HomeMy WebLinkAboutLand Use Case.118 E Cooper Ave.0076.2006.ASLUr».
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City of Aspen Community Devebpment Department
CASE NUMBER 0076.2007.ASLU
PARCEL ID NUMBER 2735-124-71-005
PROJECT ADDRESS 118 E Cooper Ave.
PLANNER Joyce Allgaier
CASE DESCRIPTION Final review- Condo Documents-PUD Agreement
REPRESENTATIVE David Fiore
DATE OF FINAL ACTION
CLOSED BY Amy DeVault
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Deacrpton FINAL REVIEW -CONDO DOCUMENTS -PUD AGREEMENT Iswed ~ -`"___
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6uMnlted DAVID FIORE -92015 Clock Ruriig Days ~ 0 Ernes t2117f20D7 ; E
Owner :. .::: .:::
Last Nana , TTLE RED SKI NAUS LLC uj Past Name ~ ~ 118 E CAOPER AVE ~P_~~LL..».~~
ASPEN CO 61617
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Laa Nairo g[TTLE P.ED SKI HAUS LLC J Fast Name ~~~~_®_...,» 116 E COOPER AVE~~~__®__
A6FEN C0 81611
Phone ~(9701935~]723 Cust p 22380 ~~-~,' ~:.
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DECLARATION OF CONDOMINIUM
FOR
LITTLE RED RESIDENCE
PTTIQN COUNTY
COLORADO
(00053419/ I)
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TABLE OF CONTENTS
ARTICLE 1 - I
Section 1.1
Section 1.2
Section 1.3
Section 1.4
Section 1.5
Section 1.6
Section 1.7
Section 1.8
Section 1.9
Section 1.10
Section 1.11
Section 1.12
Section 1.13
Section 1.14
Section 1.15
Section 1.16
Section 1.17
Section 1.18
Secton 1.19
Section 1.20
Section 1.21
Section 1.22
Section 1.23
Section 1.24
Section 1.25
Section 1.26
Section 1.27
Section 1.28
Section 1.29
Section 1.30
Section 1.31
Section 1.32
Section 1.33
IEFIAIITIONS .................................................
„Aar„
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"Allocated Interest" ................................
"Allocation" or "Allocated Use Periods"
"Annual Assessments" ............................
"Assessment Period" ..............................
"Assessments" ........................................
„Association" ..........................................
"Association Documents" .......................
"Bmldmg ................................................
„Bylaws" .................................................
"Club Affiliation Agreement" ................
..Club Points" ..........................................
..Club Resorts" ........................................
„Common Elements" ..............................
„Common Expense(s)" ...........................
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"Condominium Map" or "Map"
„Declarant" .............................................
„Declaration" ..........................................
"Default Assessments" ...........................
„Director" ...............................................
"Eligible Mortgagee" ..............................
"Exchange Program ................................
..Exchange Users" ...................................
"Executive Board" ..................................
„First Mortgage„ ...................................
„First Mortgagee" ...................................
"Fractional Ownership Interest" .............
"General Common Elements" .................
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"Management Agreement" .....................
,Managing Agent" ..................................
"Maximum Rate" ....................................
"Member" ...............................................
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Section 1.34 "Membership Interest" ............................
Section 1.35 "Mortgage" .......................................°--..
Section 1.36 "Mortgagee" ...........................................
Section 1.37 "Owner" ..................................................
Section 1.38 "Permissible Mortgage(s)" .....................
Section 1.39 "Personal Assessments" ..........................
Section 1.40 "Plan of Fractional Ownership" ..............
Section 1.41 " .........................................
.....................
Section 1.42 "Project" .................................................
Section 1.43
Property' ...............................................
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Section 1.44 "PUD Plan" .............................................
Section 1.45 "Records" ................................................
Section 1.46 - 6 -
Section 1.47 "Special Assessments" ............................
Section 1.48 "Successor Declarant" ............................
Section 1.49 "Unit" ......................................................
Section t.50 "Use Yeaz" .............................................
ARTICLE 2 - PURPOSE AND PLAN ................................
Section 2.1 Purpose ...................................................
ection 2.2 .................................................................................- 6 -
.................................................................................. 6 -
.................................................................................- 6 -
.................................................................................. 6 -
.................................................................................- 7 -
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Intention of Declarant .....................................•-----...................................................................- 7 -
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Section 2.3 Development and Use .......................................................................... ..................................... 7 -
Section 2.4 Plan of Fractional Ownership .............................................................. ....................................- 7 -
ARTICLE 3 -IMPOSITION OF COVENANTS ............................................................. ....................................- 7 -
Section 3.1 Submission of Properiy ....................................................................... ....................................- 7 -
Section 3.2 - 7 -
Section 3.3 Final Plat .............................................................................................. ....................................- 8 -
Section 3.4 Covenants Running with the Land ...................................................... ....................................- 8 -
ARTICLE 4 -DI VISION OF PROJECT INTO CONDOMINIUM OWNERSHIP ...... ..................................... 8 -
Section 4.1 Division into Units .............................................................................. ..................................... 8 -
Section 4.2 Delineation of Unit Boundaries ........................................................... ....................................- 8 -
Section 4.3 Lrseparability of Unit ........................................................................... ....................................- 9 -
Sedion 4.4 Nonpartitionability of Common Elements ........................................... ..................................... 9 -
ARTICLE 5 -CONDOMINIUM MAP ............................................................................. ..................................- 10 -
Section 5.1 Condominium Map .............................................................................. ..................................- 10 -
Section 5.2 Amendment ......................................................................................... ..................................- 10 -
ARTICLE 6 -OWNERS' PROPERTY RIGHTS IN COMMON ELEMENTS ............ ................................... 10 -
Section 6.1 General Common Elements ................................................................. ................................... 10 -
Section 6.2 Parking ................................................................................................. ..................................- 11 -
ARTICLE 7 -MEMBERSHIP AND VOTING RIGHTS INASSOCIATION ............. ..................................- 11 -
Section 7.1 Declarant Control ................................................................................ ................................... 11 -
Section 7.2 Association Membership .......................................................................................................- 11 -
Section 7.3 Membership ........................................................................................ ...................................- 11 -
Section 7.4 Voting Rights ..................................................................................... ...................................- 1 ] -
Section 7.5 Election of Directors ........................................................................... ...................................- 12 -
Section 7.6 Fairness Standard ................................................................................ ...................................- 12 -
Sedion 7.7 Voting by Association Members ........................................................ .................................... 12 -
Section 7.8 Owner's and Association's Address for Notices ................................. ...................................- 12 -
ARTICLE 8 -ASSOCIATION DUTIES ......................................................................... ...................................- 13 -
Seution 8.] Association Management Duties ........................................................ ...................................- 13 -
Section 8.2 Reserve Account ................................................................................. ...................................- 13 -
Section 8.3 Owner's Negligence ............................................................................ .................................... 15 -
Section 8.4 Delegation of Management and Maintenance Duties ......................... ...................................- 16 -
Section 8.5 Acquiring and Disposing of Real and Personal Property ................... ...................................- 16 -
Section 8.6 Cooperation with Other Entities or Organi7ations ............................. ...................................- 16 -
Section 8.7 Issuance of Rules and Regulations ..................................................... ...................................- 16 -
Section 8.8 Enforcement of Association Documents ............................................ ...................................- 17 -
Section 8.9 Identity of Executive Board and Managing Agent ............................. .................................... 18 -
Section 8.10 Implied Rights .................................................................................... .................................... 18 -
Section 8.1 ] Books and Records of the Association ............................................... .................................... 18 -
Section 8.12 Compliance with Liquor Laws ........................................................... ...................................- 18 -
Section 8.13 LIMITATION OF LIABILITY OF ASSOCIATION ........................ ...................................- 19 -
Section 8.14 Indemnification of Directors and Officers .......................................... ...................................- 19 -
Section 8.15 Financial Statements ........................................................................... ...................................- 19 -
ARTICLE 9 -ASSESSMENTS ........................................................................................ .................................... 20 -
Section 9.1 Covenant of Personal Obligation of Assessments .............................. ...................................- 20 -
Section 9.2 Purpose of Assessments ..................................................................... ...................................- 20 -
Section 9.3 Annual Assessments ........................................................................... ...................................- 21 -
9.3.1 Commencement of Assessments ........................................................ ...................................- 21 -
9.3.2 Amount of Total Annual Assessments ............................................... ...................................- 21 -
9.3.3 Apportiomnent of Annual Assessments ............................................. ...................................- 2 ] -
9.3.4 Annual Budget ................................................................................... ...................................- 22 -
Section 9.4 Special Assessments ........................................................................... ...................................- 22 -
Section 9.5 Personal Assessments ......................................................................... ...................................- 22 -
Section 9.6 Default Assessments ..................................................................•---•-•-- ...................................- 23 -
Section 9.7 Due Dates for Assessment Payments ................................................. ...................................- 23 -
Section 9.8 Declarant's Obligation to Pay Assessments ........................................ ...................................- 23 -
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Section 9.9 Lien for Assessments ................................................................................................•--..........- 23 -
Section 9.10 Effect of Nonpayment of Assessments ............................................................................... ...- 24 -
Section 9.11 Successor's Liability for Assessments ................................................................................ .... 25 -
Section 9.12 Waiver of Homestead Exemption; Subordination of Association's Lien for Assessments. ...- 25 -
Section 9.13 Statement of Status of Assessments ................................................................................... ...- 26 -
Section 9.14 Liens ................................................................................................................................... .... 27 -
ARTICLE ]0 -MAINTENANCE RESPONSIBILITY .................................................................................. ...- 27 -
Section 10.1 Responsibility of the Association ....................................................................................... ...- 27 -
Section 10.2 No Work or Alterations by Owners .................................................................................... ...- 27 -
ARTICLE 11 -INSURANCE AND FIDELITY BONDS .............................................................................. ...- 27 -
Section 11.1 General Insurance Provisions .............................................................................................. ..- 27 -
Section 11.2 Cancellation ......................................................................................................................... ..- 28 -
Section 11.3 Policy Provisions ................................................................................................................. ..- 28 -
Section 11.4 Insurance Proceeds .............................................................................................................. ..- 28 -
Section 11.5 Association Policies ............................................................................................................. ..- 29 -
Section 11.6 Insurer Obligation ................................................................................................................ ..- 29 -
Section 11.7 Repair and Replacement ...................................................................................................... ..- 29 -
Section 11.8 Common Expenses .............................................................................................................. ..- 30 -
Section 11.9 Fidelity Insurance ................................................................................................................ ..- 30 -
Section 11.10 Worker's Compensation Insurance ...................................................................................... ..- 30 -
Section 11.11 Older Insurance ................................................................................................................... ..- 30 -
ARTICLE 12 -C ONVEYANCES AND TAXATION OF FRACTIONAL OWNERSHIP INTERESTS.. ..- 30 -
Section 12.1 Contracts to Convey Entered into Prior to Recording ......................................................... ... 30 -
Section 12.2 Contracts to Convey and Conveyances Subsequent to Recording ...................................... ... 30 -
Section 12.3 Conveyance Deemed to Describe an Undivided Interest in Common Elements ................. ... 31 -
Section 12.4 Separate Tax Assessments ................................................................................................... ..- 31 -
ARTICLE 13 -MECHANICS' LIENS ............................................................................................................. ..- 32 -
Section 13.1 Mechanics' Liens ................................................................................................................. ..- 32 -
ARTICLE 14 -U SE RESTRICTIONS ............................................................................................................. ... 32 -
Section 14.1 Use of Units ......................................................................................................................... ..- 32 -
Section 14.2 Commercial Uses ................................................................................................................. ..- 32 -
Section 14.3 Residential Uses .................................................................................................................. ..- 32 -
Section 14.4 Conveyance of Units ........................................................................................................... ..- 33 -
Section I4.5 Use of Common Elements ................................................................................................... ..- 33 -
Section 14.6 Prohibition of Increases in Insurable Risks and Certain Activities ..................................... ..- 33 -
ARTICLE 15 -EASEMENTS ........................................................................................................................... ..- 34 -
Section 15.1 Easement of Enjoyment ....................................................................................................... ..- 34 -
Section 15.2 Delegation of Use ................................................................................................................ ..- 34 -
Section 15.3 Permitted Exceptions ........................................................................................................... ..- 34 -
Section 15.4 Easements for Encroachments ............................................................................................. ... 34 -
Section I5.5 Utility Easements ................................................................................................................. ..- 34 -
Section 15.6 Reservation of Easements, Exceptions and Exclusions ....................................................... ..- 35 -
Section 15.7 Emergency Access Easement ............................................................................................... .- 35 -
Section 15.8 Maintenance Easement ......................................................................................................... .- 36 -
Section 15.9 Drainage Easement ............................................................................................................... .- 36 -
Section 15.10 Easements of Access for Repav, Maintenance, and Emergencies ....................................... .- 36 -
Section 15.11 Declarant's Rights Incident to Construction and Marketing ................................................. .- 36 -
Sec6on 15.12 Right of Declarant and Association to Own Units and to Use Common Elements .............. .. 36 -
Section 15.13 Remodeling Easement .......................................................................................................... .- 37 -
Section 15.14 Reservation fot Relocation, Combination, Subdivision or Resignation of Units ................. .- 37 -
Section 15.15 Easements Deemed Created ................................................................................................. .- 37 -
ARTICLE 16 -ASSOCIATION AS ATTORNEY-IN-FACT ......................................................................... .. 37 -
Section 16.1 Appointment ......................................................................................................................... .- 37 -
Section 16.2 General Authority ................................................................................................................. .- 38 -
ARTICLE 17 -DAMAGE OR DESTRUCTION .............................................................................................. .- 38 -
Secdon 17.1 The Role of the Executive Board .......................................................................................... .- 38 -
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Section 17.2 Estimate of Damages or Destruction .......................................................... ...........................- 38 -
Section 17.3 Repair and Reconstruction .......................................................................... ...........................- 38 -
Section 17.4 Funds for Repair and Re~onshvction ......................................................... ...........................- 39 -
Section 17.5 Insurance Proceeds Sufficient to Repair ..................................................... ...........................- 39 -
Section 17.6 Insurance Proceeds Insufficient to Repair; Special Assessment Remedies for Failure [o Pay
Special Assessment .................................................................................... ...........................- 39 -
Sectioa 17.7 Repairs ........................................................................................................ ............................ 40 -
Section 17.8 Notice of Damage or Destruction ............................................................... ...........................- 40 -
ARTICLE 18 -OBSOLESCENCE ........................................................................................... ...........................- 40 -
Section 18.1 Adoption of Plan; Rights of Owners .......................................................... ...........................- 40 -
Section 18.2 Sale of Obsolete Units ................................................................................ ............................ 40 -
ARTICLE 19 -CONDEMNATION ......................................................................................... ............................ 41 -
Section 19.1 Consequences of Condemnation ................................................................. ...........................- 41 -
Section 19.2 Complete Taking ........................................................................................ ...........................- 41 -
Section 19.3 Partial Taking ............................................................................................. ...........................- 41 -
Section 19.4 Reorganuation ............................................................................................ ...........................- 42 -
Section 19.5 Repair and Reconstruction .......................................................................... ...........................- 42 -
Section 19.6 Notice of Condemnation ............................................................................. ...........................- 42 -
Section 19.7 Limitations on Actions of Association ....................................................... ...........................- 42 -
ARTICLE 20 -OTHER ASSOCIATION MATTERS ........................................................... ...........................- 42 -
Section 20.1 Association Matters ..........................•--....................................................... ...........................- 42 -
Section 20.2 Enforcemem of Association Documents .................................................... ............................ 43 -
Section 20.3 Arohitectural Control .................................................................................. ............................ 43 -
Section 20.4 Limit on Timesharing ................................................................................. ............................ 43 -
Sec[ion 20.5 Acknowledgments ...................................................................................... ...........................- 44 -
ARTICLE 21 - D ECLARANT'S RIGHTS REGARDING TRANSFER .............................. ...........................- 45 -
Section 22.1 Restriction on Declarant Powers ................................................................ ...........................- 45 -
Section 22.2 Term ........................................................................................................... ...........................- 46 -
Section 22.3 Amendment ................................................................................................ ...........................- 46 -
Section 22.4 Unilateral Amendment Rights Reserved by Declarant ............................... ............................ 46 -
Section 22.5 Recording of Amendments ........................................................................ ............................- 46 -
Section 22.6 Enforcement .............................................................................................. ............................- 46 -
Section 22.7 Severability ................................................................................................ ............................- 47 -
Section 22.8 Conflict of Provisions ................................................................................ ............................- 47 -
Section 22.9 Nonwaiver ................................................................................................. ............................- 47 -
Section 22.10 Number and Gender .................................................................................. ............................- 47 -
Sedion 22.11 Captions ..................................................................................................... ............................- 47 -
Section 22.12 Exhibizs ...................................................................................................... ............................- 47 -
ARTICLE 23 -PLAN OF FRACTIONAL OWNERSHIP .................................................... ............................- 47 -
Section 23.1 Right to Submit Units to a Plan of Fractional Ownership ......................... ............................- 47 -
Section 23.2 Conveyance by Purchaser .......................................................................... ............................- 48 -
Section 23.4 Legal Description of a Fractional Ownership Interest ............................... ............................- 48 -
Section 23.5 Administration and Management .............................................................. ............................- 49 -
Section 23.6 Acceptance; Enforcement; Indemnification .............................................. ............................- 49 -
Section 23.7 Right of First Refusal to Purchase Fractional Ownership Lttereszs ........... ............................- 50 -
Section 23.8 Limitation on Transfers by Owners ........................................................... ............................- 51 -
Section 23.9 DeclaranPs Right to Repurchase Fractional Ownership Interest upon Abandonment of Plan of
Fractional Ownership by Declarant ................................................•--....... ............................- 51 -
Section 23.10 - 51 -
Section 23.11 - 52 -
Section 23.12 - 52 -
Section 23.13 - 52 -
Section 23.14 - 52 -
Section 23.15 - 53 -
Section 23.16 - 53 -
Section 23.17 - 53 -
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Section 23.18
23.18.1
EXHIBIT A ....
EXHIBIT B.....
EXHIBIT C.....
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Declazant's Right to Rent
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DECLARATION OF CONDOMINIUM
FOR
LITTLE RED RESIDENCE
THIS DECLARATION OF CONDOMINIDM FOR LITTLE RED RESIDENCE
(this "Declazation") dated as of 2006, shall be effective upon
recordation and is made by Little Red Ski Haus, LLC ("Declarant"). Declarant is the owner
of certain real property in Pitkin County, Colorado, more particulazly described on Exhibit
A attached and made part of this Declazation by this reference (the "Property"). Declarant
hereby makes the following grants, submissions and declarations for the respective
Property that it owns:
ARTICLE 1-DEFINITIONS
The following words, when used in this Declazation, shall have the meanings
designated below unless the context shall expressly provide otherwise:
Section 1.1 "Act" means the Colorado Common Interest Ownership Act as set forth in
Article 33.3, Title 38 of the Colorado Revised Statutes, as amended and supplemented from
time to time.
Section 1.2 "Allocated Interest" means the interest allocated to each Unit expressed as a
fraction as set forth in Exhibit B attached hereto and incorporated herein by reference.
Allocated Interests govern voting rights, assessment obligations and ownership interests for
all Units.
Section 1.3 "Allocation" or "Allocated Use Periods" means those periods of time allocated
to each Owner as designated in the deed or other instrument of conveyance. Each
Fractional Ownership Interest shall carry with it an Allocation consisting of the rights to
the use, occupancy and possession of a Unit for seven (7) days in accordance with the
Association Documents. Initially, each Allocation shall be identified by a number, letter,
name, symbol or color, or by any combination thereof, which identifies the specific
Allocated Use Periods per yeaz for each Fractional Ownership Interest. An Allocation may
also be identified by a specific week number, a specific number of weeks, a type of week
(whether fixed, floating, holiday or otherwise), by specific seasons or by any other method,
formula or description established in the deed of conveyance, in the Association
Documents. Allocated Use Periods may be fixed time periods, floating time periods that
require the Owner to reserve use in accordance with procedures adopted by the
Association, time periods that aze related to holidays or time periods that rotate
periodically on a predetermined calendar or schedule. Use of Allocated Use Periods may
be subject to compliance with reservation procedures adopted by the Executive Board.
Declarant reserves the right, for as long as it owns one or more Fractional Ownership
Interests, to change the method of identification of each Allocation.
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Section 1.4 "Annual Assessments" means that portion of the Assessments levied pursuant
to Section 9.3 below.
Section 1.5 "Assessment Period" means the period of time from January 1 through
December 31 of each year.
