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HomeMy WebLinkAboutcoa.lu.ec.Prospector Lodge.LotsA-D,Blck82.1982-83 o EXHIBIT "A" o aspen title company, ltd. A TITLE INSURANCE AGE./'\.ll::Y December 17, 1982 Mr. Spence Shiffer Garfield [, Hecht 601 E. Hyman Avenue Aspen, Colorado 81611 Re: Lots A, B, C and D Block 82 CITY AND TOWNSITE OF ASPEN Dear Spence: As of December 17, 1982 at 4:30 PM, Aspen Title Company, Ltd. hereby certifies that Hans B. Cantrup is the owner of the above described property by Warranty Deed recorded December 22, 19!10 in Book 401 at Page 969, a copy of which is attached. Very truly yours, ASPEN TITLE COMPANY, LTD. ~~ /Susan Arene11a , /' Title Examiner SW/hgy Attachment (1) 530 E, Main Street Third floor' Aspen, Colorado 81611 303 925-4444 " ., , ~ ,;1 :fJ '~~:~~ ~t :>.0:" ~"1:. ;~~ -f... ''Sl .'~ .rt ~.~ J j -, .' ~ , .; i ..~ 1 "j j , :~ -, I I I 1 I i I , I , j : ~ , -I t 'I ,:: . : i , ' ~ ! / j Ii 'I I'nttony " ;.. '....'..n l"~h ....,___.__ I ~ -'>1 ~c'""':'l oj j ; I I ~.I -~- ; ~ . :/ .y' .~ " t~, '. -1 , -- '-"':i~1,'_ "~ o EXHIBIT "D" o CONDOMINIUM DECLARATION FOR PROSPECTOR CONDOMINIUMS KNOl~ ALL MEN BY THESE PRESENTS, THAT: I I I I I WHEREAS, HANS B. CANTRUP, "Declarant", is the owner of certain real property situated in the County of Pitkin, State of Colorado, legally described as follows: Lots A, B, C, and D, Block 82, City and Townsite of Aspen. WHEREAS, Declarant desires to establish a condominium project under the Condominium Ownership Act of the State of Colorado; and I I WHEREAS, there is presently located on the property a building containing 20 units and other improvements; and WHEREAS, Declarant does hereby establish a plan for the ownership in fee simple of the real property estates hereby created and consisting of the area or space contained in each of the air space units in the buildings and the co-ownership by the separate owners thereof, as tenants in common, of all of the remaining property hereinafter defined and referred to as the General Common Elements; NOW, THEREFORE, Declarant does hereby grant, convey, and submit the above-described real property and the improvements situated thereon, all as shown on the Map described in Section 1.11 below, subject to all easements, rights of way, restrictions and reservations of record prior to recording of this Declaration to condominium ownership pursuant to the Condominium Ownership Act of the State of Colorado, and Declarant does hereby publish and declare that the following terms, covenants, conditions, easements, restrictions, uses, limitations, and obligations shall be deemed to run with the land, shall be a burden and a benefit to Declarant, its heirs, administrators, executors, successors, and assigns: 1. Definitions. Unless the context shall expressly provide otherwise the following definitions shall apply to the following phrases, or terms appearing in this Declaration. 1.1 "Unit" means an individual air space unit which is bounded by the unfinished interior surfaces of its perimeter walls, including the interior surfaces of windows and window frames, doors and door frames, trim, and the interior surfaces of the lowermost floors, uppermost ceilings and bearing walls of such unit in the building as shown on the Condominium Map to be o o filed for record, together with all fixtures and improvements therein contained but not including any of the structural com- ponents of the building, or common elements, if any, in such unit. 1.2 "Condominium Unit" means the fee simple interest and title in and to a unit, together with the undivided percentage interest in the general and limited common elements appurtenant to such unit. 1.3 "General Common Elements" means arid includes the real property described above, including the Common Areas as shown on the Condominium Map of Prospector Condominiums together with the structural components of the buildings, including but not limited to roofs, floors other than the interior surfaces thereof (and crawl spaces beneath the floors), foundation, pipes, ducts, flues, chutes, conduits, wires, and other utility instal- lations to the outlets, bearing walls, perimeter walls, columns and girders, to the interior surfaces thereof, regardless of location; the balconies, patios, entryways lying outside peri- meter walls, walkways and parking areas, which are now or here- after contained within the project; all installations of power, lights, gas, hot, and cold water existing for common uses, and all other parts of such land 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 such land, all of which shall be owned, as tenants in common, by the owners of the separate units, each owner of a unit having an undivided percenta~e interest in such general common elements as hereinafter prov1ded. I I I I I 1.4 "Limited Common Elements" means those parts of the General Common Elements which are either limited to or reserved for the exclusive use of the owners of one or more, but less than all, of the Condominium Units as delineated on the Condominium Map of Prospector Condominiums and as more fully described in paragraph 5 below. "Common Elements" includ~s General Common Elements and Limited Common Elements. 1.5 "Condominium Project" means all of the land and improvements initially and subsequently within the purview of this Declaration. 1.6 "Common Expenses" means and includes expenses for maintenance, repair, operation, reserves for replacement, management and administration, expenses for utilities, insurance, rental management, maid services, cleaning services and supplies, guest registration expense, linens and towels, gardening and landscaping, trash collection, security guards and facilities, legal and accounting services, expenses declared common expenses by the provisions of this Declaration or under the By-Laws of The Prospector Condominium Association, and all sums lawfully assessed against the Common Elements by the Board of Managers of the Association. -2- I I I I o o l.7 "Association of Unit Owners" or "Association" means The Prospector Condominium Association, its successors and assigns, the Articles of Incorporation and By-laws of which shall govern the administration of this Condominium Project, and the members of which shall be all of the owners of the Condominium Units. 1.8 "Board of Governors" means those Unit owners duly elected to govern the affairs of the Association. 1.9 "Managing Agent" means any person, firm, or other entity to whom the Board of Governors may by written agree- ment delegate any of its duties, powers, and functions for an agreed compensation. 1.10 "Building" means anyone of the building improvements containing Condominium Units as shown on the Map or any amendments and supplements thereto. I 1.11 "Map" or "Condominium Map" or "Supplemental Map" means a plat or plats or surveyor surveys of the surface of the ground of the Real Property showing a survey and legal description thereof, the location of the Building with respect to the boundaries of the property, together with diagramatic floor plans of the Building, showing the boundaries of each Unit within the Building, including horizontal and vertical locations and dimensions of all boundaries of each Unit, Unit numbers identi- fying the Units together with such other information as may be included thereon and the discretion of the Declarant. If a supplemental or amended Condominium Map or Maps shall be filed in the records of pitkin County, Colorado, the term "Map" or "Condominium Map" thereafter shall mean the original Condominium Map, together with all amended or supplemental maps. . I I I I 1.12 "Mortgage" means any mortgage, deed of trust, or other security instrument by which a Condominium Unit or any part thereof is encumbered. 1.13 "Mortgagee" means any person, persons, firm, corporation, partnership, association, other legal entity, or combination thereof named as the mortgagee or beneficiary under any Mortgage by which the interests of any Owner is encumbered. 1.14 "Second Mortgage". Whenever any right is provided under this Declaration to any holder of a second mort- gage or any beneficiary of a second priority deed of trust, such holders and beneficiary shall be expressly limited to a person or entity who has provided funds or given value in connection with the purchase of a unit from the Declarant. 1.15 "Owner" means a person, persons, firm, corpora- tion, partnership, association, other legal entity or combination thereof which owns an interest in or more Condominium Units; the term "Owner" shall not refer to any "Mortgagee" as herein -3- o o defined, unless such Mortgagee has acquired title pursuant to foreclosure or any proceeding in licu of foreclosure. 2. Condominium Ma~. The Map may be filed for record in whole or in parts or sect10ns, from time to time, as the stages of construction of the Units and other improvements are subsequently completed. Each section of the Map filed subsequent to the first or initially filed Map shall be tcrmed a Supplement to such Map and the numerical sequence of such supplements shall be shown thereon. The Map or any part or section thereof depicting units shall not be filed for record until the building in which the Units are located has been substantially completed in order to permit the location thereof, both horizontally-and vertically, by a registered Colorado land surveyor. Each such Map shall depict and show at least the following: 2.1 The legal description of the real property and a survey thereof, the location of the Building(s); the floor and elevation plans; the location of the Units within the Building, both horizontally and vertically; the thickness of tho common walls between or separating the Units; the location of any structural components or supporting clements of a unit located within a Building; and the Building and Unit designations. 2.2 The Map shall contain the certificate of a registered Colorado land surveyor or licensed architect, or both, certifying that the Map substantially depicts the location and the horizontal and vertical measurements of the building, the Units, the Unit designations, the dimensions of the Units, the elevations of the unfinished floors and ceilings as constructed, the building number or symbol, and that such Map was prepared subsequent to substantial completion of the improvements. Each Supplemental Map and/or any amendment shall set forth a like certificate when appropriate. 2.3 boundaries of each sively presumed to In interpreting the Map the existing physical separate Unit as constructed shall be.conclu- be its boundaries. 2.4 from time to time, location of any of establish, vacate, easements, parking Declarant reserves the right to amend the Map to conform the same according to the actual the constructed improvements, and to relocate, eliminate, easements, access road areas, and employee housing. 3. Division of Property into Condominium Units. The real property is hereby divided into the following fee simple estates, each such estate consisting of the separately designated Units and the undivided interest in and to the General Common Elements and the Limited Common Elements, if any, appurtenant to each Unit to-wit: -4- I I o o I CONDOMINIUM UNIT PERCENTAGE INTEREST #1 #2 #3 #4 #5 #6 #7 #8 #9 #10 #11 #12 #13 #14 #15 #16 #17 #18 #19 #20 .06% .051% .054% .054% .054% .049% .058% .051% .051% .051% .051% .046% .051% .051% .053% .048% .050% .050% .057% .000% 4. Riqhts Reserved to Declarant. Declarant reserves the right to itself, its he1rs, administrators, executors, successors and assigns, to: 4.1 Physically combine the space within one Unit with the space within one or more adjoining Units, and 4.2. Combine a part of or combination of parts of the space within one Unit with part or parts of the space within one or more adjoining Units, and subsequently separate all or any of said combined units into their separate spaces, and 4.3 The aggregate of interests in the General Common Elements and Limited Common Elements resulting from any such combination or division of any Units or parts thereof shall be reflected by an amendment to the percentage interests set forth in Paragraph 3 above and to the Map, consistent with the requirements set forth in this Declaration. I 5. Limited Common Elements. A portion of the General Common Elements 1S reserved tor the exclusive use of the indi- vidual owners of the respective Units, and such areas are referred to as "Limited Common Elements". The Limited Common Elements so reserved shall be identified on the Map. (Any balcony or balconies which are accessible only from within, associated only with and which adjoin a single unit shall, without further reference thereto, 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.) . I I -5- . I o o I I I I I 6. Use of Certain Common Elements. All the owners of Condominium Units 1n th1s Condominium Project shall have a non- exclusive right in common with all of the others to use of side- walks, pathways, roads and streets located within the entire project, if any. No reference thereto, whether such Common Elements are exclusive or non-exclusive need be made in any deed, instrument of conveyance or other instrument. 7. Inseparability of a Condominium Unit. Each Unit, the appurtenant undivided interest in the General Common Elements and appurtenant Limited Common Elements, if any, shall together comprise one Condominium Unit, shall be inseparable and may be conveyed, leased, devised or encumbered only as a Condominium unit. I I 8. Method of Description. Every contract for the sale of a Condominium Unit and every other instrument affecting title to a Condominium Unit shall describe that Condominium Unit by the unit number and building designation as shown on the Condominium Map appearing in the records of the County Clerk and Recorder of Pitkin County, Colorado, in the following manner: Condominium Unit , Prospector Condominiums according to the Condominium Map appearing in the records of the County Clerk and Recorder of Pitkin County, Colorado in Plat Book at Page and as described in the Condominium-Declaration for Prospector Condominiums appearing in such records in Book ___ at Page ___' SUBJECT TO the terms, conditions, restrictions and obligations as set forth in said Condominium Declara- tion. Such description shall, without further reference, be construed to describe the Unit, together with the appurtenant undivided interest in the Common Elements, and to incorporate all the rights incident to the ownership thereof as described in this Declaration. 