is attached hereto as Exhibit
C. Mr. Schober is director, vice president -marketing and a
shareholder of Merit and will serve as the Developer's
representative on the Plan Manager team Ms Manning is vice
2resident secretary and a shareholder of Merit. For the past four
years, she has been involved in all aspects of the administration
•
of the Timber Run Fractional Ownership program. Ms. Manning's
resume is attached hereto as Exhibit D.
(c) The marketing entity. The Prospector is being
marketed by Timber Run Realty of Winter Park, Colorado. This
company is more fully described in Exhibit E.
(d) The Timeshare Unit. The newly -rebuilt Prospector
contains nineteen (19) lodge units available for timesharing which
average 756 square feet of living space. They feature private
decks with hot tubs and saunas, wet bars and masonry fireplaces.
The project is complete and is not a phased project.
(e) Description of the Project. The Prospector Lodge
was issued a certificate of occupancy in January, 1983, and will
be dedicated to timeshare use upon receipt of governmental
approvals by recording the "Fractional Estate Declaration for The
Prospector, a Condominium in the office of the Clerk and Recorder
of Pitkin County, Colorado. The provisions pertinent to the
timeshare plan are found in Article XXVIII of the Declaration.
(f) Restraints on Transfer. There are no restraints on
the transfer of a purchaser's Fractional Estate, except that an
Owner may not convey or encumber less than his Fractional Estate
(see (g) below). Although an Owner may purchase multiple
Fractional Estates in the same Unit, the City of Aspen restricts
occupancy in a Unit to thirty (30) days between December 18 and
March 20.
(g) The Timeshare Ownership Plan. Each unit in the
Project is divided into fifteen (15) fractional estates. A
"Fractional Estate" means a time -span estate consisting of an
undivided interest of not less than one -fifteenth (1/15), as
tenant -in -common, in fee simple in a Fractional Unit, together
with the right to possession and occupancy of the Fractional Unit
during the Use Weeks assigned to the Fractional Estate in the Deed
from Declarant to the Purchaser. A Fractional Estate includes a
minimum of three (3) Use Weeks per year in the Owner's specific
unit. A "Use Week" is a eriod of exclusive possession and
occupancy of a Fractiona Unit, computed in the manner set forth
in the Declaration. The sum of the Use Weeks and Maintenance
Weeks in a Fractional Unit dedicated to Fractional Estate
ownership shall equal fifty-two (52) weeks. The Owner's rights in
the Fractional Unit include: use, occupancy or rental of the unit
during his or her use weeks, subject to any governmental
restrictions, including but not limited to the Ordinance, and the
Restrictive and Affirmative Covenants in Article XXVII of the
Declaration; the right to vote in the Association; and other
rights more fully described in the Bylaws of the Association
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of the Association and Declaration as well as those incident to
real property ownership. Owner responsibilities include payment
of the assessments described in Section 20.2 of the Declaration
and compliance with the provisions of the Declaration and the
Articles of Incorporation and Bylaws of The Prospector Fractional
Owners' Association.
(h) Notice of Liens, Title Defects or Encumbrances.
The Developer is the owner of the property, subject only to the
lien of the deed of trust which secures a loan which the developer
obtained for acquisition financing for the project. This loan and
deed of trust contain partial release provisions allowing for the
conveyance of clear title to any timeshare purchaser. The
Developer will grant, in the Condominium Map, a seven foot by ten
foot easement for the existence and maintenance of a transformer
which has previously been placed upon the southeast corner of the
property by the City of Aspen. A license for certain
encroachments o
e Prospector onto propert
of the Citv of Aspen
was approved by the Aspen City Council on November u, iyuz. it is
anticipated that this license will be memoralized by means of a
written agreement with e City ot Aspen which, wen executed,
will be recorded in the real property records of Pitkin County,
0 ora o. one o
adversely affect any purc aser s titie to a Fracttonal Untt.
(i) Notice of Legal Actions. The Developer has no
knowledge or notice of any pending or anticipated legal actions
that are material to the timeshare units or plan.
(j) Purchaser's Financial Obligation. The total
financial obligation of the purchaser is the sales price of the
Fractional Estate plus the one-half percent (1/2%) Aspen Real
Estate Transfer Tax which is paid by the purchaser. There are no
additional charges to which the purchaser may be subject in
purchasing the unit, other than usual and customary closing costs
and prorations. The Association may require an Owner to deposit
an amount equal to three (3) months of thenassessment for Common
Expenses described in (k) below with the Association for working
capital and/or replacement reserves.
(k) Estimate of Periodic Expenses. Each Fractional
Owner will be obligated to pay a pro rata assessment. Included in
this amount are maintenance expenses, management fees, property
taxes, replacement costs, utility charges, insurance and any other
expenses incurred in the normal operation of the project and
attributable to the Fractional Estate. The elements of this
assessment and the method by which it is assessed are explained in
Article XX of the Declaration. A budget estimating each
Fractional Estate's share of the assessment will be delivered to
each Purchaser prior to execution of a Purchase Contract.
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(1) Availability of Financing. The Developer will
provide financing to initial purchasers/\at favorable rates. The
financing package is outlined in Exhibit F.
(m) Warranties. Each Fractional Owner purchasing a
Fractional Estate from the Developer will be the beneficiary of a
one year limited warranty of habitability covering the unit and
common elements, as described in the Purchase Contract. The
warranty is limited to repair or replacement of defective items.
Any manufacturers' warranties for furnishings or appliances in the
units will be assigned to the Association.
(n) Escrow of Deposits. A title company will act as
escrow agent for deposits made in connection with the purchase of
Fractional Estates. The title company will hold the deposited
funds until closing of the transaction or availability of the unit
for occupancy, whichever is later, or until purchaser's default
under the Purchase Contract. The title company will be a neutral
third party not having any interest in the purchase and sale
transaction.
(o) Fees or Charges for Use of Facilities. There are
no current or expected fees or charges to be paid by Fractional
Owners for the use of any facilities at The Prospector. Part
ownership of, and the right to use, the facilities of the
Prospector is included in the purchase price. Extraordinary
expenses for long distance phone calls, damages or special service
will be separately invoiced as set forth in section 17.6 of the
Declaration. Each Owner will pay, as part of the assessment for
Common Expenses, one-half of the cost of a membership in The Aspen
Clue, which will entitle the Owner, his tamily or authorized
guests to use this facility at such times as they are occupying
the Owner's Fractional Unit. The membership is effective rom
December 1, 1984 through February 28, 1987, and will cost each
Owner approximately $125.0
(p) Tax or Other Lien on the Timeshare Unit. A
Fractional Owner who suffers or allows a lien to be placed against
his Fractional Estate or the entire unit must indemnify, defend
and hold each of the other Fractional Owners harmless from and
against all liability or loss arising from the claim of such lien.
The Association may require the Fractional Owner to deposit cash
or negotiable securities to be held by the Association pending
final outcome. This protection is more fully described in Section
28.4 of the Declaration and Section 9.3 of the Bylaws.
The Association is responsible for the payment of property
taxes on and maintenance of the Fractional Unit from the proceeds
of thenassessment for Common Expenses. The Association's failure
to pay such taxes or failure to pay for maintenance work performed
-4-
may result in a tax sale of the entire Fractional Unit or a
mechanic's lien being filed against it.
(q) Mutual Right of Rescission. A statement that there
is a ten (10) calendar day mutual right of recission is contained
in the Purchase Contract.
(r) Sales Requirement Prior to Closing. The Developer
will not proceed to close any of the Fractional Estate purchase
transactions until a minimum of eight (8) of the fifteen (15)
Fractional Estates in a Fractional Unit are under contract. This
statement is included in the Purchase Contract.
(s) Maintenance. Maintenance services for the Unit are
provided for in Article XVII of the Declaration. In addition to
the routine maintenance services provided, a minimum of seven (7)
weeks per year shall be set aside as Maintenance Weeks during
which the Association will provide major maintenance, repair and
replacement service to the Unit. Four of these seven Maintenance
Weeks will be used exclusively for maintenance with no rentals or
other uses allowed. Of the seven (7) Maintenance Weeks, a minimum
of two (2) will be designated in the fall and two (2) in the
spring.
(t) Hold -over Occupants. Section 28.4 of the
Declaration provides remedies to the rightful occupant in the
event that a unit is not promptly surrendered at the end of a Use
Week. The hold -over occupant is deemed to have waived any notices
required by law with respect to eviction or ejection. Further, he
must pay to the rightful occupant a sum equal to two hundred
percent (200%) of the daily fair rental value of the Fractional
Unit, as determined by the Fractional Owners' Association in its
sole discretion, for each day during which the unit is wrongfully
occupied. Damages also include costs and reasonable attorneys'
fees incurred in the enforcement of this provision.
(u) High and Low Season Marketing. Aspen Mountain is
typically open for skiing between Thanksgiving and early April.
Use Weeks for The Prospector are selected by choice of one week
from each of three (3) groups: prime ski weeks, summer/fringe ski
weeks, and spring/fall weeks. The price of the Fractional Estate
is determined by the prime ski week in the three-week package.
Because of this three-week combination marketing program, and the
indivisibility of the Fractional Estate, off-season weeks are sold
to each purchaser. Since the purchaser pays for an off-season
week, it is very likely to be used.
-5-
•
•
(v) Exchange Programs.
project will be able to participate
participation will not be required.
All Fractional Estates in the
in an exchange program, but
(w) Unusual and Material Characteristics. The only
unusual and material circumstances, feature and/or characteristic
of or affecting The Prospector is its designation in the Historic
Overlay, which requires HPC approval for exterior building
changes.
(x) Insurance. The Developer has obtained casualty
insurance for The Prospector at full replacement value for the
property. At the time the Association becomes operational, all
policies will be assigned to it. The insurance provision is
Article XVIII of the Declaration.
(y) On -Site Amenities. Located on the deck attached to
each unit is a separate hot tub and sauna for the exclusive use of
the owners of that particular unit. General common elements, for
the use and enjoyment of all Fractional Owners, include: the sun
deck attached to the third floor on the east side of the building,
all on -site parking spaces, the lobby area and the laundry
facilities which are planned for the project. These amenities and
any other Common Elements will not be owned by the Association;
rather a Fractional Estate will include a pro rata fractional
share of the Common Elements. The Developer will not own, nor
charge any fee for the use of, any amenities. This is prohibited
by Article VI of the Declaration. As set forth in subparagraph
(o) above, each Owner will pay, as a part of the assessment for
Common Expenses, a portion of the cost of a membership in The
Aspen 7lub.
(z) Kitchen Facilities. The Employee Housing Unit
(Unit 108) is the only unit containing a full kitchen. Wet bars
and refrigerators are included in the units.
(aa) Limitations on Occupancy. Although the units in
The Prospector are spacious enough to accommodate more than six
(6) persons according to the Aspen building codes, the Developer
believes that optimum comfort for the occupants will be insured by
limiting their number at any one time to six (6). Therefore, the
Association will promulgate a rule restricting occupancy to this
number.
(bb) Agent for Notice. Article IX of the Articles of
Incorporation for The Prospector Fractional Owners' Association
and Article XXIX of the Declaration designate the Association as
the Owner's designated agent for the service of process or legal
notices pertaining to the Fractional Estates.
(cc) _Applicability of this Disclosure Statement. All
Fractional Estates in The Prospector are expressly subject to the
requirements and representations set forth in this disclosure
statement and any amendments to it, filed with the Pitkin County
Clerk and Recorder as an exhibit to the Declaration.
The Developer, Merit Investment Co. (of Aspen), Inc., hereby
affirms under oath that all of the above disclosures are true and
accurate to the best of its knowledge and belief.
MERIT INVESTMENT CO. (OF ASPEN),
INC., a Colorado corporation
By:
L. Vernon Cagle, President
STATE OF COLORADO )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this
day of , 1984, by L. Vernon Cagle as President
of Merit Investment Co. (of Aspen), Inc., a Colorado corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
Address:
-7-
r
•
FEDERAL DISCLOSURE STATEMENT
Creditor: Merit Investment Co. (of Aspen), Inc., a Colorado
corporation
Borrower:
Date:
ANNUAL
PERCENTAGE
TT TLC
The cost of
your credit
as a yearly
rate
s
FINANCE
CHARGE
The dollar
amount your
credit will
cost you
Your Payment Schedule will be:
Number of
Payments
Amount
Total of
Financed
Payments
The amount
The amount
of credit
you will
provided to
have paid
you or on
after you
your behalf
have made
all pay-
ments as
scheduled
Amount of
Payments
ITOTAL SALE PRICE
The total cost
of your purchase
on credit,
including your
down payment of
it
When Payments
are Due
Monthly beginning
198
Security: You are giving a security interest in the real property being
purchased in Pitkin County, Colorado, and in the furniture,
furnishings, equipment, fixtures, appliances and utensils_
presently or hereafter ocate upon such real property.
Prepayment: If you pay off early, you will not have to pay a penalty. /�
Late Charge: If a payment is more than 10 days late, you will be charged
\
$50.00.
Assumption: Someone buying the property you are purchasing cannot
necessarily assume the remainder of the mortgage on the
original terms.
a
See your contract documents, note, and deed of trust for
additional information about nonpayment, default, any required payment in
full before the scheduled date and acceleration due to sale or transfer of
the security, and prepayment refunds and penalties.
I acknowledge receipt of a completed copy of this statement prior to
consummation of the transaction.
Itemization of Amount Financed of $
$ -0- Amount given to you directly.
$ Amount paid on your account with Creditor.
Amount Paid to Others on Your Behalf:
$ to Credit Reporting Agency.
$ to Public officials.
$ to
$ Prepaid Finance Charge.
Date Executed
Date Executed
11
•
AMOUNT FINANCED:
PROMISSORY NOTE
Aspen, Colorado
19
FOR VALUE RECEIVED, ("Maker")
promises to pay to the order of Merit Investment Co. (of Aspen),
Inc. ("Payee") at P.O. Box 1356, Winter Park, Colorado 80482 or at
such place as Payee may from time -to -time designate to Maker in
writing the principal sum of ($ )
in U.S. currency or certified funds, with interest at the rate of
percent ( %) per annum on the oustanding principal
balance, payable in equal amortized monthly installments of
principal and interest of $ The monthly installments
shall be due on the twentieth day of each month commencing on
19 _. The entire remaining principal indebtedness and
accrued unpaid interest thereon shall be due and payable on
, 19 _.
Amount Financed. The amount financed is $
and equals the amount paid to the Seller of the Fractional Estate
more particularly hereinafter described on behalf of Maker for the
purchase price of such Fractional Estate. The amount financed
includes no other charges.
Prepaid Finance Charge. Maker and Payee acknowledge that
Maker has previously paid to Payee a prepaid finance charge of
$ which amount consists of a Twenty -Five Dollar
($25.00) fee for a credit report and a $ loan
origination fee.
ANNUAL PERCENTAGE RATE. The ANNUAL PERCENTAGE RATE of
this note is equal to percent ( %) per annum.
Prepayment. This Note may be prepaid, from time to time
or at any time, in whole, or in part, without notice, premium or
penalty.
All suchprepayments hereunder s a e p o
accruedinterest on the unpaid principal balance, and the
remainder to principal.
Late Payment Charge. A late payment charge equal to
Fifty Dollars ($50.00) shall be automatically assessed without
notice for all payments received more than ten (10) days after the
due date.
Default; Penalty Interest. It is agreed that if this
Note or any installment due hereunder is not paid when due or
declared due hereunder, the entire outstanding principal balance
and accrued interest thereon shall draw interest at the rate of
eighteen percent (18%) per annum. It is agreed that failure to
pay any installment when due or any default under any encumbrance
or agreement securing this Note shall cause the whole Note to
become due at once, or the interest to be counted as principal, at
the option of Payee. Maker and all of the persons liable or to
become liable for all or any part of this indebtedness, jointly or
severally, hereby waive presentment for payment, protest, notice
of nonpayment, demand and of protest, and agree to any extension
of time and payment and partial payment before, at or after
maturity, and if this Note or any installment due hereunder is not
paid when due, or suit is brought, agrees to pay all reasonable
costs of collection, including a reasonable sum for attorneys'
fees, and if foreclosure is made by the Public Trustee, for
attorney's fees to be added by the Public Trustee to the cost of
foreclosure.
No Modifications. This Note may not be amended,
modified, or changed, nor shall any waiver of any provisions
hereby be affected, except only by an instrument in writing and
signed by the party against whom enforcement or any waiver,
amendment, change, modification or discharge is sought.
Successors and Assigns. Whenever used herein the words
"Maker" and "Payee" shall be deemed to include their respective
heirs, personal representatives, successors, and assigns. This
Note shall be construed, enforced and governed in accordance with
the laws of the State of Colorado. The singular shall include the
plural, the plural the singular, the words of one gender shall
include the other gender.
Joint and Several Liability. Maker, if more than one
person or entity, shall be jointly and severally liable for the
obligations under this Note.
Security Interest. This Note is secured by a first Deed
of Trust of even date herewith, executed by Maker on the following
described real property in the County of Pitkin, Colorado, to wit:
An undivided interest as tenant -in -common
in Unit , according to the Fractional Estate
Declaration for The Prospector, a Condominium, and
the Map thereof of record, together with the
exclusive right to possession and occupany of said
Unit during Use Weeks , , and
IN WITNESS WHEREOF, Maker has caused this Note to be executed
as of the date first hereinabove written. Maker acknowledges
receipt of a duplicate copy of this document.
DUE:
MAKER:
-2-
Recorded at o'clock M.
Reception No. =1
DEED OF TRUST
THIS INDENTURE, Made this day of .19 . between
whose address is
hereinafter referred to as grantor, and the Public Trustee of the `County of
in the State of Colorado, hereinafter referred to as Public Trustee, Wimcsseth:
THAT, WHEREAS,
has executed a promissory note or notes, hereinafter referred to in the singular. dated for the
principal sum of Dollars, payable to the order of
whose address is
after the date hereof. with interest thereon from the date thereof
at the rate of percent per annum, payable
AND WHEREAS. The grantor is desirous of securing payment of the principal and interest of said promissory note in whose hands soever the said i
note or any of them may be.