Section 1.6 "Assessments" means the Annual, Special, Personal and Default Assessments
levied pursuant to Article 9 below. Assessments are also referred to as a Common Expense
Liability under the Act.
Section 1.7 "Association" means Little Red Residence Association, Inc., a Colorado
nonprofit corporation, and its successors and assigns.
Section 1.8 "Association Documents" means the basic documents creating and governing
the Project, including, but not limited to, this Declaration, the articles of incorporation and
Bylaws, the Map and any procedures, rules, regulations or policies relating to the Project
adopted under such documents by the Association or the Executive Board.
Section 1.9 "Buildine" means the building (including all fixtures and improvements
contained within it) located on the Property.
Section I.10 "B~laws" means the Bylaws of the Association.
Section 1.11 "Club Affiliation A rg Bement" 1'he agreement that provides Owners with the
benefits of the Exchange Program to access Club Resorts and Exchange Users access to the
Little Red Residence.
Section 1.12 "Club Points" means the unit of use assigned to a Fractional Ownership Interest
that enables the Owner to access the Exchange Program benefits. Each Owner shall annually be
assigned an allocation of Club Points to represent the use rights associated with the Owner's
Fractional Ownership Interest.
Section 1.13 "Club Resorts" means those resorts, improvements, facilities and amenities
whose assets are available from time to time to Boutique Club International, Inc. for the
purpose of providing accommodations and the related vacation and travel benefits to club
members. The initial Club Resorts are The Vanderbilt Residence Club, located in Newport,
Rhode Island, USA and The Little Red Residence located in Aspen, Colorado, USA. Other
resorts under consideration for inclusion in BCI are located in Costa Rica; however, Boutique
Club International, Inc. is not obligated to include any such resort in Boutique Club
International, Inc. nor does Boutique Club International, Inc. make any guarantee that resorts
in such locations or any other location shall be included in Boutique Club International, Inc.
Section 1.14 "Common Elements" means all of the Project, including the Property, except
the Units. Common Elements include General Common Elements and Limited Common
Elements. Common Elements also include, but are not limited to, tangible and intangible
personal property including membership rights, licenses, and other beneficial use rights
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designated by Declarant or acquired by the Association as Common Elements and existing
for the use of one or more of the Owners. The use of the Common Elements, including
General Common Elements, are subject to such limitations, rules and regulations as
designated by the Executive Board.
Section 1.15 "Common Expense(s)" means and includes expenditures made or liabilities
incurred by or on behalf of the Association for the benefit of the Project and any one or
more of its Owners, Members, guests and invitees, including, but not limited to, the
following:
1.15.1 Expenses of administration, insurance, operation and management, repair or
replacement of the Project except to the extent such repairs and replacements are the
individual responsibility of an Owner as delineated in Section 10.2 below;
1.15.2 Allocations to the Reserve Account;
1.15.3 Expenses declared Common Expenses by the provisions of this Declaration
or the Bylaws.
1.15.4 All sums lawfully assessed against the Fractional Ownership
Interests by the Executive Board;
1.15.5 Expenses agreed upon as Common Expenses by the Members of the
Association;
1.15.6 Expenses required to be paid by the Owners in accordance with the terms of
this Declaration pursuant to the Management Agreement(s) for the maintenance of the
Project; and
1.15.7 Uncollected Personal Assessments and Default Assessments.
Section 1.16 "Condominium Man" or "Man" means and includes any engineering survey or
surveys of the Property locating the Units in the Building and the Building on the Property
(subject to any lot line adjustments), and depicting the floor plans of the Units both
vertically and horizontally, together with other drawings or diagrams and information
regarding the Property as may be included in the discretion of the Declarant, as recorded by
Declarant in the Records.
Section 1.17 "Declarant" means Little Red Ski Haus, LLC, a Colorado Limited Liability
Company, and its successor and assigns. No party other than Little Red Ski Haus, LLC shall
exercise the rights and privileges reserved herein to Declarant unless such party shall
receive and record in the Records, a written instrument from Little Red Ski Haus, LLC
assigning or transferring all or a portion of such rights and privileges.
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Section 1.18 "Declaration" means this Declazation of Condominium for Little Red
Residence, together with any exhibits, supplements or amendments to this Declazation,
recorded in the Records.
Section 1.19 "Default Assessments" means that portion of the Assessments levied pursuant
to Section 9.6 below.
Section 1.20 "Director" means a member of the Executive Board.
Section 1.21 "Eligible Mortgagee" means a holder of a First Mortgage on a Fractional
Ownership Interest who has submitted a written request that the Association notify it of
any proposed action requiring the consent of a specified percentage of Eligible Mortgagees.
Section 1.22 "Exchange Program" means the system of exchange created by contract between
the Declarant, Association, or other authorized party and a third party timeshare exchange
company whereby an Owner who has elected to participate in such Exchange Pmgram may
exchange their allocated Club Points for use of periods of time in other resorts, or for other
benefits, with companies participating in the Exchange Program. Owners are automatically
enrolled in the Exchange Program. Participation in an Exchange Pmgram is voluntary, and shall
not affect the use of Fractional Ownership Interests reserved in accordance with the rules and
regulations within the Association Documents.
Section 1.23 "Exchange Users" means the persons authorized by virtue of an Owner's
participation in an Exchange Pmgram for the use and occupancy of the Fractional Ownership
Interest. The Executive Board may prescribe certain rules, regulations and limitations governing
use of the Fractional Ownership Interest by Exchange Users.
Section 1.24 "Executive Boazd" means the governing body of the Association, as provided
in this Declaration and in the articles of incorporation and Bylaws.
Section 1.25 "Fast Mortgage" means aPre-Existing Mortgage and/or a Mortgage which
has priority of record over all other recorded liens except those liens made superior by
statute (such as general ad valorem tax liens and special assessments).
Section 1.26 "First Mortgagee" means the Mortgagee holding a First Mortgage.
Section 1.27 "Fractional Ownership Interest" means an undivided, fee ownership interest
(expressed as a fraction} as tenant-in-common in a Unit together with an Allocation
allowing Owners exclusive right to possession, use and occupancy of a Unit during
Allocation Use Periods pursuant to the Association Documents. A Fractional Ownership
Interest shall be an undivided 1/52nd interest in a Unit, which carries with it the right to the
use, occupancy and possession of a Unit for seven (7) nights in accordance with the
Association Documents. Fractional Ownership Interests may but need not be identified by
one or more letters, numbers, symbols, names or colors, or any combinations thereof.
Fractional Ownership Interests may be identified in advance of the transfer of Fractional
Ownership Interests or may be identified upon transfer. At a minimum, a Fractional
{00053419 / 1 } - 4 -
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Ownership Interest transferred to and owned by an Owner must be identified by the
undivided fee ownership interest in a specific Unit. A Fractional Ownership Interest is a
time shaze estate under Colorado law.
Section 1.28 "General Common Elements" means the Common Elements, except for the
Limited Common Elements.
Section 1.29 "Lodging Rules and Re ations" means the rules, regulations, policies and
procedures administered by the Reservation Service Provider by which Owners reserve and
schedule use of Units during the Use Yeaz.
Section 1.30 "Management Agreement" means any contract or arrangement entered into for
purposes of discharging the responsibilities of the Executive Board relative to the
operation, maintenance and management of the Project.
Section 1.31 "Managing Agent" means a person, firm, corporation or other entity employed
or engaged as an independent contractor by the Association pursuant to a Management
Agreement to perform management services for the Project.
Section 1.32 "Maximum Rate" shall mean the interest rate established by the Executive
Boazd from time to time which shall not exceed the maximum rate allowed by law.
Section 1.33 "Member" shall mean a member of the Association.
Section 1.34 "Membership Interest" shall mean the rights and privileges associated with
being a Member of the Association.
Section 1.35 "Mortgage" means any unpaid and outstanding mortgage, deed of trust or
other security instrument recorded in the Records, which secures financing for the
construction or development of the Project or which encumbers a Fractional Ownership
Interest.
Section 1.36 "Mortgagee" means any person or entity named as a mortgagee or beneficiary
under any Mortgage, or any successor to the interest of any such person under such
Mortgage.
Section 1.37 caner" means any record owner, whether a natural person or persons, or an
entity, of a fee simple title interest in and to any Fractional Ownership Interest.
Section 1.38 "Pemussible Mortgage(s)" means any Mortgage of the Declarant or, if
consented to in advance by the Declarant, of an Owner, recorded in the Records.
Section 1.39 "Personal Assessments" means that portion of the Assessments levied pursuant
to Section 9.5 below.
(00053419/ 1} -5-
Section 1.40 "Plan of Fractional Ownership" means the system of mutual use rights and
obligations created and established by this Declazation for Owners of Fractional Ownership
Interests.
Section 1.41 "Pte-Existing, Mort¢aae" means a Mortgage that was of record prior to this
Declazation.
Section 1.42 "I~ect" means the Property (hereinafter defined) and all improvements
thereon subject to the Plan of Fractional Ownership.
Section 1.43 "Pro rt " means the real property described in the attached Exhibit A
(subject to any and all lot line adjustments), specifically excluding, however, the portion
designated as the Restaurant as set forth on the Condominium Map.
Section 1.44 "PUD Plan" means the Planned Unit Development Plan for Little Red Ski
Haus recorded ,under Book 66 at Page 7.
Section 1.45 "Records" shall mean the official, public records of the Office of the Clerk
and Recorder of Pitkin County, Colorado.
Section 1.46 "Restaurant" shall mean the azea designated as such on the Condominium
Map. The Restaurant shall be specifically excluded from the Property which Declarant is
submitting to the provisions of the Act. The Restaurant shall be made available to Owners
on a limited-use basis by separate agreement.
Section 1.47 "Special Assessments" means that portion of the Assessments levied pursuant
to Section 9.4 below.
Section 1.48 "Successor Declarant" means any party or entity to whom Declarant assigns
any or all of its rights, obligations or interest as Declarant, as evidenced by an assignment
or deed of record executed by both the assigning Declarant and the transferee or assignee
and recorded in the Records, designating such party as a Successor Declazant. Upon such
recording, Declarant's rights and obligations under this Declaration shall cease and
terminate to the extent provided in such document.
Section 1.49 "Unit" means the physical portion of the Building designated for sepazate
ownership or occupancy.
Section 1.50 "Use Yeaz" means the twelve month period during which an Owner may redeem
their annually allocated Club Points to reserve the use and occupancy of a Fractional Ownership
Interest. Except for an Owner's initial Use Year, which may be pm-rated based upon the time of
purchase of a Fractional Ownership Interest, each Use Year for each Owner will commence on
January 1 and end on December 31.
Each capitalized term not otherwise defined in this Declaration or in the Map shall
have the same meanings specified or used in the Act.
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ARTICLE 2 -PURPOSE AND PLAN
Section 2.1 ose. The purpose of this Declaration is to create a condominium project
on the Property known as "Little Red Residence" (the "Project") pursuant to the Act. The
Project shall be entirely situated within the County of Pitkin, State of Colorado.
Section 2.2 Intention of Declarant. Declazant desires to: (i) establish a uniform plan for
the sale, ownership, use, maintenance, repair, replacement and refurbishment of the
Property including individual condominium units, (ii) create the Plan of Fractional
Ownership permitting and providing for the use and occupancy of short-term
accommodations by Owners and guests, and (iii) make unoccupied Units available to the
general public for short-term rental.
Section 2.3 Development and Use. The Project consists of the Building which is
comprised of twelve (12) Units (without the creation of Fractional Ownership Interests).
The Project shall consist of residential and commercial usage and shall be subject to the
Plan of Fractional Ownership that will allow the sale and ownership of undivided
Fractional Ownership Interests in the Units. No additional condominium units may be
established on the Property by subdivision of existing Units, conversion of non-
condominium space, or otherwise, except as provided herein and as provided by applicable
land use regulations.
Section 2.4 Plan of Fractional Ownershia. Declarant may commit the Units to a Plan of
Fractional Ownership as described in Article 23 hereof. The Plan of Fractional Ownership
will provide for the creation of undivided fee ownership interests (to be known as
Fractional Ownership Interests) in the Units.
ARTICLE 3 -IMPOSITION OF COVENANTS
Section 3.1 Submission of Property. To accomplish the purposes and intentions
recited herein, except as specifically reserved in Section 3.2, Declarant hereby submits the
Property, together with all improvements, appurtenances and facilities relating to or located
on the Property now and in the future, to the provisions of the Act, and hereby imposes
upon all of the Property the covenants, conditions, restrictions, easements, reservations,
rights-of--way and other provisions of this Declaration, and Declarant hereby declazes that
all of the Property shall be held, sold, conveyed, encumbered, leased, rented, occupied and
improved, subject to the provisions of this Declaration.
Section 3.2 Reservation of Restaurant. The Restaurant shall be made available to Owners
on a limited-use basis by separate agreement. The area designated as the Restaurant on the
Condominium Map is intentionally and specifically excluded from the property which is
submitted to the provisions of the Act pursuant to these Declarations. Neither the
(lNNI59419 / I1 - 7 -
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Association nor any Owner shall receive an Allocated Interest in the Restaurant, nor shall
the Restaurant be considered in any way a part of the Common Elements.
Section 3.3 Final Plat. The Property is subject to the Final Plat of Filing
No. ,recorded , at Reception No. in the Records.
Section 3.4 Covenants Running_with the Land. All provisions of this Declaration shall be
deemed to be covenants running with the land or equitable servitudes, as the case may be.
The benefits, burdens and other provisions contained in this Declaration shall be binding
upon and shall inure to the benefit of Declarant, all Owners and their respective heirs,
executors, administrators, personal representatives, successors and assigns.
ARTICLE 4 -DIVISION OF PROJECT INTO CONDOMINIUM OWNERSHIP
Section 4.1 Division into Units. As of the recording of this Declaration, the Project is
hereby divided into twelve (12) Units which shall be the maximum number of Units
created. Each Unit is subject to a Plan of Fractional Ownership whereby each Unit is
further subdivided into fifty-two (52) Fractional Ownership Interests for a total of Six
Hundred Twenty Four (624) Fractional Ownership Interests.
Section 4.2 Delineation of Unit Boundaries. Each Unit shall be delineated and
designated by an identifying number, name, symbol, letter, or color (or a combination
thereof) on the Map, and shall be deemed bounded by the imaginary plane extending along
the perimeter walls, perimeter ceilings, and are described as follows:
(a) Upper Horizontal Boundary. The horizontal or sloping plane or planes of the
unfinished lower surfaces of the ceiling bearing structure surfaces, beams, and rafters and of
closed fireplace dampers, extended to an intersection with the vertical perimeter boundaries.
(b) Lower Horizontal Boundary. The horizontal plane or planes of the undecorated or
unfinished upper surfaces of the floors, extended to an intersection with the vertical perimeter
boundaries and open horizontal unfinished surfaces of trim, sills, and structural components.
(c) Vertical Perimeter Boundaries. The planes defined by the inner surfaces of the studs
and framing of the perimeter walls; the unfinished inner surfaces of poured concrete walls; the
unfinished surfaces of the interior trim, fireplaces, and thresholds along perimeter walls and
floors; the unfinished (inner/outer) surfaces of closed windows and closed perimeter doors; and
the innermost unfinished planes of all interior bearing studs and framing of bearing walls,
columns, bearing partitions, and partition walls between separate Units.
(d) Inclusions. Each Unit will include the spaces and Improvements lying within the
boundaries described in (a), (b), and (c) above and will also include the spaces and the hnprove-
ments within those spaces containing any space hearing, water heating, and air conditioning
apparatus, all electrical switches, wiring, pipes, ducts, conduits, smoke detector systems and tele-
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vision, telephone, electrical receptacles, and light fixtures and boxes serving that Unit
exclusively. The surface of the foregoing items will be the boundaries of that Unit, whether or
not those items are contiguous to the Unit.
(e) Exclusions. Except when specifically included by other provisions of this Section, the
following are excluded from each Unit: the spaces and Improvements lying outside of the bound-
aries described in (a), (b), and (c) above; and all chutes, pipes, flues, ducts, wires, wnduits,
skylights, and other facilities mm~ing through or within any interior wall or partition for the
purpose of furnishing utility and similar services to other Units and Common Elements or both.
(f) Noncontiguous Portions. Certain Units may include special portions, pieces, or
equipment such as air conditioning compressors, meter boxes, utility connection structures, and
storage portions situated in buildings or structures that are detached or semi-detached from the
buildings containing the principal occupied portion of the Units. This special equipment and
storage portions are a part of the Unit even though they are not contiguous with the residential
portions.
Section 4.3 hvseoarability of Unit. Except as provided in Article 23 of this Declazation, no
part of a Unit or of the legal rights comprising ownership of a Unit may be partitioned or
separated from any other part thereof during the period of condominium ownership
prescribed in this Declaration. All rights with respect to the use, possession, enjoyment,
management or disposition of a Unit (including any Fractional Ownership Interest in a
Unit) which an Owner might otherwise have as atenant-in-common (including, but not
limited to, any common law or statutory right jointly to use, possess or manage commonly
owned property) aze hereby unconditionally and irrevocably subordinated to this
Declaration for so long as this Declazation shall remain in effect; provided, however, that
in the event that an election to terminate this Declaration is made pursuant to any provision
of this Declaration or the Act, an Owner shall have the rights specified in this Declaration
and the Act.
Section 4.4 Nonpartitionability of Common Elements. Subject to the provisions of this
Article and Article 5 below, the Common Elements shall be owned in common by all of the
Owners and shall remain physically undivided. No Owner shall bring any action for
partition or division of the Common Elements. By acceptance of a deed or other instrument
of conveyance or assignment to a Fractional Ownership Interest, each Owner of the
Fractional Ownership Interest shall be deemed to have specifically waived such Owner's
right to institute or maintain a partition action or any other cause of action designed to
cause a division of the Common Elements, and this Section may be pleaded as a bar to the
maintenance of such an action. Any Owner who shall institute or maintain any such action
shall be liable to the Association and hereby agrees to reimburse the Association for the
Association's costs, expenses and reasonable attorneys' fees in defending any such action.
Such amounts shall automatically become a Default Assessment determined and levied
against such Owner's Fractional Ownership Interest and enforced by the Association in
accordance with Article 8 below.
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The granting of easements by the Executive Boazd for public utilities, for access by
pedestrians or for other purposes not inconsistent with the intended use of the Common
Elements shall not be deemed a transfer requiring any consent of the Owners.
ARTICLE 5 -CONDOMINIUM MAP
Section 5.1 Condominium Mao. The Map shall be filed for recording in the Records
prior to the conveyance of any Fractional Ownership Interest to a purchaser. The Map
shall show the location of the Building on the Property; the floor and elevation plans; the
location of the Units within the Building; the Unit designations; designation of Common
Elements, including Limited Common Elements; and such other information as Declarant
may deem necessary or appropriate in its discretion. The Map shall also designate the
Restaurant which shall specifically be excluded from the Property submitted to the
provisions of the Act. The Map shall contain a certificate of a registered professional
engineer or licensed architect or a licensed land surveyor certifying that the Map
substantially depicts the location and the horizontal and vertical boundaries of the Building
and the Units, the dimensions and, if Declazant directs, the square foot azeas of the Units.
Each supplement or amendment shall set forth a like certificate when appropriate. The
Map shall further contain such other information, certifications and depictions as may be
required under Section 38-33.3-209 of the Act.
Section 5.2 Amendment. Declarant reserves the right to amend or supplement the Map,
from time to time, to the fullest extent permitted under the Act or as permitted by this
Declaration.
ARTICLE 6 -OWNERS' PROPERTY RIGHTS IN COMMON ELEMENTS
Section 6.1 General Common Elements. Every Owner and the family members, guests,
tenants and licensees of each Owner shall have a perpetual right and easement of access
over, across and upon the General Common Elements for access to and from the Unit for
the use of such General Common Elements, which right and easement shall be appurtenant
to and pass with the transfer of title to such Fractional Ownership Interest; provided,
however, that such right and easement shall be subject to the following:
6.1.1 The covenants, conditions, restrictions, easements, reservations, rights-of-
way and other provisions contained in this Declaration, the Condominium Map, and the
Bylaws and rules and regulations of the Association; and
6.1.2. The right of the Declarant or the Association, as the case may be, to regulate
from time to time the use of the Common Elements.
Any redesignation of the boundaries of the General Common Elements or Limited
Common Elements shall be approved by the Executive Board.
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Section 6.2 PazkinE. Conveyance of ownership of a Fractional Ownership Interest
specifically shall not include the conveyance or granting of any rights or license to park or
maintain vehicles on the Property. Parking shall be on the street in accordance with the
Municipal Code for the City and Townsite of Aspen, State of Colorado.