9. Separate Assessment and Taxation - Notice to Assessor. Declarant shall give written notice to the Assessor of the County of Pitkin, Colorado of the creation of condominium ownership as to the described real property and improvements, as is provided by law, so that each Unit and the undivided interest in the General Common Elements and Limited Common Elements appur- tenant thereto shall be deemed a parcel and subject to separate assessments and taxation. In the event that for a period of time any taxes or assessments are not separately assessed to each Unit owner, but are assessed on the property as a whole, then each unit owner shall pay his proportionate share thereof in accord- ance with his percentage ownership of the General Common Elements. -6- o o 10. Ownership - Title. A Condominium Unit may be held and owned by more than one person as joint tenants or as tenants-in-common, or in any real propcrty tenancy relationship recognized under the laws of the Statc of Colorado. 11. Non-Partitionability of General Common Elements. The General Common Elements including Limited 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 such Common Elements. 12. The Use of General and Limited Common Elements. Each owner shall be entitled to exclusive ownership and posses- sion of his or her Unit. Each owner may use the General and Limited Common Elements in accordance with the purpose for which they were intended, without hindering or encroaching upon the lawful rights of the other owners, subject to such reasonable rules and regulations as may, from time to time, be established pursuant to the By-Laws of the Association. Further, with respect to the ownership and use of each Condominium Unit the following restrictions and limitations shall apply: 12.1 Nothing shall be done or kept in any Unit or in the General Common Elements and facilities or Limited Common Elements and facilities which will increase the rate of insurance on said common or limited common areas and facilities without the prior written consent of the Board of Governors. No owner shall permit anything to be done or kept in his or her Unit or in the General Common Elements or Limited Common Elements or facilities which will result in the cancellation of insurance of any Unit or any part of the common or limited common areas or facilities or which would be in violation of any law. No waste will be committed of the common or limited common areas and facilities. 12.2 No poster, sign or flag of any kind shall be displayed to the public view or from any Unit or from the General Common or Limited Common Elements and facilities without the prior consent of the Board of Governors, provided, however, that this provision shall not apply to signs placed by any Managing Agent and necessary to the operation of the condominium project. 12.3 No animals, livestock or poultry of any kind including dogs and cats, shall be raised, bred, or kept in any unit or in the common or limited common areas and facilities. 12.4 No noxious or offensive activity shall be carried on in any Unit, in the General Common Elements or Limited Common Elements and facilities nor shall anything be done therein which may be or become an annoyance or nuisance to other owners. 12.5 Nothing shall be altered or constructed in or removed from the General or Limited Common Elements, except upon the written consent of the Board of Governors. -7- o o I 12.6 There shall be no violation of any rules or regulations for the use of the General or Limited Common Elements as from time to time adopted by the Board of Governors and fur- nished in writing to the owners, and the Board of Governors may from time to time also amend such rules or regulations so long as such rules, regulations, or any amendments thereto are reason- able. I I I I 13. Use and Occupancy. 13.1 All Condominium Units shall be used and occupied solely for lodging and residential purposes by the owner, by the owner's family or the owner's guests and tenants. Leasing and renting of the units for residential purposes shall not be considered a violation of this covenant. 13.2 An owner's personal use of his unit shall be restricted in compliance with Section 20-23 (A)(1)(a) of the Municipal Code of the City of Aspen, as amended. I I I 13.3 A violation of the owner's personal use restriction by a unit owner shall subject the owner to a daily assessment by the condominium association of three (3) times the daily rental rate for the unit, at. the time of the violation, which assessment, when paid, shall be deposited in the general funds of the condominium association for use in upgrading and repairing the common elements of the condominium. All sums assessed against an owner for violation of the owner's personal use restriction and unpaid shall constitute a lien for the benefit of the condominium association on that owner's unit, which lien shall be evidenced by written notice placed of record in the office of the clerk and recorder of Pitkin County, Colorado, and may be collected by foreclosure on an owner's condominium unit by the association in like manner as a mortgage or deed of trust on real property. The condominium association's failure to enforce the owner's personal use restriction shall give the City of Aspen the right to enforce the restriction by the assessment and the lien provided for hereunder. If the City of Aspen enforces the restriction, the City shall receive the funds collected as a result of the assessment for the violation. In the event litigation results from the enforcement of the restriction, as part of its reward to the prevailing party, the court shall award such party its court costs together with reasonable attorney's fees incurred. I 13.4 For so long as a restaurant and bar are operated in Unit 99 in a legal manner in accordance with the laws of the City of Aspen, Colorado, which operation shall include music and entertainment, neither the Condominium Association, Board of Governors, Managing Agent, or Unit Owners, shall do anything that would interfere with or have any adverse affect upon the opera- 14. Easements for Encroachments. If any portion of the General Common Elements encroaches upon a Unit or Units, a -8- I I I I I I o o valid easement for the encroachment and for the maintenance of same, so long as it stands, shall and does exist. If any portion of a Unit encroaches upon the General Common Elements, or upon any adjoining unit or units, a valid easement for the encroach- ment and for the maintenance of same, so long as it stands, shall and does exist. Such encroachments and easements shall not be considered or determined to be encumbrances either on the General Common Elements or on the Units. In the event that any one or more of the Units or buildings or improvements comprising part of the General Common Elements are partially or totally destroyed and are then rebuilt or reconstructed in substantially the same location and as a result of such rebuilding a portion thereof shall encroach as provided in the preceding sentence, a valid easement for such encroachment shall and does exist. I I I I I I . 15. Termination of Mechanics' Lien Riqhts and Indemnificati.on. Subsequent to the completion of the improve- ments described on the Map, no labor performed or materials furnished and incorporated in a Unit with the consent or at the request of the Unit owner or his agent or his contractor or subcontractor shall be the basis for a filing of a lien against the Unit or any other Unit owner not expressly consenting to or requesting the same, or against the General or Limited Common Elements. Each owner shall indemnify and hold harmless each of the other owners from and against all liability arising from the claim of any lien against the Unit of any other owner or against the General or Limited Common Elements for construction performed or for labor, materials, services, or other products incorporated in the owner's Unit at such owner's request. . 16. Condominium Association. Administration and management of this Condominium Project shall be governed by the Articles of Incorporation and By-Laws of the Association. An owner of a Condominium Unit, upon becoming an owner, shall be a member of the Association and shall remain a member for the period of his ownership. The Association shall be initially governed by the Board of Directors designated in the By-Laws of the Association; provided that the Declarant shall exercise the rights, duties and functions of the Board of Directors by and through the persons named by Declarant as the Directors until the development of the entire condominium project has been completed and until nineteen (19) condominium units have been sold and closed. 17. Certificate of Identity. There shall be recorded from time to time a cert1f1cate of 1dentity which shall include the addresses of the persons then comprising the management body (Directors and Officers) together with the identity and address of any Managing Agent. Such certificate shall be conclusive evidence of the information contained therein in favor of any person relying thereon in good faith regardless of the time elapsed since the date thereof. The first such certificate shall be recorded on or before a date which is 90 days from the record- ing of this Declaration; however, no failure to renew such -9- o o certificate shall have the effect of limiting or impairing the powers, duties or responsibilities of any duly constituted Board of Directors, or the officers of any Managing Agent properly appointed by them. I I 18. Reservation for Access. The Declarant, any entity to whom it assigns th1s r1ght, and persons either of them may select, shall have the right of ingress and egress over, upon and across the General Common and Limited Common Elements and the right to store materials thereon and make such other use thereof as may be reasonably necessary incident to construction, develop- ment, sale and operation of the Condominium Project as a resort condominium facility. 19. Board of Directors. The owners shall have the irrevocable right, to be exercised by any Managing Agent, or Board of Directors of the Association, to have access to each Unit from time to time during reasonable hours under the par- ticular circumstances as may be necessary for the maintenance, repair or replacement of any of the General or Limited Common Elements therein or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to such Common Elements or to another Unit or Units. Damage to the interior or any part of a Unit or Units resulting from the maintenance, repair, emergency repair or replacement of any of the General or Limited Common Elements or as a result of emergency repairs to General or Limited Common Elements, within another Unit at the instance of the Association shall be a common expense of all of the other owners; provided, however, that if such damage is the result of the misuse or negligence of a Unit owner, then such owner shall be responsible and liable 'for all such damage. All damaged improvements shall be restored to substantially the same condition of such improvements prior to damage. All maintenance, repairs, and replacements as to the General or Limited Common Elements, whether located inside or outside of Units (unless necessitated by the negligence or misuse of such Unit owner) shall be the common expense of all of the owners. 20. Owner's Maintenance Responsibility of Unit, Balconies and Storage Areas. For purposes of maintenance, repair, alteration and remodeling, an owner shall be deemed to own the interior non-supporting walls, the materials (such as, but limited to, plaster, gypsum drywall, paneling, wallpaper, paint, wall and floor tile and flooring, but not including the subflooring) making up the finished surfaces of the perimeter walls, ceilings and floors within the Unit, including interior unit doors and windows. The owner shall not be deemed to own lines, pipes, wires, conduits or systems (which for brevity are herein and hereafter referred to as utilities) running through his or her Unit which serve one or more other Units except as a tenant-in-common with the other owners. Such utilities shall not be disturbed or relocated by an owner without the written consent and approval of the Board of Directors. Such right to repair, alter and remodel is coupled with the obligation to replace any -10- - , , I . o I I I finishing or other materials removed with similar or other types or kinds of materials. An owner shall maintain and keep in repair the interior of his or her own Unit, including the fixtures thereof. All fixtures and equip~ent installed within the Unit commencing at a point where the utilities enter the Unit shall be maintained and kept in repair by the owner thereof. An owner shall do no act nor any work that will or may impair the structural soundness or integrity of the building or impair any easement or hereditament without the written consent of the Board of Directors or the Association, after first demonstrating to the satisfaction of said Board of Directors that such work or act will not impair structural soundness and that such work or act shall be done or performed in a workmanlike manner. Any expense to the Board of Directors for investigation under this Paragraph, including but not limited to the engaging of a structural engineer or architect, shall be for the account of the owner seeking the consent. The decision of the Board of Directors shall not be subject to review and shall be subject to their absolute discretion. An owner shall also keep the balcony area appurtenant to his Unit in a clean and sanitary condition and free and clear of snow, ice and any accumulation of water. All other maintenance or repairs to any Limited Common Elements (unless necessitated by the negligence or misuse of a unit owner, in which case such expense shall be charged to Unit owner) shall be at the expense of all the owners. I I 21. Compliance with Provisions of Declaration, By-Laws of the Association. Each owner shall comply strictly with the provisions of this Declaration, the Articles of Incorporation and the By-Laws of the Association, and the decisions and resolutions of the Association adopted pursuant thereto as the same may be lawfully amended from time to time. Failure to comply with any of the same shall be grounds for an action to recover sums due for damages, or for injunctive relief or both, and for reimburse- ment of all costs and attorneys' fees incurred in connection therewith, which action may be maintained by the Managing Agent or Board of Directors in the name of the Association on behalf of the owners, or, in a proper case by an aggrieved owner. I . I I I 22. 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 Condom1nium 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 eighty percent (80%) or more of the General Common Elements, and in the event such amendment affects the rights of the holders of security interests in the condominiums, then the holders of all recorded first or second mortgages or deeds of trust covering or affecting any or all Condominium Units, must consent and agree to such amendment by instrument(s) duly recorded; provided, however, that the percentage of the undivided interest in the Common Elements shall have a permanent character and shall not be -11- o o altered without the written consent of all of the Unit owners expressed in any amended Declaration duly recorded. 