NOW. THEREFORE. The grantor. in consideration of the premises and for the purpose aforesaid. does hereby grant, bargain. sell and convey
unto the said Public Trustee in trust forever. the following described property. situate in the County of
State of Colorado, to wit:
also known by street and number as
TO HAVE AND TO HOLD the same. together w ith all and singular the privileges and appurtenances thcreunto belonging: In Trust nevertheless, that
in case of default in the payment of said note or any of them. or any part thereof. or in the payment of the interest thereon. according to the tenor and effect of
said note or any of them. or in the payment of any prior encumbrances, principal or interest. if any. or in case default shall be made in or in case of violation
or breach of ati of the terms. conditions. comenants or agreements herein contained. the beneficiary hereunder or the legal holder of the indebtedness
secured herebymay declare a violation of am of the covenants herein contained and elect to adsertise said property for sale and demand such sale. then.
upon filing notice of such election and demand for sale with the Public Trustee. who shall upon receipt of such notice of election and demand for sale cause
a copy of the same to be recorded in the recorder's office of the county in which said real estate is situated. it shall and may be lawful for the Public Trustee
to sell and dispose of the same (en masse or in separate parcels, as the said Public Trustee may think best). and all the right. title and interest of the grantor,
his heirs or assigns therein, at public auction at the front door of the Court House. in the County of
, State of Colorado, or on said premises, or any part thereof as ma\be specified in the notice of said sale, for the highest and best price the
same will bring in cash. four weeks public notice having been previously given of the time and place of such sale. by advertisement, weekly, in some
newspaper of general circulation at that time published in said County of a copy of which notice shall be mailed
within ten days from the date of the first publication thereof to the grantor at the address herein given and to such person or persons appearing to have
acquired a subsequent record interest in said real estate at the address given in the recorded instrument: where only the county and state is given as the
address then such notice shall be mailed to the county seat, and to make and give to the purchaser or purchasers of such property at such sale, a certificate
or certificates in writing describing such property purchased. and the sum or sums paid therefor. and the time when the purchaser or purchasers (or other
person entitled thereto) shall be entitled to a deed or deeds therefor, unless the same shall be redeemed as is provided by law: and said Public Trustee shall. j
upon demand by the person or persons holding the said certificate or certificates of purchase, when said demand is made, or upon demand by the person j
entitled to a deed to and for the property purchased. at the time such demand is made. the time for redemption having expired, make and execute to such
person or persons a deed or deeds to the said property purchased, which said deed or deeds shall be in the ordinary form of a conveyance, and shall be
signed, acknowledged and delivered by the said Public Trustee and -shall convey and quitclaim to such person or persons entitled to such deed. the said
property purchased as aforesaid and all the right. title, interest, benefit andequity of redemption of the grantor, his heirs and assigns therein. and shall
recite the sum or sums for which the said property was sold and shall refer to the power of sale therein contained, and to the sale or sales made by virtue
thereof: and in case of an assignment of such certificate or certificates of purchase. or in case of the redemption of such property. by a subsequent
encumbrancer. such assignment or redemption shall also be referred to in such deed or deeds: but the notice of sale need not be set out in such deed or i
deeds and the Public Trustee shall, out of the proceeds or avails of such sale. after first paying and retaining all fees. charges and costs of making said sale.
pay to the beneficiary hereunder or the legal Golder of said note the principal and interest due on said note according to the tenor and effect thereof. and all
moneys advanced by such beneficiary or legal holder of said note for insurance. taxes and assessments, with interest thereon at per cent per
annum, rendering the overplus, if any, unto the grantor. his legal representatives or assigns: which sale or sales and said deed or deeds so made shall be a
perpetual bar, both in law and equity. against the grantor. his heirs and assigns. and all other persons claiming the said property. or any part thereof. by.
I from. through or under the grantor. or any of them. The holder or holders of said note or notes may purchase said property or any part thereof: and it shall
not be obligatory upon the purchaser or purchasers at any such sale to see to the application of the purchase money. If a release deed be required. it is
agreed that the grantor, his heirs or assigns, will pay the expense thereof.
I �
I 'If in Denver, insert "City and." j
it �I
No. 341A. Rev. 2-84. DEED OF TRUST (Public Trustee) With Due on Sale Clause
3.8a
Bradford Publishing. 5815 W 6th Ave . Lakewood. CO 80214 —1303) 333-6900
When recorded, return to
9 r
And the grantor, for himself and his heirs, personal representatives or assigns covenants and agrees to and with the Public Trustee, that at the time of
the ensealing of and delivery of these presents he is well seized of the said land and tenements in fee simple. and has good right, full power and lawful
authority to grant, bargain, sell and convey the same in the manner and form as aforesaid: hereby fully and absolutely waiving and releasing all rights and
claims he may have in or to said lands, tenements, and property as a Homestead Exemption. or other exemption. under and by virtue of any act of the
General Assembly of the State of Colorado, or as any exemption under and by virtue of any act of the United States Congress. now existing or which may
hereafter be passed in relation thereto and that the same are free and clear of all liens and encumbrances whatever.
and the above bargained property in the quiet and peaceable possession of the Public Trustee, his successors and assigns, against all and every person or
persons lawfully claiming or to claim the whole or any part thereof, the grantor shall and will Warrant and Forever Defend.
Until payment in full of the indebtedness, the grantor shall timely pay all taxes and assessments levied on the property: any and all amounts due on
account of principal and interest or other sums on any senior encumbrances, if any: and will keep all improvements that may be on said lands insured
against any casualty loss, including extended coverage. in a company or companies meeting the net worth requirements of the beneficiary hereof in an
amount not less than the then total indebtedness. Each policy shall contain a loss payable clause naming the beneficiary as mortgagee and shall further
provide that the insurance may not be canceled upon less than ten days written notice to the beneficiary. At the option of the beneficiary, the original policy
or policies of insurance shall be delivered to the beneficiary as further security for the indebtedness. Should the grantor fail to insure and deliver the
policies or to pay taxes or assessments as the same fall due, or to pay any amounts payable upon senior encumbrances, if any, the beneficiary may make any
such payments or procure any such insurance. and all monies so paid with interest thereon at the rate of % per annum shall be added to and
become a part of the indebtedness secured by this Deed of Trust and may be paid out of the proceeds of the sale of the property if not paid by the grantor. In
addition, and at its option. the beneficiary may declare the indebtedness secured hereby and this Deed of Trust to be in default for failure to procure
insurance or make any of the payments required by this paragraph.
If all or any part of the property or an interest therein is sold or transferred by the grantor without beneficiary's prior written consent, excluding (a) the
creation of a lien or encumbrance subordinate to this Deed of Trust. (b) the creation of a purchase money security interest for household appliances. (c) a
transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not
containing an option to purchase. beneficiary may. at beneficiary's option. declare all the sums secured by this Deed of Trust to be immediately due and
payable. Beneficiary shall have waived such option to accelerate if. prior to the sale or transfer, beneficiary and the person to whom the property is to be
sold or transferred reach agreement in writing that the credit of such person is satisfactory to beneficiary and that the interest payable on the sums secured
by this Deed of Trust shall be at such rate as beneficiary shall request.
AND THAT IN CASE OF ANY DEFAULT, Whereby the right of foreclosure occurs hereunder. the Public Trustee or the holder of said note or
certificate of purchase, shall at once become entitled to the possession. use and enjoy ment of the property aforesaid, and to the rents. issues and profits
thereof, from the accruing of such right and during the pendent) of foreclosure proceedings and the period of redemption, if any there be: and such
possession shall at once be delivered to the Public Trustee or the holder of said note or certificate of purchase on request. and on refusal. the delivery of
such possession may be enforced by the Public Trustee or the holder of said note or certificate of purchase by an) appropriate civil suit or proceeding, and
the Public Trustee, or the holder of said note or certificate of purchase. or an) thereof, shall be entitled to a Receiver for said property, and of the rents.
issues and profits thereof. after such default, including the time covered by foreclosure proceedings and the period of redemption. if any there be, and shall
be entitled thereto as a matter of right without regard to the solvency or insohency of the grantor orof the then ownerof said property and without regard to
the value thereof, and such Receiver may be appointed b) any court of competent jurisdiction upon ex parte application and w ithout notice — notice being
hereby expressly waived — and all rents. issues and profits. income and revenue therefrom shall be applied by such Receiver to the pa)'ment of the
indebtedness hereby secured, according to the law and the orders and directions of the court.
AND, That in case of default in any of said payments of principal or interest. according to the tenor and effect of said promissory note aforesaid. or any
oft hem. or any part thereof, or of a breach or violation of any of the covenants or agreements herein, by the grantor. his personal representatives or assigns.
then and in that case the whole of said principal sum hercb) secured. and the interest thereon to the time of the sale. ma) at once, at the option oft he legal
holder thereof, become due and payable. and the said property be sold in the manner and with the same effect as if said indebtedness had matured, and that
if foreclosure be made by the Public Trustee. an attomev's fee of the sum of dollars
for services in the supervision of said toreclosure procceiines shall he allowed by the Public Trustee as a part of the cost of foreclosure. and if foreclosure
be made through the courts a reasonable attome)'s fee shall he t:,xed by the court as a part of the Lust of such foreclosure proceedings.
The singular number shall include the plural. the plural the singular. and the use of any gender shall be applicable to all genders.
Executed this day of
ATTEST:
(SEAL)
State of Colorado
ss.
County of
The foregoing instrument was acknowledged before me in the County of
State of , this day of
Witness my hand and seal.
My commission expires
by
Noun, Public
Addw-
•
STATE OF COLORADO — UNIFORM COMMERCIAL CODE
SECURITY AGREEMENT
Debtor:
Address:
Residence
No. Street City State Zip Code
Business
No. Street City State Zip Code
Secured Party:
Name:
Address:
No. Street City State Zip Code
Debtor, for consideration, hereby grants to Secured Party a security interest in the following property, and any and all property of like type now owned or
hereafter acquired by Debtor, together with all additions, accessions, substitutions, proceeds and products therefrom, including natural increase of livestock,
all herein called the "Collateral":
To secure payment of the indebtedness evidenced by certain promissory note —of even date herewith, payable to the Secured Party, or order,
as follows:
and all other liabilities of Debtor to Secured Party, absolute or contingent, due or to become due, now existing or hereafter arising including liabilities arising
because of funds advanced in the future at the option of Secured Party, all herein called the "OBLIGATIONS".
DEBTOR EXPRESSLY WARRANTS AND COVENANTS:
The Collateral is used or bought primarily for:
❑ Personal, family or household purposes;
❑ Use in farming operations;
❑ Use in business.
That Debtor's residence is as stated above, and the Collateral will be kept at
Location County State
If any of the Collateral is crops, oil, gas, or minerals to be extracted or timber to be cut, or goods which are or are to become fixtures, said Collateral con-
cerns the following described real estate situate in the County of and State of Colorado, to -wit:
The undersigned acknowledge receipt of a copy of this Security Agreement on date hereof, and agree that it includes and is subject to the ADDITIONAL
PROVISIONS on the reverse side hereof, the same being incorporated herein by reference.
Debtor:
Dated this day of 19
No. 651. Rev. 8-83. SECURITY AGREEMENT Bradford Publishing. 5825 W fxh .Aw . Lakewood. CO 80214 — 1303r 233-6900 — 5-94
•
1
ADDITIONAL PROVISIONS
FUPTHER WAP,RANTIES AND COVENANTS OF THE DEBTOR. The Debtor hereby warrants and covenonts that:
1. Except for the security interest granted hereby, the Debtor is, -or to the extent that this agreement states that the Coliatero' is to be acq_.recl uf•e- the
date hereof, will be, the owner of the Colla!era! free from oily prior lien, security interest or encumbrance; and the Debtor will defenc the Coiictero: oaL—st al:
claims and demands of all persons at any time claiming the some or any interest therein.
2. Irrespective of whether the Secured Party claims a security interest in proceeds hereunder, the Debtor will not sell or offer to sell or otherwise transter
or encumber the Collateral or any interest therein without the prior written consent of the Secured Party. The Collateral will be located at and kepi a' the
Debtor's address shown an the rwerse side hereof and shall not L.e removed without the prior written consent of the Secured Party.
3. The Debtor will pay all taxes and assessments of every nature which may be levied or assessed against the Collateral.
4, The Debtor will keep the Collaterci at all times insured against risks of Ions or damage by fire (including so-called extender' coverage), theft and such
other casualties as the Secured Party may reasonably require, includ,ng collisior in the case of any motor vehicle, all in such amounts, under such forms of
policies, upon such terms, for such periods, and written by such companies or underwriters as the Secured Party may approve, losses in all cases to be payable
to the Secured Party and the debtor as their interest may appear. All ,policies of insurance shc!I provide for at Icast ten dcys' prior written notice of concel!ation
to the Secured Party; and the Debtor shall furnish the Secured Party with certificates of such insurance or other evidence sotisfaetory to the Secured Party as to
compliance with the provisions of this paragraph. The Secured Party may act as attorney for the Debtor in making, ad;usting and settling cica,ms under or
cancelling such insurance and endorsing the Debtor's name on any drafts drawn by insurers of the Collateral.
5. The Debtor will not permit or allow any adverse lien, security interest or encumbrance whatsoever upon the Collateral, and will not permit the same
to be attached or replevined.
6. The Collateral is in good condition, and the Debtor will, at the Debtor's own expense, keep the some in good condition and from time to time,
forthwith, replace and repair all such parts of the Colioteral as may be broken, worn out, or damaged without allowing any lien to be created upon. the
Collateral on account of such replacement or repairs, and will allow the Secured Party to examine and inspect the Collateral at any time, wherever located.
7. The Debtor will not use the Collateral in violation of any applicable statutes, regulations or ordinances.
ADDITIONAL RIGHTS OF PARTIES. At its option, but without obligation to the Debtor, the Secured Party may discharge taxes, liens, or security
interests or other encumbrances at any time levied or placed on the Collateral, may place and pay for insurance thereon, may order and pay for the repair,
maintenance and preservation thereof and may pay any necessary filing or recording fees The Debtor agrees to reimburse the Secured Party on demand for
any payment made or any expense incurred by the Secured Party pursuant to the foregoing authorization Until default, the Debtor may hove possession of the
Collateral and use it in any lawful manner, and upon default the Secured Party shall have the immediate right to the possession of the Collateral.
Borrower hereby waives all right of homestead exemption in the collateral, including that granted by C.R.S. C 38-41-201.6.
THE DEBTOR SHALL BE IN DEFAULT under this agreement upon the happening of any of the following events or conditions:
(a) default in the payment or performance of any obligation, covenant or liability contained or referred to herein or in any note secured hereby;
(b) the making or furnishing of any warranty, representation or statement to the Secured Party by or on behalf of the Debtor which proves to have been
false in any material respect when mode or furnished.
(c) loss, theft, damage, destruction, sale or encumbrance to or of any of the Collateral, or the making of any levy, seizure or attachment thereof or
thereon;
(d) death, change of name, dissolution, merger, termination of existence, insolvency, business failure, appointment of a receiver of any part of the
property of, assignment for the benefit of creditors by, or the commencement of any proceeding under any bankruptcy or insolvency laws of, by or against the
Debtor or any guarantor or surety for the Debtor.
UPON SUCH DEFAULT and at any time thereafter, or if it deems itself insecure, the Secured Party may declare all Obligatio— secured hereby
immediately due and payable subject to the provisions of section 5-5-112 of the Colorado Uniform Consumer Credit Code, and shall have the remedies of a
secured party under Article 9 of the Colorado Uniform Commercial Code. The Secured Party may require the Debtor to assemble the Collateral and deliver or
make it available to the Secured Party at c place to be designated by the Secured Party which is reasonably convenient to both parties. Expenses of retaking,
holding, preparing for sale, selling or the like shall include the Secured Party's reasonable attorneys' fees and legal expenses. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Secured Party will give the Debtor reasonable
notice of the time and place of any public sale thereof or of the time after which any private sale or any other intended disposition thereof is to be made The
requirements of reasonable notice shall be met if such notice is mailed, postage prepaid, to the address of the Debtor shown of the beginning of this Agreement
at least five days before the time of the sole or disposition. As respects crops covered by this Security Agreement, upon such default, it is agreed by the parties
hereto that said crops are perishable or may decline speedily in value, and that the Secured Party may protect, cultivate, care for, harvest, or process said
crops at the expense of the Debtor and may sell and dispose of said crops at private sale as the some mature or are harvested, at the best price then available.
Where the Collateral is livestock, it is agreed that a commercially reasonable means of disposing of the collateral shall include sole of such collateral in the
customary manner on the Denver, Colorado livestock market or through a licensed livestock sales ring in Colorado, and it is agreed that such Collateral is of o
type customarily sold on such recognized markets. Sales of such livestock may be otherwise as permitted by low. It is expressly agreed that it will not be
necessary, after default and before the sale of any livestock Collateral, to collect said livestock or to have the some present at the place of sale, but such sale
may be had at the court house in the county first mentioned herein while said livestock are absent therefrom or at large.
No waiver by the Secured Party of any default shall operate as a waiver of any other defout or of the some default on a future occasion. The taking of
this security agreement shall not waive or impair any other security the Secured Party may have or hereafter acquire for the payment of the above obligations,
nor shall the taking of any such additional wurity waive or impair this security agreement; but the Secured Party may resort to any security it may have in the
order it may deem proper.
Allrights of the Secured Party hereunder shall inure to the benefit oll its successors and assigns; and all promises and duties of the Debtor shall bind the
Debtor's heirs, executors, administrator, succsssars, or assigns. If there be more than one Debtor, their (mobilities hereunder shall be pint and several.
t -
--.o 7.r-:.l
7
t
A
T
May 17, 1984 The Aspen Times Page 7-B
Timeshare changed , suit settled
ss requirement altered
tightly to settle litigation
Another change in the often -
amended timeshare control ordi-
nance was approved by the city
council Monday in order to ter-
minate a lawsuit filed last sum-
mer when the new council refused
to approve a timeshare applica-
tion for the Prospector Lodge.
Monday, during the regular
session, City Attorney Paul Tad -
dune reported that Prospector
owners had agreed with the many
amendments to the timeshare
ordinance approved during the
pa ' w months by the council if a
c 'e at the last meeting
cou modified slightly.
At that meeting the co»ncil
agreed with a proposal from Al
Blomquist that a paragraph re-
quiring handicapped access be
changed to state: "Satisfactory
provision shall be made to provide
handicapped access to 10 percent
of the rooms and all common
areas."
Taddune pointed out that this
wording was confusing in that
"all common areas" could be
taken to mean mechanical rooms,
corridors, basement parking and
roof -top recreation facilities.
He urged the council to clarify
its intention about the handicap-
ped access provision to enable him
to settle the 1983 litigation.
Too Onerous
Mayor Bill Stirling repli5_;001
he did not think the council
wanted to make the handicapped
access provision overly onerous
and did not think it should in-
clude access to the roof -top hot tub
proposed for the Prospector.
Taddune explained that the
Merit Investment Co, developers
of the Prospector, had agreed to
language which stated, "Satisfac-
tory provisions shall be made to
provide handicapped access to 10
percent of the units and to and
throughout the project as re-
quired by the Uniform Buildng
Code."
Jim Wilson, head of the Aspen/
Pitkin County Building Depart-
ment explained that since Aspen
had amended the UBC to exempt
handicapped access to the floor
above and floor below the ground
level, and since the UBC access
provisions did not cover lodges
under 20 units, the proposed new
wording would only require the
Prospector, which has 19 units, to
provide access to 10 percent of its
rooms and common areas on the
ground level.
Applicant Willing
Representing Merit Invest-
ment Co, Gideon Kaufman told
the council that his clients were
willing to provide handicapped
access to 10 percent, or two of its
rooms, as well as to common areas
on the ground floor, but not to the
third -floor hot tub or the base-
ment parking.
This would require installation
of an elevator, which would be dif-
ficult and extremely expensive in
a building which has already been
constructed, he explained.
Blomquist agreed with Stirling
that requiring an elevator and ac-
cess to the roof would be too oner-
ous and that the new wording
proposed by Taddune was accept-
able.