ARTICLE 7 -MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
Section 7.1 Declarant Control. There shall be a period of Declarant control of the Association
during which the Declarant may appoint and remove the officers and members of the Executive
Board. The Declarant will transfer control of the Association upon the earliest to occur of the
following events: (i) sixty (60) days after the sale by the Declarant of seventy-five percent (75%)
of the Units (as either whole-ownership on Fractional Ownership Interests); (ii) two (2) years
after the Declarant has ceased to offer Units or Fractional Ownership Interests for sale in the
ordinary course of business; or, (iii) upon the Declarant voluntarily relinquishing control by a
written instrument. Any such voluntary relinquishment of control may require, for the duration
of the period of Declarant control, that specified actions of the Association or the Executive
Board shall be subject to the prior written consent of the Declarant. As long as the Declarant
retains control of the Association, no person may record any amendment to this Declaration or
the other Association Documents or similar instrument affecting any portion of the Little Red
Residence without the Declarant's written consent thereto, and any attempted recording without
compliance herewith shall result in such or similar instrument being void and of no force and
effect unless subsequently approved by a recorded consent signed by the Declarant.
Section 7.2 Association Membership. Every Owner shall be a Member of the Association
and shall remain a Member for the period of the Owner's ownership of a Fractional
Ownership Interest. No Owner, whether one or more persons, shall have more than one
Membership Interest per Fractional Ownership Interest owned, but all of the persons
owning a Fractional Ownership Interest shall be entitled to rights of membership and of use
and enjoyment appurtenant to ownership of a Fractional Ownership Interest. Joint owners
of a Fractional Ownership Interest shall, however, be required to coordinate usage rights as
Owners in accordance with the provisions of Article 23 and as provided below. If title to a
Fractional Ownership Interest is held by more than one person or by a legal entity, such
Owner(s) shall designate one person as their Member representative and appoint such
person as their proxy, as more fully described in this Declaration and the Bylaws or as
otherwise required by applicable law. Membership in the Association shall be appurtenant
to, and may not be sepazated from, ownership of a Fractional Ownership Interest.
Section 7.3 Membership. There shall be one class of Membership Interest in the
Association consisting of all Owners of Fractional Ownership Interests in the Project.
Section 7.4 Voting Rim. Members of the Association may exercise such voting rights
with respect to Fractional Ownership Interests owned by the Members, subject to and in
accordance with the provisions below and those of the Bylaws. Each Member of the
Association, shall have one (1) vote per Fractional Ownership Interest represented by such
Member for the purpose of matters relating to the Property or the Project as a whole.
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Section 7.5 Election of Directors.
7.5.1 The Executive Boazd shall consist of three (3) to seven (7) Directors, as
determined from time to time by the Executive Board. The initial Executive Board shall
consist of three (3) Directors, selected by the Declarant.
7.5.2 The first annual meeting of the Members shall be held within one yeaz after
the closing of escrow for the first sale of a Fractional Ownership Interest in the Project. At
the first annual meeting of Members, the Executive Board shall be elected.
Section 7.6 Fairness Standard. The Directors of the Executive Board, the officers of
the Association and the Association shall have the duty to represent the interests of all
Owners in a fair and just manner on all matters that may affect any or all of the Owners. In
upholding their duties, the Directors of the Executive Boazd, the officers and the
Association shall be held in their decisions to the standards of good faith and
reasonableness with respect to such matters, taking into account the effect, if any, of the
matter on the Project as a whole.
Section 7.? Votigg by Association Members. To the extent a matter is required by this
Declaration, the Bylaws or the Act to be submitted to the vote of the Members of the
Association, all Members shalt be entitled to participate in the vote on such matters.
Section 7.8 Owner's and Association's Address for Notices. All Owners of a Fractional
Ownership Interest shall have one and the same mailing address to be registered with the
Association and used by the Association or other Owners for notices, demands and all other
communications regarding Association matters. The Owner or Owners of a Fractional
Ownership Interest shall furnish such address to the Secretary of the Association within
five (5) days after transfer of title to the Fractional Ownership Interest to such Owner or
Owners. Such registration shall be in written form and signed by all of the Owners of the
Fractional Ownership Interest or by such persons as are authorized by law to represent the
interests of all Owners of Fractional Ownership Interest. Notwithstanding the foregoing,
the Association shall be entitled to rely upon any such registration or other notice of a
change in address of the Owners of the Fractional Ownership Interest which is signed by
less than all of the Owners of such Fractional Ownership Interest. If no address is
registered or if all of the Owners cannot agree, then the address set forth in the deed to the
Fractional Ownership Interest shall be deemed their registered address until another
registered address is furnished as required under this Section. Any notice delivered to a
First Mortgagee in accordance with the terms of this Declaration shall be sent to the
address for such party specified in the First Mortgage unless the First Mortgagee notifies
the Association in writing of a different address. All notices and demands intended to be
served upon the Executive Boazd shall be sent to the following address or such other
address as the Executive Boazd may designate from time to time by notice to all of the
Owners;
Little Red Ski Haus, LLC
{00053419 / 1 } _ { 2 _
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Attn: David R. Fiore
118 E. Cooper Avenue
Aspen, CO 81611
With a copy to:
Western Peak, LLC
Attn: David R. Fiore
P.O. Box 4320
Basalt, CO 81621
Michael Murphy, CEO
Boutique Club, LLC
800 Second Avenue, Fifth Floor
New York, NY 10017
P ~
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All notices given in accordance with this Section shall be sent: (a) by personal delivery,
which shall be effective upon receipt; (b) by overnight courier service, which shall be
effective one (1) business day following timely deposit with the courier service; or (c)
regulaz, registered or certified mail, postage prepaid, which shall be effective three (3) days
after deposit in the U.S. mail.
ARTICLE 8 -ASSOCIATION DUTIES
Section 8.1 Association Manaeement Duties. Subject to the rights and obligations of
Declazant and other Owners as set forth in this Declaration, the Association shall be
responsible for the administration and operation of the Project, for the exclusive
management, control, maintenance, repair, replacement and improvement of the Property
(including facilities, furnishings and equipment related thereto), and shall keep the same in
good, clean, attractive and sanitary condition, order and repair. The expenses, costs and
fees of such management, operation, maintenance and repair by the Association shall be
part of the Assessments, and, subject to the budget approval procedures of 9.3.4 below,
prior approval of the Members shall not be required in order for the Association to pay any
such expenses, costs and fees. The Executive Boazd with the approval of the Members
representing a majority of the total votes entitled to be cast on Association matters shall
have the authority to lease or license any Common Elements to others for all purposes
permitted in this Declazation and by applicable law; provided, however, that any such lease
or license shall require the lessee or licensee to pay all costs and expenses, including costs
of maintenance, repair and replacement, resulting from its use of such Common Elements.
Section 8.2 Reserve Account.
8.2.1 Within one (1) year following Declazant's sale and conveyance of ten percent
(10%) of the Fractional Ownership Interests, the Association shall establish and maintain,
as part of its budget and out of the installments of the Annual Assessments, adequate
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reserve accounts for the periodic and ongoing maintenance, repair or replacement of the
Property (the "Reserve Account").
8.2.2 In connection with the Reserve Account, the Executive Board
shall:
(a) Review a current reconciliation of the Association's Reserve Account on an
annual basis.
(b) Review, on at least an annual basis, the current yeaz's actual reserve revenues
and expenses compared to the current year's budget.
(c) Review an income and expense statement for the Association's Reserve
Account on at least an annual basis.
8.2.3 The signatures of at least two persons, who shall be Directors, or one officer
who is not a Director and a Director, shall be required for the withdrawal of monies from
the Association's Reserve Account.
8.2.4 The Executive Board shall not expend Reserve Account funds for any
purpose other than the repair, restoration, replacement, or maintenance of, or litigation
involving the repair, restoration, replacement, or maintenance of, major components which
the Association is obligated to repair, restore, replace, or maintain and for which the
Reserve Account was established. However, the Executive Boazd may authorize the
temporary transfer of money from a Reserve Account to the Association's general operating
fund to meet short-term cash-flow requirements or other expenses, provided the Executive
Boazd has made a written finding, recorded in the Executive Board' minutes, explaining the
reasons why the transfer is needed, and describing when and how the money will be repaid
to the Reserve Account. The transferred funds shall be restored to the Reserve Account
within one year of the date of the initial transfer, except that the Executive Boatd may,
upon making a finding supported by documentation that a temporary delay would be in the
best interests of the Association, temporarily delay the restoration. The Executive Boazd
shall exercise prudent fiscal management in maintaining the integrity of the Reserve
Account, and shall, if necessary, levy a Special Assessment to recover the full amount of
the expended funds within the time limits required by this subsection. The Executive
Board may, at its discretion, extend the date the payment on the Special Assessment is due.
Any extension shall not prevent the Executive Boazd from pursuing any legal remedy to
enforce the collection of an unpaid Special Assessment.
8.2.5 When the decision is made to use reserve funds or to temporarily transfer
money from the Reserve Account to pay for litigation, the Association shall notify the
Members of the Association of that decision in the next available mailing to all Members,
and of the availability of an accounting of those expenses. The Association shall make an
accounting of expenses related to the litigation on at least a quarterly basis. The
accounting shall be made available for inspection by Members of the Association at the
Association's office.
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8.2.6 At least once every five years, the Executive Board shall cause to be
conducted a reasonably competent and diligent visual inspection of the Property that the
Association is obligated to repair, replace, restore, or maintain, as part of a study (the
"Reserve Study") of the Reserve Account Requirements (as defined below). The Executive
Board shall review this Reserve Study annually and shall consider and implement
necessary adjustments to the Executive Boazd' analysis of the Reserve Account
Requirements as a result of that review.
The Reserve Study shall at a minimum include:
(a) Identification of the major components that the Association is
obligated to repair, replace, restore, or maintain which, as of the date of the Reserve Study,
have a remaining useful life of less than thirty (30) yeazs.
(b) Identification of the probable remaining useful life of the components
identified in pazagraph (a) as of the date of the Reserve Study.
(c) An estimate of the cost of repair, replacement, restoration, or
maintenance of the components identified in pazagraph (a) during and at the end of their
useful life.
(d) An estimate of the total annual contribution necessary to defray the
cost to repair, replace, restore, or maintain the components identified in pazagraph (a)
during and at the end of their useful life, after subtracting total reserve funds as of the date
of the Reserve Study.
8.2.7 As used in this Section 8.2, "Reserve Account Requirements" means
the estimated funds which the Executive Board has determined are reasonably required to
be available at a specified point in time to repair, replace, or restore those major
components which the Association is obligated to maintain.
Section 8.3 Owner's Neglieence. If maintenance, repair or replacement of all or any
portion of the Property is required due to the negligent, grossly negligent, reckless or
willful act or omission of an Owner, any member of an Owner's family, or an Owner's
guests, invitees or tenants, then the expenses incurred by the Association for such
maintenance, repair or replacement shall be a personal obligation of such Owner and shall
be treated as a Default Assessment pursuant to Section 9.6. To the extent that the area in
need of maintenance, repair or replacement is due to the act or omission of an Owner, any
member of an Owner's family, or an Owner's guests, invitees or tenants, other than ordinary
weaz and tear, then such Owner shall be liable to the Association for the amount of any
applicable insurance deductibles} and for any amounts in excess of insurance proceeds;
provided, however, if such azea is not covered by insurance the expenses incurred by the
Association for such maintenance, repair or replacement shall be a personal obligation of
such Owner and shall be treated as a Default Assessment pursuant to Section 9.6.
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Section 8.4 Delegation of Management and Maintenance Duties. The Executive Board may
delegate all or any part of its powers and duties to one or more Managing Agents,
including, but not limited to, Declarant or affiliates of Declarant or either of them. A
Management Agreement entered into by the Executive Board may be terminated by the
Executive Board only by a majority vote thereof. Notwithstanding the delegation by the
Executive Board to a Managing Agent, the Executive Board shall not be relieved of its
responsibilities under this Declaration. Notwithstanding any provisions contained in this
Declaration to the contrary, it is the intent of this Declaration that the Executive Board
shall not be able to independently terminate any Management Agreement pursuant to
Section 38-33.3-305 of the Act without a vote of a majority of the Directors of the
Executive Board and a vote of Members representing a majority or more of the total
number of votes entitled to be cast on Association matters.
Section 8.5 Acquiring and Disposing of Real and Personal Property. The Association
may acquire, own, hold, encumber and convey in its own name, any right, title, or interest
to real property and tangible and intangible personal property, including without limitation,
membership rights, services and benefits for the use, enjoyment, security, comfort and
convenience of Members and any group thereof and may dispose of the same by sale or
otherwise. Such interests shall not be transferable except with the transfer of a Fractional
Ownership Interest. A conveyance of a Fractional Ownership Interest shalt transfer
ownership of the transferor's beneficial interest in such property without any reference
thereto. Each Owner may use such property in accordance with the purposes for which it is
intended, without hindering or encroaching upon the lawful rights of other Owners.
Portions of the Common Elements may be conveyed or subjected to a security interest by
the Association if agreed to by Members entitled to cast at least sixty-seven percent (67%)
of the votes in the Association.
Section 8.6 Cooaeration with Other Entities or Organizations. The Association may
contract or cooperate with any public or private, profit or non-profit entities or
organizations as convenient or necessary to provide services and privileges for the benefit
of Members, and to fairly allocate costs among the parties utilizing such services and
privileges which may be administered by the Association or such other organizations, for
the benefit of Members and their family members, guests, tenants and invitees. The costs
associated with such efforts by the Association (to the extent not chargeable to other
organizations) shall be a Common Expense.
Section 8.7 Issuance of Rules and Re ations. The Executive Board may, by a majority
of the voting Directors, make and amend reasonable rules and regulations governing the
use and rental of the Units. The Executive Board may, by a majority of the voting
Directors, make and amend reasonable rules and regulations governing the use and
operation of the Common Elements. Notwithstanding the foregoing, any such rules and
regulations shall not be inconsistent with the terms of this Declaration, including, but not
limited to Article 14. In addition, such rules and regulations shall, when applied to each of
the Units considering the use of such Unit, be equitable and reasonable.
(00053419/ I) _ 16
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Section 8.8 Enforcement of Association Documents.
8.8.1 This Declaration and the Bylaws constitute a general scheme benefiting each
Unit and the Property as a whole and may be enforced by Declarant, the Association or an
aggrieved Owner. A violation of any of the provisions of this Declaration causes
irreparable damage to the Property. Therefore, subject to the terms and conditions of this
Section 8.8 and except as otherwise expressly provided elsewhere in this Declaration,
Declarant, the Association and any aggrieved Owner may prosecute a proceeding at law or
in equity against anyone violating or attempting to violate the provisions of this
Declaration, including, without limitation, an action for a temporary restraining order,
preliminary injunction and permanent injunction. Failure by the Association or any Owner
to enforce any covenant or restriction herein contained shall in no event be deemed a
waiver of the right to do so thereafter.
8.8.2 The Association may recover from anyone violating or attempting to violate
any provision of this Declaration reasonable attorneys' fees and other legal costs incurred
by the Association in successfully enforcing the provision, regazdless of whether suit is
initiated. If such person is an Owner, the amount of the fees and costs constitute a lien
against the Owner's Fractional Ownership Interest, which may be foreclosed in accordance
with Section 9.10. In addition, if any Owner fails to comply with this Declaration, the
Bylaws or the rules and regulations of the Association, the Association may: (i)
temporarily suspend the Owner's right to use or enjoy the Common Elements, and (ii)
impose other appropriate measures; provided, however, that before imposing any of those
measures (other than late charges, interest and reasonable collection costs relating to
delinquent payments), the Executive Board will promulgate rules and regulations relating
to those measures including provisions affording a defaulting Owner notice of the claimed
default and an opportunity to be heard by the Executive Board prior to the imposition of
the disciplinary measure.
8.8.3 Before an aggrieved Owner may prosecute any proceeding at law or in equity
enforcing the provisions of this Declaration or the Bylaws or seeking other relief relating to
a violation or attempted violation of the provisions of this Declaration or the Bylaws, the
Owner will first give written notice to the Executive Board specifying the violation or
attempted violation of the provisions of this Declazation or the Bylaws, the facts and
circumstances surrounding the violation, and the name of the person alleged to have
violated or attempted to violate the provisions of this Declaration or the Bylaws. The
Executive Board may initiate a proceeding in law or in equity to enforce the provisions of
this Declaration or the Bylaws, to prevent a violation or to obtain relief for damage to the
Common Elements resulting from the violation, or may otherwise enforce the provisions of
this Declaration. The aggrieved Owner may exercise any of its rights under subsection
8.8.1 if: (i) the violation or attempted violation results or would result in direct and
immediate physical damage to the Owner's Unit, or (ii) the Association fails to enforce or
cause enforcement of the violated provisions of this Declaration or the Bylaws within sixty
(60) days after the Executive Board receives the Owner's notice.
{00053419 / 1) _ p _
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Section 8.9 Identity of Executive Board and Managing Agent. From time to time, but no
less than annually, the Association shall mail to each Owner a notice containing the names
and addresses of the Directors of the Executive Board and the Managing Agent(s), if any.
Section 8.10 Implied Riehts. The Association may exercise any and all other rights or
privileges given to it by this Declaration, or by the other Association Documents, or as may
otherwise be given to it by law, and every other right or privilege reasonably to be implied
from the existence of any right or privilege given to the Association in the Association
Documents or reasonably necessary to effectuate any such right or privilege.
Section 8.11 Books and Records of the Association. The Executive Board, directly or
through its Managing Agent(s), as the case may be, shall keep detailed, accurate records of
the receipts and expenditures affecting the Property and shall maintain such other books
and records as may be required under the Act. Owners and Mortgagees may inspect the
records of receipts and expenditures of the Managing Agent(s) or the Executive Board at
convenient weekday business hours. In addition, the other books, records and papers of the
Association, including this Declazation, the articles of incorporation and the Bylaws, as
well as any Management Agreement and any rules and regulations of the Association, shall
be available for inspection by any Owner or Mortgagee at all times during convenient
weekday business hours. Unless a shorter time is required by law, inspection shall require
three (3) days advance, written notice.
Section 8.12 Coffin pliance with Liquor Laws. To the extent necessary to comply with
applicable requirements of the Liquor Code of the State of Colorado, and recognizing the
rights reserved in the following paragraph to the Declarant, and the Executive Board,
directly or through its Managing Agent, shall be and is hereby authorized to exercise
directly or to grant to third parties exclusive possession, control, right and license to sell,
serve and deliver all types of alcoholic beverages of every kind and character (including
but not limited to the exclusive right to grant exclusive possession, control, right and
license to a licensee or licensees to provide room service) to and within all Units and all
Common Elements. The exercise or grant of such exclusive right shall not be deemed to
preclude, prevent or prohibit other uses of the Common Elements or the Units not in
conflict with such exclusive right.
Notwithstanding the foregoing, the Declazant reserves for itself, its express successors,
transferees, designees, agents, assigns and co-licensees, the exclusive right to provide room
service, a restaurant and/or bar in and within the Project, including the exclusive right to
sell, serve and deliver all types of alcoholic beverages of every kind and character to and
within all Units and Common Elements. The exercise or grant of such exclusive rights
shall not be deemed to preclude, prevent or prohibit other uses of the Common Elements or
the Units not in conflict with such exclusive rights.
Grantees of any interest in the Project by acceptance of any deed, lease or license, shall be
and are hereby bound by such reservations of rights.
{00053419 / I } _ ~ g
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Section 8.13 LIMITATION OF LIABILITY OF ASSOCIATION. NOTWITHSTANDING
THE DUTY OF THE ASSOCIATION TO MAINTAIN AND REPAIR THE PROPERTY,
AND EXCEPT TO THE EXTENT COVERED BY ASSOCIATION INSURANCE AS
DESCRIBED IN ARTICLE 11, THE ASSOCIATION SHALL NOT BE LIABLE TO
OWNERS FOR INJURY OR DAMAGE, OTHER THAN FOR THE COST OF
MAINTENANCE AND REPAIR, CAUSED BY ANY LATENT CONDITION OF THE
PROPERTY TO BE MAINTAINED AND REPAIRED BY THE ASSOCIATION OR
CAUSED BY THE ELEMENTS OR OTHER OWNERS OR PERSONS. IN NO EVENT
SHALL THE ASSOCIATION OR ITS DIRECTORS, OFFICERS, AGENTS OR
MEMBERS, OR THE DECLARANT OR ITS DIRECTORS, OFFICERS, MANAGERS,
AGENTS OR MEMBERS BE LIABLE TO ANY OWNER OR MEMBER OR ANY OF
THEIR GUESTS, INVITEES, SUCCESSORS, HEIRS OR LEGAL REPRESENTATIVES
FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES OF ANY KIND WHATSOEVER.