23. Additions, Alterations and 1m rovements of General and Limited Common Elements. There shall e no add1t1ons altera tions or improvements by the Board of Directors or the Managing Agent of or to the General or Limited Common Elements requiring an expenditure in excess of Five Thousand and No/100 Dollars ($5,000.00) in anyone calendar year without prior written approval of a majority of the owners holding a majority of the interest in the General Common Elements, in writing, or as reflected in the minutes of a regular or special meeting or the owners. Such limitation shall not be applicable to the replace- ment, repair, maintenance or obsolescense of any General or Limited Common Element. An individual Unit owner shall do no alterations, additions, or improvements to the General Common Elements or the Limited Common Elements without the approval in writing of the owners of Eighty percent (80%) or more of the General Common Elements or as reflected in the minutes of a regular or special meeting of the owners. I I I I 24. Assessment for Common Expenses. All owners, shall be obligated to pay the assessments, either estimated or actual, imposed by the Board of Directors of the Association to meet the common expenses. The assessments for all Unit owners, shall be made according to each owner's percentage interest in the General Common Elements as is set forth in Paragraph 3 above. Except as provided in Paragraph 20, the Limited Common Elements shall be maintained as General Common Elements, and owners having exclusive use thereof shall not be subject to any special charges or assessments for the' repair or maintenance thereof. Assess- ments for the estimated common expenses shall be made at least semi-annually and shall be due immediately upon receipt. The Managing Agent or Board of Directors shall prepare and deliver or mail to each owner a statement for the estimated or actual common expenses. 24.1 The assessments made for common expenses shall be the sum which the Managing Agent, .or if there is no Managing Agent, then the Board of Directors of the Associ- ation shall from time to time determine is necessary to be paid by all of the Condominium Unit owners to provide for the payment of all estimated expenses growing out of or connected with the maintenance, repair, operation, replacements, additions, altera- tions, and improvements to the Common Elements include, but shall not be limited to, expenses of management; taxes and special assessments until separately assessed; premiums for fire insurance with extended coverage and vandalism and malicious mischief with endorsements attached issued in the amount of the maximum replacement value of all of the Common Elements and Condominium Units (including all fixtures, interior walls and partitions, decorated and finished surfaces of perimeter walls, floors and ceilings, doors, windows and other elements or materials comprising a part of the Units) casualty and public -12- I o o ~~dU~~~LY dnd other insurance premiums; landscaping and care of grounds; common lighting and heating; sewer charges; legal and accounting fees; expenses and liabilities incurred by the Managing Agent by reason of this Declaration and the By-Laws of the Association; for any deficit arising or any deficit remaining from a previous period; the creation of a reasonable contingency reserve, working capital, and sinking funds as well as other costs and expenses relating to the Common Elements. The omission or failure of the Board of Directors to fix the assessment for any period shall not be deemed a waiver, modification or a release of the owners from their obligation to pay the same. 24.2 The expenses provided for in this paragraph and the maintenance, improvements, and replacements giving rise to such expenses shall be deemed a benefit to and a burden upon the Condominium Units within the purview of this Condominium Declaration, shall run with the land, and shall be collected by foreclosure of a lien against each Unit owner failing or refusing to pay his or her prorata share within the time provided, all as more fully set forth in Paragraph 27 below. ~ 25. Insurance. The Managing Agent, or if there is no Managing Agent, then the Board of Directors, shall obtain and maintain at all times insurance of the type and kind provided hereinabove and provide for such other risks, of a similar or dissimilar nature, as are or shall hereafter customarily be covered with respect to other condominium buildings, fixtures, equipment and personal property, similar in construction, design and use issued by responsible insurance companies authorized to do business in the State of Colorado"covering the buildings and improvements on the real property and all personal property included in the Common Elements in an amount equal to the maximum insurable replacement value thereof. The insurance shall be carried in blanket policy form naming the Association the insured, as attorney-in-fact (for all of the condominium owners), which policy or policies shall indentify the interest of each condominium Unit owner (owner's name, unit number, building designation), and which policy or policies shall provide a standard non-contributory mortgagee clause in favor of each first or second mortgagee or deed of trust beneficiary, and provide that the policy cannot be cancelled or substantially modified until after ten days prior written notice is first given to each owner and each first or second mortgagee or beneficiary as . defined hereunder. , I I I I I I I I I I 25.1 The Managing Agent, or if there is no Managing Agent, then the Board of Directors, shall obtain and maintain, to the extent obtainable, public liability insurance in such limits as may from time to time be determined, covering each Unit owner, persons renting from the owner, and their invitees and business guests, each member of the Board of Directors, the Managing Agent and the resident manager. Such public liability coverage shall also cover cross liability claims of one insured agent against another and shall contain waivers of subrogation to -13- o o the extent reasonably practicable. Each owner may obtain additional insurance at his or her own expense for his or her own benefit provided that all such policies shall contain waivers of subrogation to the extent practicable, and provided further, that the liability of the carriers issuing insurance shall not be affected or diminished by reason of any such insurance carried by any Unit owner. 25.2 To the extent any insurance is to be main- tained in amounts calculated by reference to replacement value, the Board of Directors shall designate a general contractor licensed to do business in the State of Colorado to estimate such replacement value each three years beginning with the three year period ending three years from the date of the recording of this Declaration. 25.3 Insurance coverage of the furnishings and other items of personal property belonging to an owner and casualty and public liability insurance coverage within each individual Unit shall be the responsibility of the owner thereof. I 26. Owner's PeEsonal Obligation for Payment of Assessments. The amount of the common expenses assessed against each Condominium Unit shall be the personal and individual deot of the owner thereof. No owner may exempt himself or herself from liability for his or her contribution towards the common expenses by waiver of the use or enjoyment of any of the Common Elements or by abandonment of his or her Unit. Both the Board of Directors and Managing Agent shall have the responsibility to take prompt action to collect any unpaid assessment which remains unpaid more than fifteen (15) days from the due date for payment thereof. In the event of default in the payment of the assess- ment, the Unit owner shall be obligated to pay interest'at the rate of twenty-four percent (24%) per annum on the amount of the assessment from due date thereof, together with all expenses including attorneys' fees incurred, together with such late charges as provided by the By-Laws of the Association. ~uit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosing or waiving the lien securing same. . I . I I 27. Assessment Lien and Foreclosure. All sums assessed but unpaid for the share of common expenses chargeable to any Condominium Unit shall constitute a lien on such Unit superior to all other liens and encumbrances, except only for tax and special assessment liens on the Unit and liens in favor of any holder of a first or second mortgage or beneficiary of a deed of trust of record, including all unpaid obligatory sums as may be provided by such encumbrance. To evidence such lien, the Board of Directors or the Managing Agent shall prepare a written notice of lien assessment setting forth the amount of such unpaid indebted- ness, the name of the owner of the Condominium Unit and a description of the Condominium Unit.' Such a notice shall be signed by one of the Board of Directors or by one of the officers -14- o o UL ~l~ 8bsociation or by the Managing Agent and shall be recorded in the office of the Clerk and Recorder of pitkin County, 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 Condominium Unit by the Association in like manner as a mortgage or deed of trust on real property subsequent to the recording of a notice or claim thereof. In any such proceeding the owner shall be required to pay the Association the monthly assessment for the Condominium Unit during the period of foreclosure, and the Association shall be entitled to a receiver to collect the same. The Association shall have the power to bid in the Condominium unit at foreclosure or other legal sale and to acquire and hold, lease, mortgage, vote the votes appurtenant to, conveyor otherwise deal with the same. Any encumbrancer holding a lien on a Condominium Unit may pay, but shall not be required to pay, any unpaid common expenses payable with respect to such Unit, and upon such payment such encumbrancer shall have a lien on such Unit for the amounts paid of the same rank as the lien of his encumbrance. Upon request of a mortgagee or deed of trust beneficiary, the Association shall report to such mortgagee or, beneficiary of a Condominium Unit any unpaid assessments remaining unpaid for longer than thirty (30) days after the same are due; provided, however, that a mortgagee or beneficiary shall have furnished to the Managing Agent or the Board of Directors notice of such encumbrance. I 28. Liability for Common Expense Upon Transfer of Condominium Un1t 1S J01nt. Upon payment to the Managing Agent or if there is no Managing Agent, then to the Association of a reasonable fee not to exceed Twenty-Five Dollars ($25.00), and upon the written request of any owner or any mortgagee, deed of trust beneficiary, or prospective mortgagee or beneficiary, of a Condominium Unit, the Association, by its Managing Agent, or if there is no Managing Agent then by the financial officer of the Association shall issue a written statement setting forth the amount of the unpaid common expenses, if any, with respect to the subject Unit, the amount of the current monthly assessment and the date that such assessment becomes due, credit for any advanced payments of common assessments, for prepaid items, such as insurance premiums, but not including accumulated amounts for reserves or sinking funds, if any, which statement shall be conclusive upon the Association in favor of all persons who rely thereon in good faith. Unless such request for a statement of indebtedness shall be complied with within ten (10) days, all unpaid common expenses which became due prior to the date of making such request shall be subordinate to the rights of the person requesting such statement~ The grantee of a Condominium Unit shall be jointly and severally liable with the grantor for all unpaid assessments against the latter for the unpaid common assessments 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 not to exceed Twenty-five . I I -15- o o Dollars ($25.00), as is hereinabove provided, and upon written request, any such prospective grantee shall be entitled to a statement from the Managing Agent, or if there is no Managing Agent, then from the Association, setting ~orth the amount of the unpaid assessments, if any, with respect to the subject unit, the amount of the current monthly assessment, the date that such assessment becomes due, and credits for any advanced payments of common assessments, prepaid items, such as insurance premiums, which statements shall be conclusive upon the Association. Unless such request for such a statement shall be complied with within ten (10) days of such request, then such requesting grantee shall not be liable for, nor shall the Unit conveyed be subject to a lien for any unpaid assessments against the subject unit up to the date such request was made. The provisions set forth in this paragraph shall not apply to the initial sales and conveyances of Condominium Units made by Declarant, and such sales shall be free from common expenses to the date of con- veyance made or to a date as agreed upon by Declarant and Declarant's grantee. I 29. Mort a a Condominium Unit - Priorit. An owner shall have the r1ght rom t1me to t1me to mortgage or encumber his or her interest by deed of trust, mortgage or other security instrument. A first mortgage or deed of trust beneficiary shall be one which has first and paramount priority under applicable law. The owner of a Condominium unit may create junior mortgages, liens, or encumbrances on the following conditions: I I 29.1 That any such junior mortgages or liens shall always be subordinate to all of the terms, conditions, covenants, restrictions, uses, limitations, obligations, liens or common expenses (except as otherwise provided herein), and other obliga- tions created by this Declaration, the Articles of Incorporation and the By-Laws for the Association. 29.2 That the mortgagee or lien holder under any junior encumbrance 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 obtained by the Association to the extent of such restoration (except as otherwise provided herein). Such release shall be furnished forthwith by a junior encumbrancer upon written request of one or more of the members of the Board of Directors of the Association. 