A motion to accept the new
wording as recommended by Tad -
dune was approved by Blomquist,
Dick Knecht, Charlotte Walls and
Stirling, with Chic Collins cast-
ing the only dissenting vote.
Motion to Reconsider
Blomquist then moved to recon-
sider the Prospector timeshare
application, approved last year by
the planning and zoning commis-
sion but rejected by the city coun-
cil, and the council approved.
It was then decided to refer the
application to the planning office
for consideration by the council at
its next regular meeting on May
29.
The original long, complex
timeshare control ordinance was
adopted late in 1982 after over a
year of study. However, after its
election in May 1983, the present
council decided it was not strin-
gent enough and began the pro-
cess of amending it.
During this process, applica-
tions were prohibited by a six-
month moratorium, which ended
in April. First adopted last De-
cember as Ordinance 55, the
amending measure was changed
and rechanged by the council at
several sessions during the win-
ter and spring.
•
•
MEMORANDUM
TO: Aspen City Council
FROM: Alan Richman, Planning Office
RE: Prospector Timeshare
DATE: May 2.9, 1984 APPROVED AS TO FORM:
At your regular meeting on May 14, 1984, you moved to reconsider
the application to timeshare the Prospector and directed the Planning
Office to submit a report to you on the application. As I am sure
you recall, the application was previously reviewed by P&Z, with
a recommendation of approval, including a grant of conditional use,
having been made on August 2, 1983. City Council subsequently held
several meetings on the application, including a detailed review
of the proposed conditions of approval, before finally denying the
application.
As you also probably recall, Alice Davis, who is no longer with this
office, was the planner responsible for reviewing this application.
I have spent considerable time with Alice to insure that I understand
the details of this proposal and also have had the benefit of a complete
file available to review. I am also attaching for your review a
copy of the original memo submitted to you by Alice Davis, up through
the identification of conditions of approval.
It is the purpose of this memo to consolidate the original conditions,
the changes you recommended to these conditions at your earlier meetings,
and the requirements of our amended timeshare regulations. First,
I would like to briefly identify for you why P&Z and the Planning
Office feel this represents an excellent timeshare application under
our current regulations.
1. The project is located in an area which is already intensely
used on a year-round basis and is within walking distance
of amenities which can be used by the occupants all year.
2. The past record of the applicant is a positive factor,
since the applicant has not just been a marketing agent
but also is a developer. Their current application demonstrates
that they have the experience to address the details of
our regulations and have learned from any mistakes they
made in the past.
3. The Prospector cannot be profitably operated as either
a traditional lodge or as a condominiumized lodge. This
application permits a brand new facility to be occupied,
thereby adding quality units to our inventory and solving
the problems associated with its foreclosure. The application
also will allow the conditions of the prior reconstruction
approval to be met, including a good landscaping plan.
4. The application proposes seven (7) weeks of maintenance,
rather than our minimum standards of four (4) weeks. In
many other aspects, the proposal also exceeds the minimum
standards of our Code (see Alice Davis memo).
If there are any negatives associated with this application, they
more directly reflect conceptual problems with timesharing in general
than with the specific proposal. The only negative we found related
to this project is that the units in the building are small and the
amenity package is limited when compared to other timeshare projects
nationwide. However, this will probably be the standard case given
our lodging inventory, and will imply that the timeshare owner is
actually buying Aspen and not just a unit in a complex.
Page 2
Should you have other questions about this application, I refer you
directly to Alice's attached memo.
The Planning and Zoning Commission and the Planning Office recommend
your approval of this application via the following motion:
"Hove to grant subdivision exception to the applicant for the
purpose of timesharing the Prospector, subject to the following
conditions:
1. The applicant will amend the condominium plat to include
the following:
a. Reference encroachment license granted by Council
for the rock facade stairs on the north frontage;
b. Indicate book and page of easements for the transformer
in any vaults or pedestals on the property;
2. The applicant's landscape plan will require final approval
of compliance by the Parks Director. The plan should be
augmented to include the following:
a. The additional sidewalk spur on the west end of the
alley;
b. Irrigation of the planting areas along the west and
north frontages to maintain trees in those locations.
3. The applicant must provide sixteen (16) on -site underground
parking spaces.
4. The project must include amenities as proposed including
a sundeck on the third floor, on -site parking, lobby, and
unit amenities including a hot tub, sauna, wet bar and
masonry fireplace.
5. Occupancy by a timeshare owner is limited to thirty (30)
days between December 18 and tlarch 26.
6. No prohibited marketing practices will be allowed including
the giving of gifts in a deceptive manner, use of public
malls or streets for sale, phone solicitations to visitors
at other lodges, or the giving of transportation, lodging
or other gifts valued in excess of $100.00.
7. The nineteen (19) renovated units found in the Prospector
must each be split into fifty-two (52) weeks. Seven (7)
weeks must be reserved for the maintenance of the project.
Four (4) of these seven (7) weeks must be used exclusively
for maintenance with no rentals or other uses allowed.
Two of the four (4) weeks must be in the spring while the
remaining two (2) weeks must be in the fall. The remaining
forty-five (45) weeks must be sold as proposed in three
(3) week timeshare packages. Each three (3) week package
must contain a peak summer/off-winter week, and an off
season week in either the spring or the fall.
8. No right -to -use timeshare leasehold will be allowed. All
Prospector timeshare interest sales must be on a fee ownership
basis.
9. Timber Run Realty and Terry Liming as Plan Manager and
local contact will be responsible for the marketing program
for the Prospector. The marketing program identified in
the timeshare application must be adhered to.
10. As proposed, the applicant must establish four (4) banking
accounts for operation of the budget system. Proof that
these accounts have been established must be documented
11
•
Page 3
to the City of Aspen when such accounts are established.
11. The issuance of a Certificate of Occupancy will be sufficient
to meet the requirements of Section 20-24 (F) (2) of the
Code regarding the useful life of mechanical and electrical
equipment in the Prospector.
12. The mandatory two (2) month deposit and any down payments
made in conjunction with the purchase of a timeshare unit
must be held in an escrow account until closing or the
issuance of a Certificate of Occupancy, whichever is later.
The escrow agent must be a title company in Aspen, a neutral
third party.
13. No closing will be allowed until at least eight (8) of
the total fifteen (15) timeshare packages are sold for
any given unit.
14. When closing occurs, the declarant as well as the new timeshare
owners must then begin to pay their quarterly assessment
fees for that unit. For any unsold units the developer
is responsible for operating costs.
15. The Interior Reserve Fund and the Exterior Reserve Fund,
both expenditures itemized in the maintenance/assessment
fees, cannot be reduced or suspended during the first five
(5) years after the first closing. All other expenditure
items used in the calculation of the assessment fees can
be adjusted with the approval of the Board of Managers.
The money designated for the reserve funds must always
be held in escrow to be used as needed for interior and
exterior repairs and maintenance. Designated monies going
into the reserve fund (estimated at $10,000 per year) cannot
be reduced or eliminated until the fund has accumulated
$50,000.
16. The Prospector timeshare units are limited to six (6) occupants
at any one time.
17. The applicant will submit a fifty (50) year deed -restriction
for the employee unit (#108) meeting the form and standards
of the Attorney's Office.
18. The owners are required to own the common areas and common
amenities in the Prospector Lodge and this must be reflected
in the appropriate documents.
19. The Board of Managers must designate a local managing agent.
20. One deed must be conveyed for each three week package so
that weeks are never sold individually.
21. References must be made throughout the application and
exhibits attached to indicate that the project is subject
to all of the requirements in Section 20-24 as well as
the State Timeshare Laws which are already specified in
the application and attachments.
22.. The financing for the Prospector must be expressly subject
to all restrictions placed on the project.
23. The applicant must provide satisfactory handicap access
to the first level of the Prospector Lodge by installation
of a handicap lift or by such other means as may be approved
by the Aspen Building Department. In addition, the applicant
shall make ttvo (2) units on the first level of the Prospector
Lodge suitable for handicap use.
24. The plan matager or the managing agent must apply for and
show evidence to the City of a Colorado State Sales Tar.
U
Page 4
be applicable to any short term rental of these units.
A required real estate transfer tax will apply to initial
and subsequent sales of the timeshare interest and will
be collected as is done in any other real estate transaction.
25. The Prospector Disclosure Statement, the Prospector Condominium
Documents entitled Fractional Estate Declaration, the Prospector
Articles of Incorporation of the Fractional Owners Association,
and the By -Laws of the Association as well as a sample
purchase contract must all be amended to reflect the conditions
of approval placed on the Prospector through the approval
process. The Planning Office and the City Attorney's Office
must both review and approve the final documents to ensure
the changes and clarifications are accurately made.
26. Any further updating or amending of the approved timeshare
documents must be approved through the City according to
the requirements of Section 2.0-24 of the subdivision regula-
tions.
27. The declarant may rent unsold units but the rental money
must go toward any maintenance which may be necessary as
a result of the unit's use as a rental.
28. The applicant must clarify throughout the timeshare application
references to timeshare units versus references to timeshare
interests.
29. Thirty percent (300) of the qualified voters (present or
represented by proxy) of the Factional Owners Association
must be present to obtain a quorum.
30. The owners may not lease the common elements or amenities
(excluding the employee unit) which they own as was proposed
in the application..
31. To ensure compliance with the proposed marketing program,
the applicant agrees to post with the City suitable security
in the amount of a $20,000 irrevocable letter of credit.
32. Full details of the RCI exchange program (cost, procedures,
other projects involved, confirmation percentages, etc.)
must be provided to the purchasers of Prospector timeshare
interests.
33. Assessment fees cannot be increased without written notice
being given to the owners thirty (30) days prior to the
effective date of the increase. Such written notice must
explain the reason for the increase and document the need
for the increase.
34. The applicant must submit to the Finance Director the license
fee required by Section 20-24(S) of the Municipal Code,
to be paid on a pro rata basis for the remainder of 1984,
currently estimated at $2950.00. Prior to obtaining the
license from the Finance Director, the applicant must first
pay the outstanding fees owed to the Planning Office, currently
estimated at $2990.00. The applicant shall annually obtain
a new license from the Finance Director on or before January
1st of each subsequent year.
GIDEON 1. KAUFMAN
DAVID G. EISENSTEIN
HAND DELIVERY
LAW OFFICES V�
GIDEON I. KAUFMAN
8OX 1DDD1
31S EAST HUMAN AVENUE
ASPEN. COLORADO 81311
January 15, 1985 TELEPHONE
AREA CODE 303
025.4144
Ronald L. Mitchell i7
Assistant City Manager
City of Aspen
130 S. Galena St.
Aspen, CO 81611
Re: Prospector -- Timeshare Marketing Program
Dear Ron:
Pursuant to our meeting on Wednesday, January 9,
1985, I write this letter to confirm your approval of the new
marketing techniques that the Prospector intends to utilize.
Enclosed are the two ads that will be distributed
offering three days of free skiing and a fifty dollar gift
certificate at participating restaurants. These ads will be
placed in in-flight magazines with both Rocky Mountain
Airways and Aspen Airways and may also be placed in magazines
of some major airlines flying into the DenN7er area. in
addition these offers will be placed in the "Aspen We'.come
Bag" that is placed in numerous condominiums and hotels in
the Aspen/Snowmass area. We also expect to advertise these
offers on boarding passes of Rocky :Mountain Airwa1•s and Aspen
Airways. It is my client's intention to get this information
concerning the Prospector to people as soon as possible
during their Aspen stay. They are also contemplating placing
these ads in the Aspen Daily News and the Aspen Times once or
twice a week to further inform people of the project.
My clients feel that this advertising technique
meets the spirit of the Aspen Timeshare Ordinance as the
gifts being offered have a clear value and there is no
deception surrounding the value of the gifts in the ad. The
qualifications that must be met to receive a gift are in bold
print and are prominently displayed in our ads.
The Prospector's latest advertising employs
mechanisms utili-ed in real estate and timesharing s��les to
generate interest in a project. My clients feel tiie
Prospector is a quality project and if enough people become
aware of the project and tour it they will become purchasers.
I want to thank you for your help and constant
availability which has been invaluable in insuring our
1
Ronald L. Mitchell
January 15, 1985
Page 2
compliance with the myriad requirements of the Timeshare
Ordinance. Again I would like to extend an offer to you to
tour the Prospector so that you can become familiar first
hand with the project and our marketing techniques.
If this letter correctly reflects those matters
approved at our meeting and the Prospector can employ these
new marketing techniques please sign as indicated below..
Very truly yours,
LAW OFFICES OF GIDEON I. KAUFMAN,
a Professional Corporation
5-7/—
B y
Gideon Kaufman
GK/kl
Enclosures
cc: Brad Cagle
Agreed to this L��day of January, 1985.
ASSISTANT CITY MAILAGER
BY
Ronald L. Mitchell
��,�'.,:-.n w..I►r..r.-r.ii/ 1Vw.....ww.w—" - L.:-:+�/4..N si-H �1V W..AWva. L::._ :, i..ra .Mi _ -- .<urL.. i1.4+w1.A1v.r.r. .w _.. ..... rr�wrw�w...-._.'...M�Wi.rr..la♦.
Tour
The Prospector Lodge
as our guest. and
receive 3 Days Lift Tickets
Luxury
Condominium OwnerShip
from $28,500
When you own a condominium at
The Prospector Lodge you pur-
chase only what you use ... and that
costs a fraction of what full owner-
ship costs.
ASPEN'S PREMIER DOWNTOWN
LOCATION ... on Hyman St. Mail 2
blocks from Aspen Mt. Lifts.
•Spacious designer suites, with in-
dividual spa and sauna on each
private sundeck.
• Each suite has an unobstructed
view of Aspen's mountains.
•Comfortable accommodations for
six adults.
OUALIFICATIONS
Because of the unique nature of The
Prospector Lodge at Aspen, this of-
fer has been specially designed for
Aspen visitors, 30-65 years of age
with a combined family income of at
least $50,000 per year. If married,
both husband and wife must attend a
one -hour presentation of the advan-
tages of Fractional Ownership in
Aspen. Only one certificate per
group. Of course, there is no obliga-
tion to purchase.
Please do not confuse Fractional
Ownership with traditional timeshare;
it is not, nor do we employ high-
pressure sales tactics. If you have
ever desired to own real estate in
Aspen, do not miss this rare oppor-
tunity!
(This gift is a limited offer and maybe . The
withdrawn at anytime.)
TOURS
l BY APPO'9,'TMENT ONLY '
Oa(! 3031920-20 -
,. �,,,..�„-r..rir�F,e•. R.o��e�-.cT•.�...er.a.....-"7.M�i•lT•�.. r.s •..... ..t :x,.*^- �,..qr. �..�w.�.�,a,...;-.w'.. .. .r..ar.•:<
�.rat..b'.......-.:rtarr- - ..�ir.irtLr+i..�A.�'�:.,.._... .. --^:+.a..+�............�...._-.........r�....a�.... -..,:.of.w:�::..ad:ret..........a.aw.`
,�y1� i1•JC I
t ...,. �A fS4i11�51 ld,• .. r A, 4 M i} v,_ $ \ram ♦1
Tour
Lj
The Prospector Lodge
as our guest ... and receive a
` $50 Gift Certificate
,redeemable at participating restaurants*11
Luxury
Condominium Ovnurncrsb alp 4
y from Z328,500
-
OUALIFICAT1ONS
Because of the unique nature of
The Prospector Lodge at Aspen,
this offer has been specially
-designed for Aspen visitors,
30-65 years of age with a com-
When you own a condominium at
bined family income of at least
The Prospector Lodge you pur-
$50,000 per year. If married,
chase only what you use ... and that
both husband and wife must at -
costs a fraction of what full owner-
tend a one -hour presentation of
ship costs.
the advantages of Fractional
ASPEN'S PREMIER DOWNTOWN
Ownership in Aspen. Only one ;
LOCATION ... on Hyman St. Mail 2
certificate per group. Of course,
blocks from Aspen Mt. Lifts.
there is no obligation to pur-
chase.
&Spacious designer suites, with In-
Please do not confuse Fractional
dlvldual spa and sauna on each
,
Ownership with traditional
private sundeck.
timeshare; it is not, nor do we;
&Each suite has an unobstructed
employ high-pressure sales tac- W
view of Aspen's mount,.
tics. If you have ever desired to tl
own real estate in Aspen, do not ;
OComfortable accommodations for
miss this rare opportunity!
six adults.
*Participating Restaurants
Fins Restaurant
(This gift is a limited offer and may be
Smuggler Land Office Restaurant
withdrawn at anytime.)
Green House Restaurant
The
TOURS
APPOINTMENT ONL
call 3 0 3 / 9 2 0 - ` G."D*0
9 a. rn. to 8 p.m.
•^.t�''%�"f'v: =�A. xL'.y'':i.�as�:ie�'6C�:'.GCr':�.� �:.. :'s.�.l..s...�.,.wr'
RECORD OF PROCEEDINGS 100 Leaves
FORM •0 C. F. MOECNEL 8. 0. E L. CO.
ORDINANCE NO. 55
(Series of 1983)
AN ORDINANCE AMENDING SECTION 20-24 OF THE MUNICIPAL CODE PERTAIN-
ING TO TIMESHARING SO AS TO: AMEND SUBSECTION (C)(1) BY DELETING
REFERENCE TO THE "RVIE"F ZONE, 'THEREBY RESTRICTING TIMESHARING TO
ONLY THE "L-1", "L-2", "L-311, "CC" and "CL" ZONES; AMEND SUBSEC-
TIONS (E)(3)(c) AND (0)(2) TO REGULATE THE GIVING OF GIFTS; ADD A
SUBPARAGRAPH (13) TO PARAGRAPH (E) REQUIRING COMPLIANCE WITH
HANDICAP ACCESS IN TIMESHARE PROJECTS; ADD A PARAGRAPH (S) TO
REQUIRE THAT A LICENSE BE OBTAINED FOR ALL TIMESHARE PROJECTS; AND
AMEND PARAGRAPH (J)
WHEREAS, having conducted a review of timeshare regulations
pursuant to Section 20-24(R) of the Municipal Code, the City Coun-
cil deems it to tie in the best interest of the City of Aspen, its
inhabitants and visitors to amend Section 20-24 of the Municipal
Code as hereinbelow provided;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ASPEN, COLORADO:
Section 1
That subsection (C)(1) of Section 20-24 of the Municipal Code
of the City of Aspen be and the same is hereby amended to allow
timesharing in only the L-1, L-2, L-3, CC and CL zones, said
section to read as follows:
"(C) Zones in which timesharing shall be permitted; struc-
tures allowed to be timeshared.
(1) Timesharing as defined 'herein shall be allowed in
the L-1, L-2, L-3, CC and CL zones. Timesharing
shall only be permitted as a conditional use in the
above zones, requiring a permit in accordance with
the procedures and requirements for obtaining a
conditional use set forth in Chapter 24 of this
Code, in addition to subdivision approval as
required by this Chapter. To the extent practi-
cable, subdivision and conditional use approval
shall occur simultaneously."