Section 8.14 Indemnification of Directors and Officers. To the extent permitted by law and
consistent with the articles of incorporation and Bylaws, the Association shall indemnify
every Director, officer, employee and agent of the Association and every person who
serves at the request of the Association as a manager, director, officer, employee, fiduciary
or agent of any other foreign or domestic corporation or of any partnership, joint venture,
trust, or other enterprise or employee benefit plan against any liability asserted against or
incurred by such person in any such capacity or arising out of that person's capacity as
such. The indemnification permitted under this Section shall not extend, in any event, to
any act or omission occurring prior to the date of incorporation of the Association, nor
shall it extend to any act or omission resulting from the willful or wanton behavior or gross
negligence of such person.
Tn the event of a settlement, indemnification shall be provided only in connection with such
matters covered by the settlement as to which the Association is advised by counsel that the
person to be indemnified has not been culpable of such acts or omissions whether resulting
from willful or wanton behavior or gross negligence in the performance of such person's
duties for the Association. The foregoing rights shall not be exclusive of other rights to
which such Director or officer or other person may be entitled. All liability, loss, damage,
cost, and expense arising out of or in connection with the foregoing indemnification
provisions shall be treated and handled by the Association as a Common Expense.
Section 8.15 Financial Statements. The Association shall have the power and duty to
cause to be regularly prepared financial statements for the Association and copies thereof
to be distributed to all Owners as provided in this Section.
8.15.1 The budgets prepared in accordance with Section 9.3 below shall be
distributed to Owners not less than forty-five (45) days nor more than sixty (60) days
before the beginning of each fiscal year, except the first fiscal year with respect to which
the budget shall be distributed as soon as reasonably possible. The advance budget shall
contain at least the following information:
(ooos~a~9i 1} -19-
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(a) Estimated revenue and expenses on an accrual basis;
(b) The balance of the Reserve Account;
(c) An itemized estimate of the remaining life of major components of the
Property and the methods of funding to defray reserve expenses; and
(d) A general statement setting forth the procedures used by the
Executive Board in the calculation and establishment of the Reserve Account.
8.15.2 An annual report as defined by this Section shall be distributed within
120 days after the end of each fiscal year. The annual report shall be prepared by a
certified public accountant in any fiscal yeaz in which the gross income to the Association
exceeds $75,000.00. If the annual report is not prepared by a certified public accountant,
the annual report shall be accompanied by the certificate of the person preparing the annual
report that the annual report was prepazed without audit from the books and records of the
Association. The annual report is a report to the Owners consisting of:
(a) A balance sheet relating to the Association as of the last day of the
fiscal year;
(b) An operating statement for such fiscal year;
(c) A statement of changes in financial position for such fiscal year; and
(d) A list of the names, mailing addresses and telephone numbers of the
members of the Executive Board.
ARTICLE 9 -ASSESSMENTS
Section 9.1 Covenant of Personal Obligation of Assessments. Declarant, by creating the
Units pursuant to this Declazation, and every other Owner, by acceptance of the deed or
other instrument of transfer of his Fractional Ownership Interest (whether or not it shall be
so expressed in such deed or other instrument of transfer), is deemed to personally
covenant and agree, with the Association, and hereby does so covenant and agree to pay to
the Association Assessments consisting of the: (a) Annual Assessments, (b) Special
Assessments, (c) Personal Assessments and (d) Default Assessments applicable to the
Owner's Fractional Ownership Interest. No Owner may waive or otherwise escape personal
liability for the payment of the Assessments provided for in this Declaration by not using
the Common Elements or the facilities contained in the Common Elements or by
abandoning or leasing his Fractional Ownership Interest.
Section 9.2 Purpose of Assessments. Assessments shall be used to pay expenses of the
Association for the purpose of improving, operating, maintaining, and servicing the
(00053419 / l1 - 20 -
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Property and of the facilities located on the Property. Proper uses of the Assessments shall
include, but are not limited to, the following:
9.2.1 The Budget (as defined hereinafter);
9.2.2 Personal Assessments and Default Assessments that are the responsibility of
the Owners by the provisions of this Declazation but that aze delinquent and unpaid;
9.2.3 Carrying out all other powers, rights and duties of the Association specified
in the Association Documents or the Act; and
9.2.4 Generally, addressing any other expenses necessary to meet the primary
purposes of the Association.
Section 9.3 Annual Assessments.
9.3.1 Commencement of Assessments. All of the Fractional Ownership Interests
shall be allocated Annual Assessments immediately after Declarant sales and conveys the
first Fractional Ownership Interest in the Project to an Owner who purchases such interest
for consideration other than for services rendered.
9.3.2 Amount of Total Annual Assessments. Annual Assessments shall be based
upon the Association's estimate of expenditures and liabilities needed by it to provide for
the administration and performance of its duties during such fiscal yeaz together with a
reasonable contingency and an allocation to the Reserve Account for replacement, repair
and refurbishment of the Property. If surplus funds remain after payment of or provision
for the Property and any prepayment of or provision for reserves, the Executive Board may,
in its discretion, apply to or for the benefit of Owners, the surplus funds: (a) into the
Reserve Account, (b) towazd the following yeaz's
against future Assessments, (d) as a refund to
foregoing.
expenses, (c) towazd a credit to Owners
Owners or (e) any combination of the
9.3.3 Anoortionment of Annual Assessments. The total Annuai Assessment for any
fiscal year of the Association shall be allocated on the same basis as each Owner's
Fractional Ownership Interest in the Unit; meaning, by way of example and not of limitation,
that for a Unit divided into Fractional Ownership Interests constituting a 1/52 share of such
Unit, then each Owner of a Fractional Ownership Interest therein shall bear 1/52 of the total
Annual Assessment with respect to such Unit, subject to the following adjustments:
(a) To the extent any Common Expense relating to the Common Elements
disproportionately benefits any Owner or group of Owners, the Executive Boazd may, by a
majority of the voting Directors, adjust the Assessment for such Common Expense in such
proportion as may be appropriate.
tooos3ai9i ~s _~i
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(b) The Executive Boazd may assess and prorate Common Expenses
among Owners on the same basis as chazged to the Association by any third party.
9.3.4 Annual Budget.
(a) On an annual basis, the Executive Board shall formulate a proposed
budget for the Association pertaining to the Property (the "Budget"). The Executive Board
shall deliver the Budget within thirty (30) days after the adoption thereof, to Owners. The
Executive Board shall also set a date for the meeting of all Members of the Association to
consider ratification of the Budget not less than fourteen (14) nor more than sixty (60) days
after mailing or other delivery of the Budget. If any proposed Budget does not exceed one
hundred twenty percent (120%) of the Budget for the preceding yeaz, then at a meeting set
pursuant to the preceding sentence, unless sixty-seven percent (67%) of the Members of the
Association reject the Budget, such proposed Budget is ratified, whether or not a quorum is
present. If any proposed Budget exceeds one hundred twenty percent (120%) of the Budget
for the preceding year, then at a meeting set by the Executive Board, if a majority of the
Members of the Association approve the Budget, such proposed Budget is ratified, whether
or not a quorum is present. If the Association Budget is rejected by the Members of the
Association in the foregoing manner, the Budget last ratified must be continued until such
time as the Members of the Association ratify a subsequent Budget proposed by the
Executive Board.
(b) The Executive Board shall levy and assess the Association's Annual
Assessments in accordance with the annual Budget.
Section 9.4 Special Assessments. In addition to the Annual Assessments authorized
above, the Executive Board may at any time and from time to time determine, levy, assess
and collect in any fiscal year (without the vote of the Members of the Association, except
as provided in the Act and in this Section below) a Special Assessment applicable to that
particulaz fiscal year (and for any such longer period as the Executive Boazd may
determine) against all of the Owners with respect to the Property for the purpose of
defraying, in whole or in part, the unbudgeted costs, fees and expenses of any construction,
reconstruction, repair, demolishing, replacement, renovation or maintenance of the Project
or of any facilities located on the Project, specifically including any fixtures and personal
property related to it. Any amounts determined, levied and assessed in connection with the
Property pursuant to this Declaration by a majority of the voting Directors of the Executive
Boazd shall be assessed to the Owners of Fractional Ownership Interests. Notwithstanding
any other provision contained in this Section, Special Assessments shall not, in the
aggregate, exceed fifteen percent (1 S%) of the annual Budget for the applicable fiscal yeaz.
This Section shall not apply to Special Assessments levied and assessed in connection with
reimbursing the Association for costs incurred in bringing an Owner into compliance with
the provisions of the Association Documents.
Section 9.5 Personal Assessments. The Executive Board may from time to time determine,
levy, assess and collect Personal Assessments against or from any Owner for personal
{000534(9/ R _ o0
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charges incurred or created by such Owner and for which the Association is or may be
responsible for payment. Personal Assessments may include, but not be limited to,
personal chazges billed to the Owner through the Association or Managing Agent such as
ski passes, health charges, food and beverage charges, room service charges and other
similar charges and expenses for individual services, benefits, privileges and products
acquired at or through the Project which is billed to a personal account of the Owner.
Notwithstanding contrary language contained in this Declaration, all Owners shall be
subject to the provisions of this pazagraph 9.5.
Section 9.6 Default Assessments. The Executive Boazd may from time to time determine,
levy, assess and collect Default Assessments against or from any Owner for personal
chazges incurred or created by such Owner and for which the Association is or may be
responsible for payment. Default Assessments may include, but not be limited to, all
monetary fines or other charges imposed or assessed against an Owner pursuant to the
Association Documents or any expense of the Association which is the obligation of an
Owner pursuant to the Association Documents, including those expenses which are the
responsibility of an Owner under Section 8.3 hereof.
Section 9.7 Due Dates for Assessment Payments. Unless otherwise determined by the
Executive Board, the Annual Assessments and any Special Assessments which are to be
paid in installments shall be paid periodically in advance (no less frequently than annually
and no more frequently than quarterly) and shall be due and payable to the Association at
its office or as the Executive Board may otherwise direct in any Management Agreement,
without notice (except for the notices required by this Article 9), on the first day of each
Assessment Period. Personal Assessments and Default Assessments are due upon receipt
of a billing statement. The Executive Board may as a condition of occupancy require
Owners of a Fractional Ownership Interest to provide a credit card or other payment
assurance prior to permitting personal chazges.
If any payment of Assessments shall not be paid within thirty (30) days after it shall have
become due and payable, then the Executive Board may assess a "late charge" on the
installment in an amount of fifteen percent (15%) of the amount outstanding or such other
charge which does not exceed any limitations established by applicable law, as the
Executive Board may fix by rule from time to time as provided in the Bylaws to cover the
extra expenses involved in handling such delinquent Assessment installment.
Section 9.8 Declarant's Obli¢ation to Pay Assessments. Declarant shall be obligated to
pay the Annual, Special, Default and Personal Assessments (including installments thereof)
on each Fractional Ownership Interest owned by it.
Section 9.9 Lien for Assessments. The Annual, Special, Personal and Default
Assessments (including installments of the Assessments) arising under the provisions of
this Declaration (together with any and all interest, costs, late charges, expenses and
reasonable attorneys' fees, including legal assistants' fees, which may arise under the
provisions of Section 9.10 below) shall be burdens running with, and a perpetual lien in
favor of the Association upon the specific Fractional Ownership Interest to which such
{00053419/ 1} .73.
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Assessments apply. To further evidence such lien upon a specific Fractional Ownership
Interest, the Association or its Managing Agent or designee may, but shall not be obligated
to prepare a written lien notice setting forth the description of the Fractional Ownership
Interest, the amount of Assessments on the Fractional Ownership Interest unpaid as of the
date of such lien notice, the rate of default interest as set by the Bylaws and Section 9.10
below, the name of the Owner or Owners of the Fractional Ownership Interest, and any and
all other information that the Association may deem proper. Any such lien notice shall be
signed by a Director of the Executive Boazd, an officer of the Association, or a Managing
Agent and shall be recorded in the Records. Any such lien notice shall not constitute a
condition precedent to or delay the attachment of the lien, but such lien is a perpetual lien
upon the Fractional Ownership Interest and attaches without notice at the beginning of the
first day of any period for which any Assessment is levied.
Section 9.10 Effect of Nonpayment of Assessments. If any Assessment (or any installment
of the Assessment) is not fully paid within thirty (30) days afrer the same becomes due and
payable, then as often as the same may happen: (i) interest shall accrue at the Maximum
Rate on any amount of the Assessment which was not paid within such 30-day period or on
the amount of Assessment in default, whichever shall be applicable, accruing from the due
date until date of payment; (ii) the Association may declare due and payable all unpaid
installments of the Annual Assessment or any Special Assessment otherwise due during the
fiscal year during which such default occurred, as well as any Personal Assessments and
Default Assessments; (iii) the Association may thereafter bring an action at law or in
equity, or both, against any Owner personally obligated to pay the same; and (iv) the
Association may proceed to foreclose its lien against the particular Fractional Ownership
Interest in the manner and form provided by Colorado law for foreclosure of real estate
mortgages.
An action at law or in equity by the Association against an Owner to recover a money
judgment for unpaid Assessments (or any installment thereof) may be commenced and
pursued by the Association without foreclosing or in any way waiving the Association's
lien for the Assessments. If any such Assessment (or installment thereof) is not fully paid
when due and if the Association commences such an action (or counterclaims or cross-
claims for such relief in any action) against any Owner personally obligated to pay the
same, or proceeds to foreclose its lien against the particular Fractional Ownership Interest,
then all unpaid installments of Annual and Special Assessments, all Personal Assessments
and all Default Assessments (including any such installments or Assessments arising
during the proceedings of such action or foreclosure proceedings), any late charges under
Section 9.7 above, any accrued interest under this Section, the Association's costs,
expenses and reasonable attorneys' fees (including legal assistants' fees) incurred for any
such action and/or foreclosure proceedings shall be assessed by the court as part of the
costs of any such action or foreclosure proceedings and shall be recoverable by the
Association from any Owner personally obligated to pay the same and from the proceeds
from the foreclosure sale of the particular Fractional Ownership Interest in satisfaction of
the Association's lien.
{00053419/ 11 _~e
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Foreclosure or attempted foreclosure by the Association of its lien shall not be deemed to
estop or otherwise preclude the Association from again foreclosing or attempting to
foreclose its lien for any subsequent Assessments (or installments thereof) which are not
fully paid when due or for any subsequent Default Assessments. The Association shall
have the power and right to bid in or purchase any Fractional Ownership Interest at
foreclosure or other legal sale and to acquire and hold, lease or mortgage the Fractional
Ownership Interest, and to convey or otherwise deal with the Fractional Ownership Interest
acquired in such proceedings.
Section 9.11 Successor's Liability for Assessments. Notwithstanding the personal
obligation of each Owner of a Fractional Ownership Interest to pay all Assessments on the
Fractional Ownership Interest, and notwithstanding the Association's perpetual lien upon a
Fractional Ownership Interest for such Assessments, all successors in interest to the fee
simple title of a Fractional Ownership Interest, except as provided in Section 9.12 and
Section 9.13 below, shall be jointly and severally liable with the prior Owner or Owners of
the Fractional Ownership Interest for any and all unpaid Assessments, interest, late
charges, costs, expenses and attorneys' fees against such Fractional Ownership Interest,
without prejudice to any such successor's right to recover from any prior Owner any
amounts paid thereon by such successor. However, such successor in interest shall be
entitled to rely upon the existence and status of unpaid Assessments, interest, late charges,
costs, expenses and attorneys' fees as shown upon any certificate issued by or on behalf of
the Association to such named successor in interest pursuant to the provisions of Section
9.13 below.
Section 9.12 Waiver of Homestead Exemption: Subordination of Association's Lien for
Assessments. By acceptance of the deed or other instrument of transfer of a Fractional
Ownership Interest, each Owner irrevocably subordinates the homestead exemption
provided by Part 2, Article 41, Title 38, Colorado Revised Statutes, as amended, to the
Association's perpetual lien for collection of Assessments. The Association's perpetual lien
on a Fractional Ownership Interest for Assessments shall be superior to all other liens and
encumbrances except the following:
9.12.1 Real property ad valorem taxes and special assessment liens duly imposed by
a Colorado governmental or political subdivision or special taxing district, or any other
liens made superior by statute;
9.12.2 To the extent permitted under the Act, the lien of any First Mortgage,
including any and all advances made by the First Mortgagee and notwithstanding that any
of such advances may have been made subsequent to the date of the attachment of the
Association's liens.
With respect to the foregoing subsection 9.12.2, to the extent permitted under the Act, any
First Mortgagee who acquires title to a Fractional Ownership Interest by virtue of
foreclosing the First Mortgage or by virtue of a deed or assignment in lieu of such a
foreclosure, or any purchaser at a foreclosure sale of the First Mortgage, will take the
Fractional Ownership Interest free of any claims for unpaid Association Assessments,
{00053419/ 1} _ 95 _
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interest, late chazges, costs, expenses and attorneys' fees against the Fractional Ownership
Interest which accrue prior to the time such First Mortgagee or purchaser acquires title to
the Fractional Ownership Interest, and the amount of the extinguished lien may be
reallocated and assessed to all Owners of Fractional Ownership Interests as a Common
Expense at the direction of the Executive Board.
All other persons not holding liens described in Section 9.11 above and obtaining a lien or
encumbrance on any Fractional Ownership Interest after the recording of this Declaration
shall be deemed to consent that any such lien or encumbrance shall be subordinate and
inferior to the Association's future liens for Assessments, interest, late charges, costs,
expenses and attorneys' fees, as provided in this Article 9, whether or not such consent is
specifically set forth in the instrument creating any such lien or encumbrance.
A sale or other transfer of any Fractional Ownership Interest, including but not limited to a
foreclosure sale, except as provided in Section 9.9 above and except as provided in Section
9.14 below, shall not affect the Association's lien on such Fractional Ownership Interest for
Assessments, interest, late chazges, costs, expenses and attorneys' fees due and owing prior
to the time such purchaser acquires title and shall not affect the personal liability of each
Owner who shall have been responsible for the payment thereof. Further, no such sale or
transfer shall relieve the purchaser or transferee of a Fractional Ownership Interest from
liability for, or the Fractional Ownership Interest from the lien of any Assessments made
after the sale or transfer.
Section 9.13 Statement of Status of Assessments. Upon fourteen (14) calendaz days written
request (furnished in the manner described below for the response to such request) to a
Managing Agent, the Executive Board or the Association's registered agent and payment of
a reasonable fee set from time to time by the Executive Board, any Owner, or with the
consent of any Owner any prospective purchaser of a Fractional Ownership Interest shall
be furnished, by personal delivery or by certified mail, first class postage prepaid, return
receipt requested, to the inquiring party (in which event the date of posting shall be deemed
the date of delivery) a statement of the Owner's account setting forth:
9.13.1 The amount of any unpaid Assessments, interest, late chazges, costs,
expenses and attorneys' Fees then existing against a particular Fractional Ownership
Interest;
9.13.2 The amount of the current installments of the Annual Assessment and the
date that the next installment is due and payable;
9.13.3 The date of the payment of any installments of any Special Assessments then
existing against the Fractional Ownership Interest; and
9.13.4 Any other information deemed proper by the Association.
Upon the issuance of such a certificate signed by a member of the Executive Boazd, by an
officer of the Association, or by a Managing Agent, the information contained therein shall
{00053419/ l} -26-
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be conclusive upon the Association as to the person or persons to whom such certificate is
addressed and who rely on the certificate in good faith. Unless such a statement of status
of Assessments is delivered as described above within said fourteen (14) calendar day
period, the Association shall have no right to assert a priority lien upon the Fractional
Ownership Interest over the inquiring party's interest for unpaid Assessments which were
due as of the date of the request.
Section 9.14 Liens. Except for Annual, Special, Personal and Default Assessment liens
as provided in this Declaration, mechanics' liens (except as provided in Article 13 below),
tax liens and judgment liens and other liens validly arising by operation of law and liens
arising under Permissible Mortgages, there shall be no other liens obtainable or permissible
against the Property of against the interest of any Fractional Ownership Interest.
ARTICLE 10 -MAINTENANCE RESPONSIBILITY
Section 10.1 Responsibility of the Association. The Association, without the requirement
of approval of the Owners, but subject to Section 9.3 above, shall maintain and keep in
repair, replace and improve, as a Common Expense, the Property, including the Common
Elements and the interior of the Units, and also including the furniture, fixtures and
utilities located within the Common Elements or within the Units.