30. Association as Attorney-in-fact, Damag~, Obsolescence and Condemnation. This Declaration does hereby make mandatory the irrevocable appointment of an attorney-in-fact to deal with the improvements to the Condominium Project upon their condemnation, damage, destruction, or obsolescence. Title to any Condominium unit 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 -16- . o 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 any improvements within the condominium project upon their condemnation or damage, destruction,' or obsolescense, all as is 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 other instrument with respect to the interest of a Condominium Unit owner which is necessary and appropriate to exercise the powers herein granted. Repair and construction of the improvements as used in the succeeding subparagraphs means restoring the improvements to substantially the same condition in which they existed prior to the damage, with each Unit and the General and Limited Common Elements having substantially the same vertical and horizontal boundaries as before. The proceeds of any insurance collected shall be avail- able to the Association for the purpose of repair, restoration, or replacements unless the owners and all first or second mort- gagers or deed of trust beneficiaries agree not to rebuild in accordance with the provisions set forth hereinafter. I 30.1 In the event of damage or destruction due to fire or other disaster, the insurance proceeds, if sufficient to reconstruct the improvements, shall be applied by the Association, as attorney-in-fact, to cause the repair and restoration of the improvements. [ 30.2 If the insurance proceeds are insufficient to repair and reconstruct the improvements, and if such damage is determined to be not more than sixty percent (60%) of all of the improvements in the Condominium Project, not including land (but including landscaping, roads, and including utilities to the extent their replacement is not the responsibility of a utility company), such damage or destruction shall be promptly repaired and reconstructed by the Association, as attorney-in-fact, using the proceeds of insurance and the proceeds of a special assess- ment if the insurance proceeds are insufficient, to be made against all of the owners and their Condominium Units. Such assessment shall be a common expense and made pro rata according to each owner's percentage interest in the General 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 or her Condominium Unit and may be enforced and collected as is provided in paragraphs 26 and 27 above. In addition thereto, the Associ- ation, as attorney-in-fact, shall have the absolute right and power to sell the Condominium Unit of any owner refusing or failing to pay such deficiency, within the time provided, and if not so paid, the Association shall cause to be recorded a notice I I I . -17- o o I..11etl.. I..He l-ondominium Unit of the delinquent owner shall be sold by the Association, as attorney-in-fact, pursuant to the pro- visions of this paragraph. The delinquent owner shall be required to pay the Association the costs and expenses for filing the notices, interest on the amount of the assessment at the rate of twenty-four percent (24%) per annum and all reasonable attorneys' fees and costs incident to a sale. The proceeds derived from the sale of such Condominium Unit shall be used and disbursed by the Association, as attorney-in-fact, in the following order: 30.2.1 ments whether or not customary expense of For payment of taxes and special assess- recorded as liens as of the date of sale and sale; 30.2.2 For payment of the balance of the lien of any first mortgage or deed of trust and then for the balance of any second mortgage or deed of trust; 30.2.3 For payment of unpaid common expenses (other than special assessment) and all costs, expenses, and fees incurred by the Association; 30.2.4 For payment of junior liens and encum- brances in the order of and to the extent of their priority; and 30.2.5 The balance, if any, shall be paid to the unit owner. . 30.3 If the insurance proceeds are insufficient to repair and reconstruct the damaged'improvements, and if such damage is determined to be more than sixty percent (60%) of all of the improvements in the Condominium Project, not including land (but including landscaping, roads, and utilities when re- placement is not the responsibility of a utility company) and if the owners representing an aggregate ownership interest of fifty-one percent (51%) or more, of the General Common Elements do not voluntarily, within one hundred (100) days thereafter make provisions for reconstruction, which plan must have the unanimous approval or consent of every first and second mortgagee, or deed of trust beneficiary, the Association shall forthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Association, the entire premises, including the damaged part and the undamaged part, shall be sold by the Association, as attorney-in-fact, for all of the owners, free and clear and clear of the other provisions contained in this Dec- laration, the Condominium Map and the By-Laws; provided, however, assessments for Common Elements shall not be abated for the period prior to sale. The insurance settlement proceeds shall be collected by the Association, and such proceeds shall be divided by the Association according to each owner's percentage interest in the General Common Elements, and such divided proceeds shall be paid into separate accounts, each such account representing one of the Condominium Units. Each such account shall be in the I . I I I I f I I I I -18- o o name of the Association, and shall be further identified by the Condominium Unit designation. The total funds of each account shall be used and disbursed, without contribution from one account to another, by the Association, as attorney-in-fact, for the same purpose and in the same order as ~s provided in sub- paragraphs 30.2.1 through 30.2.5 of this paragraph. I I 30.4 If within the time provided in paragraph 30.3 above, the owners representing an aggregate ownership in- terest of fifty-one percent (51%) or more of the General Common elements adopt a plan for reconstruction which plan has the unanimous approval of all first and second mortgagees and deed of trust beneficiaries, then all of the owners shall be bound by the terms and other provisions of such plan. Any special assessment made in connection with such plan shall be a common expense and made pro rata according to each owner's percentage interest in the General Common Elements and shall be due and payable as provided by the terms of such plan, but not sooner than sixty (60) 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 or her Condominium Unit and may be enforced and collected as is provided in paragraphs 26 and 27 above. In addition thereto, the Asso- ciation, as attorney-in-fact, shall have the absolute right and power to sell the Condominium Unit of any owner refusing or failing to pay such assessment within the time provided, and if not so paid, the Association shall cause to be recorded a notice that the Condominium Unit of a delinquent owner shall be sold by the Association. The delinquent owner shall be required to pay the Association the costs and expenses for filing the notices, interest at the rate of twenty-four percent (24%) per annum on the amount of the assessment and all costs and reasonable attorneys' fees. The proceeds derived from the sale of such Condominium Unit shall be used and disbursed by the Association, as attorney-in-fact, for the same purposes and in the same order as is provided in subparagraphs 30.2.1 through 30.2.5 of this paragraph. I I I I I 30.5 The owners representing an aggregate owner- ship interest of eighty percent (80%) or more of the General Common Elements may agree that the General Common Elements are obsolete and adopt a plan for their renewal and reconstruction, which plan has the unanimous approval of all first and second mortgagees and deed of trust beneficiaries of record at the time of the adoption of such plan. If a plan for renewal and recon- struction 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 to the Association within fifteen (15) days after the date of adoption of such plan that such unit shall -19- o o I I I be purchased by the Association for the fair market value there- of. The Association shall then have thirty days (thereafter) within which to cancel such plan. If such plan is not cancelled, the Condominium Unit of the requesting owner shall be purchased according to the following procedures. 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 she is unable to agree with the other shall be the "commencement date" from which all periods of time mentioned herein shall be measured. \~ithin ten (10) days following the commencement date, each party shall nominate in writing (and give notice of such nomination to the other party) an appraiser. If either party fails to make such a nomination, the appraiser nominated shall, within five (5) days after default by the other party appoint another appraiser. If the two desig- nated or selected appraisers are unable to agree as to the fair market value of the Condominium Unit, 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 the appraiser appointed by the owner in the presence of the other appraiser, and the person whose name was so drawn shall be the 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 appraisers to agree, which, in any event, shall not be later than twenty (20) days following the appoint- ment of the second appraiser. The decision of the appraisers as to the fair market value, or in the case of their disagreement, then the decision of the umpire, shall be final and binding. The expenses and fees of such appraisers 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 the proceeds for the same pur- poses and in the same order as is provided in subparagraphs 30.2.1 through 30.2.5 of this paragraph. 30.6 The owners representing an aggregate owner- ship interest of eighty percent (80%) or more of the General Common Elements, with the unanimous consent of all holders of the first mortgage and deeds of trust and second mortgagee and deeds of trust, may agree that the Condominium Units are obsolete and the same should be sold. In such instance, the Association shall forthwith record a notice setting forth such fact or facts, and upon the recording of such notice by the Association's President and Secretary or Assistant Secretary, the entire premises shall be sold by the Association, as attorney-in-fact for all of the owners, free and clear of the provisions contained in this Decla- ration, the Map and By-Laws. The sales proceeds shall be appor- tioned between the owners on the basis of each owner's percentage interest in the General Common Elements, and such apportioned proceeds shall be paid into separate accounts, each such account representing one Condominium Unit and each such account shall be -20- o o in the name of the Association and shall be further identified by the condominium unit designation and the name of the owner. From each separate account, the Association, as attorney-in-fact, shall use and disburse the total amount (of each) of such accounts, without contribution from one account to another, for the same purposes and in the same order as is provided in sub- paragraphs 30.2.1 through 30.2.5 of this paragraph. 30.7 If at any time while this Condominium Dec- laration is in effect, any portion of the Condominium Project shall be taken for any public or quasi-public use by a lawful power or authority by the exercise of the right of condemnation or eminent domain, then the following provisions shall apply with respect to any proceeds arising out of such condemnation or eminent domain and to the sale of remaining portions of the Condominium Project: 30.7.1 If such proceeds relate to General Common Elements not included in any building containing Condo- minium Units, then such proceeds shall be paid to the Association of Unit Owners to be used in such manner as its Board of Directors shall determine. I . . 30.7.2 If such proceeds relate to any building containing Condominium Units, then if less than all of such building has been condemned the remainder of'such building shall be sold in such manner as the Board of Governors determines and the proceeds of such sale together with the proceeds from the condemnation or exercise of eminent domain for such building shall be divided by the Association for each owner of a unit within such building according to each owner's percentage interest in the General Common Elements in the ratio of each such owner's interest in such elements to those of the other owners participating in such division. such proceeds shall be paid into separate accounts, each such account representing one of the Condominium Units. Each such account shall be in the name of the Association and shall be further identified by the Condominium unit 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 such account, without contribution from one account to another, in the manner and in the priority set forth in subparagraphs 30.2.1 through 30.2.5 hereof. I I I . ~ 31. Personal Property for Common Use. The Association, as attorney-in-fact for all of the owners, may acquire and hold for the use and benefit of all of the Condominium unit owners, real, tangible and intangible personal property and may dispose of the same by sale or otherwise. The beneficial interest in any such property shall be owned by all of the Condominium Unit owners in the same proportion as their respective interests in the General Common Elements, and such interest therein shall not be transferable except with a transfer of a Condominium unit. A transfer of a Condominium unit shall transfer to the transferee I -21- c o ownership of the transferor's beneficial interest in such property in accordance with the purpose for which it is intended without hindering or encroaching upon the lawful rights of the other owners. The transfer of title to a Condominium Unit under foreclosure shall entitle the purchaser to, the beneficial interest in such personal property associated with the foreclosed condominium unit. 32. Refiistration of Mailing Address. Each owner shall register his or er ma11ing address or any change thereof with the Association, and all notices or demands, except routine statements and notices, intended to be served upon an owner shall be sent and shall be deemed to have been delivered when ma~led by certified mail, postage prepaid, addressed in the name of the owner at such last registered mailing address. All notices, demands or other notices intended to be served upon the Board of Directors of the Association or the Association shall be sent certified mail, postage prepaid, to Prospector Condominium Association, Inc., c/o Garfield & Hecht, P.C., 601 East Hyman Avenue, Aspen, Colorado 81611 until such address is changed by notice of address change duly recorded in the office of the Clerk and Recorder, City of Aspen, County of Pitkin, Colorado. 