Section 2
That subsection (E)(3)(c) of Section 20-24 of the Municipal
Code of the City of Aspen is hereby amended to regulate the giving
of gifts, said amended subsection to read as follows:
RECORD OF PROCEEDINGS 100 Leaves
FORM •0 C. F. HOECKEL B. B. S L. CO.
"(c) Gifts of free transportation or free lodging or other
gifts valued in excess of one hundred dollars ($100.00)
to induce prospective purchasers to attend sales
presentations or to purchase timeshare estates."
Section 3
That subsection (0)(2) pertaining to prohibited practices in
connection with the givinq of gifts is hereby amended to read as
follows:
"(2) The giving of free transportation or free lodging or
other gifts valued in excess of one hundred dollars
($100.00) to induce prospective purchasers to attend
sales presentations or to purchase a timeshare
estate."
That subsection (F) of Section 20-24 of the Municipal Code of
the City of Aspen pertaining to timesharing standards and review
criteria is hereby amended by the addition of a subparagraph (13)
thereto to require compliance with handicap access, said subpara-
graph to read as follows:
"(13) Handicap access. Satisfactory provisions shall be made
to provide handicap access to ten percent (10%) of the
units and to and throughout the project as required by
the Uniform Building Code."
That Section 20-24 of the Municipal Code of the City of Aspen
is hereby amended by adding a subsection (S) pertaining to the
licensing of timeshare projects, said subsection to read as fol-
lows:
"(S) Licensing.
In order to properly administer and assure compliance
with the requirements of this section, it shall be
unlawful for any timeshare project to operate in the
City of Aspen without a license first having been
obtained therefor in accordance with the following pro-
cedures:
(1) The license required by this section shall be
granted and reviewed only upon approval of the
timeshare project by the City Council and upon the
submission of a license application stating the
address of the project, the manager thereof, and
such other facts as the Director of Finance may
require.
2
0
0
FORM •0 C. F. HOECKEL R. B. S E. CO.
RECORD OF PROCEEDINGS 100 Leaves
(2) For each license issued under the provisions of this
paragraph, a fee of five thousand dollars ($5,000.00)
per year shall be paid, which fee shall accompany the
application. In the first year of issuance, the amount
of the license fee shall be prorated according to the
number of days left in the year. The initial license
fee shall be returned to the applicant if the timeshare
application is denied.
(3) All license fees, from the time they are due and pay-
able, shall become and remain a lien upon the timeshare
project until paid, and may be collected by an action in
personam or in rem, or both. Additionally, any lien for
unpaid license fees against the timeshare project may
also be collected as provided by the statutes of the
State for the collection of taxes and other liens and
assessments against real estate.
(4) A license required by this paragraph shall be granted
and issued by the Director of Finance and shall be in
force and effect until the 31st day of December of the
year in which it is issued, and annually thereafter.
(5) It shall be the duty of each licensee under the provi-
sions of this paragraph on or before January 1 of each
year to obtain a renewal thereof if the project remains
as a timeshare project.
(6) Licenses shall be granted only if the project is in com-
pliance with the regulations of this section and its
approval by the City Council pursuant to this section."
Section 6
That since this ordinance implements a licensing scheme, sub-
section (J) of Section 20-24 of the Municipal Code of the City of
Aspen is hereby amended to delete the sentence reserving the right
to implement a licensing scheme, said subsection to read as fol-
lows:
"(J) The marketing and sale of timeshare units shall be
governed by the real estate laws set forth in Title 12,
Article 61, C.R.S. 1973, as amended. The applicant and
licensed marketing entity shall present to the City the
plan for marketing the timeshare units. In addition to
all other remedies or penalties, any deviation from the
approved marketing plan shall give the City the right to
enjoin these sale techniques. The applicant shall be
responsible for paying the costs of such legal action to
enjoin, including the City's legal fees and expert wit-
ness fees. To secure this responsibility, a sum of
twenty thousand dollars ($20,000.00) cash or a twenty
thousand dollar ($20,000.00) irrevocable letter of
credit for each timeshare project in which the applicant
or marketing entity is involved shall be required to
3
i
0
RECORD OF PROCEEDINGS 100 Leaves
FORM 10 C. F. MOECNEI B. B. B L. CO.
be posted with the city to ensure that the applicant and
the marketing entity do not deviate from the approved
marketing plan."
Section 7
If any section, subsection, sentence, clause, phrase or
portion of this ordinance is for any reason held invalid or
unconstitutional by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the
remaining portions thereof.
A public hearing on the ordinance shall be held on the
day of 1984, at 5:00 p.m. in the
City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED published as provided by law by
the City Council of the City of Aspen on the day of
, 1984.
william L. Stirling, Mayor
ATTEST:
Kathryn S. Koch, City Clerk
FINALLY adopted, passed and approved this day of
ATTEST:
Kathryn S. Koch, City Clerk
, 1984.
William L. Stirling, Mayor
4
i'..�. ^ .; TON ::cats?.:u^';,
c
May 1 8, 1984 �i^�`,�`____::
� Es
Mr. Paul J. Taddunelvt
q. ,d
City Attorney
City of Aspen MY 2 1 1984_
X.
130 South Galena
Aspen, Colorado 8 161 1 ASPEN / PIiKIN CO.
p FIA,NNING (-Ir ICF-
RE: Amendment to Application for Approval of Time Sharing
Project
Dear Mr. Taddune:
Pursuant to the undertaking set forth in W. Michael Clowdus'
May 8, 1984 letter to you, please consider this letter an
amendment to the Application for Approval of Time Sharing Project
(the "Application") previously submitted by Merit Investment Co.,
Inc. (the "Applicant") for the Prospector Lodge. The Application
is hereby amended as follows:
1. Applicant's marketing plan will comply with the
requirements of Ordinance No. 55 (Series of 1983). To this end
Applicant will not give any gift valued in excess of $100.00 to
induce prospective purchasers to attend sales presentations or to
purchase a time share estate. This limitation specifically
includes free transportation or free lodging. Condition Number 11
set forth in Alice Davis' August 22, 1983 Memorandum (the
"Memorandum") to the Aspen City Council (the "Council") should be
changed to reflect this amendment.
2. Applicant shall provide handicap access as discussed
with the Council at the May 14, 1984 meeting. Specifically,
Applicant shall provide handicap access to the first level of the
Prosector Lodge by installation of a handicap lift or by such
other means as may be approved by the Aspen Building Department.
In addition, Applicant shall make two units on the first level of
the Prospector Lodge suitable for handicap use. Condition Number
25 of the Memorandum should be changed to reflect this amendment.
3. Applicant shall comply with the license requirement set
forth in Ordinance No. 55 and shall tender to the Director of
Finance a check or $ in exchange for issuance of
the license simultaneously with approval of the Application by the
Council. In addition, Applicant will tender irrevocable letter of
credit in the amount of $20,000.00 to secure its obligations as
required by Condition Number 33 of the Memorandum and Ordinance
Mr. Paul J. Taddune, Esq.
May 18, 1984
Page 2
No. 55. Condition Number 33 should be changed to clarify that a
single $20,000.00 letter of credit meets the requirements of
Condition Number 33 and Ordinance No. 55.
4. Condition No. 10 shall be amended to provide that there
will be a plan manager and local contact who is a licensed real
estate broker and that the initial plan manager and local contact
shall be Terry Liming.
5. It is our understanding that Condition Number 13 of the
Memorandum has been deleted.
Except as otherwise specifically noted above, the Application
remains in full force and effect as submitted.
Submitted this day of May, 1984.
APPLICANT:
MERIT INVESTMENT COMPANY, INC.,
3y
MEMORANDUM
TO:
Aspen City Council'
FROM: Alice Davis, Planning Office
RE: Prospector Lodge - Conditionz-1 Use Review and Subdivision
Exception Review for Timesharing
DATE: August 22; 1983
Location: 301 East Hyman Avenue - Lot's A, A, C, D, Block 82,
Aspen Original Townsite.
r
Zoning: CC - Commercial Core.
Applicant's '
Request: The applicant, Merit Investment Company, is requesting
approval for a timeshare project at the Prospector
Lodge. The project requires conditional use approval
from P&Z pursuant to Section 24-3.3 as well as
approval to a two step subdivision exception review
for converting the Prospector to a lodge condominium
and a timeshare use pursuant to Code Sections 20-23
and 20-24 of the Code.
Project
Summary: The Prospector Lodge currently consists of 19 newly
renovated lodge units, with an average unit size of
756 square feet. If approved as a timeshare project
the 19 lodge units would each be split in 52 interests,
one interest for each week of the year. Seven
weeks will be reserved for maintenance while the
remaining 45 weeks will be sold in three week
timeshare packages. (15 total packages to be sold
for each unit.) Each three week package will
contain a peak season winter ski week, a peak
summer week and an off season week in either the
spring or the fall.
Planning Office
Review: The following is a review of the Prospector Lodge
timeshare application based on the 12 standards and
review criteria established in Section 20-24 of the
Code.
1. Right -To -Use. As required by the regulations,
the Prospector timeshare interests will be fee
ownership, not the prohibited right -to -use
leases.
2. Integration. The project is purely residential,
all units will be timeshared and the project
is backed by 100 percent of the owners and the
potential purchasers who have the property
under a sales contract.
3. _Marketing and Sales Techniqu(--s. As required,
the applicant states that the marketing of the
Prospector timeshare interests will not
involve the giving of gifts in a deceptive
manner, no use of public malls or streets for
sales and no local phone solicitations. The
sales program will be ,-un by Timber Run Realty
out of: Wintc)_ Park,, Cc- lorado, . a company which
has been involved in timeshare projects in
Winter Park and Snowmuss.
emo:. Prospector Lodge Timeshare
Page Two
August 22, 1983
Timeshare sales will be -directed at tourists
in the peak summer and winter seasons through
'the use of local magazines, newspapers and
television. Low season sales will be directed
at several target cities including Dallas,
Houston and Chicago. National magazines and
newspapers (Sports Illustrated, Ski, Gentlemen's
Quarterly, Houston Post, etc.) will be th•e
primary source•of advertisement in these
areas.
Interested persons calling on ai timeshare ad
will be sent an information package. If the
person calls again and is still interested, he
will be invited to come visit the project and
may be offered a subsidy to help pay transportation
and lodging costs. To ensure that this aspect
of the program operates in a responsible way,
the Planning Office recommends that the program
be reviewed after it is in operation.
The Prospector sales period should be relatively
short in that there are only 15 packages to be
sold for each of the 19 units.
4. Amenities. Common area amenities include a
sun deck on the third floor, on -site parking
and•a lobby area. Laundry facilities are
planned, but must be reviewed through the
conditional use process. Individual units
each have private decks, a hot tub and sauna,
a wetbar and a masonry fireplace. All common
areas and common amenities must be owned by
the timeshare owners.
5. Parking. There is no mandatory parking requirement
for a lodge use in the CC zone, but 17 under-
ground spaces were required as part of a
previous conditional use approval in order to
replace spaces removed in the renovation. The
applicant states that only 16 spaces are
possible given the limitations of the parcel
and the existing structure since one space was
used for necessary mechanical space. The
Planning Office feels that 16 spaces are
.adequate given that no parking is required in
the CC zone and that the spaces are often not
fully utilized in the winter.
6. Maintenance. Section 20-24(E)(6) requires a
minimum of four weeks to be reserved for main-
tenance due to the intensive, high impact
nature of timeshare projects. (Two weeks in
the spring and two weeks in the fall.) The
applicant has agreed to provide seven maintenance
weeks. The Planning Office feels that two
weeks in the spring and two weeks in the fall
must be reserved for maintenance only and no
rentals or other use besides maintenance
should be allowed in this period. The remaining
three of the seven week o can be used for
maintenance in either the spring or fall hs is
necessary.
r
Memo: Prospector
Page Three
August 22, 1983
Ldoge Timeshare Project
7. Budget: The"''rospector application included
an itemized budget ;isting expenditures such
as common electricity, snow removal, firewood,
-property taxes, interior maintenance, exterior
building reserve fund and administrative
costs. The total cost comes out to $8,306 per
condominium unit (19 units), $553.73 per
timeshare interest (1/15 interest in one unit)
and $138.43 quarterly for each timeshare
interest. The budget system will use four
banking accounts, including 1) 4 general
operating; 2) an escrow for taxes; 3) an
excrow for furniture reserve; and 4) an escrow
for a building reserve. The budget estimates
were based on the marketing entity's timeshare
experience in Winter Park and information from
local property managers in Aspen.
8. Conversions. All existing structures converting
to a timeshare use are required to be physically
upgraded through expenditures equal to a
minimum of. 30 percent of the fair market value
of the property prior to conversion, unless
the applicant demonstrates to the satisfaction
of the City Council that funds previously
expended have sufficient1v upgraded the project.
The applicant has submitted an appraisal and
documentation that well over this amount has
been spent for the renovation -of the Prospector.
9. Escrow. Deposits or downpayments made in
connection with the purchase of a timeshare
unit must be held.i.n an escrow account until
closing or the issuance of a Certificate of
Occupancy, whichever is later. The escrow
agent will be a title company in Aspen, a
neutral third party. The proposal states that
no closing on any timeshare interest within a
unit will be completed until *at least eight of
the 15 packages are sold in that unit.
10. Management/Assessment Fees. As discussed in
the budget, the Prospector's assessment fees
are estimated at $138.43, quarterly. This
amount includes necessary operating expenditures
as well as money to be placed in a reserve
fund for interior unit maintenance. and repairs
and exterior building maintenance and repairs.
In addition, the applicant states that a
deposit equal to a three month assessment fee
may be required at the time of purchase for
security in case the fees; are not paid. The
Planning Office feels this deposit should be
mandatory and the applicant has agreed that it
be mandatory.
The application states that.the assessment
fees are due and payable to a schedule established
by the Board of Managers, the Board which
handles the affairs of the Fractional Owners
Association. As proposed, the Board t; .11 be
established 120 days aftcr 75 percent. of the
timeshare interests have been conveyed (or
August 1, 1988, chichever is first) . An
0
Memo:' Prospector Timeshare Porject
Page Four
August 22, 1983
interim Doarj of Managers appointed by the
developers will be established until this
time. The declarant is responsible for all
required assessment fees and expenditures
related to the unsold units after the first
timeshare package is sold.
11. Reserve. The quarterly assessment fe`e includes
a collection for a reserve fund for interior
and exterior repairs and maintenance. The
Exterior Fund, estimated at $101,000 per year,
will be used when necessary for such things as
repainting, roof repairs and other structural
repairs, landscape replacements and carpet
repairs in common areas. The fund should
build up sufficiently until it is needed in
5 - 10 years. The Interior Reserve will be
used for individual unit,repairs such as
furniture, furnishings and appliance replacement.
The Reserve Fund, as proposed, may be reduced
or suspended for a few years .if 75 percent of
the owners agree to the grange. The Planning
and Zoning Commission and the Planning Office
feel that the Reserve Fund, even if unused,
should be mandatory for a few years since this
fund is our major assurance that the high
impact, intensive timeshare use will not
deteriorate the lodge, but will ensure that
the lodge is continually maintained and repaired.
We recommend that the amount going into the
reserve fund not be adjusted until five years
after the first closing on a timeshare package.
At this time, the owners can adjust the fund
.if 75 percent of the owners and 100 percent of
the mortgagees agree to the amendment.
12. Occupancy Standards. The Prospector units
wz e limited to sir, occupants at any one
time as the applicant feels that this is the
maximum allowed to maintain an optimum comfort
level. This is within the Building Code
occupancy standards..
Lodge condominiumization regulations limit an
owner's occupancy to 14 days during the winter
peak season to ensure that lodge units remain
available for short term use. A timeshare
project must meet the lodge condominiumization
requirements (Section 20-23) as well as the
timeshare requirements (Section 20-24). If a
timeshare purchaser in the Prospector buys
more than two packages, he will be violating
the 14 day restriction if he occupies the
lodge during the ski weeks he purchased.
Since the intent of the condo regulation was
to ensure a short term use of the lodge, and
since timeshare is by its very nature a short
term use, the Planning office feels this
requirement can be extended from 14 to 30 days
for the Prospectoi:. (Limits a purchase to 34
packages.) The City Ai-. .orney's Office agrees
that, when cippr_opriat: this requirement can
be determined inz:,pplicable for the purpose: of
timesharing.
6,
0
Memo: Prospector_
Page Five
August 22, 1983
Lodge Timeshare Project
Referral
Comments:.,. The Attorney's Office commented that several
clarifications and changes were needed in the
timeshare documents. These
below; comments are summarized
1. A•title commitment is needed in addition.to
the warranty deed supplied.
2• The actual 50 year deed restriction for the
employee unit must be r,ii iewed' and a
the Attorney's Office as soon as pproved by
posasible.
3. Timber_ Run, the marketing entity, should be
licensed in Aspen and should maintain a local
office.
4. The timeshare owners are required to owa the
common areas and amenities - this is'not
reflected in the declaration, but should be.
5• The Board of Managers must 'designate a local
managing agent. This i os ptional as submitted
by the applicant.
6. One deed should be conveyed for each three
week package so that weeks are never resold
individually.
7. References should be made throughout the
application that the project is subject to all
the requirements of Section 20-24 as well as
the State Timeshare Laws which are specified.
8. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
9. The proposed unit amenities and the employee
unit (#108) must be shown on the condominium
plat.
Engineering is requesting several minor plat amendments
which are stated in the attached memorandum from
Jay Hammond. It is also recommended that the
landscaping plan contain the addition of the sidewalk
spur on the west end of the alley and the irrigation
of planting areas along the north and west frontages
to maintain the trees in these locations.
Jim Holland, Director of Parl;s, has conceptually
approved the landscaping plan. The applicant is
amending the landscaping plan from the -Plan ori-
ginally approved through the conditional use review
since the previous Owner removed trees and constructed
in areas which were to be Preserved,
retains all seven existing firs,
several aspen includes sodding,clusteclusters, a rock retaining wall,
bricking the alley and a sprinkler system
maintaining the landscaping, For
4
Memo: Prospector
Page Six
August 22, 1983
Timeshare Project.
The Building Department stated that a conditional
Certificate of Occupancy was issued on the Prospector
it) January, 1983 and was extended through June 30,
1983. The C.O.' expired June 30th, as three conditions
were still unsatisfied. These three conditions
must still be met prior to issuance of a C.O.:
1. The required handicapped access must be approved
by Council. P&Z recommended that this access
requirement be'waived.
2. The parking requirement must be,reduced, from
17 to 16 or the additional space must bo
provided.. P&Z approved the parking reduction
to 16 spaces.
3. The landscaping plan must be approved by
Council. P&Z approved the landscaping plan as
a conditional use modification.
The Finance Department stated that .the plan manager
or managing agent must apply for and show evidence
to the City of a Colorado State Sales Tax License'
since City, County and State sales tax will be
applicable to any short term rental of these units.
The required real estate transfer tax will apply to
initial and subsequent sales of the timeshare
interests and will be collected as in any other
real estate sale.