Section 10.2 No Work or Alterations by Owners. No Owner, other than Declarant or its
agents during such time as Declarant shall own one or more Fractional Ownership
Interests, shall perform or cause to have performed any work, actions or alterations upon
the Property, the Common Elements, the interior of any Unit, nor any of the furniture,
fixtures and utilities located therein.
ARTICLE 11 -INSURANCE AND FIDELITY BONDS
Section 11.1 General Insurance Provisions.
The Association shall maintain, to the extent reasonably available:
1 I.1.1 Property insurance on the Property, including the Common Elements and the
Units, for fire and other broad form covered causes of loss. The total amount of insurance
must be not less than the full insurable replacement costs of the insured property less
applicable deductibles at the time the insurance is purchased and at each renewal date,
exclusive of land, excavations, foundations, paving areas, landscaping, personal property
and other items normally excluded from property policies. In all insurance policies
obtained hereunder, the Association shall be named as the agent for each of the Owners,
including the Declarant.
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11.1.2 Commercial general liability insurance against claims and liabilities arising
in connection with the ownership, existence, use or management of the Common Elements,
Units and the Association, in an amount determined by the Association, but not less than
two million dollazs ($2,000,000) in respect to bodily injury or death to any number of
persons arising out of one accident or disaster, or for damage to property, and if higher
limits shall at any time be customary to protect against tort liability such higher limits shall
be carved. The Owners (as a group) shall be included as additional insureds but only for
claims and liabilities aiising in connection with the existence, use or management of the
Property. The insurance shall cover claims of one or more insured parties against other
insured parties.
11.1.3 The Association may carry such other and further insurance that the
Executive Boazd considers appropriate.
Section 11.2 Cancellation. If the insurance described in Section 11.1 above is not
reasonably available, or if any policy of such insurance is cancelled or not renewed without
a replacement policy therefor having been obtained, the Association promptly shall cause
notice of that fact to be hand delivered or sent prepaid by U.S. mail to all Owners.
Section 11.3 Policy Provisions. To the extent reasonably obtainable, insurance policies
carried pursuant to Section 11.1 above must provide that:
11.3.1 Each Owner is an insured person under the policy with respect to liability
arising out of such Owner's interest in the Common Elements or membership in the
Association;
11.3.2 Except as provided in Section 11.5, the insurer waives its rights of
subrogation under the policy against any Owner, member of his household, guest or invitee
to the extent of the coverage obligation in subsection 11.1.1;
11.3.3 With respect to the coverage in subsection 11.1.1, no act or omission by an
Owner, unless acting within the scope of his authority on behalf of the Association, will
void the policy or operate as a condition to recovery by any other person under such policy;
and
11.3.4 If, at the time of a loss under the policy, there is other insurance in the name
of an Owner covering the same risk covered by the policy, the Association's policy
provides primary insurance to the extent of the coverage obligation in subsection 11.1.1.
Section 11.4 Insurance Proceeds. Excluding any business interruption proceeds, any loss
covered by the property insurance policy described in Section 11.1 above must be adjusted
with the Association or the Managing Agent acting on behalf of the Association, but the
insurance proceeds for that loss shall be payable to any insurance trustee, including but not
limited to the Managing Agent, designated for that purpose by the Executive Boazd or to
the Association as directed by the Executive Board, and not to any holder of a security
interest. The insurance trustee or the Association shall hold any insurance proceeds in trust
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for the Owners and Mortgagees as their interests may appear. Subject to the provisions of
Section 11.7 below, the proceeds must be disbursed first for the repair or restoration of the
damaged property, and the Association, Owners and Mortgagees aze not entitled to receive
payment of any portion of the proceeds unless there is a surplus of proceeds after the
damaged property has been completely repaired or restored or the regime created by this
Declaration is terminated.
Section 11.5 Association Policies. The Association may adopt and establish written
nondiscriminatory policies and procedures relating to the submittal of claims,
responsibility for deductibles and any other matters of claims adjustment. To the extent the
Association settles claims for damages to the Property or the Common Elements, it shall
have the authority to assess negligent Owners causing such loss or benefiting from such
repair or restoration all or any equitable portion of the deductibles paid by the Association.
Section 11.6 Insurer Obligation. An insurer that has issued an insurance policy for the
insurance described in Section 11.1 above shall issue certificates or memoranda of
insurance to the Association and, upon written request, to any Owner or Mortgagee.
Unless otherwise provided by statute, the insurer issuing the policy may not cancel or
refuse to renew it until thirty (30) days after notice of the proposed cancellation or
nonrenewal has been mailed to the Association and to each Owner and Mortgagee to whom
a certificate or memorandum of insurance has been issued at their respective last-known
addresses.
Section 11.7 Renair and Replacement.
11.7.1 Any portion of the Common Elements for which insurance is required under
this Article which is damaged or destroyed must be repaired or replaced promptly by the
Association unless:
(a) The regime created by this Declaration is terminated;
(b) Repair or replacement would be illegal under any state of local statute
or ordinance;
(c) Sixty-seven percent (67%) of the Members of the Association and all
directly, adversely affected Owners agree in writing not to rebuild; or
(d) Prior to the conveyance of any Unit to a person other than Declarant,
the Mortgagee holding a Mortgage on the damaged portion of the Common Elements
rightfully demands all or a substantial part of the insurance proceeds.
11.7.2 The cost of repair or replacement in excess of insurance proceeds and
reserves is a Common Expense. If all damaged Common Elements are not repaired or
replaced, the insurance proceeds attributable to the damaged Common Elements must be
used to restore the damaged area to a condition compatible with the remainder of the
Project, and except to the extent that other persons will be distributees, the remaining
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insurance proceeds must then be distributed to all the Owners or Mortgagees, as their
interests may appear, in proportion to their respective Fractional Ownership Interests.
Section 11.8 Common Expenses. Premiums and, subject to Sections 8.3 and 14.6,
deductibles for insurance that the Association acquires and other expenses connected with
acquiring such insurance are Common Expenses.
Section 11.9 Fidelity Insurance. Fidelity bonds shall be maintained by the Association to
protect against dishonest acts on the part of its officers, directors and employees and on the
part of all others who handle or are responsible for handling the funds belonging to or
administered by the Association, including the Managing Agent in an amount not less than
the amounts required by law. The Association shall also secure and maintain, or require to
be secured or maintained by any parties handling the collection, deposit, transfer or
disbursement of Association funds, fidelity insurance with aggregate coverage not less than
that required by law. In addition, all funds and accounts of the Association being held by a
Managing Agent or other third persons shall be maintained in accordance with applicable
law.
Section 11.10 Worker's Compensation Insurance. If the Association has employees, the
Association shall obtain worker's compensation or similar insurance with respect to its
employees in the amounts and forms as may now or hereafter be required by law.
Section 11.11 Other Insurance. The Association may also maintain insurance to the extent
reasonably available and in such amounts as the Executive Board may deem appropriate on
behalf of Directors and officers against any liability asserted against a Director or officer or
incurred by him in his capacity of or arising out of his status as a Director or officer. The
Association may obtain insurance against such other risks, of a similar or dissimilar nature,
as it shall deem appropriate with respect to its responsibilities and duties.
ARTICLE 12 -CONVEYANCES AND TAXATION OF FRACTIONAL
OWNERSHIP INTERESTS
Section 12.1 Contracts to Convey Entered into Prior to Recordine. A contract or other
agreement for the sale of a Fractional Ownership Interest entered into prior to the filing for
record of the Condominium Map and this Declazation in the Records, may legally describe
such Fractional Ownership Interest in substantially the manner set forth in Section 12.2
below and may indicate that the Condominium Map and this Declaration aze to be
recorded.
Section 12.2 Contracts to Convey and Conveyances Subsequent to Recording. Subsequent to
the recording of the Condominium Map and this Declaration, contracts to convey,
instruments of conveyance of Fractional Ownership Interests and every other instrument
affecting title to a Fractional Ownership Interest shall be in substantially the following
form with such omissions, insertions, recitals of fact, or other provisions as may be
required under the Act or by the circumstances or appropriate to conform to the
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requirements of any governmental authority or any usage or requirement of law with
respect thereto:
Fractional Ownership Interest No. _ consisting of an undivided
interest in Unit _ of LITTLE RED RESIDENCE,
according to the Declaration of Condominium for LITTLE RED
RESIDENCE, recorded , 200, at Reception No. as
amended and supplemented finm time to time and according to the
Map for LITTLE RED RESIDENCE recorded , 200, in Plat
Book_ at Page _ ,Reception No. _ as amended and
supplemented from time to time, all in the Office of the Clerk and
Recorder of Pitlcin County, Colorado, together with the perpetual use
of 7 seven days per yeaz for each 1/52nd interest owned in
accordance with the Association Documents for LITTLE RED
RESIDENCE.
Section 12.3 Conveyance Deemed to Describe an Undivided Interest in Common Elements.
Every instrument of conveyance, Mortgage, or other instrument affecting the title to a
Fractional Ownership Interest which legally describes the Fractional Ownership Interest
substantially in the manner set forth in Section 12.2 above shall be construed to describe
the Fractional Ownership Interest and together with all fixtures and improvements
contained in it (unless any such fixtures or improvements shall be Common Elements),
and to incorporate all the rights incident to ownership of a Fractional Ownership Interest
and all the limitations of ownership as described in the covenants, conditions, restrictions,
easements, reservations, rights-of--way and other provisions contained in this Declaration,
including the easement of enjoyment to use the Common Elements.
Section 12.4 Separate Tax Assessments. Upon the recording of this Declaration and the
filing of the Condominium Map for record in the Records, Declazant shall deliver a
recorded copy of this Declaration and the Map to the Assessor of Pitkin County, Colorado,
as provided by law, which notice shall set forth the descriptions of the Units, so that
thereafter atl taxes, assessments and other charges by the State or any governmental or
political subdivision or any special improvement district or any other taxing agent or
assessing authority shall be assessed against and collected on each Unit, each of which
shall be carried on the tax records as a separate and distinct parcel for that purpose. For the
purpose of such assessment against the Units, valuation of the Common Elements shall be
apportioned among the Units in proportion to the Ownership Interest in the Common
Elements appurtenant to such Units. Accordingly, the Common Elements shall not be
assessed separately but shall be assessed with the Units as provided pursuant to Colorado
Revised Statutes Subsection 38-33.3-105(2).
The lien for taxes assessed to the Owner or Owners of a Unit shall be confined to
such Unit. No forfeiture or sale of any Unit for delinquent taxes, assessments or other
governmental charges shall divest or in any way affect the title to any other Unit.
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ARTICLE 13 -MECHANICS' LIENS
Section 13.1 Mechanics' Liens. Subsequent to the filing of the Map and recording of this
Declaration or at any time thereafter, no Owner other than Declarant or its agents shall
cause labor to be performed or materials to be furnished which shall be the basis for the
filing of a lien against a Unit or against any interest in the Common Elements. Each Owner
shall indemnify and hold harmless each of the other Owners and the Association from and
against any and all liability or loss arising from the claim of any mechanic's lien for labor
performed or for materials furnished in work on such Owner's Unit against the Fractional
Ownership Interests of another Owner in such Unit, against the Fractional Ownership
Interests of any other Units of another Owner, or against the Common Elements, or any
part thereof.
ARTICLE 14 -USE RESTRICTIONS
Section 14.1 Use of Units. Residential uses and commercial uses are contemplated within
the Project, and any functions, activities and uses permitted under applicable zoning or
other laws, rules or regulations aze expressly allowed, subject to the restrictions set forth in
Section 14.3 pertaining to residential uses. All Owners will be subject to the rules and
regulations of the Association.
Section 14.2 Commercial Uses. Commercial uses permitted within the Project are
limited to sales and marketing activities for Fractional Ownership, the operation of a
restaurant and/or baz, the providing of room service for the Units, and the providing of
amenities and services customarily provided by a lodge or hotel. The commercial uses
permitted within this Section may be amended upon a majority vote of the Executive Boazd
with the approval of the Members representing a majority of the total votes entitled to be
cast on Association matters at a meeting of the Members called for that purpose. The
Executive Board may, with the approval of the Declazant as long as Declarant owns an
interest in the Project, regulate commercial uses by rules and regulations governing
specific uses, operating hours, music amplification, lighting, noise, heat, vibration and
other matters that might cause unreasonable disturbance for occupants of the Units. All
Units shalt be used only for the uses as specified within the PUD Plan, and in conformity
with all other zoning laws, ordinances and regulations. Owners of Units may rent or lease
such Units to others for these purposes. Amendments to rules and regulations governing
commercial uses shall require the approval of a majority of the Executive Board.
Section 14.3 Residential Uses. All Units in the Project may be used for dwelling and
lodging purposes in conformity with all zoning laws, ordinances and regulations.
Notwithstanding the foregoing, Units may be used by Declarant as a sales office,
management office, rental management office, storage facility and/or such other uses as
may be permitted under the Act. Amendments to rules and regulations governing
residential uses shall require the approval of a majority of the Directors of the Executive
Board.
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There shall be no limitation on rental of Units or Fractional Ownership Interests by Owners
provided that Owners provide the Managing Agent reasonable advance written notice of
such rental. Any permitted rental shall be subject to the Association Documents, including,
without limitation, these Declarations and the Association's rules and regulations.
Section 14.4 Conveyance of Units. All Units, whether or not the instrument of conveyance
or assignment shall refer to this Declazation, shall be subject to the covenants, conditions,
restrictions, easements, reservations, rights-of--way and other provisions contained in this
Declaration, as the same may be amended from time to time.
Section 14.5 Use of Common Elements. There shall be no obstruction of, nor shall
anything be kept or stored by any Owner or other party on any part of the Common
Elements without the prior written approval of the Association. Nothing shall be altered
on, constructed in or removed by any Owner or other party from the Common Elements
without the prior written approval of the Association.
Section 14.6 Prohibition of Increases in Insurable Risks and Certain Activities. Nothing shall
be done or kept in any Unit or in or on the Common Elements, or any part thereof, which
would result in the cancellation of the insurance on all or any part of the Project or, taking
into account the particular use involved, in an increase in the rate of the insurance on all or
any part of the Project over what the Association, but for such activity, would pay, without
the prior written approval of the Association. Nothing shall be done or kept in any Unit or
in or on the Common Elements which would be in violation of any statute, rule, ordinance,
regulation, permit or other imposed requirement of any governmental body having
jurisdiction over the Property. No damage to or waste of the Common Elements shall be
committed by any Owner, or by any member of the Owner's family, or by any guest, lessee,
invitee or contract purchaser of any Owner, and each Owner shall indemnify and hold the
Association and the other Owners harmless against any and all loss resulting from any such
damage or waste caused by the grossly negligent, reckless or intentional act or omission of
such Owner, the members of the Owner's family, or the Owner's guests, lessees, invitees or
contract purchasers. To the extent that the loss resulting from any damage or waste is due
to the negligent act or omission of an Owner, any member of an Owner's family, or an
Owner's guests, invitees or tenants, then such Owner shall be liable to the Association for
the amount of any applicable insurance deductible(s) and for any amounts in excess of
insurance proceeds; provided, however, if such damage or waste is not covered by
insurance the Owner shall indemnify and hold the Association and the other Owners
harmless against any and all loss resulting from any such damage or waste. Failure to so
indemnify shall be a default by such Owner under this Section, and such amount to be
indemnified shall automatically become a Default Assessment determined and levied
against such Owner. At its own initiative or upon the written request of any Owner (and if
the Association determines that further action by the Association is proper), the
Association shall enforce the foregoing indemnity as a Default Assessment as provided in
Article 9 above.
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ARTICLE 15 -EASEMENTS
Section 15.1 Easement of Enjovment. Every Owner shall have a nonexclusive easement for
the use and enjoyment of the General Common Elements, which easement shall be
appurtenant to and shall pass with the title to every Fractional Ownership Interest, subject
to the easements set forth in this Article 15.
Section 15.2 Delegation of Use. Any Owner may delegate, in accordance with the
Association Documents, the Owner's right of enjoyment in the Common Elements to the
Owner's tenants, employees, family, guests, employees, and invitees. The Executive Board
may adopt rules and regulations limiting the number of guests and invitees (who are not
occupying a Unit with the Owner thereof] that may use the Common Elements at the
invitation of an Owner at any one time. The Executive Board may also establish
reasonable rules and regulations governing occupancy limits in the Units.
Section 15.3 Permitted Exceptions. The Property shall be subject to any easements as
shown on any recorded plat affecting the Property and as shown on the recorded
Condominium Map. The recording data for recorded easements, licenses and other title
matters (collectively, "Permitted Exceptions") appurtenant to or included in the Property or
to which any parts of the Property may become subject is set forth on the attached Exhibit
C.
Section 15.4 Easements for Encroachments. The Project, and all portions of it, are subject
to easements hereby created for encroachments between Units and the Common Elements
as follows:
15.4.1 In favor of the Association so that it shall have no legal liability when any
part of the Common Elements encroaches upon a Unit;
15.4.2 In favor of each Owner so that the Owner shall have no legal liability when
any part of the Unit associated with his or her Fractional Ownership Interest encroaches
upon the Common Elements or upon another Unit;
15.4.3 In favor of all Owners, the Association and the Owner of any encroaching
Unit for the maintenance and repair of such encroachments.
Encroachments referred to in this Section include, but are not limited to,
encroachments caused by error in the Condominium Map, by settling, rising or shifting of
the earth, or by changes in position caused by repair or reconstruction of any part of the
Project. Such encroachments shall not be considered to be encumbrances upon any part of
the Project. Encroachments may also include those created by remodeling or
reconstruction provided such work is performed in accordance with plans approved by the
Executive Board.
Section 15.5 Utility Easements. There is hereby created for use by third parties providing
services to the Project a general easement upon, across, over, in and under all of the
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Property for ingress and egress and for installation, replacement, repair and maintenance of
all utilities, including but not limited to water, sewer, gas, telephone, electricity and cable
or other communication systems.
By virtue of this easement, it shall be expressly permissible and proper for the companies
providing electrical, telephone and other communication services to erect and maintain the
necessary equipment on the Property and to affix and maintain electrical, communications
and telephone wires, circuits and conduits under the Property, all in order to serve the
Property.
Any utility company using this general easement shall use its best efforts to install and
maintain the utilities provided without disturbing the uses of the Owners, the Association
and Declazant; shall prosecute its installation and maintenance activities as promptly as
reasonably possible; and shall restore the surface to its original condition as soon as
possible after completion of its work.
Should any utility company furnishing a service covered by the general easement request a
specific easement by separate recordable document, Declazant or the Executive Board shall
have, and aze hereby given, the right and authority to grant such easement upon, across,
over or under any part or all of the Property without conflicting with the terms hereof.
The easements provided for in this Section shall in no way affect, avoid, extinguish or
modify any other recorded easement on the Property.
The easements provided herein shall be subject to such limitations as may be imposed by
the Executive Boazd with regard to, among other things, location and placement of lines
and equipment, conditions and hours of work and temporary storage of materials and
equipment.
No person or entity shall install any equipment, lines or fixtures to the exterior of the
Building that is subject to this Declazation whether on railings, balconies, exterior walls or
roof, without the express written consent of the Executive Boazd.
Section 15.6 Reservation of Easements. Exceptions and Exclusions. Declarant reserves for
itself and its successors and assigns and hereby grants to the Association the concurrent
right to establish from time to time by declaration or otherwise, utility and other easements
within the Common Elements for purposes including but not limited to paths, walkways,
recreation azeas, ducts, shafts, flues, and conduit installation azeas, consistent with the
condominium ownership of the Project for the best interest of the Owners or any group
thereof and the Association.
Section 15.7 Emergencv Access Easement. A general easement is hereby granted to all
police, sheriff, fire protection, ambulance and all other similar emergency agencies or
persons to enter upon the Property in the proper performance of their duties.
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Section 15.8 Maintenance Easement. An easement is hereby granted to the Association and
any Managing Agent and their respective officers, agents, employees and assigns upon,
across, over, in, under and through the Units and the Common Elements and a right to
make such use of the Units and the Common Elements as may be necessary or appropriate
to perform the duties and functions which they are obligated or permitted to perform
pursuant to this Declaration.
Section 15.9 D 'rams e~ ement. An easement is hereby reserved to Declarant and its
successors and assigns and granted to the Association and its officers, agents, employees,
successors and assigns to enter upon, across, over, in and under any portion of the Project
for the purpose of changing, correcting or otherwise modifying the grade or drainage
channels of the Property so as to improve the drainage of water on the Property.