33. Period of Condominium Ownership. The separate condominium estates created by this Declaration and the Map shall continue until this Declaration is revoked or terminated in the manner provided in this Declaration. I 34. General Reservations. Declarant reserves the right to establish easements, reservations, exceptions, and exclusions consistent with the condominium ownership of the Condominium Unit in order to serve, benefit or protect the entire Condominium Project. 35. Miscellaneous. 33.1 The failure of the Board of Directors or the Managing Agent to insist in anyone or more instances, upon the strict performance of any of the terms, covenants, conditions, or restrictions of this Declaration, or to exercise any right or option herein contained, or to serve any notice or to institute any action shall not be construed as a waiver or a relinquishment for the future, of such term, covenant, condition or restriction; but such term, covenant, condition or restriction shall remain in full force and effect. The receipt by the Board of Directors or the Managing Agent of any assessment from an owner, with know- ledge of the breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver by the Board of Directors or the Managing Agent of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the Board of Directors or Managing Agent. 35.2 The Board of Directors shall not be liable for any failure of any service to be obtained and paid for by the -22- . o Board of Directors hereunder, or for injury or damage to person or property unless caused by the gross negligence of the Board of Directors. The Board of Directors may limit the liability of the Managing Agent to instances of its gross negligence as well. No diminution or abatement of common expense ,assessments shall be claimed or allowed for inconveniences or discomfort arising from the making of repairs or improvements to the common areas and facilities or from any action taken to comply with any law, ordinance or orders of a governmental authority. ~ I 35.3 Each member of the Board of Directors shall be indemnified by the owners against all expenses and liabilities including attorney's fees, reasonably incurred by or imposed upon him or her in connection with any proceeding to which he or she may be a party, or in which he or she may become involved, by reason of his being or having been a member of the Board of Directors, or any settlement thereof whether or not he or she is a member of the Board of Directors at the time such expenses are incurred, except in such cases wherein the member of the Board of Directors is adjudged guilty of willful misfeasance or malfeasance in the performance of his or her duties; provided that in the event of a settlement the indemnification shall apply only when the Board of Directors approves such settlement as being in the best interests of the Association. Said right of indemnification may be more fully set forth and provided for in the Articles of Incorporation or By-Laws of the Association. 35.4 Each owner shall comply strictly with the provisions of this Declaration, the By-Laws and the adminis- trative rules and regulations drafted pursuant thereto as the same may be lawfully amended from time to time and with decisions adopted pursuant to said Declaration, By-Laws, or such rules and regulations, and failure to comply shall be grounds for an action to recover sums due for damages or injunctive relief or both, maintainable by the Board of Directors or the Managing Agent on behalf of the Association of Owners, or in a proper case, by an aggrieved owner. 35.5 If any of the provisions of this Declaration or any paragraph, 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 the Declaration, and the application of any, such provision, para- graph, sentence, clause, phrase or word in any other circum- stances shall not be affected thereby. 35.6 This Declaration shall be construed and controlled by and under the laws of the State of Colorado. 35.7 The provisions of this Declaration shall be in addition to and supplemental to the Condominium Ownership Act of the State of Colorado and to all other provisions of law. -23- o o 35.8 Whenever used herein, unless the context shall otherwise provide, the singular number shall include the plural, the plural the singular, and the use of any gender shall include all genders. 35.9 The provisions of this Declaration shall be liberally construed to effectuate its purpose. 35.10 Upon request the Association shall provide to the City of Aspen, Colorado a written annual report of the owners' personal use of all Condominium Units during the seasonal period from December 18 through March 20. DECLARANT: By HANS B. CANTRUP I I I I STATE OF COLORADO ) ) COUNTY OF PITKIN ) I I this The foregoing instrument was acknowledged before me ,day of , 1981, by HANS B. CANTRUP. WITNESS my hand and official seal. My Address is: My Commission expires: Notary Pub11c APPROVAL BY CONSTRUCTION LENDER APPROVAL of the foregoing Condominium Declaration for Prospector Condominiums is, hereby acknowledged by the under- signed, the issuer of a construction loan to the Declarant for the Condominium Project. INTRAWEST BANK By -24- o STATE OF COLORADO COUNTY OF this President I 1 , I I I I I I I I I ) ) ss. ) o The foregoing instrument was acknowledged before me day of , 1980 by of Intrawest Bank. WITNESS my hand and official seal. My Address is: My Commission expires: Notary Public -25- " EXHIBIT "E" o 0 ARTICLES OF INCORPOP~TIO~ OF PROSPECTOR CONDOMINIUM ASSOCIATION, INC. The undersigned, acting as Incorporator of, a corpo~ation under the Colorado Non-Profit Corporation Act, sisns and acknow- ledges the following Articles of Incorporation for such corp- oration, hereinafter called the "Articles." , ARTICLE I NAME The name of the corporation shall be Prospector Condo-, minium Association, Inc., hereinafter called the "Association..., ARTICLE II PURPOSE I I I I 1. The purpose for which the Association is organized is to provide an entity pursuant to C.R.S. 1973, 38-33-101, et: r,eq., as from time to time is amended, supplemented or succeedeC:f;' here- after called the "Condominium Act," for the operation of ProspectoJ: Condominiums, a condominium project located on pro?erty in Pitkin County,Colorado. I , t 2. The Association shall make no, distribution of income to its members, directors or officers. ARTICLE'III PONERS 1. The Association shall have all of the corrur.on 1m. and statutory powers of a non-profit corporation vlhich are .not in conflict with the terms of these Articles. I , 2. The Association shall have all of the powers and duties set forth in the Condominium Act except as limited by t:hese Articles and the Condominium Declaration for Prospector Condominiums, hereinafter called the "Declaration" and all the powers and duties reasonably necessary to operate the Association as set forth in the Declaration and as it may be amended from time to time, including but not limited to the folloHing: 2.1 of the corporation corporation. To make and collect assessments against members to defray the costs, expenses and losses of the 2.2 To use the proceeds of assessments in the exercise of its powers and duties." - #. ~. I I I I . I I o 2.3 To maintain, repair, condominium property. o replace, and operate the 2.4 To purchase insurance upon the condominium property and to provide protection for j:he Association and its members as provided by the Declaration,. 2.5 To reconstruct improvements after casualty and to further improve the property. 2.6 To enforce by legal means the provisionB of the Condominium Act, the Declaration, these Articles, the By-LaHs of the Association, and the rules and regulations for the use of the condominium property. 2.7 To contract for the management of the condo- minium property and to delegate to such manager all pOHers and duties of the Association except as such are specially requ),J:ed by the Declaration to have approval of the Board of Directors or the membership of the Association. 2.8 To contract for the management or operation of: portions of the common elements susceptible to separate management or operation and to lease such portions. 2.9 ' To employ personnel to perform the services required for proper operation of the corporation: 2.10 To engage in activities ~hich may now or hereafter be allowed or permitted by' lal-l to actively foster, promote and advance the common interests of the condominium unit owners. 3. All funds and the titles of all properties acquired by the Association and the proceeds thereof shall be held in tJ:ust for the members of, the Association in accordance with the provisions of the Declaration, these Articles, and the By-LaI~s of the Association. 4. The powers of the Association shall be subject: to and shall be exercised in accordance with the provisions of the Declaration and the By-Laws of the Association. ARTICLE VI MEMBERS 1. This corporation shall be a membership corporation without certificates or shares of stock. 2. ,of all record Condominiums. The members of the Association shall consist solely mmers of condominium units of the Prospector \ . I ~ .' o o 3. Change of membership of the l'.ssociation sha 11 be effected and established by the recording in the public reconls of: Pitkin County, Colorado, of a deed or other instrument establishing a change in record title to a condominium unit and the de1ive~y to the Association of a certified or machine copy of such inst~ument. The membership of the prior owner shall thereby be terminated. 4. The share of a member in the funds and assets of the Association cannot be assigned, hypothecated, or tra~sferred in any manner except as an appurtenance to his condominium ~nit. 5. The members of the Association shall be entitled to vote for each condominium unit owned by them. The exact-number of: votes to be cast by owners of a condominium unit and the manner of exercising voters I rights shall be determined by the By-Laws of tlie Association and the Declaration. ARTICLE V BOARD OF DIRECTORS 1. The affairs of the Association will be managed by a Board consisting of the number of Directors as shall be determined by the By-Laws, but not less than three (3) nor more than seven (7) Directors, and in the absence of such determination shall consist of three (3) Directors. 2. Directors of the Association shall be elected at the annual meeting of the members in the manner"" determined' by the By-Laws. Directors may be removed ~nd vacancies on the Board of Directors shall be filled in the ma'nner provided by the By-La\~s. 3. The Directors herein named' shall serve until the first election of Directors, and any vacancies in their nuwbcr occurring before the first election shall be filled by the remaining Directors. 4. The names and addresses of the members 'of the first Board of Directors who shall hold office until their successors are elected and have qualified, or until removed are as follows: Richard Wilhelm, 602 S. Mill, Aspen, Co. 81611 Hans B. Cantrup, Box 388, Aspen, Co. 81611 Spencer F. Schiffer, 601 E. Hyman Avenue, Aspen, Co. 81611 ARTICLE VI OFFICERS The affairs of the Association shall be administered by officers elected by the Board of Directors at its first meeting following the annual meeting of the members of the Association, which officers shall serve at the pleasure of the Board of \ I I I I .' o o Directors. until their as follows: The names and addresses of the officers who shall cerve successors are designated by the Board of Directors are Richard Wilhelm Hans B. Cantrup President-Treasurer Vice President-Secretary ARTICLE VII REGISTERED OFFICE AND REGIS'rERED p.GENT 1. The Association shall have and continuously maintain in Colorado a registered office which may be the same as its principal office and a registered agent whose business office is identical with such registered office. 2. The initial registered office of the Association shall be located at 602 S. Mill Street, Aspen, located in Pitkin County, Colorado; The initial registered agent of the Association, whose business office is identic~l with such registered office, is Richard Wilhelm. The initial mailing address of the Association shall be Box 388, Aspen, Colorado 81612. ARTICLE VIII INDEMNIFICATION Every manager and every officer of- the Association shall be indemnified by the Association against a'll claims, liabilities, judgments, the costs of defense, including counsel fees, reasonably incurred or imposed upon him in connection \'lith any proceeding, or any settlement thereof, to which me may be a party, or in I-Ihich me may become involved, by reason of his being or having been a manager or officer at the time the event giving rise to such claims or liability occurred, except in such cases Hherein the manager or o:l;ficer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties, provided that in the event of a settlement the indemnification herein shall apply only Hhen the Board of Directors approves such settlement and reimbursement as being for the best interests of the Association. The foregoing right of indemnificatioJ shall be in addition to and not exclusive of all other rights to which such manager or officer may be entitled. ARTICLE IX BY-LAWS The first By-Lalvs of the Association sha 11 be adopted by the Board of Directors, and may be altered, amended or revoked in the manner provided by the By-Lalvs. I ", I I . I I I I r " o , ARTICLE X o AHEND!1ENTS Amendments to the Articles of, Incorporati.on shall be proposed and adopted in the follo~ling manner: ~. Notice of the subject matter of a proposed amendment shall be included in the notice of any meeting at which a proposed amendment is considered. 2. A resolution approving a proposed amendment may he proposed by either the Board of Directors or by the members of the Association. 3; Approval of an amendment mllst be by not less than seventy percent (70%) of the votes of the entire membership of 'the Association and by not less than two-thirds (2/3) of the entire membership of the Board of Directors, or by not less than' eight l' percent (80%) of the votes of the entire membership of the Association. 4. A copy of each amendment shall be certified by the Secretary of State and recorded in the records of pitkin County, Colorado. ARTICLE XI TERM "The term of the Association shall be perpetual unless the Association is terminated sooner by the unanimous action of its members. The Association shall be terminated by the revocation of the Condominium Declaration in accordance \'Ii th the provisions thereof. " ARTICLE XII In the event any provision of these Articles of Incorporation or the By-Laws of ' the Association shall be inconsistent with the provisions of the Condominium Declaration for Prospector Condominiums or any amendment or supplement thereto, the provisions of the Condominium Declaration shall govern. ARTICLE XIII INCORPORATOR The name and address of the incorporator of these Articles of Incorporation is: Spencer F. Schiffer, Garfield & Hecht, 601 East Hyman Avenue, Aspen, Colorado 816l1. , I .' o . 