The'submission requirements for a timeshare appli-
cation require a Disclosure Statement, Condominium
Documents (Fractional Estate Declaration), Articles
of Incorporation of the Fractional Owner's Association
and the Bylaws of the Association as well as a
sample purchase contract. The documents have been
submitted by the applicant and reviewed by the
Planning Office and Attorney's Office. Changes
will reed to be made to thcse documents as conditions
are placed on the Prospector through the approval
process. The Planning Office and Attorney's Office
should both review and approve the final documents
to ensure the changes and clarifications are made.
Lodge Condomin-
iumization Review:
Most elements of the lodge condominiumization
review are covered in the above timeshare review.
The Planning Office is, however, recommending a
Code amendment to the timeshare regulations which
clarifies this situation by including the condominium
regulations as guidelines (not requirements) in the
timeshare review. The following is a review of the
lodge condominium regulations/guidelines which were
not covered in the previous timeshare review.
1. An affidavit has been submitted which verifies
that the Prospector Lodge has not been in
operation for three ye.nrs.but the quality and
quantity of services, maintenance and management
of the operation prior to thi; three year period
is being improved in the new facility.
Memo:* Prospector Timeshare Project
Page Seven ,
August 22, 1983
2. The applicant is providing the required two
Pillows of employeerhousing.'This unit (f106)
-must be deed restricted to the employee guidelines
for 50 years and must be shown on the condominium
plat.
3. Section 20-23 (A) (1) (a) limits an owner's occu-
pancy during the winter season to 14'days. It
is recommended that -this requirement be adjusted
to 30 days for the Prospector so that more
than two timeshare packages can be purchased
and utilized by one owner.
Conditional
Use Review
(Sec. 20-3.3): The primary purpose of requiring a conditional
use review for a timeshare project is so that a
public hearing will be seta A public hearing is
not normally required in a two step subdivision
exception process.
Section 20-3.3 established three suitability require-
ments to be used in evaluating a conditional use.
These requirements are met since the project complies
with the zoning code and is consistant with the
objectives of the zoning code and the CC zone
district. Also, the project is compatible with
surrounding land uses in that it is located in an
area with other lodge and convnercial uses, blends
in well with the neighborhood and will not significantly
increase parking, noise or traffic impacts in the
area.
Laundry facilities are proposed as part of the
Prospector. Since these facilities have not'yet
been reviewed as a modification of a conditional
use, they would require another conditional use
review. In order to avoid a second review and fee,
the P&Z conceptually reviewed the applicant's plans
for the laundry facilities, then tabled this
review until further information is obtained.
Planning and
Zoning Commis-
sion and
Planning Office
Recommendation:
The Planning and Zoning Commission and the Planning
Office feel that the applicant has submitted an
excellent proposal for timesharing. Although we
recommend approval, we also suggest that a very
detailed list of conditions be established to
ensure the project is carried out as it is proposed.
With this in mind, the P&Z and the Planning Office
recommend the approval of the Prospector Lodge
timeshare application subject to the following
conditions:
I
CITY 07 ASPEN
13G sotit ia gaiena -, 'tree t
aspen;, colurado, 81611
303--925 -2020
CONFIDENTIAL MEMORAUDUM
DATE: May 9, 1984
TO: City Council
FROM: City Attorney
RE: Merit investment Co. v. City of Aspen
Pursuant to settlement discussions in the timesharing lawsuit, I
have received the annexed correspondence which I am attaching for
your information.
The discussions are ongoing, and I expect to receive another let-
ter with a signed Stipulation of Settlement within the next few
days, which I will 'hold in escrow pending approval.
Basically, the applicants propose to aruead their application to
conform to the amended timeshare regulations. I would then recom-
mend that Council move to reconsider the application. The amended
application would be then reconsidered in the ordinary course of
the approval process. The Stipulation of Dismissal would become
effective after Council approves the amended application. Of
course, if the dialogue in the approval process is not mutual, the
applicants would be permitted to withdraw the Stipulation of Dis-
missal.
I have asked the applicants to identify all acceptable conditions
of approval, working from Alice Davis' memo before the moratorium
was enacted.
The only problem I perceive at this point is what Council intends
regarding handicap access. Gideon advises that installation of an
elevator would be difficult; that the Building Department did not
insist upon an elevator in the course of issuing a building permit
and that Tom Isaac, in making handicap access recommendations did
not have an elevator in mind with respect to this building. I am
seeking a clarification of these issues.
As with all settlements, time is of the essence, and I request an
opportunity to discuss this with you at the May 14 meeting.
PJT/mc
Attachment
0
•
PEN DLETON A MBIAN, I'. C.
AITOKNLYS AND -OUM41ORS AT LACY/
W. MICHAEL CLOWDUS
Mr. Paul J. Taddune
City Attorney
City of Aspen
130 South Galena
Aspen, Colorado 81611
SEVENTEE.NTI I AND GRANT PIIILDING
SIII i L I000
303 FAST SIiVEtJ"I'IiLNTFI .AVE.NIIE
DENVER,COLORADO `W03
May 2, 1984
TELEPHONE: (303) 839-I:'.OJ
TELE;-.01'ILR: (303) o.:I-07Mi
TWX910-93,-0.107
RE: Merit Investment Co., Inc., a Colorado corporator,
Plaintiff, vs. The City of Aspen, a Colorado Home Rule
City, a municipal corporation, et. al.; Case No. 83CV371
in the District Court, County of Pitkin, State of
Colorado (the "Lawsuit")
Dear Mr. Taddune:
The purpose of this letter is to outline a settlement
proposal pursuant to which Plaintiff would dismiss with prejudice
the Lawsuit. Enclosed with this letter is a proposed form of
stipulation dismissing the Lawsuit.
Plaintiff will dismiss the Lawsuit after the Aspen City
Council (the "Council").approves Plaintiff's prior Application for
Timeshare and Conditional Use Approval and for Amendment to the
Existing Conditional Use Permit (hereinafter referred to as the
"Application") pursuant to Section 20--24 of the Municipal Code of
the City of Aspen (Ordinance No. 52, Series of 1982) (hereinafter
referred to as the "Timeshare Ordinance") upon the Counci]_'s own
motion to reconsider. Prior to such approval, the Application
would be amended to comply with the additional requirements of
Ordinance No. 55 (Series of 1983) which amended the Timeshare
Ordinance. The amendment to the Application and the Council's
approval of the Application, as amended, would specify the
requirements to be imposed pursuant to subparagraph 13 of
subsection (E) of the Timeshare Ordinance which now provides
"satisfactory provisions shall be made to provide handicap access
to and throughout the Project." Such requirements must be
acceptable to Plaintiff.
Further, dismissal of the Lawsuit would be conditioned upon
issuance of all permits and approvals required by the City of
Aspen for completion of renovation of the improvements on the real
property which is subject to the Application and the good faith
Mr. Pau]. J . Taddune
May 2, 19£34
Page Two
cooperation of the City of Aspen in allowing Plaintiff to sell
timeshare interests pursuant to the requirements of the Timeshare
Ordinance.
If the foregoing proposal is acceptable to the Council,
please advise me immediately and this office will proceed to amend
the Application. if this matter is not set.tLed in the next
several weeks, Plaintiff will be unable to close the purchase of
the property and proceed with the project. Plaintiff's only
recourse would then be prosecution of the Lawsuit.
I look forward to hearing from you.
Very truly ycurs,
W. Michael c-iowdus
WMC:sd
cc: Daniel M. Fowler, Esq.
PEN D LETON 8 SAB IAN, P. C.
T , ` PITKIN, STATE' OF COLORAO
DISTRICT COURT, COI:N.[Y OF PI7hIN, � tom•? ;`' ;;�)�;5;•;:i`� C�' 'i
3TIPULATICN AND AGR ^MENT Case No. 83 CV 371
MERIT INVESTMENT COMPANY, INC., a Colorado corporation,.
Plaintiff,
VS.
THE CITY OF ASPEN, a Colorado home rule City, a municipal
corporation; THE CITY COUNCIL FOR THE CITY OF ASPEN; and
WILLIAM STIRLING, as Mayor of the City of Aspen and Indivi-
dually, RICIiARD KNECHT as a I`Iember of the City Council and
Individiaully, CHARLES C. COLLINS as a Member of the City
Council and Individually, ALI.,AN BLOMQUIST, as a Member of
the City Council and Individually, and CHE�RLOTTE WALLS, as
a Member of the City Council and Individually,
Defendants.
Plaintiff and Defendants, by and through their attorneys,
stipulate and agree as follows:
1. The parties having resolved all matters in contro-
versy agree that Plaintiff's Complaint shall be dismissed with
prejudice. The parties to bear their own costs.
PENDLETON & SABIAN, P.C.
By
W. Michael Clowdus 6851
Attorneys for Plaintiff
303 E. 17th Avenue, Suite 1000
Denver, Colorado 80203
(303) 839-1204
WOOD, RIS & HAMES, P.C.
By:
Daniel M. Fowler #6357
Attorneys for. Defendants
1100 Denver Club Building
518 Seventeenth Street
Denver, Colorado 80202
(303) 595-8145
• 0
MEMORANDUM
TO:
FROM:
RE:
DATE:
Aspen City Council
Alice Davis, Planning Office
Prospector Lodge - Conditional Use Review and Subdivision
Exception Review for Timesharing
August 22, 1983
Location: 301 East Hyman Avenue - Lots A, B, C, D, Block 82,
Aspen Original Townsite.
Zoning: CC - Commercial Core.
Applicant's
Request: The applicant, Merit Investment Company, is requesting
approval for a timeshare project at the Prospector
(pr6l.o-5e Lodge. The project requires conditional use approval
tojge Coo from P&Z pursuant to Section 24-3.3 as well as
approval to a two step subdivision exception review
c�h for converting the Prospector to a lodge condominium
and a timeshare use pursuant to Code Sections 20-23
and 20-24 of the Code.
Project
Summary: The Prospector Lodge currently consists of 19 newly
renovated lodge units, with an average unit size of
756 square feet. If approved as a timeshare project
% the 19 lodge units would each be split in 52 interests,
5-�L-U)k5 � l'S_ 3 one interest for each week of the year. Seven
weeks will be reserved for maintenance while the
z _ bLm/4r)remaining 45 weeks will be sold in three week
04 timeshare packages. (15 total packages to be sold
for each unit.) Each three week package will
contain a peak season winter ski week, a peak
summer week and an off season week in either the
spring or the fall.
Planning Office
Review: The following is a review of the Prospector Lodge
timeshare application based on the 12 standards and
review criteria established in Section 20-24 of the
Code.
1. Right -To -Use. As required by the regulations,
the Prospector timeshare interests will be fee
ownership, not the prohibited right -to -use
leases.
2. Integration. The project is purely residential,
all units will be timeshared and the project
is backed by 100 percent of the owners and the
potential purchasers who have the property
under a sales contract.
3. Marketing and Sales Techniques. As required,
the applicant states that the marketing of the
YIMkr gon _ (.�P.t-Sirel5S Prospector timeshare interests will not
involve the giving of gifts in a deceptive
manner, no use of public malls or streets for
sales and no local phone solicitations. The
Ur��ufC cr�t°S sales program will be run by Timber Run Realty
out of Winter Park, Colorado, a company which
Uisi� has been involved in timeshare projects in
Winter Park and Snowmass.
et. reueta) a-{*(- (�,ho .
e • •
Memo: Prospector Lodge Timeshare
Page Two
August 22, 1983
Timeshare sales will be directed at tour;%+%
in the peak summer and winter seasons through
the use of local magazines, newspapers and
television. Low season sales will be directed
at several target citiP% including Dallas,
Houston and Chicago. National magazines and
newspapers (Sports Illustrated, Ski, Gentlemen's
Quarterly, Houston Post, etc.) will be the
primary source of advertisement in these
areas.
Interested persons calling on a timeshare ad
will be sent an information package. If the
person calls again and is still interested, he
will be invited to cnme visit the project and
may be offered a subsidy to help pay transportation
and lodging costs. To ensure that this aspect
of the program operates in a responsible way,
the Planning Office recommends that the program
be reviewed after it is in operation.
The Prospector sales period should be relatively
short in that there are only 15 packages to be
sold for each of the 19 units. 2S,5 -to{ PL(CW5
4. Amenities. Common area amenities include a
oWW_Y 5 sun deck on the third floor, on -site parking
OU-)h and a lobby area. Laundry facilities are
planned, but must be reviewed through the
conditional use process. Individual units
each have private decks, a hot tub and sauna,
a wetbar and a masonry fireplace. All common
areas and common amenities must be owned by
the timeshare owners.
5. Parking. There is no mandatory parking requirement
for a lodge use in the CC zone, but 17 under-
ground spaces were required as part of a
previous conditional use approval in order to
replace spaces removed in tN
enovation. The
applicant states that only paces are
possible given the limitations of the parcel
and the existing structure since one space was
used for necessary mechanical space. The
Planning Office feels that 16 spaces are
adequate given that no parking is required in
the CC zone and that the spaces are often not
fully utilized in the winter.
6. Maintenance. Section 20-24(E)(6) requires a
minimum of four weeks to be reserved for main-
tenance due to the intensive, high impact
nature of timeshare projects. (Two weeks in
the spring and two weeks in the fall.) The
applicant has agreed to provide seven maintenance
weeks. The Planning Office feels that two
weeks in the spring and two weeks in the fall
must be reserved for maintenance only and no
rentals or other use besides maintenance
should be allowed in this period. The remaining
three of the seven weeks can be used for
maintenance in either the spring or fall as is
necessary.
Memo: Prospector Ldoge Timeshare Project
Page Three
August 22, 1983
7.
Budget. The Prospector application included
an itemized budget listing expenditures such
as common electricity, snow removal, firewood,
property taxes, interior maintenance, exterior
building reserve fund and administrative
costs. The total cost comes out to $8,306 per
condominium unit (19 units), $553.73 per
timesh nterest (1/15 interest in one unit)
4 /mD
and 138.43 uarterly for each timeshare
interes . The budget system will use four
banking accounts, including 1) a general
operating; 2) an escrow for taxes; 3) an
L4 0(cCf5
escrow for furniture reserve; and 4) an e��
for a building reserve. The budget estimates
were based on the marketing entity's timeshare
1
experience in Winter Park and information from
local property managers in Aspen.
8.
Conversions. All existing structures converting
to a timeshare use are required to be physically
upgraded through expenditures equal to a
minimum of 30 percent of the fair market value
of the property prior to conversion, unless
the applicant demonstrates to the satisfaction
of the City Council that funds previously
expended have sufficiently upgraded the project.
The applicant has submitted an appraisal and
documentation that well over this amount has
been spent for the renovation of the Prospector.
9.
Escrow. Deposits or downpayments made in
connection with the purc ase of a timeshare
unit must be held in an escrow account until
closing or the issuance of a Certificate of
Occupancy, whichever is later. The escrow
agent will be a title company in Aspen, a
I� P��S
neutral third party. The proposal states that
D-�
no closing on any timeshare interest within a
Qri0r +a
unit will be completed until at least eight of
C.�OSI(l�
the 15 packages are sold in that unit.
10.
Management/Assessment Fees. As discussed in
the budget, the Prospector's assessment fees
are estimated at $138.43, quarterly. This
amount includes necessary operating expenditures
as well as money to be placed in a reserve
fund for interior unit maintenance and repairs
and exterior building maintenance and repairs.
In addition, the applicant states that a
deposit equal to a three month assessment fee
may be required at the time of purchase for
security in case the fees are not paid. The
Planning Office feels this deposit should be
tnandatory and the applicant has agreed that it
be mandatory.
The application states that the assessment
6u �0-.(
fees are due and payable to a schedule established
In^ b d
by the Board of Managers, the Board which
5e, P
handles the affairs of the Fractional Owners
Association. As proposed, the Board will be
()WnQr' pi Gk5 lsk Ord
established 120 days after 75 percent of the
da�5f2r -15%
timeshare interests have been conveyed (or
l�
August 1, 1988, whichever i.s first). An
Memo: Prospector
Page Four
August 22, 1983
Timeshare Porject
interim Board of Managers appointed by the
developers will be established until this
time. The declarant is responsible for all
required assessment fees and expenditures
related to the unsold units after the first
timeshare package is sold.
11. Reserve. The quarterly assessment fee includes
a collection for a reserve fund for interior
and exterior repairs and maintenance. The
Exterior Fund, estimated at $10,000 per vegX,
will be used when necessary for such things as
repainting, roof repairs and other structural
repairs, landscape replacements and carpet
repairs in common areas. The fund should
build up sufficiently until it is needed in
5 - 10 years. The Interior Reserve will be
used for individual unit repairs such as
furniture, furnishings and appliance replacement.
The Reserve Fund, as proposed, may be reduced
or suspended for a few years if 75 percent of
the owners agree to the change. The Planning
and Zoning Commission and the Planning Office
feel that the Reserve Fund, even if unused,
should be mandatory for a few years since this
fund is our major assurance that the high
impact, intensive timeshare use will not
deteriorate the lodge, but will ensure that
the lodge is continually maintained and repaired.
We recommend that the amount going into the
reserve fund not be adjusted until five years
after the first closing on a timeshare package.
MO,y�AO�w At this time, the ownerG can adjust the f nd
if 75 percent of the awnprs and 100 pprnpni- of
the mortgagees agree to the amendment.
12. Occupancy Standards. The Prospector units
will be limited to fix_occupants at any one
time as the applicant feels that this is the
maximum allowed to maintain an optimum comfort
level. This is within the Building Code
occupancy standards.
Lodge condominiumization regulations limit an
owner's occupancy to 14 days during the winter
peak season to ensure that lodge units remain
available for short term use. A timeshare
project must meet the lodge condominiumization
requirements (Section 20-23) as well as the
timeshare requirements (Section 20-24). If a
timeshare purchaser in the Prospector buys
more than two packages, he will be violating
the 14 day restriction if he occupies the
lodge during the ski weeks he purchased.
Since the intent of the condo regulation was
to ensure a short term use of the lodge, and
since timeshare is by its very nature a short
term use, the Planning Office feels this
requirement can be extended from 14 to 30 days
for the Prospector. (Limits a purchase
packages.) The City Attorney's Office agrees
that, when appropriate, this requirement can
be determined inapplicable for the purposes of
timesharing.
Memo: Prospector Lodge Timeshare Project
Page Five
August 22, 1983
Referral
Comments: The Attorney's Office commented that several
clarifications and changes were needed in the
timeshare documents. These comments are summarized
below:
1. A title commitment is needed in addition to
the warranty deed supplied.
2. The actual 50 year deed restriction for the
employee unit must be reviewed and approved by
the Attorney's Office as soon as possible.
3. Timber Run, the marketing entity, should be
licensed in Aspen and should maintain a local
office.
4. The timeshare owners are required to own the
common areas and amenities - this is not
reflected in the declaration, but should be.
5. The Board of Managers must designate a local
managing agent. This is optional as submitted
by the applicant.
6. One deed should be conveyed for each three
week package so that weeks are never resold
individually.
7. References should be made throughout the
application that the project is subject to all
the requirements of Section 20-24 as well as
the State Timeshare Laws which are specified.
8. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
9. The proposed unit amenities and the employee
unit (#108) must be shown on the condominium
plat.