Section 15.10 Easements of Access for Repair. Maintenance, and Emer eg ncies. Some of the
Common Elements are or may be located within the Units or may be conveniently
accessible only through the Units. The Association shall have the irrevocable right, to be
exercised by the Association as the Owners' agent, to have access to each Unit and to all
Common Elements from time to time during such reasonable hours as may be necessary for
the maintenance, repair, removal or replacement of any of the Common Elements therein or
accessible therefrom or for making emergency repairs therein necessary to prevent damage
to the Common Elements or to any Unit. In addition, an easement is hereby created for
such Common Elements as they currently exist within the Units. Subject to the provisions
of Section 8.3 above, damage to the interior of any part of a Unit resulting from the
maintenance, repair, emergency repair, removal or replacement of any of the Common
Elements or as a result of emergency repair within another Unit at the instance of the
Association or of Owners shall be a Common Expense.
Section 15.11 Declarant's Ruts Incident to Construction and Mazketing. Declarant, for itself
and its successors and assigns, hereby retains a right and easement of ingress and egress
over, in, upon, under, across and through the Property and the right to store materials on
the Property and to make such other use of the Property as may be reasonably necessary or
incident to the complete construction and sale of the Project, including, but not limited to,
materials, equipment, machinery, sales offices and directional and marketing signs;
provided, however, that no such rights shall be exercised by Declarant in such a way as to
unreasonably interfere with the occupancy, use, enjoyment or access by any Owner, or
family members, guests, employees or invitees of an Owner. Declarant, for itself and its
successors and assigns, hereby retains a right to maintain any Unit(s) as sales offices,
management offices or models for mazketing and sales of Fractional Ownership Interests
within this Project from time to time so long as Declarant, or any Successor Declarant,
continues to be an Owner or lessee of such Unit. The use by Declarant of any Unit as a
model, office or other use shall not affect the Unit's designation on the Map as a sepazate
Unit.
Section 15.12 Right of Decl~t and Associafion to Own Units and to Use Common Elements.
An easement is hereby reserved by Declarant for itself and its successors and assigns and
granted to the Association and its officers, agents, employees, successors and assigns to
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maintain offices, storage azeas, conference areas and recreational azeas for use by the
Association within the Common Elements, subject to all rules and regulations established
under this Declazation and the Association Documents.
Section 15.13 Remodeline Easement. Declarant, for itself and its successors and assigns,
retains a right and easement in and about the Building for the construction and installation
of any duct work, additional plumbing or other additional services or utilities in the
Common Elements or in connection with the improvement or alteration of any Unit,
including the right of access to such areas of the Common Elements or Units as is
reasonably necessary to accomplish such improvements.
Section 15.14 Reservation for Relocation, Combination. Subdivision or Resignation of Units.
Declarant hereby reserves to itself an easement and right-of--way over, upon and across
the Property for construction, utilities, drainage, and for use of the Common Elements as
may be reasonably necessary or incident to the construction of improvements on the
Property; provided, however, that no such rights shall be exercised by Declarant in a way
which unreasonably interferes with the occupancy, use, enjoyment, or access to the
Project by the Owners. The location of these easements and rights-of--way may be made
certain by Declarant or the Association by instruments recorded in the Records.
Section 15.15 Easements Deemed Created. All conveyances of Fractional Ownership
Interests hereafter made, whether by Declarant or otherwise, shall be construed to grant and
reserve the easements contained in this Articie 15, even though no specific reference to
such easements or to this Article 15 appears in the instrument for such conveyance.
ARTICLE 16 -ASSOCIATION AS ATTORNEY-IN-FACT
Section 16.1 Annointment. Each and every Owner hereby irrevocably constitutes and
appoints the Association as such Owner's true and lawful attorney-in-fact in such Owner's
name, place and stead for the purpose of dealing as a fiduciary on behalf of the Owners
collectively, with the Project upon its damage, destruction, condemnation or obsolescence
as provided below in Articles 17, 18, and 19. In addition, the Association, or any insurance
trustee or substitute insurance trustee designated by the Association or if the power to
appoint an insurance trustee has been delegated to the Managing Agent, the Managing
Agent, is appointed as attorney-in-fact under this Declazation for the purpose of purchasing
and maintaining insurance and appointing an insurance trustee under Article 11 above,
including: (a) the collection and appropriate disposition of the proceeds of such insurance;
(b) the negotiation of losses and the execution of releases of liability; (c) the execution of
all documents; and (d) the performance of all other acts necessary to accomplish such
purpose. The Association, or any insurance trustee, shall hold or otherwise properly
dispose of any insurance proceeds in trust for the Owners and their Mortgagees, as their
interests may appear. Acceptance by any grantee of a deed or other instrument of
conveyance from Declazant or from any Owner shall constitute appointment of the
attorneys-in-fact as provided above. Notwithstanding any other provision of this
Declazation to the contrary, the Association may exercise its authority as attorney-in-fact
!00053419/ I1 _ 27
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for any purpose permitted pursuant to this Declazation only if, in each and every instance
where such exercise is so permitted, the Executive Boazd approves the exercise of such
authority by the affirmative vote of a majority of the voting Directors. If the Executive
Board fails to so approve any exercise of authority as attorney-in-fact, the Association shall
have such authority as it may have pursuant to the Act. Each Owner's appointment of the
Association as attorney-in-fact as provided in this Section is a power coupled with an
interest, and no further document or instrument is necessary to evidence the Association's
appointment.
Section 16.2 General Authority. As attorney-in-fact, the Association shall have full and
complete authorization, right and power to make, execute and deliver any contract,
assignment, deed, waiver or other instrument with respect to the interest of any Owner
which may be necessary or appropriate to exercise the powers granted to the Association as
attorney-in-fact.
ARTICLE 17 -DAMAGE OR DESTRUCTION
Section 17.1 The Role of the Executive Board. In the event of damage to or destruction of
all or part of the Common Elements or other Property covered by insurance written in the
name of the Association under Article 11, the Executive Boazd shall arrange for and
supervise the prompt repair and restoration of the damaged azeas of the Project, including,
without limitation, the floor coverings, fixtures, appliances, furnishings, equipment or other
personal property supplied or installed by Declarant. To the extent that the damage or
destruction is due to the act or omission of an Owner, any member of an Owner's family, or
an Owner's guests, invitees or tenants, then such Owner shall be liable to the Association in
accordance with Section 8.3 above.
Section 17.2 Estimate of Damages or Destruction. As soon as practical after an event
causing damage to or destruction of any part of the Project, the Association shall, unless
such damage or destruction shall be minor, obtain an estimate or estimates that it deems
reliable and complete of the costs of repair and reconstruction of that part of the Project
damaged or destroyed. "Repair and reconstruction" as used in this Article 17 shall mean
restoring the damaged or destroyed part of the Project to substantially the same condition
in which it existed prior to the damage or destruction, with each Unit and the Common
Elements having substantially the same vertical and horizontal boundaries as before.
Section 17.3 Repair and Reconstruction. As soon as practical after obtaining estimates, the
Association shall diligently pursue to completion the repair and reconstruction of the part
of the Project damaged or destroyed. As attorney-in-fact for the Owners, the Association
may, subject to statutory requirements for the approval of Special Assessments, take any
and all necessary or appropriate action to effect repair and reconstruction, and no consent
or other action by any Owner shall be necessary in connection with that action.
{00053A19/ 1} _4R-
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Section 17.4 Funds for Repair and Reconstruction The proceeds received by the
Association from any casualty or hazard insurance shall be used for the purpose of repair,
replacement and reconstruction.
Section 17.5 Insurance Proceeds Sufficient to Repair' . 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 such
reconstruction, and the improvements shall be promptly repaired and reconstructed. The
Association shall have full authority, right and power as attorney-in-fact to cause the repair
and restoration of the improvements. Assessments for Common Expenses shall not be
abated during the period of insurance adjustments and repair and reconstruction.
Section 17.6 Insuraztce Proceeds Insufficient to Repair: Special Assessment Remedies for
Failure to Pav Special Assessment. If the insurance proceeds are insufficient to repair and
reconstruct the improvements, 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 Assessment to be made against all of the Owners and their
Fractional Ownership Interests. Any such Special Assessment shall be a Common Expense
in accordance with Section 9.4 above. The Association shall have full authority, right and
power as attorney-in-fact to cause the repair, replacement or restoration of the
improvements using all of the insurance proceeds for such purpose, notwithstanding the
failure of an Owner to pay the Special Assessment.
Any Assessment provided for in this Section shall be a debt of each Owner and a lien on
the Owner's Fractional Ownership Interest and may be enforced and collected as provided
in Article 9 above. In addition, the Association as attorney-in-fact shall have the absolute
right and power to sell the Fractional Ownership Interest of any Owner refusing or failing
to pay such Special Assessment within the time provided, and if not so paid, the
Association shall cause to be recorded a notice that the Fractional Ownership Interest of the
delinquent Owner shall be sold by the Association as attorney-in-fact pursuant to the
provisions of this Section. The delinquent Owner shall be required to pay to the
Association the costs and expenses for filing the notice, interest at the Maximum Rate on
the amount of the Special Assessment and all reasonable attorneys' fees. The proceeds
derived from the sale of such Fractional Ownership Interest shall be used and disbursed by
the Association as attorney-in-fact in the following order:
17.6.1 For payment of real property ad valorem taxes, special assessment liens duly
imposed by a governmental subdivision and customary expenses of sale;
17.6.2 For payment of the balance of any priority lien granted to the Association by
law;
17.6.3 For payment of unpaid Association Assessments, interest, costs, late
charges, expenses and attorneys' (and legal assistants') fees;
{00053419/ I) _3q_
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17.6.4 For payment of any other junior liens or encumbrances affecting the
Fractional Ownership Interest in the order of and to the extent of their priority; and
17.6.5 For payment of the balance remaining, if any, to the Owner of the Fractional
Ownership Interest.
Section 17.7 Repairs. All repairs and reconstruction contemplated by this Article 17 shall
be performed substantially in accordance with this Declaration, the Map and the original
plans and specifications for the Project, unless other action is approved by the Association
in accordance with the requirements of this Declaration and the other Association
Documents.
Section 17.8 Notice of Damage or Destrucfion. In the event that any portion of the Project
encompassing more than one Unit is substantially damaged or destroyed by fire or other
casualty, then written notice of the damage or destruction shall be given by the Association
to each Owner and First Mortgagee of the affected Units within a reasonable time
following the event of casualty damage.
ARTICLE 18 -OBSOLESCENCE
Section 18.1 Adoption of Plan; Rights of Owners. The Members of the Association
representing sixty-seven percent (67%) or more of the total number of votes entitled to be
cast on Association matters may agree that the Project is obsolete and adopt a written plan
for the renewal and reconstruction thereof. Written notice of the adoption of such a plan
shall be given to all Owners and a copy of such plan shall be recorded in the Records, and
the expense of renewal and reconstruction shall be payable by all of the Owners as a
Common Expense.
Section 18.2 Sale of Obsolete Units. The Members of the Association representing sixty-
seven percent (67%) or more of the total number of votes entitled to be cast on Association
matters may agree that the Units are obsolete and that the Project should be sold. In such
instance, the Association shall immediately record in the Records, a notice setting forth
such fact or facts, and upon the recording of such notice by the Association, the Project
shall be sold by the Association, asattorney-in-fact for all of the Owners, free and clear of
the provisions contained in this Declaration, the Condominium Map and the articles of
incorporation and Bylaws. Unless otherwise agreed in writing by all the Owners, the sale
proceeds (and any insurance proceeds under Article 17 above) shall be divided amongst the
Owners based upon the number of Fractional Ownership Interests owned at such time, and
such proceeds shall be paid into separate accounts, each such account representing one
Fractional Ownership Interest, as the case may be. Each such account shall be in the name
of the Association, and shall be further identified by the Unit designation and the name of
the Owner and designated as an agency account. From each separate account the
Association, as attorney-in-fact, shall use and disburse the total amount of such accounts,
without contribution from one account to another, for the same purposes and in the same
order as is provided in Sections 17.6.1 through 17.6.5 above.
{00053419/ 1) _¢p_
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ARTICLE 19 -CONDEMNATION
Section 19.1 Consequences of Condemnation. If, at any time or times during the
continuance of the Project pursuant to this Declazation, all or any part of the Project shall
be taken or condemned by any public authority, sold or otherwise disposed of in lieu or in
avoidance of condemnation, then all compensation, damages or other proceeds of
condemnation, the sum of which is refereed to as the "condemnation award" below, shall be
payable to the Association, and the provisions of this Article 19 shall apply.
Section 19.2 Complete Taking. In the event that the entire Project is taken or condemned,
sold or otherwise disposed of in lieu or in avoidance of condemnation, the condominium
ownership pursuant to this Declazation shall terminate, subject to the provisions of Section
19.7 below. The condemnation award shall be paid to the Association for the use and
benefit of the Owners and the Mortgagees as their interests may appear. Such award shall
be apportioned among the Owners and the Mortgagees based upon the number of
Fractional Ownership Interests owned at such time, provided, however, that if a standazd
different from the value of the Project as a whole is employed to measure the condemnation
award in the negotiation, judicial decree or otherwise, then in determining such
apportionment the same standard shall be employed. The Association shall, as soon as
practical, determine the share of the condemnation awazd to which each Owner and
Mortgagee is entitled, and such shazes shall be paid into sepazate accounts and disbursed as
soon as practical for the same purposes and in the same order as is provided in Sections
17.6.1 through 17.6.5 above.
Section 19.3 Partial Takine. In the event that less than the entire Project is taken,
condemned, sold or otherwise disposed of in lieu or in avoidance of condemnation, the
condominium ownership under this Declaration shall not terminate. Each Owner of a
Fractional Ownership Interest so taken or condemned (and Mortgagee holding an interest in
such Owner's Fractional Ownership Interest) shall be entitled to a share of the
condemnation awazd to be determined under the following provisions. The condemnation
award shall be paid to the Association for the use and benefit of the Owners and the
Mortgagees as their interests may appear. As soon as practical, the Association shall
reasonably and in good faith allocate the condemnation award between compensation,
damages or other proceeds, and shall apportion the amounts so allocated among the
Owners, unless otherwise required under the Act, as follows:
19.3.1 The total amount allocated to a taking of or injury to the Common
Elements shall be apportioned to the Association;
19.3.2 The total amount allocated to severance damages shall be apportioned
to the Owners and Mortgagees of Fractional Ownership Interests which were not taken or
condemned;
{00053419 / 1) _ 41 _
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19.3.3 The respective amounts allocated to the taking of or injury to a
particular Unit shall be apportioned to the Owner and Mortgagees of Fractional Ownership
Interests therein; and
19.3.4 The total amount allocated to consequential damages and any other
takings or injuries shall be apportioned as the Association determines to be equitable under
the circumstances.
If an allocation of the condemnation award is already established in negotiation,
judicial decree or otherwise, then in allocating the condemnation awazd, the Association
shall employ such allocation. Distribution of apportioned proceeds shall be made by
checks payable jointly to the respective Owners and their respective Mortgagees.
Section 19.4 Reorganization. In the event a partial taking results in the taking of a Unit,
the Owners of any Fractional Ownership Interests thereof shall automatically cease to be
members of the Association. Thereafter, subject to the provisions of Section 19.7 below,
the Association shall reallocate the ownership, voting rights and Assessment ratios
determined in accordance with this Declaration according to the same principles employed
in this Declazation at its inception and shall submit such reallocation to the Owners of the
remaining Fractional Ownership Interests therein for the amendment of this Declaration.
Section 19.5 Repair and Reconstruction. Any repair and reconstruction necessitated by
condemnation shall be governed by the procedures contained in Article 18 above.
Section 19.6 Notice of Condemnation. In the event that any portion of the Project shall be
made the subject matter of any condemnation or eminent domain proceeding or is
otherwise sought to be acquired by a condemning authority, then timely written notice of
such condemnation shall be given by the Association to each Owner and First Mortgagee.
Section 19.7 Limitations on Actions of Association. Except as provided by statute, in case
of condemnation, the Association may not take any of the actions specified in Sections 20.1
through 20.6 below if such actions aze rejected by (a) Members of the Association
representing sixty-seven percent (67%) or more of the total number of votes entitled to be
cast on Association matters, and (b) non-Declarant Owners representing sixty-seven (67%)
or more of the total number of votes entitled to be cast on Association matters by non-
Declarant Owners.
ARTICLE 20 -OTHER ASSOCIATION MATTERS
Section 20.1 Association Matters. Each Owner, by accepting a deed to a Fractional
Ownership Interest, recognizes that: (a) the Project is subject to the Association
Documents, (b) by virtue of his ownership of a Unit or Fractional Ownership Interest
(pursuant to Article 23), he has become a Member of the Association, (c) such Owner is
subject to any rules and regulations of the Association, and (d) pursuant to the Association
Documents, an Owner is a Member of the Association and is entitled to all of the benefits
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and subject to all of the burdens of such membership. Each Owner, by accepting a deed to
a Fractional Ownership Interest, acknowledges that he has received a copy of the
Declazation and the articles of incorporation, Bylaws and rules and regulations of the
Association. Each Owner agrees to perform all of his obligations as a Member of the
Association as they may from time to time exist, including, but not limited to, the
obligation to pay Assessments as required under the Association Documents, including the
Declazations.
Section 20.2 Enforcement of Association Documents.
20.2.1 The Association shall have the power, subject to the primary power of
the Executive Boazd of the Association, to enforce the covenants and restrictions contained
in the Association Documents, but only as said covenants and restrictions relate to the
Project, and to collect Assessments on behalf of the Association.
20.2.2 This Declaration is intended to supplement the Association
Documents as they apply to the Property. In addition to all of the obligations which are
conferred or imposed upon the Association pursuant to this Declazation and the Bylaws or
articles of incorporation of the Association, the Association shall be subject to all of the
obligations imposed upon it pursuant to the Association Documents. The Association and
all committees thereof shall also be subject to all superior rights and powers that have been
conferred upon the Association pursuant to the Association Documents. The Association
shall take no action in derogation of the rights of, or contrary to the interests of, the
Association.
Section 20.3 Architectural Control.
20.3.1 No addition, change or alteration to the Common Elements, and no
interior, exterior or structural addition, change or alteration to any Unit shall be permitted
by any owner other than the Declarant.
Section 20.4 Limit on Timesharin¢. Each Owner acknowledges that Declarant intends to
create Fractional Ownership Interests with respect to Units within the Project. Other than
the right to create Fractional Ownership Interests as contemplated by this Declaration
(specifically including, without limitation, the Plan of Fractional Ownership) granted and
reserved to (a) Declarant, (b) Declazant's affiliates (defined as person or entities
controlling, controlled by or under common control with Declarant), and (c) Declazant's
successors, transferees and specific assigns, and their respective officers, agents,
employees, and assigns, no Unit shall be used for the operation of a timesharing, fraction-
sharing, interval ownership, private fractional ownership, membership program, vacation,
exchange network or system or similar program whereby the right to exclusive use of the
Unit is alternated or scheduled among participants in the program on a fixed or floating
time schedule over a period of years whether by written, recorded agreement or otherwise,
without the written consent of Declarant. Unless specifically granted Declazant's rights
hereunder, purchasers of Units or Fractional Ownership Interests from Declarant, and all
subsequent purchasers thereafter, aze restricted by the timesharing limitations set forth in
this Section. This Section shall not prohibit an Owner of a Fractional Ownership Interest
from granting exclusive use of a Unit to its employees or clients for no consideration.
Section 20.5 Acknowledgments. Each Owner is hereby advised of the following matters
affecting the Project, Aspen Ski Resort> and the Town of Aspen and the Owners' use and
enjoyment thereof:
20.5.1 The Project is benefited by the fact that it is located near or adjacent to the
Aspen Ski Area (the "Ski Area"). The Ski Area represents a unique and desirable amenity
that includes many year-round activities. As such, the Ski Area may generate an
unpredictable amount of visible, audible and odorous impacts and disturbances from
activities relating to the construction, operation, use and maintenance thereof. The
activities associated with the Ski Area include, without limitation: (i) vehicular and non-
vehicular traffic, including, without limitation, (a) buses, vans, snowcats, snowmobiles and
other vehicles which transport residents and guests of the Town of Aspen over, around and
through the Ski Area and the Town of Aspen, and (b) construction vehicles and equipment;
(ii) activities relating to the construction, operation and maintenance of ski trails, skiways
and skier bridges and tunnels relating to the Ski Area, including, without limitation, (a)
construction, operation and maintenance of Ski Area access roads, snow-making equipment
and chair lifts, gondolas and other skier transportation systems, and (b) operation of snow-
grooming vehicles and equipment and safety and supervision vehicles; and (iii) activities
relating to the use of the Ski Area, including, without limitation, skiing, snow boarding,
hiking, horseback riding, bicycling and other recreational activities.