0 IN WITNESS WHEREOF, the 1ncorporator signature on this day of his STATE OF COLORADO ) ) ss. ) COUNTY OF PITKIN has hereunto affixed , 1987.. SPENCER F. SCHIFFER I, , a Notary Public in and for said County, in the State aforesaid, do hereby certify thilt Spencer F. ,Schiffer, whose name is subscribed and annexed to the foregoing Articles of Incorporation, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument in writing as,his free and voluntary act, for the use and purposes therein set forth. WITNESS my hand and official seal. My Commission expires: My Address is: Notary Public I I I I , - " ExHIBIT "F" c o BY-Ll\\~S OF PROSPECTOR ,~_O~P9~I_IE'!'p~l ASSOCJ.!'J'!5Jl'J, J.!,.C.:.. lIRTICLE I Offices 1. Business Offices. The corporation melY hav,= .0))(< 0): more offices at such place or places within or \.,lithout the Stilte of Colorado as the Board of Directors may from time to-time determine or as the business of the corporation may reguire. 2. Registered Of.!}.E5'" The registered office of: the corporation shall be as set forth in the Articles of Incorporation, unless changed in accordance \.,lith the Colorado Corporation Code. 1l.RTICLE II Shareholders' Meetings 1. lInnual r-:eetin~. The annual meetings of the shareholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may come before the meeting shelll be held in each year on the ._, ,_ _ _ _ __ __ " loca 1 time at the place. of the meeting. If the day so fixed for such annual meeting shall be a legal holiday at the place of the meeting, then such meeting shall be held on the next succeeding business day at the same hour. 2. Special Meet~E9~' Special meetings of the shareholders; for any purpose or purposes, unless otherwise prescribed by statute or by the Articles of Incorpora-tion, may be called at any time by the President or Secretar'y upon the request (which shall state the purpose or purposes therefor) of a majority of the Board of Directors or of the holders of not less than ten percent (10%) of the nuwber of shares of ' outstanding stock of the corporation entitled to vote at the meeting. Business transacted at any special meeting of shareholders shall be linlited to the purpose or purposes stated in the notice. 3. Place of Neeti~9' Meetings of shareholders shall be held at such place or places, \~i thin or without the State of Colorado, as may be designated from time to time by the Board of Directors. 4.. Notice of Meeting.s,., Except as othen~ise provided by statute, notice of each meeting of shareholders, \,'hether o o , ~ I, annual or special, shall be given not less than ten (10) nor more than fifty (50) days prior thereto to each shareholder entitled to vote thereat by delivering \-Tritten or printed notice thereof to such shareholder personally or by depositing the same in the United States mail, postage prep~id, directed to the shareholder personally or by depositing 1:he sarr,e in the Unil:ed States mail, postage prepaid, directed to the shareholder at his address as it appears on the stock transfer books of the corporation; provided, however, that if the authorized shares of the corporation are proposed to be increased, at least thirty (30) days' notice in like manner shall be given. The notice of all meetings shall state the place, dilY and hour thereof. The notice of a special meeting shall, in addition, state the purposes therefor. 5. Voting List. At least ten (10) days before eveJ:Y meeting of shareholders, a complete list of shareholders entitled to vote thereat or anyadjournrr.ent thereof, arranged in alphabetical order, showing the address of each shareholder and the number of shares registered in the name of each, shall be prepared by the officer or agent' of the corporation who has charge of the stock transfer books of the corporation. Such list shall be open at the principal office of the corporation to the inspection of any shareholder during usual business hours fOr a period of at least ten (10) days prior to 'such meeting. Such list shall also be produced and kept at tne time and place of 'the meeting during the whole time thereof and subject to the inspection of any shareholder who may be p~esent. I I I I I , 6. Organization. The President or Vice President shall call meetings of the shareholders to order and act as chairman of such meetings. In the absence of said officers, any shareholder entitled to vote thereat, or'any proxy of any such shareholder, may call the meeting to order and a chnirman shall be elected by a majority of the shareholders entitled to vote thereat. In the absence of the Secretary and Assistant Secretary of the corporation, any person appointed by the chairman shall act as secretary of such meetings. 7. Agenda and Procedure. The Board of Directors shall have the responsibility of establishing an agenda for each meeting of shareholders, subject to the rights of shareholders to raise matters for consideration which may otherwise properly be brought before the meeting although not included Kithin the agenda. The chairman shall be charged with the orderly conduct of all meetings of shareholders; provided, hOl,;ever, that in .the event of any difference in opinion with respect to the proper course of action \~hich cannot be resolved by reference to statute, the Articles of Incorporation or these By-Laws, Robert's Rules of Order (as last revised) shall govern the disposition of the matter. 8. Quorum. The holders of a,majority of the shares issued and outstanding and anti tIed to vote t.hereat shall \~hen -2- o o present in person or represented by pr.oxy be requisite t6 and shall constitute a quorum at all meetings of shareholders for the transaction of business except as other~ise provided by statute, by the Articles of Incorporation, or by these, By-Laws. In the absence of a quorum at any such meeting, a majority of the shareholders present in person or teprese:r,tu: !';y pro>:y and entitled to vote thereat may adjourn the meeting from time to time for a period not to exceed sixty (60) cays at a~y one adjournment without further notice (e>:cept as prcNick:c1 in paragraph 9 of this Article II) until a quorum shall he present or represented. I 9. Adjournment. When a meeting is for any reason adjourned to another time or place, notice need not he given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting any business may be transacted which might have been transacted at the original meeting. I, 10. Inspectors. The Chairman of the meeting may at any time appoint two (2) or more, inspectors to serve at a meeting of the shareholders. Such inspectors shall decide upon , the qualifications of voters, including the validity of proxies, accept and count the votes for and against the questions presented, report the results of such votes, ar.d subscribe and deliver to the secretary of the meeting a certificate stating the number of shares of stock issued and outstanding and entitled to vote thereon and the number of shares voted for ilnd against the questions presented. The inspectors need not be shareholders of the corporation, and any director or officer of the corporation may be an inspector on any question other than a vote for or on any other questions in which he may be directly interest. I I' 11. Voting. (a) Each Shareholder shall at every meEting of the shareholders, or with respect to corporate action which may be taken without a meeting, be entitled to one vote for each share of stock having voting power held of record by such , shareholder on the record date designated therefor pursuant to paragraph 3 of Article XI of these By-Laws (or the record dates established pursuant to statute in the absence of such designation); provided that the cumulative system of voting for the election of directors or for any other purpose shall be allowed. (b) Each shareholder so entitled to vote at a meeting of shareholders, or to express consent or dissent to corpor.ate action in writing without a meeting, may vote or express such consent or dissent in person or may authorize another person or persons to vote or act for him by proxy executed in writing by such shareholder (or by his duly authorized attorney in fact) and delivered to the secretary of -3:- o o the meeting, or, if there is no meeting, to the Secretary of the corporation; provided that no such proxy shall be voted or actcd upon after eleven (11) months from the date of its execution, unless such proxy expressly provides for a longer period. (c) The voting rights of fiduciaries, beneficiaries, pledgors, pledgees, and joint, COlT.IT.on, and other multiple owners of shares of stock shall be as provided from time to time by Imy, including in particular C.n.f3. J973, section 7-4-116. '(d) When a quorum is present at any meeting of shareholders, the vote of the holders of a majority of the shares of stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon \olhich by express provision of a statute, or the Articles of: Incorporation, or these By-Laws, a different vote is required, in \olhich case such express provision shall govern and control the decision on such question. ARTICLE III I Board of Directors 1. Election 'and 'fenure. The business and affairs of the corporation shall be managed by a Board ot' Di):ectors I.;ho shall be elected at the annual meetings' of Ghareholders by a majority vote. Each director shall be elected to serve and to hold office until the next succeeding annual meeting and un'til his, successor shall be elected and,~hall qualify, or until his earlier ,death, resignation, or removal. 2. Number and Qualification. The number of Directors of this Corporation shall be not ie~than three (3), provided however, in the event there are fewer than three (3) stockholders the number of Directors shall be the same. number as there are stockholders. Directors need not be shareholders or residents of the State of Colorado. 3. Organization Heetin.9~' As soon as practicable after each annual election of directors, the Board of Directors shall meet for the purpose of organization, selection of a Chairman of the Board, election of officers and the't):ansaction of any other business. 4. Regular Meetings. Regular meetings of the Board of Directors shall be held at such time or times'as may be determined by the Board of Directors and specified in the notice of such meeting. 5. Special ~1E':~_tin..9.?' Special meetings of the Board of Directors may be called by the 'Chairman of the Board or the President or shall be called by the President or Secretary on ,the written request of any two (2) directors. -4- 6. Qace of Hee_tin3~' Any meQin9 of the Ecarc1 of: Directors may be held at such place or places either I<ithin or without the State of Colorado as shall from tiffie Lo time be determined by the Board of Directors or fi;.:ed by t!',E Chi!i nEan of the Board and as shall be designated in, the notice G~ Ltc meeting. I I I I 7. Notice of N.e_e_tj.n~. Notice of each.. (,c,:',ir.C; of directors, whether organizational, regular or special, shall be given to each director. If such notice is giver. eitter (al by delivering written or printed notice to a director personally or (b) by telephone personally to such director, it shell b~_so given at least two (2) days prior to the raecting. I ~ such notice is given either (a) by depositing a ~ritten or printed notice in the United States mail, postage prepaid, or Cb) by transmitting at his residence or place of business, it shall be so given at least four (4) days prior to the meeting. The notice of all meetings shall state the place, date ar.d hour thereof, but need not, unless otherlVise reguired by statute, state the purpose or purposes thereof. 8. Quorum. A majority of the nmr,ber of directors fixed by paragraph 2 of this Article III shall constitute a quorum at all meetings of the Board of Dil:ectors, and the vote ,of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum at any such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice, other than announcement at the meeting, until a quorum shall be present. 9. Organization, A9~?9~~~D9_~~9E~9~E~' The Chairman of the Board, or in his absence, any director chosen by a majority of the directors present, shall act as chairman of the meetings of the Board of Directors. In the absence of the Secretary and Assistant Secretary, any person appointed by the chairman shall act as secretary of such meetings. The-agenda of and procedure for such meetings shall be determined by the ,Board of Directors. 10. Resignation. Any director of the corporation may ,resign at any time by giving written notice of his resignation to the Board of Directors, to the Chairman of the Board, the President, any Vice President or Secretary of the corporation. Such resignation shall take effect at the date of receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 11. Removal. Except as otherwise provided in the Articles of Incorporation or in these By-Laws, any director may be removed, either with or without,cause, at any time, by the affirmative vote of the holders of a majority of the issued and outstanding shares of stock entit'led to vote for the election of -5- " a directors of t.....~ corporation given at a ,~ecial meeting ,of the , shareholders called and held for such purpose. The vacancy in the Board of Directors caused by any such removal shall be filled, if the shareholders at such meetinc shall fail to fill such vacancy, by the Board of Directors ilS~ provi(1c;d in paragraph 12 of this Article III. . . I I 12. Vacancies. Except as provided in paragraph II of this Article III, any ~acancy occurring for any reason in the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, though less than a quorum of the Board of Directors. Any directorship to be filled by the affirmative vote of a majority of the directors then in office shall be by an election held at an annual meeting or at it special meeting of directors called for that purpose. A director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office and shall hold office until the expiration of such term and until his successor shall be elected and shall qualify or until his earlier death, resignation or removal. ,A direct'or chosen to fill a position resulting from an increase in the nu~)er of directors shall hold office until the next annual meefing of shareholders and until his successor shall be elected and shall qualify, or until his earlier ~eath, resignation or removal. I I I I I I 13. Executive Committee. The Board o~ Directors, by resolution adopted by a majority of the nu~ber of directors fixed by paragraph 2 of, this Article III, may 'designate (:\.;0 (2) or more directors to constitute an executive, corrmi ttee" \,;hich committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors in the management of the corporation. 