Engineering is requesting several minor plat amendments
which are stated in the attached memorandum from
Jay Hammond. It is also recommended that the
landscaping plan contain the addition of the sidewalk
spur on the west end of the alley and the irrigation
of planting areas along the north and west frontages
to maintain the trees in these locations.
Jim Holland, Director of Parks, has conceptually
approved the landscaping plan. The applicant is
amending the landscaping plan from the plan ori-
ginally approved through the conditional use review
since the previous owner removed trees and constructed
in areas which were to be preserved. The new plan
retains all seven existing firs, includes sodding,
several aspen clusters, a rock retaining wall,
bricking the alley and a sprinkler system for
maintaining the landscaping.
Memo: Prospector Timeshare Project
Page Six
August 22, 1983
The Building Department stated that a conditional
Certificate of Occupancy was issued on the Prospector
in January, 1983 and was extended through June 30,
1983. The C.O. expired June 30th, as three conditions
were still unsatisfied. These three conditions
must still be met prior to issuance of a C.O.:
1. The required handicapped access must be approved
by Council. P&Z recommended that this access
requirement be waived.
2. The parking requirement must be reduced, from
17 to 16 or the additional space must be
provided. P&Z approved the parking reduction
to 16 spaces.
3. The landscaping plan must be approved by
Council. P&Z approved the landscaping plan as
a conditional use modification.
The Finance Department stated that the plan manager
or managing agent must apply for and show evidence
to the City of a Colorado State Sales Tax License
since City, County and State sales tax will be
applicable to any short term rental of these units.
The required real estate transfer tax will apply to
initial and subsequent sales of the timeshare
interests and will be collected as in any other
real estate sale.
The submission requirements for a timeshare appli-
cation require a Disclosure Statement, Condominium
Documents (Fractional Estate Declaration), Articles
of Incorporation of the Fractional Owner's Association
and the Bylaws of the Association as well as a
sample purchase contract. The documents have been
submitted by the applicant and reviewed by the
Planning Office and Attorney's Office. Changes
will need to be made to these documents as conditions
are placed on the Prospector through the approval
process. The Planning Office and Attorney's Office
should both review and approve the final documents
to ensure the changes and clarifications are made.
Lodge Condomin-
iumization Review:
Most elements of the lodge condominiumization
review are covered in the above timeshare review.
The Planning Office is, however, recommending a
Code amendment to the timeshare regulations which
clarifies this situation by including the condominium
regulations as guidelines (not requirements) in the
timeshare review. The following is a review of the
lodge condominium regulations/guidelines which were
not covered in the previous timeshare review.
1. An affidavit has been submitted which verifies
that the Prospector Lodge has not been in
operation for three years but the quality and
quantity of services, maintenance and management
of the operation prior to this three year period
is being improved in the new facility.
•
Memo: Prospector
Page Seven
August 22, 1983
Timeshare Project
2. The applicant is providing the required two
pillows of employee housing. This unit (#108)
must be deed restricted to the employee guidelines
for 50 years and must be shown on the condominium
plat.
3. Section 20-23(A)(1)(a) limits an owner's occu-
pancy during the winter season to 14 days. It
is recommended that this requirement be adjusted
to 30 days for the Prospector so that more
than two timeshare packages can be purchased
and utilized by one owner.
Conditional
Use Review
(Sec. 20-3.3): The primary purpose of requiring a conditional
use review for a timeshare project is so that a
public hearing will be set. A public hearing is
not normally required in a two step subdivision
exception process.
Planning and
Zoning Commis-
sion and
Planning Office
Recommendation:
Section 20-3.3 established three suitability require-
ments to be used in evaluating a conditional use.
These requirements are met since the project complies
with the zoning code and is consistant with the
objectives of the zoning code and the CC zone
district. Also, the project is compatible with
surrounding land uses in that it is located in an
area with other lodge and commercial uses, blends
in well with the neighborhood and will not significantly
increase parking, noise or traffic impacts in the
area.
Laundry facilities are proposed as part of the
Prospector. Since these facilities have not yet
been reviewed as a modification of a conditional
use, they would require another conditional use
review. In order to avoid a second review and fee,
the P&Z conceptually reviewed the applicant's plans
for the laundry facilities, then tabled this
review until further information is obtained.
The Planning and Zoning Commission and the Planning
Office feel that the applicant has submitted an
excellent proposal for timesharing. Although we
recommend approval, we also suggest that a very
detailed list of conditions be established to
ensure the project is carried out as it is proposed.
With this in mind, the P&Z and the Planning Office
recommend the approval of the Prospector Lodge
timeshare application subject to the following
conditions:
1. The applicant must provide a current title
commitment from a title insurance company
prior to City Council review.
2. The condominium plat must be amended to
include the following:
a. Reference encroachment license granted by
Council for the rock facade stairs on the
north frontage.
Memo: Prospector Timeshare Project
Page Eight
August 22, 1983
b. Indicate book and page of easements for
the transformer in any vaults or pedestals
on the property.
C. Show common areas.
d. Locate trash facilities.
e. Add necessary approval certificates.
f. Add unit amenities, including hot tubs
and saunas.
g. Designate employee unit #108.
3. The landscape plan should be subject to the
approval of the Parks Director. The plan
should contain the following:
a. The additional sidewalk spur on the west
end of the alley.
b. Irrigation of the planting areas along
the west and north frontages to maintain
trees in those locations.
4. The applicant must provide 16 on -site underground
parking spaces.
5. The project must include amenities as proposed
including a sundeck on the third floor, on -
site parking, lobby, and unit amenities
including a hot tub, sauna, wet bar and
masonry fireplace.
L6.) Occupancy by a timeshare owner is limited to
30 days vtc. (9 mc(rclx
7. No prohibited marketing practices will be
allowed including the giving of gifts in a
deceptive manner, use of public malls or
streets for sale, and phone solicitations to
visitors at other lodges.
8.
The 19 renovated lodge units found in the
Prospector must each be split into 52 weeks.
Seven must be reserved for the maintenance of
the project. Four of these seven weeks must
be used exclusively for maintenance with no
rentals or other uses allowed. Two of the four
weeks must be in the spring while the remaining
two weeks must be in the fall. The remaining
45 weeks must be sold as proposed in three
,,week timeshare packages. EacY4,three week
3 wk pL,� package q t, ontain a peak season week, a
peak summer.,.'
ummer. week, and an off season week in
either the spring or the fall.
9.
No right -to -use timeshare leasehold will be
allowed. All Prospector timeshare interest
sales must be on a fee ownership basis.
Memo: Prospector Timeshare Project
Page Nine
August 22, 1983
10. Timber Run Realty and Terry Liming as Plan
Manager will be responsible for the marketing
program for the Prospector. A local contact
must be identified to the City of Aspen for
communication purposes. The marketing program
identified in the timeshare application must
be adhered to.
(11
. Subsidies for transportation and lodging will
be allowed for parties interested in visiting
the Prospector Timeshare Project. The Planning
C� Office must review this subsidy program six (�-5
after the program is initiated to
ensure that it is operating in the responsible
O way in which it was proposed.
l� 12. As proposed, the applicant must establish four
banking accounts for operation of the budget
system. Proof that these accounts have been
established must be documented to the City of
Aspen when such accounts are established.
��11
v�-13. The issuance o.f a certifica�,te of Occupancy
will be suffi 'ient to meet,"the r quirements of
Section 20-2 (F)(2) of"
f the Code egarding the
useful lif of mech�arii l and ele trical
e4uipmen-t'in the Prospector.
14. The mandatory two month deposit and any downpayments
made in Conjunction with the purchase of a
timeshare unit must be held in an escrow
account until closing or the issuance of a
Certificate of Occupancy, whichever is later.
The escrow agent must be a title company in
Aspen, a neutral third party.
15. No closing will be allowed until at least
eight of the total 15 timeshare packages are
sold for any given unit.
I
16. When closing occurs, the declarant as well as
the new timeshare owners must then begin to
pay their quarterly assessment fees., For any
unsold units the developer is responsible for
operating costs.
C17 The Interior Reserve Fund and the Exterior
Reserve Fund, both expenditures itemized in
the maintenance/ assessment fees, cannot be
reduced or suspended during the first five
years after the first closing. All other
expenditure items used in the calculation of I
the assessment fees can be adjusted with 7-5--f% C�
'mer-tgagees-agpravtng--J-he--adaust The
money designated for the reserve funds must
always be held in escrow to be used as needed
for interior andee(x,t/erio repairs and maintenance.
re,i9r4&E�l i� goinJ �r .Q p cncued Kser esk:m. d ,+ xio,cno der Y°o.i cw.re} •� rBvcuCe4 or
Uim�M vwFl ik_ fupwknL�t�+ul�itd Jlsn000.
18. The Prospector timeshare units are limited to
six occupants at any one time.
19. The actual 50 year deed restriction for the
employee unit (#108) must be reviewed and
approved by the Attorney's Office as soon as
possible.
Memo: Prospector Timeshare Project
Page Ten
August 22, 1983
20. The owners are required to own the common
areas and common amenities in the Prospector
Lodge and this must be reflected in the
appropriate documents.
21. The Board of Managers must designate a local
managing agent.
22. One deed must be conveyed for each three week
package so that weeks are never sold individually.
23. References must be made throughout the application
and attached exhibits to indicate that the
project is subject to all of the requirements
in Section 20-24 as well as the State Timeshare
Laws which are already specified in the
application and attachments.
24. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
C25) The applicant must meet the last unmet condition
' of the Certificate of Occupancy which states
that the required handicapped access must be
approved by Council. The P&Z recommends that ""OA I
___ ,d the handicapped access requirement be waived.
26. The plan manager or the managing agent must
apply for and show evidence to the City of a
Colorado State Sales Tax License since the
City, County and State sales tax will be
applicable to any short term rental of these
units. A required real estate transfer tax
will apply to initial and subsequent sales of
the timeshare interest and will be collected
as is done in any other real estate transaction.
27. The Prospector Disclosure Statement, the
Prospector Condominium Documents entitled
Fractional Estate Declaration, the Prospector
Articles of Incorporation of the Fractional
Owners Association, and the By -Laws of the
Association as well as a sample purchase
contract must all be amended to reflect the
conditions of approval placed on the Prospector
through the approval process. The Planning
Office and the Attorney's Office must both
review and approve the final documents to
ensure the changes and clarifications are
accurately made.
28. Any updating or amending of the approved
timeshare documents must be approved through
the City according to the requirements of
Section 20-24 of the subdivision regulations.
29.
ees a s
times a The
declarant may rent unsold units but the
rental money must go toward any maintenance
which may be necessary as a result of the
unit's use as a rental.
Memo: Prospector Timeshare Project
Page Eleven
August 22, 1983
30. The applicant must clarify throughout the
timeshare application references to timeshare
units versus references to timeshare interests.
31. 30 percent of the qualified voters (present or
represented by proxy) of the Fractional
Owners Association must be present to obtain
a quorum.
32. The owners may not lease the common elements
or amenities (excluding the employee unit)
which they own as was proposed in the application.
- 03. To ensure compliance with the proposed marketing
program, the applicant must post with the
City suitable security in the amount of
$20,000 cash4a $20,000 irrevocable letter of
credit or a $100, 000 surety bow.- -Ihe 64� (Duna
34. Full details of the RCI exchange program
(cost, procedures, other projects involved,
confirmation percentages, etc.) must be
provided to the purchasers of Prospector
timeshare interests.
35. The applicant, not the applicant's attorney,
should sign the timeshare application.
r
r O t �w� M� �J� 1 t `✓ t�-�
l
�1 1
�� �AQAti AA (A
CO--z.- ." -�v ",Q
(vf p --klvc
Aspen/Pitkin Planning Office
130 south galena street
aspen, Colorado 81611
September 13, 1983
Merit Investment Company Inc.
c/o Gideon I. Kaufman
Box 1001
611 West Main Street
Aspen, Colorado 81611
RE: "Additional Billing" on Prospector Lodge Timeshare and
Conditional Use Project
Enclosed is the "Additional Billing" for the time spent over the
allocated hours on the Prospector Timeshare and Conditional Use
project. There are 16 hours allocated for a timeshare and condi-
tional use process and 44.5 hours were spent on this project.
Therefore, 28.5 hours at a rate of $90.O0 per hour has been charged
for a total amount due of $2,565.00.
Should you have any question in regard to this bill, please do
not hesitate to call.
Sincerely,
Alice Davis, Planner
Aspen/Pitkin Planning Office
AD: klm
Enclosure
RESOLUTION OF THE ASPEN PLANNING AND 'ZONING COMMISSION
RECOMMENDING THE APPROVAL OF THE
PROSPECTOR LODGE TIMESHARE PROJECT
PURSUANT TO SECTION 20-24, TIMESHARE REGULATIONS,
SECTION 24-3.3, CONDITIONAL USE REVIEW AND
SECTION 20-23, LODGE CONDOMINIUMIZATION
Resolution No. 83 - 8
WHEREAS, the Aspen Planning and Zoning Commission held a
public hearing on August 2, 1983 at which time the Prospector
Timeshare Project, located at 301 East Nyman Avenue (Lots A, B,
C, D, Block 82, Aspen Original Townsite), was considered, and
WHEREAS, since the project is a conditional use in the
applicable CC zone district and is also considered a subdivision
and condominiumization,the application had to comply with Sections
24-3.3 (conditional use review), 20-23 (lodge condominiumization),,
and 20-24 (timesharing) of the City Code, and
WHEREAS the application does comply with all applicable
requirements of the City Code.
NOW, THEREFORE, BE IT RESOLVED by the Aspen Planning and
i
Zoning Commission that it does hereby recommend that the City
Council approve the proposed Prospector Timeshare Project subject
to the following conditions:
1. The applicant must provide a current title
commitment from a title insurance company
prior to City Council review.
2. The condominium plat must be amended to
include the following:
.a. Reference encroachment license granted
by Council for the rock facade stairs on
the north frontage.
b. Indicate book and page of easements for
the transformer in any vaults or pedestals
on the property.
C. show common .areas.
d. Locate trash facilities.
e. Add necessary approval certificates.
f. Add unit amenities, including hot tubs
and saunas.
g. Designate employee unit #108.
_z_
3. The landscape plan. --:iould be subject to the
approval of the Parks Director. The plan
should contain the following:
a. The additional sidewalk spur on the west
end of the alley.
b. Irrigation of the planting areas along
the west and north frontages to maintain
trees in those locations.
4. The applicant must provide 16 on -site underground
parking spaces.
5. The project must include amenities as proposed
including a sundeck on the third floor, on -
site parking, lobby, and unit amenities
including a hot tub, sauna, wet bar and
masonry fireplace.
6. Occupancy by a timeshare owner is limited to
30 days in the winter season.
7. No prohibited marketing practices will be
allowed including the giving of gifts in a
deceptive manner, use of public malls or
streets for sale, and phone solicitations
to visitors at other lodges.
8. The 19 renovated lodge units found in the
Prospector must each be split into 52 weeks.
Seven must be reserved for the maintenance of
the project. Four of these seven weeks must
be used exclusively for maintenance with no
rentals or other uses allowed. Two of the
four weeks must be in the spring while the
remaining two weeks must be in the fall. The
remaining 45 weeks must be sold as proposed
in three week timeshare packages. Each three
week package must contain a peak season ski
week, a peak summer week, and an off season
week in either the spring or the fall.
9. No right -to -use timeshare leasehold -will be
allowed. All Prospector timeshare interest
sales must be on a fee ownership basis.
10. Timber Run Realty and Terry Liming as Plan
Manager will be responsible for the marketing
program for the Prospector. A local contact
must be identified to the City of Aspen for
communication purposes. The marketing program
identified in the timeshare application must
be adhered to.
11. Subsidies for transportation and lodging will
be allowed for parties interested in visiting
the Prospector Timeshare Project. The Planning
Office must review this subsidy program
six months after the program is mitigated to
ensure that it is operating in the responsible
way in which it was proposed.
12. As proposed, the applicant must establish
four banking accounts for operation of the
budget system. Proof that these accounts
have been established must be documented to
the City of Aspen when such accounts are
established.
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13. The issuance of a Certificate of Occupancy
will be sufficient to meet the requirements
of Section 20-24(F)(2) of the Code.
14. Deposits or downpayments made in conjunction
with the purchase of a timeshare unit must be
held in an escrow account until closing or
the issuance of a Certificate of Occupancy,
whichever is later. The escrow anent must be
a title company in Aspen, a neutral third
party.
15. No closing will be allowed until at least
eight of the total 15 timeshare packages are
sold for any given unit.
16. When closing occurs, the declarant as well as
the new timeshare owners must then begin to
pay their quarterly assessment fees. For any
unsold units the developer is responsible for
operating costs.
17. The Interior Reserve Fund and the Exterior
Reserve Fund, both expenditures itemized in
the maintenance/ assessment fees, cannot be
reduced or suspended during the first five
years after the first closing. All other
expenditure items used in the calculation of
the assessment fees can be adjusted with 75
percent of the owners and 100 percent of the
mortgagees approving the adjustment. The
money designated for the reserve funds must
always be held in escrow to be used as
needed for interior and exterior repairs and
maintenance.
18. The Prospector timeshare units are limited to
six occupants at any one time.
19. The actual 50 year deed restriction for the
employee unit (#108) must be reviewed and
approved by the Attorney's Office as soon as
possible.
20. The owners are required to own the common
areas and common amenities in the Prospector
Lodge and this must be reflected in the
appropriate documents.
21. The Board of Managers must designate a managing
agent, a local agent.
22. One deed must be conveyed for each three week
package so that weeks are never sold individually.
23. References must be made throughout the application
and attached exhibits to indicate that the
project is subject to all of the requirements
in Section 20-24 as well as the State Timeshare
Laws which are already specified in the
application and attachments.
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24. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
25. The applicant must meet the original three
conditions of the Certificate of Occupancy
issued by the Building Department. These
three conditions include:
a. The required handicapped access must be
approved by Council. The P&Z recommends
that the handicapped access requirement
be waived.
b. The parking requirements must be reduced
with Council approval from 17 to 16
spaces or the additional space must be
provided. The P&Z approved that the
parking requirement be 16 spaces.
C. The landscaping plans must be approved
by City Council. P&Z approved the
landscaping plan.
26. The plan manager or the managing agent must
apply for and show evidence to the City of a
Colorado State Sales Tax License since the
City, County and State sales tax will be
applicable to any short term rental of these
units. A required real estate transfer tax
will apply to initial and subsequent sales of
the timeshare interest and will be collected
as is done in any other real estate transaction.
27. The Prospector Disclosure Statement, the
Prospector Condominium Documents entitled
Fractional Estate Declaration, the Prospector
Articles of Incorporation of the Fractional
Owners Association, and the By -Laws of the
Association as well as a sample purchase
contract must all be amended to reflect the
conditions of approval placed on the Prospector
through the approval process. The Planning
Office and the Attorney's Office must both
review and approve the final documents to
ensure the.changes and clarifications are
.accurately made.
26. Any updating or amending of the approved
timeshare documents must be approved through
the City according to the requirements of
Section 20-24 of the subdivision regulations.
29. The.declarant must be responsible for all
required assessment fees and expenditures
related to the unsold timeshare units. The
declarant may rent unsold units but the
rental money must go toward any maintenance
which may be necessary as a result of the
unit's use as a rental.