20.5.2 In addition to the general provisions of subsection 20.5.1, certain areas in
other buildings in the Town of Aspen, may be used in connection with the operation of the
Ski Area, including, without limitation, the use of such azeas for purposes of snowcat
storage, maintenance and repair and ski patrol purposes. An unpredictable amount of
visible, audible and odorous impacts and disturbances may occur from activities relating to
the use of areas in connection with operation of the Ski Area. Owners acknowledge that
substantial operations relating to the Ski Area occur at night, and the impacts and
disturbances referenced in this subsection and in subsection 20.5.1 may occur at any time.
20.5.3 Substantial construction-related activities relating to the development within
or neaz the Town of Aspen may cause considerable noise, dust and other inconveniences to
the Owners.
20.5.4 No interest in or right to use any amenity located neaz the Project, such as
swimming pools, spas, golf facilities, ski facilities or the like, shall be conveyed to any
Owner pursuant to this Declaration. The owners of any facilities that are not part of the
Project shall have the right, in their sole discretion, to remove, relocate, discontinue
operation of, restrict access to, charge fees for the use of, sell interests in or otherwise deal
with such assets in their sole discretion without regazd to any prior use of or benefit to any
Owners. Declarant reserves the right to negotiate and enter contracts in the future with
JIYVK]d10 / l l _ dd
third parties to provide such amenities and other benefits of ownership on behalf of the
Association and the Owners.
20.5.5 Declazant is not the operator of the Ski Area, and accordingly, Declarant
cannot make any representations relating thereto. Declazant does not make nor any of its
employees or agents have the authority to make any representations regarding the opening
or closing dates of the Ski Area in any given year. The operator of the Ski Area may
decide, in its sole discretion, whether and when any or all of the chairlifts within the Ski
Area should be operated.
20.5.6 Ownership of real property in mountain azeas involves certain inherent
inconveniences. These include, but are not limited to: (a) dripping water onto decks and
porches from snow melt, (b) snow and ice build-up on decks, roofs, gutters and porches
during winter months, (c) the need to open windows to cool a Unit during certain summer
periods, in that due to the temperate summer climate air conditioning may not be provided
in all parts of the Building, and (d) other inconveniences arising from the variable weather
conditions in the Rocky Mountains.
20.5.7 Use of wood burning fireplaces, stoves and other devices is restricted within
Town of Aspen by governmental regulation.
20.5.8 Declarant reserves the right to negotiate and enter contracts with third
parties to provide services and benefits on behalf of the Association and the Owners.
ARTICLE 21 - DECLARANT'S RIGHTS REGARDING TRANSFER
Any right or any interest reserved or contained in this Declaration for the benefit of
Declarant may be transferred or assigned by Declazant, either sepazately or with one or
more other such rights or interests, to any person, corporation, partnership, association or
other entity, by written instrument executed by both Declazant and the transferee or
assignee and recorded in the Records. Upon such recording, Declazant's rights and
obligations under this Declaration shall cease and terminate to the extent provided in such
instrument.
ARTICLE 22 -MISCELLANEOUS
Section 22.1 Restriction on Declarant Powers. Notwithstanding anything to the contrary
herein, no rights or powers reserved to Declarant hereunder shall exceed the time
limitations or permissible extent of such rights or powers as restricted under the Act. Any
provision in this Declazation in conflict with the requirements of the Act shall not be
deemed to invalidate such provision as a whole but shall be adjusted as is necessary to
comply with the Act. No rights of Declarant under the Association Documents may be
abridged without the consent of Declarant.
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Section 22.2 Term. The covenants and restrictions of this Declaration shall run with and
bind the land in perpetuity, subject to the termination provisions of the Act.
Section 22.3 Amendment. The provisions of this Declazation may be amended or
terminated, in whole or in part, from time to time, upon the written consent of Members of
the Association representing a majority of the total number of votes entitled to be cast on
Association matters or by the Members of the Association representing a majority of the
total number of votes entitled to be cast on Association matters at a meeting of the Owners
called for that purpose; provided, however, matters not requiring Owner approval as
described in Section 38-33.3-217(1) of the Act may be handled by the Executive Board.
Any provision of this Declazation requiring a vote of more than 50% of the total voting
interest in the Association and/or of a group thereof to be effective may only be amended
by a vote of the applicable aggregate voting interest stated in such provision. In addition:
(a) a majority of the voting Directors of the Executive Board may make, without the
approval of the Members of the Association, changes to the Map or any other Association
Documents to the extent necessary to correct a factual error, and (b) any proposed
amendment to this Declazation which affects any right of Declazant shall require the prior
written approval of Declarant, in addition to the approval requirements otherwise set forth
herein. Provided, however, with respect to the foregoing, that the percentage of the voting
power of the Association necessary to amend a specific clause or provision of this
Declaration shall not be less than the percentage of affirmative votes prescribed for action
to be taken under that clause or provision.
Section 22.4 Unilateral Amendment Riehts Reserved by Declarant. Notwithstanding any
provision in this Declaration to the contrary, Declarant, acting alone, reserves to itself the
right and power to modify and amend this Declazation to the fullest extent permitted under
the Act including, without limitation, to correct clerical, typographical or technical errors,
or to comply with the requirements, standards, or guidelines of recognized secondary
mortgage markets, the Department of Housing and Urban Development, the Federal
Housing Administration, the Veterans Administration, the Federal Home Loan Mortgage
Corporation, the Government National Mortgage Association, or the Federai National
Mortgage Association, or any governmental authority having jurisdiction over the Project.
Declarant reserves the right to amend this Declazation to delete the phrase "or any other
governmental authority having jurisdiction over the Project" in the prior sentence.
Section 22.5 Recording of Amendments. Except as provided in Section 22.4 hereof, any
amendment to this Declaration must be executed by the President of the Association and
shall be immediately effective upon recording in the Records, and approval, if required, of
such amendment may be shown by attaching a certificate of the Secretary of the
Association to the recorded instrument certifying the approval of a sufficient number of
Members of the Association for the amendment.
Section 22.6 Enforcement. Enforcement of the covenants, conditions, restrictions,
easements, reservations, rights-of--way, liens, charges and other provisions contained in this
Declaration, the articles, the Bylaws and the rules and regulations of the Association, all as
amended, shall be by any proceeding at law or in equity against any person or persons,
100053419 / 11 _ d!, _
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including the Association, violating or attempting to violate any such provision. The
Association and any aggrieved Owner shall have the right to institute, maintain and/or
prosecute any such proceedings, and the Association shall further have the right (after
notice and an opportunity to be heard) to levy and collect fines for the violation of any
provision of the aforesaid documents. Any legal action initiated by the Association other
than as described in this Declaration shall require the approval of the Executive Board. In
any action instituted or maintained under this Section, the prevailing party shall be entitled
to recover its costs and reasonable attorneys' fees incurred pursuant thereto, as well as any
and all other sums awarded by the Court. Failure by the Association or any Owner to
enforce any covenant or restriction herein contained shall in no event be deemed a waiver
of the right to do so thereafter.
Section 22.7 Severability. Invalidation of any of the covenants, restrictions or other
provisions contained in this Declaration by judgment or court order shall in no way affect
or limit any other provisions which shall remain in full force and effect.
Section 22.8 Conflict of Provisions. In case of any conflict between this Declaration and
the articles of incorporation or the Bylaws, this Declaration shall control. In case of any
conflict between the articles of incorporation and the Bylaws, the articles of incorporation
shall control.
Section 22.9 Nonwaiver. Failure by Declarant, the Association or any Owner or First
Mortgagee to enforce any covenant, condition, restriction, easement, reservation, right-of-
way or other provision contained in this Declaration shall in no way or event be deemed to
be a waiver of the right to do so thereafter.
Section 22.10 Number and Gender. Unless the context provides or requires to the contrary,
the use of the singulaz herein shall include the plural, the use of the plural shall include the
singular and the use of any gender shall include all genders.
Section 22.11 Cations. The captions to the Articles and Sections of this Declaration are
inserted only as a matter of convenience and for reference, and aze in no way to be
construed to define, limit or otherwise describe the scope of this Declaration or the intent
of any provision of this Declaration.
Section 22.12 Exhibits. All the Exhibits attached to and described in this Declaration are
incorporated in this Declaration by this reference.
ARTICLE 23 -PLAN OF FRACTIONAL OWNERSHIP
Section 23.1 Riel-t to Submit Units to a Plan of Fractional Ownership. Declarant hereby
submits all Units in the Project to a Plan of Fractional Ownership as set forth in this Article. The
provisions of this Article relate only to those Units submitted to the Plan of Fractional
Ownership and shall govern the ownership of Fractional Ownership Interests in Units and the
rights, duties and obligations of Members. The provisions of the Declaration shall apply to all
{00053419/ 11 .47_
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Units and Fractional Ownership Interests created hereunder; provided, however, in the event of
an inconsistency between this Article and the remaining provisions of the Declaration with
respect to the ownership of a Unit or Fractional Ownership Interest and the rights, duties, and
obligations of Members, then the provisions of this Article shall control.
Section 23.2 Conveyance by Purchaser. Each Fractional Ownership Interest shall constitute an
estate in real property separate and distinct from all other Fractional Ownership Interests in the
Unit and other Units, which estate may be sepazately conveyed. A purchaser may acquire more
than one Fractional Ownership Interest and thereafter convey each Fractional Ownership Interest
so acquired separately. In no event, however, shall a Member convey less than one Fractional
Ownership Interest as defined herein or as defined in a deed conveying a Fractional Ownership
Interest, or attempt to subdivide a Fractional Ownership Interest into lesser interests. The specific
rights conveyed to each purchaser of a Fractional Ownership Interest, including, without
limitation, the fractional interest in the Unit owned by and the minimum usage rights granted to
such purchaser, shall be established pursuant to the deed of the Fractional Ownership Interest
from Declarant to each purchaser. No Purchaser or Owner (other than Declarant) shall
encumber in any manner a Fractional Ownership Interest.
It is the intention of the Declarant to convey undivided one-seventeenth (1/17"') fee
ownership interests in each Unit. The total of all Fractional Ownership Interests in a single Unit,
expressed as fractions, shall equal one (or seventeen [17] one-seventeenth [I/17s'] Fractional
Ownership Interests) and expressed as percentages, shall equal 100. Each one-seventeenth
(1/17x') Fractional Ownership Interest will have ascribed to it a specified number of Club Points
quantifying the rights of such Owner to the use and occupancy of the Unit, as reserved in
accordance with the Association Documents.
The statement of intent set forth herein shall not limit the rights of the Declarant, as
reserved herein, to create undivided fee ownership interests (i.e. Fractional Ownership Interests)
of differing fractions and percentages in the Units, subject to the prior written consent of any first
Mortgagee having an interest in the subject Units. Should the Declarant decide to do so, it shall
file a supplement to this Declaration setting forth the use rights of such differing fractions and
percentages. In such case, the rights with respect to such Fractional Ownership Interests will be
different from those stated in this Section for one-seventeenth (1/17th) Fractional Ownership
Interests. However, notwithstanding anything herein to the contrary: (a) all Fractional
Ownership Interests of equal fractions shall have the same number of Club Points ascribed to
such Fractional Ownership Interests, subject to the Association Documents; and (b) Owners,
excluding the Declazant, are expressly prohibited from combining or further dividing Fractional
Ownership Interests.
Section 23.4 l:eeal Descrintion of a Fractional Ownershin Interest. Every contract for sale,
deed, lease, mortgage, trust deed, or other instrument relating to a Fractional Ownership Interest
will legally describe the Fractional Ownership Interest by reference to the Unit number, the
purchaser's fractional interest in the Unit and the purchaser's right to use and occupy the Unit
during periods reserved pursuant to the reservation procedures, or by completing the following
legal description:
(00053419 / t } _ 4g _
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Fractional Ownership Interest No. _ consisting of an undivided
interest in Unit _ of LITTLE RED RESIDENCE,
according to the Declaration of Condominium for LITTLE RED
RESIDENCE, recorded , 200,_, at Reception No. as
amended and supplemented from time to time and according to the
Map for LITTLE RED RESIDENCE recorded , 200, in Plat
Book_ at Page _ ,Reception No. _ as amended and
supplemented from time to time, all in the Office of the Clerk and
Recorder of Pitkin County, Colorado, together with the perpetual use
of 7 seven days per year for each 1/52nd interest owned in
accordance with the Association Documents for LITTLE RED
RESIDENCE.
Any legal description substantially in the form provided above or which is otherwise
sufficient to identify the Fractional Ownership Interest shall be good and sufficient for all purposes
to sell, convey and transfer or otherwise affect a Fractional Ownership Interest and all Common
Elements and easements appurtenant thereto.
A contract or other agreement for the sale of a Fractional Ownership Interest entered into
prior to the filing of this Declaration and Condominium Map in the Records, may legally describe
such Fractional Ownership Interest in substantially the manner set forth above and may indicate
that the Condominium Map and this Declaration are to be recorded.
Section 23.5 Administration and Management. The Executive Board shall perform the
administration and management of the Plan of Fractional Ownership. It is contemplated that the
Executive Board will delegate the responsibility for administration and management of the Plan of
Fractional Ownership, including the powers and duties described in Section 23.7 below, to a
Managing Agent pursuant to a Management Agreement. The Executive Board shall have all
powers necessary or desirable to effectuate any of the purposes provided for herein A Member,
upon becoming the Owner of a Fractional Ownership Interest, shall be a Member of the
Association and shall remain a member for the period of his ownership.
Section 23.6 Acceptance; Enforcement: Indemnification By acceptance of a deed to a
Fractional Membership Interest, a Member agrees to be bound by the terms and conditions of the
Declaration, specifically including, but not limited to, the specific provisions relating to the Plan of
Fractional Membership set forth in this Article. In addition to all remedies provided to the
Association in the Declaration, the Executive Board shall also have the following special remedies
with respect to any Member who fails to pay the Assessments, fails to vacate a Unit or is otherwise
in default of any provision of the Plan of Fractional Membership:
23.6.1 In the event any Member fails to vacate a Unit after termination of a reserved
Allocated Use Period or otherwise uses or occupies or prevents another Member from using or
occupying an Allocated Use Period, that Member shall be in default hereunder and shall be subject
to immediate removal, eviction or ejection from the Unit wrongfully occupied; shall be deemed to
have waived any notices required by law with respect to any legal proceedings regarding the
{000534(9/ t} -49-
r
removal, eviction or ejection; and shall pay to the Member entitled to use the Unit during such
wmngfiil occupancy, as liquidated damages for the wrongful use of the Unit, a sum equal to two
hundred percent (200%) of the fair rental value per day for the Unit wrongfully occupied as
determined by the Executive Board in their sole discretion for each day, or portion thereof,
including the day of surrender, during which the Member wrongfully occupies a Unit, plus all costs
and expenses of enforcement, including attorneys' fees, which amounts may be collected by the
Executive Board in the manner provided herein for the collection of Assessments, including lien
and foreclosure rights.
23.6.2 Withhold use or possession of the Member's Fractional Ownership Interest during
the Allocated Use Period, prohibit the Member from making any reservation pursuant to the
reservation procedures and, upon notice, cancel any reservation previously made by the Member
and rent any Allocated Use Period to which a Member is entitled. Written notice shall be given
to the Member of the suspension of the Member's rights and privileges. However, no such
suspension of the Member's rights and privileges, except a suspension of privileges for the
failure of such Member to pay any Assessments, any portion thereof or any other amount(s) due
hereunder on or before the due date thereof, or imposition of monetary penalties shall be made
except after a meeting of the Executive Board at which a quorum of the Directors are present,
duly called and held for such purpose in the same manner as provided in the Bylaws for the
noticing, calling and holding of a meeting of the Executive Boazd for purposes of transacting
business on behalf of the Members. Written notice of such meeting, the purpose thereof,
including the reasons for the suspension sought or the monetary penalties sought to be imposed,
and whether the Member's defense shall be oral or written, shall be given to the Member against
whom such activity is to be taken at least fifteen (1 S) days prior to the holding of such meeting.
Such notice shall be given as provided at Section 7.10 of this Declaration.
23.6.4 Except as to a transfer to a Mortgagee by foreclosure or deed in lieu of
foreclosure, no transfer of a Fractional Ownership Interest shall be permitted unless and until the
proposed transferor is current as to all Assessments due to the Association and is otherwise not in
default under any other provision of the Declaration. Any purported transfer of a Fractional
Ownership Interest while a Member is delinquent or is in default on any other obligation shall he
null and void. All of the remedies granted by the Association Documents, specifically including
the specific remedies provided for in this Article are cumulative, and the exercise of one right or
remedy by the Association or the Executive Board shall not impair the right of the Association or
the Executive Board to exercise any other remedy. The Executive Board shall not be limited to
the remedies set forth herein and may invoke any other or additional remedies provided for or
allowed by the Act, in law or in equity. The Executive Board may pursue any of the remedies
provided for in whatever order is determined by the Executive Boazd. The failure by the
Executive Board to insist in any one or more instances upon the strict compliance with any
provision of the Association Documents, to exercise any right or option contained therein, to
serve any notice or to institute any action or proceeding, shall not be construed as a waiver or
relinquishment of any such provision, option or right.
Section 23.7 Right of First Refusal to Purchase Fractional Ownership Interests. If an Owner
desires to sell, convey or transfer a Fractional Ownerslug Interest, and for so long as the
Declazant owns one or more Fractional Ownership Interests, the Declarant shall have the right of
(00053419 / t } - 50 -
~ .~.
first refusal to purchase the Fractional Ownership Interest under the same terms and conditions
as are offered to or by a bona fide third party, including financing.
Accordingly, each Owner desiring to sell the Owner's Fractional Ownership Interest must
notify the Declarant in writing not less than thirty (30) days prior to the proposed closing date
and must include a complete, written copy of the proposed sales contract. Within fifteen (15)
days after receipt of such notice and a copy of the proposed sales contract, the Declarant shall
determine whether the Declarant desires to exercise its right of fast refusal as set forth herein. If
the Declarant elects to exercise its right of fast refusal, the Declarant shall notify the Owner in
writing of such election within fifteen (15) days after receipt of Owner's written notice and sales
contract, and the purchase by the Declarant shalt be closed on the closing date as outlined in the
written notice and proposed sales contract.
If the Declarant fails to notify the Owner of its intent to exercise its right of first refusal
within such fifteen (IS) day period, the Owner may proceed to close on the Owner's transaction
with such bona fide third party. In addition, any permitted sale between an Owner and a bona
fide third party shall be deemed to contain a provision requiring that any sums due to the
Association as Assessments must be paid in full as a condition of closing of the sale.
In any and all events, the Declarant's right of first refusal as set forth above shall be a
requirement of any successor in title to an Owner, the same being a covenant running with the
land.
Section 23.8 Limitation on Transfers by Owners. No Owner, other than the Declarant, may
sell, transfer, exchange, assign, convey, or otherwise dispose of a Fractional Ownership Interest
for a period of one year following the date of acquisition of such Fractional Ownership Interest
without the express written consent of the Declarant.
Section 23.9 Declarant's Right to Repurchase Fractional Ownership Interest upon
Abandonment of Plan of Fractional Ownership by Declarant.
For a period of twenty-four months after the close of escrow of the fast conveyance of a
Fractional Ownership Interest, Declarant may abandon the Plan of Fractional Ownership Interest
upon written notice to each Owner and Eligible Mortgagee.
If Declarant abandons the Plan of Fractional Ownership, Declarant shall purchase, and each
Owner shall sell to Declarant, each Fractional Ownership Interest owned by such Owner. The
purchase price Declarant shall pay for each Fractional Ownership Interest shall be the original
purchase price paid by such Owner for the Fractional Ownership Interest. In any and all events,
the Declarant's right to repurchase as set forth above and the Owners obligation to sell and
relinquish its Fractional Ownership Interest shall be enforceable against and binding upon any
successor in title to an Owner, and shall be deemed a covenant running with the land.
Section 23.10 Lodging Rules and Regulations. All Owners shall be entitled to make
reservations for the use and occupancy of Fractional Ownership Interests pursuant to the
Lodging Rules and Regulations established from time to time by the reservation services
{00053419 / 1) - 51 -
~-. .~
.,. ~~
provider. The Lodging Rules and Regulations shall specify the manner in which
reservations for the use and occupancy of Fractional Ownership Interests are to be
requested and confirmed. The Lodging Rules and Regulations shall contain schedules,
conditions, restrictions and limitations as are deemed necessary or desirable by the
reservation services provider. The Lodging Rules and Regulations may be amended from
time to time by the reservation service provider. The Lodging Rules and Regulations may
establish nightly usage fees, which may distinguish among Owners, their guests, renters
and Exchange Users.