14. Compensation_9! Directors. Each director may be allowed such amount per annum or such fixed sum for attendance at each meeting of the Board of Directors or any meeting of an executive committee, or both, as may be from tirr.e to time fixed by resolution of the Board of Directors, together \,'itl;1 rei~bursement for the reasonable and necessary expenses incurred by such director in connection with the performance of his duties. Nothing herein contained shall be construed to preclude any director from serving the corporation or any of its subsidiaries in any other capacity and receiving proper compensation therefor. I , I I " ARTICLE IV waiver of Notice ~~9_!'>E.!:j~()!1. !)y_.c9.J1.?~!!.t 1. l~aiver of Notice. \~henever any notice \.;hatever is required to be given under'the provisions of a statute or of the Articles of Incorporation, or by these By-La~s, a waiver thereof either in writing signed by the person entitled to said notice (or such person's agent or attorn~y in fact thereunto -6- authorized) orQy telegraph, cable or an~ther avai labl<= method, whether before, at or after the tiw.e stateo therein, or the appearance of such person or persons at such m~eti~c in person of by proxy (except for the sole purpose of: c)-.allenging the propriety of the meeting), shall be, c1eer..ed equivalent to such notice. 2. Action vii thout a r.:eetin,3,. lln)' action ):equired or which may be taken at a meeting of the directors, shareholders or members of any executive committee of the corporation, may be taken without a meeting if a consent in writing, R~tting forth the action so taken, shall be signed by all of the directors, shareholders, or members of the executive cOITJiOittee, as, the case may be, entitled to vote with respect to the subject rr.atter thereof. I ARTICLE V Officers 1. Election and Tenure. The Board of Directors annually shall elect a Presidenl-; a Secretary, and il Treasure):. The Board of Directors may also elect or appoint such Vice Presidents, other officers and assistant officers as may be determined by the Board of Directors. The Board of Directors may delegate to any such officer the pmver to appoint or remove subordinate officers, agents or employees. Any two or more offices may be held by the same person, except the offices of President and Secretary. Each officer so elected or appointed shall continue in office until his successor shall be elected or appointed and shall qualify, or until his earlier death, resignation or removal. I I I I I I 2. Resignation, Removal and VacaEE}es. Any officer may resign at any time by giving written notice thereof to the ,Board of Directors or to the President. Such resignation shall take effect on the date specified therein and no acceptance of the same shall be necessary to render the same effective. Any officer may at any time be removed by the affirmative vote of a majority of the number of directors specified in paragraph 2 of Article 111 of these By-Laws, or by an executive cOIT@ittee thereunto duly authorized. 1 If any office becomes vacant for any reason, the vacancy may be filled by the Board of Directors. An officer appointed to fill a vacancy shall be appointed for the unexpired term of his predecessor in office ilnd shall continue in office until his successor shall be elected or appointed and shall qualify, or until his earlier death, resignation or removal. 3. President. The President shall be the chief executive officer of the corporation. He shall preside at all meetings of the shareholders and shall have general and active management of the business of the' corporation. He shall see that all orders and resolutions o'f the Board of Directors are -7- o o I I carried into effect and in general shall perform all duties as may from time to time 'be assigned to him by the Board of Directors. I I 4. Vice President. The Vice Presidents shall perform such duties a'nd possess such powers as from time to l:ime may be assigned to them by the Board of Directors or by the President. In the absence of the President or in the event of his inability or refusal to act, the vice president (or in the c,vent there be more than one vice president, the vice prc,sidents in the order designated, or in the absence of any designation, then in the order of their election or appointment) shall pel: form the duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President. I 1-. 5. Secretary. The Secretary shall perform such duties and shall have such powers as may from time to time be assigned to him by the Board of Directors or the President. :en addition, the Secretary shall perform such duties and have such powers as are incident to the office of Secretary, including without limitation the duty and power to give notice of: all meetings of shareholders and the Board of Directors, to attend such meetings and keep a record of the proceedings, and to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents, the'Execution of which on behalf of the corporation is authorized by these By-Laws or by the action of the Board of Directors, 6. Treasurer. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned to him by the Boar'd of Directors or the Presic:ent. In addition, the Treasurer shall perform such duties and hGve snch powers as are incident to the office of Treasurer, including without limation the duty and power to keep and be responsible for all funds and securities of the corporGtion, to deposit funds of the corporation in depositories selected in accordance with these By-Laws, disburse such funds GS ordered by the Board of Directors, making proper accounts thereof, and shall render as required by the Board of Directors statements of all such transactions as Treasurer and of the financial condition of the corporation. I I I I I 7. Assistant Secretaries. The Assistant Secretaries shall perform duties and possess-such powers as from time to time shall be assigned to them by the Board of Directors, the President, or the Secretary. In the absence, inGbility or refusal to act of the Secretary, the Assistant Secretaries in the order determined by the Board of Directors shall perform the duties and exercise the powers of the Secretary. 8. shall perform to time shall Assistant Treasurers~ The Assist?nt Treasurers such duties ancf possess such powers as from time be assigned to them by the Board of Directors, the -8- o o I I President, or the Treasurer. In the absence, inability or refusal to act of the Treasurer, the Assistant Treascrers in order determined by the Board of Directors shall I='er=crrr, the duties and exercise the powers of the Treasurer, 9. Bond of Officers. The B~ard of cirectcrs may require any officer to give the corporation a bono in such Slln1 and \.,ith such surety or sureties as shall br~ satisfactory to the Board of Directors for such terms and conditions as the Board of Directors may specify, including wi~hout limitation ~or the faithful performance of his duties and for the restol,"'tion to the corporation of all property in his possession or under his control belonging to the corporation. I I I 10. Salaries. Officers of the corporation shall be entitled to such salaries, emoluments, compensation or reimbursement as shall be fixed or allowed from 'time to time by the Board of Directors. ARTICLE VI Indemnification 1. Third Party Actions. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, ",hether civil, criminal, administrative, or investigative (other than an action by or in the right, of the corporation), by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorney'fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in the best interests of the corporation and, with respect to,any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner ",hich he reasonably believed to be in the best interests of the corporation and, \-lith respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. 2. Derivative Actions. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the, ,corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation or is '-9- o 0 or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against expenses (including attorney fees) actually and reasonably incurred by him in connection with the defense or settlement of such a~tion or suit if he acted in good faith and in a manner he reasonably believed to be in the best interests of 'lhe corporation; but: no indemnification shall be made in respect of any claim, issue, or matter as to 'vhich such person has been acJj\lcJged to bee liilbl(~ for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that t:he COlll:t in which such action or suit 'vas brought rJeeterr.1ines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnificiltion for such cxpeenses which ,such court deems proper. l I I 3. Extent of Indemnification. '1'0 the extent: that: a director, officer, employee, or ag-erit'of the corporation has been successful on the merits in ,defense of <my action, suit, or proceeding referred to in paragraphs 1 and :1 of t:his Article VI, or in defense of any claim, issue, or matter therein, he shall be indemnified against expenses (including attorney fees) actually and reasonably incurred by him in connection therewith. 4. Determination. Any indemnification under paragraphs 1 and 2 of this Article VI (unless 'ordered by a court) 'shall be made by the corporation only as authorized in the specific case upon a determination that~ indemnification of the director, officer, employee, or ,agent is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs 1 and 2 of this Article VI. , Such determination shall be made (a) by the Board of nirectol:5 by a majority vote of a quorum consisting of directors "ho \.;ere not parties to such an action, suit or proceeding, or if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (b) by the affirmative vote of the holders of a majority of the shares of stock entitled to vote and represented at a meeting called for such purpose. 5. Payment in Advance. Expenses incurred in defending a civil or criminal action, suit, or proceeding may be paid by the corporation in advance of the final dispcf3ition of such action, suit, or proceeding as authorized in paragraph ~ of this Article VI upon receipt of an undertaking by or on behalf of the director, officer, employee, or agent to repay such amount unless it is ultimately determined that he is entitled to be indemnified by the corporation as authorized in tJ:is Article VI. 6. Insurance. The Board of Directorr' may exercisp- the corporation's power to purchase and maintain insurance on behalf of any person ,~ho is or ,~as a director, officer, employee -10- - I I I I I or agent of t~corporation or who is or~a5 serving at the request of the corporation as a director, cfficer, er.,plcyee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising c~t of his status as such, \vhether or not the corporation ";ould have t.hc power to indemnify him against such li~bility hereunder or otherwise. I I I 7. Other Cover~ge. The indemnification pHJviced by this Article VI shall not be deemed exclusive of any ether rights to which those seeking indemnification way be entitled under the Articles of Incorporation, these By-La..'s, agreen~ent, vote of shareholders or disinterested directors, the Colorado Corporation Code, or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs and personal representatives of such a person. ' I ARTICLE VII Execution of Instruments; Loans; Checks and EndorsemerJt!ij- D~.e9.?i ts; proxl~-s-- 1. Execution of Instruments. The pre'sident or any Vice President shall have pO\ver to execute and deliver on behalf: and in the name of the corporation any inst:!:u~ent requiring the signature of an officer of the corpC?ration, except as othenvise provided in these By-Laws or where ,the execution and delivery thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the corporation. Unless authorized to do so by these By-Laws or by the Board of Directors, no officer, agent or employee shall have any power or authority to bind the corporation in any way, to pledge its credit or to render it liable pecuniarily for any purpose or. in any amount. 2. Loans. No loan shall be contracted on behalf of the corporation, and no evidence of indebtedness shall be issued, endorsed or accepted in its name, unless authorized by the Board of Directors so to act. Such authority may be general or confined to specific instances. "hen so authorized, the officer or officers thereunto authorized may effect loans at any time for the corporation from any bank or other entity and for such loans may execute and deliver promissory notes or other evidences of indebtedness of the corporation, and when authorized as aforesaid, as security for the pay~ent of any and all loans (and any obligations incident thereto) of the corporation, may mortgage, pledge, or other\vise encu~ber any real or personal property, or any interest therein, at any time owned or held by the corporation" 'and to that end may execute -ll- o o I I I I and deliver such instruments as may be necessary or proper in the premises. 3. Checks and Endorsements. All checks, drafts or other orders for the payment o:Cmoney, bbligaLions, notes or other evidences of indebtedness, bills'of lading, warehouse receipts, trade acceptances, and other such instnments shall be signed or endorsed by such officers or agent of the corporation as shall from time to time be determined by resolution of the Board of Directors, which resolutions may provide for the use of facsimile signatures. : 4. Deposits. All funds of the corporation not otherwise employed shall be deposited from 1:im!:: to time to Lhe corporation's 'credit in such banks or other dcposiLories as shall from time to time be determined by resolution of the Board of Directors, which resolution may specify Lhe officers or agents of the corporation who shall have the power, and the manner in,which such power shall be exercised, to make such deposits and to endorse, assign and deliver for collection and deposit checks, drafts and other 'orders for the payment of money payable to the corporation or its order. I I I, 5. Proxies. Unless otherwise provided by resolution adopted by the Board of Directors, the President or any vice President may from time to time appoint one or 'more agents or attorneys in fact of the corporation, in Lhe name and on behalf of the corporation, to cast the votes I-lhicJ~_the corporation may be entitled to cast as the holder of stoc}:'or oLher securities in any other corporation, associatiqn or otherenLity any of which stock or other securities may be held by the corporation, at meetings of the holders of the stock or ,other securities of such other corporation, association or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation, association or other entity, and may instruct the person or persons so appointed as to the manner of casting such voLes or giving name and on behalf of the corporation and under iLs corporate seal, or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. I' ARTICLE VIII Shares of Stock 1. Certificates of Stock. Every holder of stock of the corporation shall be entitled-ro have a certificate certifying the number of shares owned by hin in the corporation and designating the class of stock to \~hich such shares belong, which shall othenlise be in such form as is required by law and as the Board of Directors shall prescribe. Each such certificate shall be signed by the President or a vice President and the Treasurer or any Assistan~ Treasurer or the Secretary or any Assistant Secretary of the corporation; provided, hOl'lever, -12- . o 0 that where such certificate is signed or countersigned by a transfer agent or registrar (other than the corporation or any employee of the corporation) the signatures of such officers of the corporation may be in facsimile form. In case any officer of the corporiltion \.;ho shall have signed, or ~;hOSE: [acsir.:ile signature shall have been plilced on, any certificate shall cease for any reason to be such officer before such cert.if.'