30. The applicant must provide further information
on the financing to be offered prior to
Council review.
31. The applicant must clarify throughout the
timeshare application references to timeshare
units versus references to timeshare interests.
municipalities with timeshare experience, a strong
emphasis has been placed on the necessity for a
marketing group with past timeshare experience due
to the complexity and uniqueness found in a timeshare
project and the risk taken with an inexperience
marketing entity.
d. The lack of on -site management for the timeshare
project. The short-term nature of timeshare
ownership would be more effectively handled by on -
site management proposed.
3. With respect to the general intents and purposes of
Chapters 20 and 24 of the Code, the Planning and Zoning
Commission found the overall proposal to be a project
with too great an impact on the neighborhood as well as
finding that the impacts could not be sufficiently
mitigated. The project has therefore been determined
to be incompatible and inappropriate in this location.
APPROVED by the Aspen Planning and Zoning Commission at
their regular meeting on September 6, 1983.
ASPEN PLANNING AND ZONING
COMMISSION
Perry HayVey, Chairman
ATTEST:
Sally Ha t
s , Deputy Clerk
- 3 -
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RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION
RECOMMENDING THE APPROVAL OF THE
PROSPECTOR LODGE TIMESHARE PROJECT
PURSUANT TO SECTION 20-24, TIMESHARE REGULATIONS,
SECTION 24-3.3, CONDITIONAL USE REVIEW AND
SECTION 20-23, LODGE CONDOMINIUMIZATION
Resolution No. 83 -
WHEREAS, the Aspen Planning and Zoning Commission held a
public hearing on August 2, 1983 at which time the Prospector
Timeshare Project, located at 301 East Hyman Avenue (Lots A, B,
C, D, Block 82, Aspen Original Townsite), was considered, and
WHEREAS, since the project is a conditional use in the
applicable CC zone district and is also considered a subdivision
and condominiumization,the application had to comply with Sections
24-3.3 (conditional use review), 20-23 (lodge condominiumization),
and 20-24 (timesharing) of the City Code, and
WHEREAS the application does comply with all applicable
requirements of the City Code.
NOW, THEREFORE, BE IT RESOLVED by the Aspen Planning and
Zoning Commission that it does hereby recommend that the City
Council approve the proposed Prospector Timeshare Project subject
to the following conditions:
1. The applicant must provide a current title
commitment from a title insurance company
prior to City Council review.
2. The condominium plat must be amended to
include the following:
a. Reference encroachment license granted
by Council for the rock facade stairs on
the north frontage.
b. Indicate book and page of easements for
the transformer in any vaults or pedestals
on the property.
C. Show common areas.
d. Locate trash facilities.
e. Add necessary approval certificates.
f. Add unit amenities, including hot tubs
and saunas.
g. Designate employee unit #108.
E
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•
3. The landscape plan should be subject to the
approval of the Parks Director. The plan
should contain the following:
a. The additional sidewalk spur on the west
end of the alley.
b. Irrigation of the planting areas along
the west and north frontages to maintain
trees in those locations.
4. The applicant must provide 16 on -site underground
parking spaces.
5. The project must include amenities as proposed
including a sundeck on the third floor, on -
site parking, lobby, and unit amenities
including a hot tub, sauna, wet bar and
masonry fireplace.
6. Occupancy by a timeshare owner is limited to
30 days in the winter season.
7. No prohibited marketing practices will be
allowed including the giving of gifts in a
deceptive manner, use of public malls or
streets for sale, and phone solicitations
to visitors at other lodges.
8. The 19 renovated lodge units found in the
Prospector must each be split into 52 weeks.
Seven must be reserved for the maintenance of
the project. Four of these seven weeks must
be used exclusively for maintenance with no
rentals or other uses allowed. Two of the
four weeks must be in the spring while the
remaining two weeks must be in the fall. The
remaining 45 weeks must be sold as proposed
in three week timeshare packages. Each three
week package must contain a peak season ski
week, a peak summer week, and an off season
week in either the spring or the fall.
9. No right -to -use timeshare leasehold will be
allowed. All Prospector timeshare interest
sales must be on a fee ownership basis.
10. Timber Run Realty and Terry Liming as Plan
Manager will be responsible for the marketing
program for the Prospector. A local contact
must be identified to the City of Aspen for
communication purposes. The marketing program
identified in the timeshare application must
be adhered to.
11. Subsidies for transportation and lodging will
be allowed for parties interested in visiting
the Prospector Timeshare Project. The Planning
Office must review this subsidy program
six months after the program is initiated to
ensure that it is operating in the responsible
way in which it was proposed.
12. As proposed, the applicant must establish
four banking accounts for operation of the
budget system. Proof that these accounts
have been established must be documented to
the City of Aspen when such accounts are
established.
-3-
13. The issuance of a Certificate of Occupancy
will be sufficient to meet the requirements
of Section 20-24(F)(2) of the Code.
14. Deposits or downpayments made in conjunction
with the purchase of a timeshare unit must be
held in an escrow account until closing or
the issuance of a Certificate of Occupancy,
whichever is later. The escrow agent must be
a title company in Aspen, a neutral third
party.
15. No closing will be allowed until at least
eight of the total 15 timeshare packages are
sold for any given unit.
16. When closing occurs, the declarant as well as
the new timeshare owners must then begin to
pay their quarterly assessment fees. For any
unsold units the developer is responsible for
operating costs.
17. The Interior Reserve Fund and the Exterior
Reserve Fund, both expenditures itemized in
the maintenance/ assessment fees, cannot be
reduced or suspended during the first five
years after the first closing. All other
expenditure items used in the calculation of
the assessment fees can be adjusted with 75
percent of the owners and 100 percent of the
mortgagees approving the adjustment. The
money designated for the reserve funds must
always be held in escrow to be used as
needed for interior and exterior repairs and
maintenance.
18. The Prospector timeshare units are limited to
six occupants at any one time.
19. The actual 50 year deed restriction for the
employee unit (#108) must be reviewed and
approved by the Attorney's Office as soon as
possible.
20. The owners are required to own the common
areas and common amenities in the Prospector
Lodge and this must be reflected in the
appropriate documents.
21. The Board of Managers must designate a managing
agent, a local agent.
22. One deed must be conveyed for each three week
package so that weeks are never sold individually.
23. References must be made throughout the application
and attached exhibits to indicate that the
project is subject to all of the requirements
in Section 20-24 as well as the State Timeshare
Laws which are already specified in the
application and attachments.
-4-
24. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
25. The applicant must meet the original three
conditions of the Certificate of Occupancy
issued by the Building Department. These
three conditions include:
a. The required handicapped access must be
approved by Council. The P&Z recommends
that the handicapped access requirement
be waived.
b. The parking requirements must be reduced
with Council approval from 17 to 16
spaces or the additional space must be
provided. The P&Z approved that the
parking requirement be 16 spaces.
C. The landscaping plans must be approved
by City Council. P&Z approved the
landscaping plan.
26. The plan manager or the managing agent must
apply for and show evidence to the City of a
Colorado State Sales Tax License since the
City, County and State sales tax will be
applicable to any short term rental of these
units. A required real estate transfer tax
will apply to initial and subsequent sales of
the timeshare interest and will be collected
as is done in any other real estate transaction.
27. The Prospector Disclosure Statement, the
Prospector Condominium Documents entitled
Fractional Estate Declaration, the Prospector
Articles of Incorporation of the Fractional
Owners Association, and the By -Laws of the
Association as well as a sample purchase
contract must all be amended to reflect the
conditions of approval placed on the Prospector
through the approval process. The Planning
Office and the Attorney's Office must both
review and approve the final documents to
ensure the changes and clarifications are
accurately made.
28. Any updating or amending of the approved
timeshare documents must be approved through
the City according to the requirements of
Section 20-24 of the subdivision regulations.
29. The declarant must be responsible for all
required assessment fees and expenditures
related to the unsold timeshare units. The
declarant may rent unsold units but the
rental money must go toward any maintenance
which may be necessary as a result of the
unit's use as a rental.
30. The applicant must provide further information
on the financing to be offered prior to
Council review.
31. The applicant must clarify throughout the
timeshare application references to timeshare
units versus references to timeshare interests.
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•
32. 30 percent of the
or represented by
Owners Association
a quorum.
qualified voters (present
proxy) of the Fractional
must be present to obtain
33. The owners may not lease the common elements
or amenities (excluding the employee unit) which
they own as was proposed in the application.
34. To ensure compliance with the proposed marketing
program, the applicant must post with the
City suitable security in the amount of
$20,000 cash, a $20,000 irrevocable letter of
credit or a $100,000 surety bond.
35. Full details of the RCI exchange program
(cost, procedures, other projects involved,
confirmation percentages, etc.) must be
provided to the purchasers of Prospector
timeshare interests.
36. The applicant, not the applicant's attorney,
should sign the timeshare application.
37. An affidavit regarding the management, services
and maintenance offered when the Prospector
was previously in operation should be submitted
to verify that the services to be offered in
the timeshare project are of equal or greater
quality and quantity.
38. Further conditions may need to be placed on
the Prospector timeshare approval subject to
the presentation of the proposed laundry
facilities.
APPROVED by the Aspen Planning and Zoning Commission at their
regular meeting on August 2, 1983.
ASPEN PLANNING AND ZONING
COMMISSION
By: ?, ? ( 14-� Zti'G
Perry H vey, Chairma
ATTEST:
Jo Ann Brooks, Deputy ity Clerk
MEMORANDUM
TO: Aspen Planning and Zoning Commission
FROM: Alice Davis, Planning Office
RE: Prospector Lodge - Conditional Use Review and Subdivision
Exception Review for Timesharing - Public Hearing
DATE: August 2, 1983
Location: 301 East Hyman Avenue - Lots A, B, C, D, Block 82,
Aspen Original Townsite.
Zoning: CC - Commercial Core.
Applicant's
Request: The applicant, Merit Investment Company, is requesting
approval for a timeshare project at the Prospector
Lodge. The project requires conditional use approval
from P&Z pursuant to Section 24-3.3 as well as
approval to a two step subdivision exception review
for converting the Prospector to a lodge condominium
and a timeshare use pursuant to Code Sections 20-23
and 20-24 of the Code.
Project
Summary: The Prospector Lodge currently consists of 19 newly
renovated lodge units, with an average unit size of
756 square feet. If approved as a timeshare project
the 19 lodge units would each be split in 52 interests,
one interest for each week of the year. Seven
weeks will be reserved for maintenance while the
remaining 45 weeks will be sold in three week
timeshare packages. (15 total packages to be
sold.) Each three week package will contain a peak
season winter ski week, a peak summer week and an
off season week in either the spring or the fall.
Planning Office
Review: The following is a review of the Prospector Lodge
timeshare application based on the 12 standards and
review criteria established in Section 20-24 of the
Code.
1. Right -To -Use. As required by the regulations,
the Prospector timeshare interests will be fee
ownership, not the prohibited right -to -use
leases.
2. Integration. The project is purely residential,
all units will be timeshared and the project
is backed by 100 percent of the owners and the
potential purchasers who have the property
under a sales contract.
3. Marketing and Sales Techniques. As required,
the applicants states that the marketing of
the Prospector timeshare interests will not
involve the giving of gifts, no use of public
malls or streets for sales and no phone solicitations.
The sales program will be run by Timber Run
Realty out of Winter Park, Colorado, a company
which has been involved in timeshare projects
in Winter Park and Snowmass.
•
r1
L
Memo: Prospector Timeshare Project
Page Two
August 2, 1983
Timeshare sales will be directed at tourists
in the peak summer and winter seasons through
the use of local magazines, newspapers and
television. Low season sales will be directed
at several target cities including Dallas,
Houston and Chicago. National magazines and
newspapers (Sports Illustrated, Ski, Gentlemen's
Quarterly, Houston Post, etc.) will be the
primary source of advertisement in these
areas.
Interested persons calling on a timeshare ad
will be sent an information package. If the
person calls again and is still interested, he
will be invited to come visit the project and
may be offered a subsidy to help pay transportation
and lodging costs. Although this subsidy may
be interpreted as "the giving of a gift" (a
prohibited sales practice in Section 20-24)
the Planning Office feels it is within the
original intent of the adopted Timeshare
Ordinance as it is in no way deceptive. To
ensure that this aspect of the program operates
in a responsible way, the Planning Office
recommends that the program be reviewed after
it is in operation.
The Prospector sales period should be relatively
short in that there are only 15 packages to be
sold for each of the 19 units.
4. Amenities. Common area amenities include a
sun deck on the third floor, on -site parking
and a lobby area. Laundry facilities are
planned, but must be reviewed through the
conditional use process. Individual units
each have private decks, a hot tub and sauna,
a wetbar and a masonry fireplace. All common
areas and common amenities must be owned by
the fractional owners association.
5. Parking. There is no mandatory parking requirement
for a lodge use in the CC zone, but 17 under-
ground spaces were required as part of a
previous conditional use approval in order to
replace spaces removed in the renovation. The
applicant states that only 16 spaces are
possible given the limitations of the parcel
and the existing structure since one space was
used for necessary mechanical space. The
Planning Office feels that 16 spaces are
adequate given that no parking is required in
the CC zone and that the spaces are often not
fully utilized in the winter.
6. Maintenance. Section 20-24(E)(6) requires a
minimum of four weeks to be reserved for main-
tenance due to the intensive, high impact
nature of timeshare projects. (Two weeks in
the spring and two weeks in the fall.) The
applicant has agreed to provide seven maintenance
weeks. The Planning Office feels that two
weeks in the spring and two weeks in the fall
must be reserved for maintenance only and no
rentals or other use besides maintenance
should be allowed in this period. The remaining
three weeks can be used for maintenance in
either the spring or fall as is necessary.
Memo: Prospector Timeshare Project
Page Three
August 2, 1983
7. Budget. The Prospector application included
an itemized budget listing expenditures such
as common electricity, snow removal, firewood,
property taxes, interior maintenance, exterior
building reserve fund and administrative
costs. The total cost comes out to $8,306 per
condominium unit (19 units), $553.73 per
timeshare interest (1/15 interest in one unit)
and $138.43 quarterly for each timeshare
interest. The budget system will use four
banking accounts, including 1) a general
operating; 2) an escrow for taxes; 3) an
excrow for furniture reserve; and 4) an escrow
for a building reserve. The budget estimates
were based on the marketing entity's timeshare
experience in Winter Park and information from
local property managers in Aspen.
8. Conversions. All existing structures converting
to a timeshare use are required to be physically
upgraded through expenditures equal to a
minimum of 30 percent of the fair market value
of the property prior to conversion, unless
the applicant demonstrates to the satisfaction
of the City Council that funds previously
expended have sufficiently upgraded the project.
The applicant has submitted an appraisal and
documentation that well over this amount has
been spent for the renovation of the Prospector.
The applicant still must, however, provide the
information required in Section 20-24(F)(2) on
the present condition of all structural components
and mechanical and electrical installations
materials and the expected useful life of
these items.
9. Escrow. Deposits or downpayments made in
connection with the purchase of a timeshare
unit must be held in an escrow account until
closing or the issuance of a Certificate of
Occupancy, whichever is later. The escrow
agent will be a title company in Aspen, a
neutral third party. The proposal states that
no C.O.s will be issued for any unit until at
least eight of the 15 timeshare packages are
sold. The applicant should prove that eight
packages are enough to guarantee the economic
success of the project.
10. Management/Assessment Fees. As discussed in
the budget, the Prospector's assessment fees
are estimated at $138.43, quarterly. This
amount includes necessary operating expenditures
as well as money to be placed in a reserve
fund for interior unit maintenance and repairs
and exterior building maintenance and repairs.
In addition, the applicant states that a
deposit equal to a three month assessment fee
may be required at the time of purchase for
security in case the fees are not paid. The
Planning Office feels this deposit should be
mandatory.
The application states that the assessment
fees are due and payable to a schedule established
by the Board of Managers, the Board which
handles the affairs of the Fractional Owners
Association. As proposed, the Board will be
established 120 days after 75 percent of the
0
•
Memo: Prospector Timeshare Project
Page Four
August 2, 1983
timeshare interests have been conveyed (or
August 1, 1988, whichever is first). The
declarant does not have to pay assessment fees
on the unsold units until the Board is established.
The Planning Office feels that the Board
should be established within 30 days after the
C.O.s are issued for the first eight packages
conveyed since owners may actually be using
the project at this time. The declarant and
the new owners should not have to pay the
monthly fees until the Board is formed, but
the initial deposit can be collected at the
time of sale and placed in the escrow with the
downpayments.
The total number of Board members should be
submitted by the applicant. The Planning
Office suggests that approximately 75 percent
of the members be fractional estate owners -
the applicant states that members do not have
to be owners.
11. Reserve. The quarterly assessment fee includes
a collection for a reserve fund for interior
and exterior repairs and maintenance. The
Exterior Fund, estimated at $10,000 per year,
will be used when necessary for such things as
repainting, roof repairs and other structural
repairs, landscape replacements and carpet
repairs in common areas. The fund should
build up sufficiently until it is needed in
5 - 10 years. The Interior Reserve will be
used for individual unit repairs such as
furniture, furnishings and appliance replacement.
The Reserve Fund, as proposed, may be reduced
or suspended for a few years if 75 percent of
the owners agree to the change. The Planning
Office feels that the Reserve Fund, even if
unused, should remain and continue and only be
allowed to be increased. This fund is our
major assurance that the high impact, intensive
timeshare use will not deteriorate the lodge,
but will ensure that the lodge is continually
maintained and repaired. The total assessment
fees can be adjusted through other expenditures
with 75 percent owner approval, but the money
designated for the reserve fund must always be
held in escrow to be used as needed for
interior and exterior repairs and maintenance.
12. Occupancy Standards. The Prospector units
will be limited to six occupants at any one
time as the applicant feels that this is the
maximum allowed to maintain an optimum comfort
level. This is within the Building Code
occupancy standards.
Lodge condominiumization regulations limit an
owner's occupancy to 14 days during the winter
peak season to ensure that lodge units remain
available for short term use. A timeshare
project must meet the lodge condominiumization
requirements (Section 20-23) as well as the
timeshare requirements (Section 20-24). If a
timeshare purchaser in the Prospector buys
U
Memo: Prospector
Page Five
August 2, 1983
Referral
Timeshare Project
more than two packages, he will be violating
the 14 day restriction if he occupies the
lodge during the ski weeks he purchased.
Since the intent of the condo regulation was
to ensure a short term use of the lodge, and
since timeshare is by its very nature a short
term use, the Planning Office feels this
requirement can be extended from 14 to 30 days
for the Prospector. (Limits a purchase to 4
packages.) The City Attorney's Office agrees
that, when appropriate, this requirement can
be determined inapplicable for the purposes of
timesharing.
Comments: The Attorney's Office commented that several
clarifications and changes were needed in the
timeshare documents. These comments are summarized
below:
1. A title commitment is needed in addition to
the warranty deed supplied.
2. The actual 50 year deed restriction for the
employee unit must be reviewed and approved by
the Attorney's Office as soon as possible.