.cate shall have been issued or delivered by the corporation, such certificate may nevertheless be issued and delivered by the corporation as though the person signed such certificate, or whose facsimile signature shall have been placed thereon, had not ceased to be such officer of the corporation. I I I 2. Record. A record shall be kept of the name of each person or other entity holding the stock represented by each certificate for shares of the corporation issued, the number of shares represented by each such certificate, and the date thereof and, in the case of cancellation, the date of cancellation. The person or other entity in ~Ihose names shaJ:es of stock stand on the books of the corporation shall be deerr:ed the owner thereof, and thus a hqlder of record of such shares of stock, for all purposes as regards the corporation. I . I I I I 3. Transfer of Stock. Transfers of shares of the stock of the corporation shall'be made only on the boo};s of the corporation by the registered holder thereof, or by his attorney thereunto authorized, and on the surrender of the certificate or certificates for such shares properly endo~sed. 4. Transfer Agents and Re3iE!!ar~i~ulati?ps. The Board of Directors may appoint one or more transfer agents or registrars with respect to shares of the stock of the corporation. The Board'of Directors IT:ay make such rules and regulations as it may deem expedient, not inconsistent with these By-Laws, concerning the issue, transfer, und registration of certificates for shares of the stock of the corporation. 5. Lost, Destroyed, 0~11utila!~E_~~_r!i!icates. In case of the alleged loss, destruction, or mutilation of a certificate representing stock of the corporation, a ne\.; certificate may be issued in place thereof, in such manner and upon such terms and conditions as the Board of Directors may prescribe, and shall be issued in such situations as required by law, including C.R.S. 1973, Section 4-8-405. ARTICLE IX Corporate Seal 1. Corporate Sea~. The corporate seal shall be in such form as shall be approved by resolution of the Board of Directors. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. The impression of the seal may be made and attested -13- by either the ~retary or an Assistant ~iretary for authentication ~f contrac~s or other pape~ requiring the the seal. I ARTICLE X Fiscal Year I I I 1. shall be such Directors. Fiscal Year. The fiscal'year of the corporation year as shall be esLablished by the Board of ARTICLE XI Corporate Books and Hecords 1. Corporate Books. corporation may be kept within at such place or places as may by the Board of Directors. The books and records' of the or \~it:ho\lt thE: State of Colorado be from time to time designated 2. Addresses of Shareholders. Each shareholder shall furnish to the Secretary of the corporation or the corporation's transfer agent an address to which notices from the corporation, including notices of meetings, may be directed and if any shareholder shall fail so to designate such an address, it shall be sufficient for any such notice to be directed to such shareholder at his address last known to the Secretary or transfer agent. f 3. Fixing Record Date. The Board of Directors may fix in advance a date as a record date for, the determination of the shareholders entitled to notice' of or to vote at any meeting of shareholders or any adjournment, thereof, or to express consent (or dissent) to corporate action in v/riting without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action. Such record date shall not be more than fifty (50) nor less than ten (10) days before the date of such meeting, nor more than fifty (50) days prior to any other action to which the same relates. Only such shareholders as shall be shareholders of record on the date so fixed shall be so entitled with respect to the matter to Vihich the same relates. If the Board of Directors shall not fix a record date as above provided, and if the Board of Directors shall not for such purpose close the stock transfer books as provided by statute, then the record date shall be established by statute in such cases made and provided. I I I I I r I <1. Audits of Books and ',ccounts. The corporation's books and accounts shall be- audIted-at- SUCh tir.,es and by such auditors as shall be specified and designated by resolution of the Doard of Directors. -14- .... .-. - -----.. ..-..... -- .--.."----- ---.. .n_ .__.______ . - .----.. I I I I ! , . o o ARTICLE XII Emergency By-Laws 1. Emergency By-Laws. The Board of Directers J7WY adopt emergency By-Laws in accordance with and pursuant to the provisions therefor from time to time set forth in the Colorado Corporation Code. ARTICLE XIII Amendments 1. Amendments. All By-Laws of the corp(J):;,tion f;hall be subject to alteration, amendment or repeal, and nev;' ,By-Lal'}s may be added, by the affirmative vote of a majority of a quorum of the members of the Board of Directors present in peerson at: any regular or special meeting. APPROVED AND ADOPTED, this day of , 1982. -15- o o MEMORANDUM . ~ . ~ 'TO: . City Attorney City Engi neer Building Department PLANNER:,' Co1ettePenne r t I f l RE: Prospector Lodge Condominiumization Subdivision Exception DATE: January 24, 1983 Attached is the application for condominiumization of the Prospector Lodge. Specifics of the condominiumization are set forth in the attached materials, so please review and return your comments to the Planning Office no later than February 10 so that we may prepare our memo to the Aspen P&Z in a timely manner. Thank you. p.s. Site and floor plans to follow. I I I I I . I I I I o 0 GARflllElD IX HIECHT, P.C. ATTORNEYS AT tAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN A VENUE ASPEN, COLORADO 81611 RONALD GARFIELD ANDREW V, HECHT December 28, 1982 TELEPHONE (303) 925,1936 TELECOPIER (303) 925,3008 CABLE ADDRESS "GARHEC" SPENCER F, SCHIFFER KATHERINE HENDRICKS WILliAM K. GUEST. P,C, KIRK B, HOLLEYMAN. P,C, . I I I Mr. Sunny Vann Director of Planning Aspen Planning Department 130 S. Galena Street Aspen, Co. 81611 . I I Re: Prospector Lodge Condominiumization Dear Sunny: I I , Enclosed please find an application for exception from subdivision regulations for the condominiumization'of the Prospector Lodge Condominiums together with the exhibits referred to therein and an affidavit signed by the owner, Hans B. Cantrup. I have also enclosed a check in the amount of $475 representing the fee for the processing of this application. I I I I I Would you please schedule this for the next available Planning & Zoning Commission agenda and let me have any questions or comments the planning department might have prior to that date. Thanks for your continued cooperation. SFS/pg enclosures Very trJ1Y yours,) , GARFIELD [, HEC,;UT~ .C. if0i' ,;: rt I / :' I , ,., l sp:nce F. IS~hifff ' cc: Mr. Hans B. Cantrup C GARfnlElD & HIECHT, r.c. o A TfORNEYS AT LAW VICTORIAN SQUARE BUILDING 601 EAST HYMAN AVENUE ASPEN, COLORADO 81611 RONAtD GARFlEtD ANDREW V, HECHT December 28, 1982 TELEPHONE (303) 925,1936 TEtECOPIER (303) 925,3008 CABLE ADDRESS "GARHEC" ~ SPENCER F, SCHIFFER KATHERINE HENDRICKS WltllAM K, GUEST, P,C, KIRK B, HOttEYMAN. p,c. Mr. Sunny Vann Director of Planning Aspen Planning Department 130 S. Galena Street Aspen, Co. 81611 Re: Prospector Lodge Condominiumization Dear Sunny: Enclosed please find an application for exception from subdivision regulations for the condominiumization of the Prospector Lodge Condominiums together with the exhibits referred to therein and an affidavit signed by the owner, Hans B. Cantrup. I have also enclosed a check in the amount of $475 representing the fee for the processing of this application. Would you please schedule this for the next available Planning & Zoning Commission agenda and let me have any questions or comments the planning department might have prior to that date. Thanks for your continued cooperation. SFS/pg enclosures Very trqly yours, GARF~Et:n , H~CH~I.C. r ~/ /V!tt;i( spen~. ichiff . v I cc: Mr. Hans B. Cantrup 6 eIT I MEMORANDUM DATE: January 27, 1983 TO: Colette Penne FROM: Paul Taddune RE: Prospector Lodge Condominiumization - Subdivision Exception I This application should be considered in light of the requirements of Section 20-23. Additionally, it is common knowledge that the Prospector and other Cantrup properties are in foreclosure. We should, therefore, be assured that the ownership situation remains unchanged at the time the application is considered for approval. PJT/mc I I I I I o o APPLICATION FOR EXCEPTION FROM SUBDIVISION REGULATIONS This application is submitted on behalf of Hans B. Cantrup for an exception from the strict application of the provisions of Chapter 20 of the Municipal Code for the purpose of condominiumizing the 'real property and improvements located on lots A, B, C and D, Block 82, City and Townsite of Aspen, Pitkin County, Colorado, which real property and improvements are known as the Prospector Lodge. It is submitted that all of the requirements of Section 20-23 of the Code are or will be met in that: 1. The condominium units created shall remain in the short-term rental market to be used as temporary accommodations available to the general public. The condominium declaration will contain the fourteen day restriction specified in Section 20-23(1). 2. Two (2) pillows of employee housing will be provided which is that amount of employee housing that has been provided for three (3) years previous to the time of condominiumization. . 3. The condominiumized lodge shall provide on site management and maintenance and other tourist accommodation services consistent in quality and quantity to those provided during the high seasons for the three years previous to the time of application when the property was operated as a lodge in accordance with the affidavit submitted herewith. The lodge shall provide or contract for on site management from 8:00 a.m. to 8:00 p.m. seven days a week during the high season. It shall provide or contract for on call services twenty-four hours a day, maintenance of the grounds, common elements, and emergency unit repair consistent with those provided for the three years previous to the time of application when the property was operated as a lodge in accordance with the affidavit submitted herewith. 4. The condominium units shall remain available to the general tourist market through the inclusion in a local reservation system for rental of lodge units in the City of Aspen. 5. The changes and alterations which have been made to the common areas have not diminished the size or quality of those areas but have improved them significantly. 6. The requirements set forth in Section 2-23 (6) (b) have been fulfilled in that funds previously expended by the applicant have physically upgraded the lodge to a quality far I I . o o higher than previously existed such that it may continue to accommodate its clientele in a manner consistent with or better in quality than the accommodation provided previous to condominiumization. That is, in addition to reconstructing the entire lodge to create new first-class accommodations, the following amenities will be provided which had not previously been provided for guests: a. Individual telephone service to each unit, two remote control color T.V.'s in each unit, 16 on-site sub-grade parking spaces, a sauna, jacuzzi and whirlpool tub in each unit. 7. The following documents are submitted herewith pursuant to Section 20-23(c): a. Proof of ownership as indicated by the Title Insurance Certificate (Letter) attached hereto as Exhibit A and Warranty Deed attached hereto as Exhibit B. b. Site Inventory for the property as set forth in the condominium map attached hereto as Exhibit C. c. Draft of proposed Condominium Declaration attached hereto as Exhibit D, Articles of the Condominium Association attached hereto as Exhibit E, and By-Laws attached hereto as Exhibit F. . d. Affidavit of Services provided as is called for in Section 20-23 (a) (3). e. Designation and description of employee unit. f. Plan of improvements made to the property along with the estimated cost therefor. Dated December ~, 1982. GARFIELD [, HECHT Attorneys for Applicant Hans Cantru By: '. ~ c o Affidavit COUNTY OF PITKIN ) ) SS STATE OF COLORADO) Hans B. Cantrup, being first duly sworn, and under oath, states that with respect to the services provided by the Prospector Lodge for its guests for the three (3) years previous to the time of application for condominiumization: I. Continental breakfasts had been provided for guests during high seasons only. 2. There had been a front desk serving the guests. 3. No transportation had been provided for guests. 4. Check-in hours were previously 8:00 a.m. to 8:00 p.m. At the front desk there would be someone on call for early or late check-ins. 5. The following amenities had been available for guests: a. A common dining room of approximately 274 square feet was available for the service of continental breakfast only. b. A bar was available for BYO service. c. There was a co~mon lobby/lounge/living room of approximately 714 square feet. d. There was a front desk-office of approximately 72 square feet. e. There was one restroom in the lounge area. f. There was approximately 57 square feet of ski storage area; g. There was a swimming pool; h. There was a pay phone in the lobby but no telephone service to the guest rooms; i. Apres'-ski parties were organized during the season. 6. There was an on-site manager from 7:00 a.m. to 11:00 a.m. and from 4:00 p.m. to 8:00 p.m. seven days a week and on-call maintenance twenty-four hours a day. o o Further the affiant sayeth not.. before me this.......~tvL day of ~ Subscribed and sworn to I 1)'UAGJ\1 ' 1983. My commission expires:-.1-d..<'o -'8(e_ My address is J.D-QLt-, ~ CV;.. G.J\F"^ < CO, ~ (~(\ Witness my hand and official seal. ~~~~ Nary Public