3. Timber Run, the marketing entity, should be
licensed in Aspen and should maintain a local
office.
4. The Fractional Owners Association is required
to own the common areas and amenities - this
is not reflected in the declaration, but
should be.
5. The Board of Managers must designate a managing
agent (preferably a local one). This is
optional as submitted by the applicant.
6. One deed should be conveyed for each three
week package so that weeks are never resold
individually.
7. References should be made throughout the
application that the project is subject to all
the requirements of Section 20-24 as well as
the State Timeshare Laws which are specified.
8. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
9. The proposed unit amenities and the employee
unit (#108) must be shown on the condominium
plat.
Engineering is requesting several minor plat amendments
which are stated in the attached memorandum from
Jay Hammond. It is also recommended that the
landscaping plan contain the addition of the sidewalk
spur on the west end of the alley and the irrigation
of planting areas along the north and west frontages
to maintain the trees in these locations. Engineering
recommends 20 on -site parking spaces.
Memo: Prospector Timeshare Project
Page Six
August 2, 1983
Jim Holland, Director of Parks, has conceptually
approved the landscaping plan. The applicant is
amending the landscaping plan from the plan originally
approved through the conditional use review since
the previous owner removed trees and constructed in
areas which were to be preserved. The new plan
retains all seven existing firs, includes sodding,
several aspen clusters, a rock retaining wall,
bricking the alley and a sprinkler system for main-
taining the landscaping.
The Building Department stated that a conditional
Certificate of Occupancy was issued on the Prospector
in January, 1983 and was extended through June 30,
1983. The C.O. expired June 30th, as three conditions
were still unsatisfied. These three conditions
must still be met prior to issuance of a C.O.:
1. The required handicapped access must be approved
by Council.
2. The parking requirement must be reduced, with
Council approval, from 17 to 16 or the additional
space must be provided.
3. The landscaping plan must be approved by
Council.
The Finance Department stated that the plan manager
or managing agent must apply for and show evidence
to the City of a Colorado State Sales Tax License
since City, County and State sales tax will be
applicable to any short term rental of these units.
The required real estate transfer tax will apply to
initial and subsequent sales of the timeshare
interests and will be collected as in any other
real estate sale.
The submission requirements for a timeshare appli-
cation require a Disclosure Statement, Condominium
Documents (Fractional Estate Declaration), Articles
of Incorporation of the Fractional Owner's Association
and the Bylaws of the Association as well as a
sample purchase contract. The documents have been
submitted by the applicant and reviewed by the
Planning Office and Attorney's Office. Changes
will need to be made to these documents as conditions
are placed on the Prospector through the approval
process. The Planning Office and Attorney's Office
should both review and approve the final documents
to ensure the changes and clarifications are made.
Lodge Condomin-
iumization Review:
It is unclear, at this point, whether or not a
timeshare project requires condominiumization
approval. Most elements of the lodge condominiumi-
zation review are covered in the above timeshare
review. The Planning Office is, however, recommending
a Code amendment to the timeshare regulations which
clarifies this situation by including the condominium
regulations as guidelines (not requirements) in the
timeshare review. The following is a review of the
lodge condominium regulations/guidelines which were
not covered in the previous timeshare review.
•
•
Memo: Prospector
Page Seven
August 2, 1983
Timeshare Project
1. An affidavit has been submitted which verifies
that the Prospector Lodge has not been in
operation for three years, therefore the
quality and quantity of services, maintenance
and management of the new facility will be an
improvement over those offered in the past
three years. The Planning Office feels that
the applicant should, however, verify that
these services are equal or better than those
previously provided when the lodge was in
operation.
2. The applicant is providing the required two
pillows of employee housing. This unit (#108)
must be deed restricted to the employee guidelines
for 50 years and must be shown on the condominium
plat.
3. Section 20-23 (A) (1) (a) limits an owner's occu-
pancy during the winter season to 14 days. It
is recommended that this requirement be adjusted
to 30 days for the Prospector so that more
than two timeshare packages can be purchased
and utilized by one owner.
Conditional
Use Review
(Sec. 20-3.3): The primary purpose of requiring a conditional
use review for a timeshare project is so that a
public hearing will be set. A public hearing is
not normally required in a two step subdivision
exception process.
Planning Office
Recommendation:
Section 20-3.3 established three suitability require-
ments to be used in evaluating a conditional use.
These requirements are met since the project complies
with the zoning code and is consistant with the
objectives of the zoning code and the CC zone
district. Also, the project is compatible with
surrounding land uses in that it is located in an
area with other lodge and commercial uses, blends
in well with the neighborhood and will not significantly
increase parking, noise or traffic impacts in the
area.
Laundry facilities are proposed as part of the
Prospector. Since these facilities have not yet
been reviewed as a modification of a conditional
use, they would require another conditional use
review. In order to avoid a second review and fee,
the Planning Office recommends that P&Z conceptually
review the applicant's plans at the meeting. The
facilities can either be conditionally approved or
that aspect of the application can be tabled until
further information is obtained.
The Planning Office feels that the applicant has
submitted an excellent proposal for timesharing.
Although we recommend approval, we also suggest
that a very detailed list of conditions be established
to ensure the project is carried out as it is
proposed. With this in mind, we recommend that P&Z
recommend the approval of the Prospector Lodge
timeshare application subject to the following
conditions:
•
41
Memo: Prospector Timeshare Project
Page Eight
August 2, 1983
1. The applicant must provide a current title
commitment from a title insurance company
prior to City Council review.
2. The condominium plat must be amended to include
the following:
a. Reference encroachment license granted by
Council for the rock facade stairs on the
north frontage.
b. Indicate book and page of easements for
the transformer in any vaults or pedestals
on the property.
C. Show common areas.
d. Locate trash facilities.
e. Add necessary approval certificates.
f. Add unit amenities, including hot tubs
and saunas.
g. Designate employee unit #108.
3. The landscape plan should be subject to the
approval of the Parks Director. The plan
should contain the following:
a. The additional sidewalk spur on the west
end of the alley.
b. Irrigation of the planting areas along
the west and north frontages to maintain
trees in those locations.
4. The applicant must provide 16 on -site underground
parking spaces.
5. The project must include amenities as proposed
including a sundeck on the third floor, on -
site parking, lobby, and unit amenities including
a hot tub, sauna, wet bar and masonry fireplace.
6. Occupancy by a timeshare owner is limited to
30 days in the winter season.
7. No prohibited marketing practices will be
allowed including the giving of gifts, use of
public malls or streets for sale, and phone
solicitations.
8. The 19 renovated lodge units found in the
Prospector must each be split into 52 weeks,
one interest for each week of the year. Seven
weeks must be reserved for the maintenance of
the project. Four of these seven weeks must
be used exclusively for maintenance with no
rentals or other uses allowed. Two of the four
weeks must be in the spring while the remaining
two weeks must be in the fall. The remaining
45 weeks must be sold as proposed in three
week timeshare packages. Each three week
package must contain a peak season ski week, a
peak summer week, and an off season week in
either the spring or the fall.
9
•
Memo: Prospector Lodge Timeshare Project
Page Nine
August 2, 1983
9. No right -to -use timeshare leasehold will be
allowed. All Prospector timeshare interest
sales must be on a fee ownership basis.
10. Timber Run Realty and Terry Liming as Plan
Manager will be responsible for the marketing
program for the Prospector. A local contact
must be identified to the City of Aspen for
communication purposes. The marketing program
identified in the timeshare application must
be adhered to.
11. Subsidies for transportation and lodging will
be allowed for parties interested in visiting
the Prospector Timeshare Project. The Planning
Office must review this subsidy program in six
months to ensure that it is operating in a
responsible way.
12. As proposed, the applicant must establish four
banking accounts for operation of the budget
system. Proof that these accounts have been
established must be documented to the City of
Aspen.
13. As required in Section 20-24(F)(2), the applicant
must provide information on the present condition
of all structural components and mechanical
and electrical installation materials and the
expected useful life of these items.
14. Deposits or downpayments made in conjunction
with the purchase or a timeshare unit must be
held in an escrow account until closing or the
issuance of a Certificate of Occupancy, which-
ever is later. The escrow agent must be a
title company in Aspen, a neutral third party.
15. No C.O. will be issued until at least eight of
the total 15 timeshare packages are sold for
any given unit.
16. A Board of Managers must be established within
30 days after eight of the total 15 timeshare
packages are sold for any given unit. When
the C.O.s are issued, the declarant as well as
the new timeshare owners must then begin to
pay their quarterly assessment fees.
17. The total number of Board of Managers members
must be submitted by the applicant prior to
Council review. Approximately 75 percent of
these members must be Prospector Fractional
Estate owners.
18. The Interior Reserve Fund and the Exterior
Reserve Fund, both expenditures itemized in
the maintenance/ assessment fees, cannot be
reduced or suspended for any length of time.
All other expenditure items used in the calculation
of the assessment fees can be adjusted with 75
percent of the owners approving the adjustment.
The money designated for the reserve funds
must always be held in escrow to be used as
needed for interior and exterior repairs and
maintenance.
•
Memo: Prospector Timeshare Project
Page Ten
August 2, 1983
19. The Prospector timeshare units are limited to
six occupants at any one time.
20. The actual 50 year deed restriction for the
employee unit (#108) must be reviewed and
approved by the Attorney's Office as soon as
possible.
21. The Fractional Owners Association is required
to own the common areas and common amenities
in the Prospector Lodge and this must be
reflected in the appropriate documents.
22. The Board of Managers must designate a managing
agent, preferably a local agent.
23. One deed must be conveyed for each three week
package so that weeks are never sold individually.
24. References must be made throughout the application
and attached exhibits to indicate that the
project is subject to all of the requirements
in Section 20-24 as well as the State Timeshare
Laws which are already specified in the application
and attachments.
25. The financing for the Prospector must be
expressly subject to all restrictions placed
on the project.
26. The applicant must meet the original three
conditions of the Certificate of Occupancy
issued by the Building Department. These
three conditions include:
a. The required handicapped access must be
approved by Council.
b. The parking requirements must be reduced
with Council approval from 17 to 16
spaces or the additional space must be
provided.
C. The landscaping plans must be approved by
City Council.
27. The plan manager or the managing agent must
apply for and show evidence to the City of a
Colorado State Sales Tax License since the
City, County and State sales tax will be
applicable to any short term rental of these
units. A required real estate transfer tax
will apply to initial and subsequent sales of
the timeshare interest and will be collected
as is done in any other real estate transaction.
28. The Prospector Disclosure Statement, the
Prospector Condominium Documents entitled
Fractional Estate Declaration, the Prospector
Articles of Incorporation of the Fractional
Owners Association, and the By -Laws of the
Association as well as a sample purchase
contract must all be amended to reflect the
conditions of approval placed on the Prospector
through the approval process. The Planning
Office and the Attorney's Office must both
review and approve the final documents to
ensure the changes and clarifications are
accurately made.
•
0
Memo: Prospector Timeshare Project
Page Eleven
August 2, 1983
29. Any updating or amending of the approved
timeshare documents must be approved through
the City according to the requirements of
Section 20-24 of the subdivision regulations.
30. The declarant must be responsible for all
assessment fees and expenditures related to
the unsold timeshare units. The declarant may
rent unsold units but the rental money must go
toward any maintenance which may be necessary
as a result of the unit's use as a rental.
31. The applicant must describe the financing to
be offered prior to Council review.
32. The applicant must clarify throughout the
timeshare application references to timeshare
units versus references to timeshare interests.
33. 30 percent of the qualified voters of the
Fractional Owners Association must be present
to obtain a quorum. The developer's control
of 30 percent of the votes does not constitute
a quorum.
34. The Fractional Owners Association may not
lease the common elements or amenities which
are owned by the Association, as was proposed
in the application.
35. To ensure compliance with the proposed marketing
program, the applicant must post with the City
suitable security in the amount of $20,000
cash, a $20,000 irrevocable letter of credit
or a $100,000 surety bond.
36. Full details of the RCI exchange program
(cost, procedures, other projects involved,
confirmation percentages, etc.) must be provided
to the purchasers of Prospector timeshare
interests.
37. The applicant, not the applicant's attorney,
should sign the timeshare application.
38. An affidavit regarding the management, services
and maintenance offered when the Prospector
was previously in operation should be submitted
to verify that the services to be offered in
the timeshare project are of equal or greater
quality and quantity.
39. Further conditions may need to be placed on
the Prospector timeshare approval subject to
the presentation of the proposed laundry
facilities.
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Proposed Budget for the Prospector. The
estimated annual budget of the Prospector is as follows:
PER UNIT
ITEM OF EXPENSE
COMPLEX
PER YEAR*
COMMON ELECTRICITY
3,800
200
SNOW REMOVAL
2,850
150
CABLE 'TELEVISION
3,420
180
WATER & SEWAGE
3,800
200
TRASH REMOVAL
2,375
125
GAS/HOT WATER HEAT
13,300
700
EXTERIOR MAINTENANCE
4,940
260
INTERIOR COMMON AREA MAINTENANCE
2,850
150
CONDOMINIUM MANAGEMENT
22,800
11200
FIREWOOD
1,900
00
COMMON AMENITIES
570
30
BUILDING INSURANCE
5,035
265
INDIVIDUAL UNIT ELECTRICITY
10,260
540
TELEPHONE
3,420
180
FURNITURE, APPLIANCE RESERVE
28,500
1,500
CONTENT INSURANCE
1,900
100
PROPERTY TAXES
22,800
1,200
C.P.A. REVIEW
1,900
100
INTERIOR UNIT b'IAINTENANCE
3,800
200
INTERIOR JACUZZI/SAUNA
3,800
200
EXTERIOR BUILDING RESERVE
10,000
526
ADMINISTRATIVE (phone, postage)
3,800
200
TOTAL
$157,820
$ 8,306
* rounded to nearest dollar
TOTAL DUES PER YEAR PER UNIT = $8,306.00
1/15 SHARE = 553.73
PAID QUARTERLY = 138.43
CHARGES FOR MAID SERVICE AFTER OWNER CHECK OUT WILL BE
BILLED SEPARATELY BY THE MANGER.
. t.
MEMORANDUM
TO: Aspen City Council
FROM: Alice Davis, Planning Office
RE: Council Concerns with the Prospector Timeshare Project
DATE: August 22, 1983 APPROVED AS TO FORM:
At the City Council work session on the Prospector Timeshare
Project on August 17, 1983 three areas of concern were identified.
These concerns are discussed below:
1. Free Transportation and Lodging for Potential Timeshare Purchasers
The Prospector marketing entity intends to invite persons who
have shown continued interest in buying a timeshare interest to
visit the project. As proposed, free or subsidized transportation
to Aspen and overnight lodging may be offered to visiting parties.
During the timeshare ordinance review the "giving of gifts" was
discussed at length. P&Z and Council both agreed that the giving
of gifts may not necessarily be bad, if done in a responsible,
ethical way. Council did, however, maintain the right to review
any gift programs to evaluate if the programs were to be conducted
in a deceptive way. The exact Code language is as follows:
"(E)(3) Marketing and sales practices. A project's marketing
program should reveal responsible, ethical sales
practices, and such marketing program should not
permit the following practices:
(c)The giving of gifts in a deceptive manner to
encourage people to attend sales presentations or
to encourage people to buy a timeshare estate.
Any exact description of gifts proposed to be
given by the developer to prospective purchaser
and the cost to the developer of any gift used in
a gales or marketing program must be disclosed and
shall be subject to prior approval by council."
Free transportation, as proposed by the Prospector, was found to be
an acceptable gift by the previous Council which is one reason
why the giving of gifts was not completely prohibited. The regulations
do however allow you to determine if you think their program is
acceptable.
The major drawback to offering free transportation is the pressure
it places on potential purchasers to buy a timeshare interest.
Anyone accepting a free trip would probably expect some sales
pressure, but how much and how intense the pressure is or should
be is hard to evaluate. The Planning Office has recommended a
condition to-the-Prospe�to—r approval which requires the Planning
Office to review this .aspect-_of_the marketing_program after six
—f - - -- --
months of _opsra-tion—ta-ens-i vvre--kt is be--candu-cted in- a_ reposnsible
way. We would evaluate the number of trips given, the results,
the number of contracts rescinded during the 10 day right -of -
recision period, and any public or owner reaction to the program.
If any problems are identified, we would bring them before Council
to determine if the free transportation and lodging program
should be eliminated.
2. Assessment Fee Adjustments
The applicant wishes to allow the Board of Managers to reduce or
increase the Prospector's —quarter y assessment fees as opposed to
requiring 75 percent of the owners to agree to such changes. The
difficulty of achieving 75 percent agreement to increase fees may
result in insufficient funds for properly maintaining the project.
Memo: Council
Page Two
August 22, 1983
Concerns re: Prospector Timeshare
Even though the Planning Office feels this is reasonable, we do
believe that the assessment fee increases should be controlled in
some manner as this has been a major problem with timeshare
projects in other areas. If the Board of Managers increase fees
unreasonably or too often, the owners can always vote them out of
office, so some protection is provided. This statement should be
articulated in the timeshare documents -so that owners are totally
aware of this protection. Another protection would be to not
allow the Board to increase fees without written notice to the
owners as to the reason necessitating the increase and documention
of the need. The Planning Office recommends that these two
protections be added as conditions of approval.
3. Reserve Account
The Prospector budget identified $10,000 per year in the exterior
fund which—Wi1>—be_ r�and used only for such things as re-
painting, structural repairs, landscaping replacements and common
area carpet repairs. As proposed, with the Board of Manager's
approval, these funds can be reduced or eliminated. The Planning
Office recommended (and the applicant agreed) that the Board not
be allowed to reduce or eliminate this escrowed fund for the
first five years of operation to ensure that the fund builds up
to a sufficient level before the annual amount going into the
fund is reduced.
New timeshare owners do not have to pay into the fund until the
sale of their timeshare package is closed. No timeshare closing
is allowed within a unit until eight of the 15 packages are sold
and closed in that unit. The developer only pays into the fund
for the remaining timeshare packages in a unit which has closed
on at least eight of the 15 packages. Therefore, $10,00_0 per
year_wi_ lam_.ot b- -going-in+'-G--t .-fundd--unt:L all timeshare packages
are sol
In addition to this reserve account, additional funds have been
identified through the budget for maintenance and repairs. The
budget also earmarks $4,-_940_ per_ear_for--exter.ia--maintenance,
$28, 500 der _ear__for__furniture_ andapplianc-e__repairs and replacement,
0-. 800 per year for jacuzzi and sauna maintenance, and $3_,800 per
year for interior maintenance. Again, these funds will be obtained
as units are sold and assessment fees are paid.
The applicant has agreed to amend his proposal so that the $10,000
annual reserve fund cannot d or eliminated by the Board
until there is $50,QM in the account. Since the fund will most
probably not be needed until this amount is acquired, the Planning
Office feels this is an adequate solution.
At the Council meeting on August 22, the Planning Office will go
over the 35 recommended conditions of approval for the Prospector.
All aspects of the project should be covered through this discussion.
The Planning Office will be prepared to add, delete or change
conditions as Council makes a decision on the above issues or any
other area of concern.