Section 23.11 Reservation Services and Exc a Program. The Declarant, through an
agreement with Boutique Club International, Inc. (the "Club Affiliation Agreement"), has
affiliated the Plan of Fractional Ownership with a reservation services and exchange
program operated and administered by Boutique Ctub International (the "Boutique Club"),
providing Owners (i) reservation services for the use and occupancy of the Fractional
Ownership Interests, and (ii) the opportunity to use and occupy accommodations at other
resorts affiliated with the Boutique Club ("Club Resorts"), and Exchange Users to use and
occupy the Fractional Ownership Interests, pursuant to the terms and conditions of the
documents governing the Boutique Club (the "Boutique Club Documents").
Section 23.12 Appurtenant to Fractional Ownership Interests. Membership in the Boutique
Club is appurtenant to each Fractional Interest. Owners are automatically enrolled in the
Exchange Program upon purchase of a Fractional Ownership Interest.
Section 23.13 Master Reservation Stem. As a part of the services provided to Owners
through the Boutique Club, Boutique Club International, Inc., administers the master
reservation system through which Owners reserve the use and occupancy of the Fractional
Ownership Interests, and which owners of interests at other Club Resorts reserve the use
and occupancy of accommodations at their respective Club Resorts. In the event that the
Club Affiliation Agreement is terminated in accordance with its terms, the Owners hereby
designate the Declarant as their agent to establish reservation procedures for the Owners to
reserve the use and occupancy of the Fractional Ownership Interests to replace the
reservation procedures set forth in the Lodging Rules and Regulations as necessary.
Furthermore, as set forth in the Club Affiliation Agreement, upon the termination of the
Plan of Fractional Ownership's affiliation with the Boutique Club, the Plan of Fractional
Ownership will cease to be a Club Resort and the Owners shall no longer have access to the
other Club Resorts through the Boutique Club's master reservation system, and owners at
other Club resorts will no longer have access to the Little Red Residence.
Section 23.14 Boutique Club Documents. The Declarant may arrange for the assignment of
the use and occupancy of the Units by Exchange Users and the use and occupancy of
accommodations at other Club Resorts by Owners pursuant to the terms and conditions of
the Club Affiliation Agreement. Boutique Club International, Inc., shall have the right to
amend the terms and conditions of the Club Affiliation Agreement, the Lodging Rules and
Regulations and other Boutique Club Documents from time to time as set forth therein;
provided, however, that any such amendment shall be consistent with the terms and
{00053419 / 1 } - 52
~-, ,~~.
~.. ~.,
provisions of the Association Documents and shalt not adversely affect the rights of the
Owners thereunder.
Section 23.15 Home Resort Preference Period. During the term of the Club Affiliation
Agreement, all Units shall be available for use by Owners, subject to the home resort
preference period priority right and other provisions set forth in the Lodging Rules and
Regulations.
Section 23.16 Use of Units. The Owners shall reserve, use and occupy Units in accordance
with the Lodging Rules and Regulations. No Owner of a Fractional Ownership Interest
may occupy a Unit dedicated to the Plan of Fractional Ownership except during such
period as the Owner has received written notice of a confirmed reservation for a Unit in
accordance with the Lodging Rules and Regulations. Reservation and occupancy is not
specific to a particulaz Unit. Subject to all of the terms and conditions contained in the
Lodging Rules and Regulations or other provisions of the Association Documents which
pertain solely to the Plan of Fractional Ownership, the Owner of a Fractional Ownership
Interest shall be entitled to apply the Club Points allocated to such Owner each Use Year
toward the use and occupy of a Unit, which includes the exclusive right to use and enjoy
the appurtenances thereto.
Section 23.17 Service Periods. The Association Documents may provide that the Declarant
shall have the right to reserve for each Unit as a service period a maximum of seven (7)
days per Use Year on asuper-priority basis.
Section 23.18 Declarant's RipJtt to Rent Units. Notwithstanding any other provision of this
Declaration, the Declarant may rent or lease, as a hotel, lodge, or other accommodation
facility, as part of its sales and marketing program, or otherwise, any of the Units or
Fractional Ownership Interests that it owns or that are unreserved or otherwise not in use,
without the approval of the Association or the Owners. Any revenues received by
Declazant pursuant to this right shall be the sole property of Declazant.
23.18.1 Declarant, its successors, assigns or designees shall have the exclusive right
to, and may operate an on-site rental agency program on the premises of Little Red
Residence, including (i) the exclusive right to advertise Little Red Residence for
commercial purposes related to the Restaurant and/or Units, including Fractional
Ownership Interests, and, (ii) the exclusive right of Declarant, its successors, assigns or
designees, to operate within Little Red Residence, a rental operation which may include,
but is not limited to: a reception desk, lobby azea, management offices and similar such
facilities and activities. No other Owner, nor any other party, shall operate such facilities
or similaz facilities within the Condominium.
23.18.2 Fractional Ownership Interests and Units shall be made available for short-
term rental when not in use by the Owner, the Owner's invitees, or Exchange Users. Units
that are available for rental shall be listed at competitive rates in a central reservation
system. The Association shall permit walk-in rental of Units, and shall not limit rental
[ooosaal9 / 1 } - 53 -
v
~.
arrangements as only weekly rentals; instead the Association shall permit shorter stays,
split-week rentals, and similar flexible arrangements.
23.18.3 Owners shall receive afive-year schedule, at closing, that is updated on a
periodic rolling basis, and Owners must provide thirty days' notice of their intent not to use
a Fractional Ownership Interest unless provided otherwise under an Exchange Program.
No Owner may utilize a Fractional Ownership Interest for any period in excess of thirty
consecutive calendaz days. No Owner may store a vehicle in a pazking space on-site when
that Owner is not utilizing a Fractional Ownership Interest.
(00053419 / t } - 54 -
r ~~
a., ~.~
DECLARANT:
LITTLE RED SKI HAUS, LLC, a Colorado Limited Liability Company
ay:
Its:
Date:
STATE OF )
ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this_day of ,
2006, by as of Little Red Ski Haus,
LLC, a Colorado Limited Liability Company, the Declarant.
WITNESS my hand and official seal.
Notary Public
My commission expires:
[SEAL]
(00053419 / t } - 55 -
.~
EXHIBIT A
Legal Description
~...:.
LOT O AND THE WEST ONE-HALF OF LOT P, BLOCK 69, CTfY AND
TOWNSITE OF ASPEN, COUNTY OF PITKIN, STATE OF COLORADO including any
appurtenant easements or licenses, subject to any lot line adjustments made subsequent to the
recording of these Declarations.
{00053419 / 1 } - 56 -
...,
EXHIBIT B
Allocated Interest
An Allocated Interest of a Unit shall equal 1/12`". With respect to a Unit divided into
Fractional Ownership Interests constituting a 1/52 shaze of such Unit, each Fractional
Ownership Interest shall have an Allocated Interest of 1/52.
(00053419 / I } - 57 _
-, "~
..,,, .,,
EXHIBIT C
Permitted Ezceptiona
To be provided by Title Company. (SEE §15.3)
{00053419 / 1 } - 58 -
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APPLICANT:
Name:
Location
Name:
Address:
Tao-a66-/o419J as.o
ATTACHMENT 2 -LAND USE APPLICATIQN
street
-~lir ~,~CI=~ RC,dC
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appropriate)
1_IGI.}f'a
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Name: ~ ~ ~`~ ~~ ~ /Q~e ~
Address:
Phone #: ~R 7 ~ Qa'j - ~~/ tj'~ .
TYPE OF APPLICATION: (please check all that apply):
^ Conditional Use ^ Concepntal PUD ^ Conceptual Historic De~rt.
^ Special Review ^ Final PUD (r& PUD Anrerrdment) ^ Final Historic Development
^ Design Review Appeal ^ Conceptual SPA ^ Minor Historic Devi
^ GMQS Allotment ^ Final SPA (& SPA Amendment) ^ Historic Demolition
^ GMQS Exemption ^ Subdivision ^ Historic Designation
^ ESA - 8040 Crreenline, Stream ^ Subdivision Exemption (includes ^ Small Lodge Conversion/
Margin, Hallam Lake Bluff, condominiumintion) Expansion
Mountain View Flare ~
^ Lot Split ^ Temporary Use ~ /
Oth ~ ~" ~~r ~ ~
~ r
~
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n Lot Line Adiustment I-I Text/Man Amendment S ~
F'
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c
rdj~-K 'fa 1,tles~l-terrl Yeafc 1Sotai^i tt,`G6t~tj, LGG ~// ~o J
Ha a you attached the following? ~ ~ FEE5 DUE: $ ~ l t9
^ Pre-Application Conference Summary
^ Attachtttent #1, Signed Fee Agreement
^ Response to Attachment #3, Dimensional Requirements Form
^ Response to Attachment #4, Submittal Requirements- Including Written Responses to Review Standards
All pleas that are larger than 85" a il" must be folded and a floppy disk with an electronic copy of all written
teat (Microsoft Word Format) must be subautted as part of the application.
RETAIN FORPERA13~,P'a;°' h~'~`"
~~.
WESTERN PEAK
PROFFSSIONAI. SFRVICF, INVFGTMFNTS & RFAI. FSTATF DF VFI OVMiNT
HAND DELIVERED
Joyce Aligaier
Deputy Planning Director
City of Aspen
130 South Galina Street
Aspen, CO 81611
December 15, 2006
David R. Fiore
President
RGt~.~~~ ~eL, (S~?.oo6
RE: Little Red Ski Haus, LLC Condominium Time Share Project
118 East Cooper Avenue, Aspen CO 81611
Dear Ms. Allgaier:
I am the President of Western Peak, LLC and Principal Managing Partner for the Little Red Ski
Haus, LLC. In my capacity I am the authorized agent to file the land use application and
pertinent documents mentioned below in accordance with our PUD approvals from the City. I
have been in this capacity since we acquired the property in 200].
Please find enclosed the following: (1) Land Use Application; (2) A check #1070 in the amount
of $546.00; (3) Condominium Declarations; (4) Condominium Map; and (5) The timeshare
exchange program rule and regulations. You will find that the condominium declazations
reviewed by the City in 2004 are substantially the same.
Ultimately, we plan to sell our interest to Western Peak Boutique Club, LLC in which I will
remain a managing member. Our exchange program will be through Boutique Club International
and their master affiliation with Interval International. We are pleased to bring this added value
to the community.
Joyce, I hope to see you today when I deliver this package but if not I look forward to speaking
with you to answer any questions that you may have.
tful ours
~ ~~(
David R. ~ re
DRF:wp
Enclosures (5)
cc: Jason T. Howard, Attorney, Gouger Franzmann and Hooke
Mike Murphy, Boutique Club International
PO Box 4320, Basalt CO 81621
IL (630) 768-4782 CO (970) 927-0815 FAX (970) 927-0816
www.WesternPeak.com _ Email: David@WestemPeak.com
~'"`'
Boutique Club Intemational
Rules and Regulations
Each member of Boutique Club Intemational shall be governed by and comply with the
terms and conditions of these Boutique Club Intemational Rules and Regulations, which
may be amended from time to time.
I. Definitions
Bank ox Bankine -shall mean the act of a Club Member in deferring all ox a portion of their
Club Points from a given Use Year to the next successive Use Year.
BCI -shall mean Boutique Club, LLC, a Delaware limited liability company, or any of its
affiliates. Fox purposes of these Boutique Club Intemavonal Rules and Regulations shall
also refer to Boutique Club International Exchange, an entity created fox the purpose of
offering Members of BCI management, exchange, reservations services, and related vacation
and travel benefits. The services to be provided include the operation of the reservation
system through which Club Members reserve the use of accommodations at one ox more
Club Resorts, pursuant to the priorities, restrictions and limitations set forth in the Club
Documents.
Borrow ox Boxrowine -shall mean the act of a Club Member in accelerating the use of a
portion of then Club Points from the next successive Use Yeax into the then current Use
Year.
Cancellation -shall mean the act of a Club Member of canceling a previously confirmed
reservation, whereby such act(s) shall be subject to the terms and conditions described
herein in Section V, Reservation Priorities. For purposes of these Rules and Regulations, a
modification on a previously confirmed reservation shall be treated in the same manner as a
cancellation.
Club Benefits Pxogxam -shall mean the additional vacation, travel, activities, events, and
other benefits created by BCI and made available to Club Members from time to time.
Club Documents -shall mean those instruments governing the use and operation of BCI,
including, but not limited to, these Rules and Regulations, which are promulgated, executed
or amended by BCI from time to time.
Club Dues- shall include the costs and expenses associated with the operation of BCI that
are chargeable to each Club Member and/or Club Resort each calendar year.
Club Member -shall mean the owner of record of a Fractional Interest at any Club Resort
or an owner of record of a Fractional Interest at a Club Resort, who has complied with all of
the terms and conditions of BCI membership for that Club Resort.
Club Point(sl -shall mean the symbolic unit of measure assigned to a Club Member's
Fractional Interest by BCI that enables the Club Member to access BCI's accommodations,
/ooos3rz~/zl -1-
Boutique Club International
Rules and Regulations
services and benefits. Each Club Member shall annually be assigned an allocation of Club
Points to represent the use rights associated with that Club Member's Fractional Interest.
Club Points are used to establish a relative value fox Fractional Interests based on, among
other things, seasons, unit sizes, and resort locations.
Club Point Account -shall mean the record of the number of Club Points available fox use
by a Club Membei during each Use Yeax.
Club Point Chart -shall mean the schedule detailing the amount of Club Points that Club
Members axe required to relinquish to reserve accommodations at Club Resorts for specific
Units ox types of Units, during various time periods throughout each calendar Yeax, and/ox
to access BCI services and benefits. The Club Point Chart may be revised from time to time
as determined by BCI from time to time in its sole discretion.
Club Priority Period -shall mean the period beginning on the day after the expiration of the
Home Resort Preference Period and ending on the fifteenth (15`h) day prior to the first day
of occupancy of a Floating Week ox a Week containutg a Floating Split Week. During the
Club Priority Period, Club Members compete on a first-come, first-served basis to reserve
the use of any available Week within BCI.
Club Resort -shall mean those xesoxts, improvements, facilities and amenities whose assets
are available from time to time to BCI for the purpose of providing accommodations and
the related vacation and travel benefits to Club Members. The initial Club Resorts axe The
VanderbIlt Residence Club, located in Newport, Rhode Island, USA and The Little Red
Residence located in Aspen, Colorado, USA. Other xesoxts under consideration for
inclusion in BCI axe located in Costa Rica; however, BCI is not obligated to include any such
resort in BCI nor does BCI make any guarantee that resorts in such locations ox any other
location shall be included in BCI.
Club Resort Operating Budget -shall mean the budget that accounts fox the estimated
annual common expenses, ad valorem real estate taxes and replacement reserves attributable
to a given Club Resort, including those Club Dues allocable to that Club Resort.
Daily Use Periods -shall mean a Week, the use of which is divided into periods of one day
allowing use during any night of such Week. BCI reserves the right to limit ox prohibit the
reservation of Daily Use Periods in the best interests of the Club Members as a whole. Daily
Use Period reservations may only be made by Club Members within the Club Priority
Period.
Extemal Exchange Company -shall mean a company that provides services to BCI and/ox
to Club Members pursuant to an Extemal Exchange Program. The initial Extemal
Exchange Company is Interval International, Inc.
External Exchange Program -shall mean the contractual agreement between BCI ox an
affiliate of BCI, on behalf of BCI and an External Exchange Company under which Club
Members may reserve, subject to certain terms and conditions, the use of accommodations
in resorts other than Club Resorts, affiliated with the External Exchange Company.
f00053727/2J -2-
Boutique Club International
Rules and Regulations
~,"
a.
Fixed Club Points -shall mean those Club Points that axe used to reserve the use of a
specifically deeded Week during the Home Resort Pxefexence Period. Unused Fixed Club
Points expire at the end of the Home Resort Pxefexence Period.
Fixed Week -shall mean a Week within a specific unit type, the exclusive use and occupancy
of which is reserved to a particular Club Member during the Home Resort Preference
Period, subject to these Rules and Regulations. A Fixed Week must be deeded directly to a
Club Member. No more than forty percent (40%) of the inventory from any week at The
Litde Red Residence shall be designated as a Fixed Week. Accordingly, this may limit a
Club Member's ability to reserve certain weeks in the Use Year at certain Club Resorts,
including the Home Resort.
Floating Club Points -shall mean those Club Points that are used to reserve the use of an
available Week by a Club Member whose Fractional Interest does not include a specifically
deeded Fixed Week during the Home Resort Preference Period and by all Club Members
during any Club Priority Period or Limited Club Priority Period.
Floating Week -shall mean a Week at a Club Resort within an established season that allows
a Club Member to select their Week(s) from varying weeks each year. Floating Week
reservations axe made by Club Members on a first-come, first-served basis subject to the
reservation policies set forth in these Rules and Regulations.
Fractional Interest -shall mean the fractional ownership estate or other real ox personal
ownership interest in a Club Resort as evidenced by an ownership interest in a participating
Club Resort.
Guest Certificate -shall mean the certificate issued by BCI confirming that a Club Member
has relinquished Club Points and reserved a Unit at a Club Resort in the name of a guest,
friend ox family member.
Home Resort -shall mean the Club Resort in which a Club Member's Fractional Interest is
located. This may or may not be the resort location where the original purchase agreement
was executed.
Home Resort Pxefexence Period -shall mean the period during which a Club Member who
is assigned the right to reserve the use and occupancy of an avaIlable Floating Week on a
first-come, first-served basis as part of the Member's Fractional Interest is permitted to make
such reservation. As it relates to the reservation of a Floating Week, the Home Resort
Pxefexence Period begins approximately twelve (12) months prior to the first day of use of a
Floating Week and lasts for three (3) months.
Limited Club Use Period -shall mean that period beginning on the day after the expiration
of the Club Priority Period, during which Club Members have only limited rights to use Club
Points to make a reservation through BCI within fourteen (14) days prior to the first day of
use of a Floating Week, a Week containing a Floating Split Week, or a Week containing a
Daily Use Period.
iooavra~/a/ -3-
Boutique Club International
Rules and Regulations
Little Red Residence -shall mean that certain Club Resort located in Aspen, Colorado. The
Little Red Residence is a Club Resort of BCI.
Managing Entity -shall mean BCI ox, if not BCI, the management company ox other entity
responsible for operating and maintaining each Club Resort.
Membership Certificate -shall mean that document issued by BCI to individual Club
Members which conveys usage rights at Club Resorts to each indiv;dual Club Member. A
Membership Certificate will set forth a Club Member's annual allotment of Club Points.
OnexatingBudget -shall mean the operating budget fox each Club Resort.
Reservation Policies -shall mean those policies and procedures set forth herein which
govern the process by which a Club Member may reserve the use and occupancy of
accommodations included within BCI. In the event the Resort Agreement between The
Little Red Residence and BCI is terminated, those certain Reservation Policies as indicated
herein will continue to govern the process by which owners of Fractional Interests at The
Little Red Residence may reserve the use and occupancy of accommodations at The Little
Red Residence.
Reservation Services -shall mean the division of BCI that accepts and processes reservation
requests and provides other Club Member services from time to time.
Resort Agreement -shall mean a BCI Club Resort Agreement. A Resort Agreement is the
contract among BCI and the owner, developer and/or managing entity of a resort under
which the accommodations and facilities of that resort are included as a part of BCI.
Resort Documents -shall mean all of the documents and any amendments thereto, which
create and govern the rights and relationships between Club Members who own Fractional
Interests in a Club Resort and such Club Resort, and which govern the use and operation of
such Club Resort.
Rules and Regulations -shall mean these BCI Rules and Regulations governing the
reservation and use of BCI accommodations and facilities, which rules have been
promulgated, adopted and/ox amended from time to time by BCI in its sole discretion.
Split Week -shall mean, unless specifically provided otherwise, a Week, the use of which is
divided into periods of three (3) consecutive nights ox four (4) consecutive nights. BCI
reserves the right to limit or prohibit the reservation of Split Weeks in the best interests of
the Club Members as a whole. Split Week reservations may only be made by Club Members
within the applicable Club Priority Period.
Unit Twe -has the meaning assigned to such term in Section IIL1.
Use Year -shall mean the twelve (12) month period during which a Club Member may
redeem his or her annually allotted Club Points to reserve accommodations at a Club Resort
ox fox other BCI services or benefits that may be made available by BCI from time to time.
Except fox a Club Member's initial individual Use Year, which may be pro-rated based upon
(oaossra~/2J _q_
Boutique Club International
Rules and Regulations
the time of purchase, all Use Years shall commence on January 1 and end on December 31
of each calendar year and remain the same throughout the life of the individual membership.
Use Year Begin Date -shall mean the first day that a Club Member's annual allotment of
Club Points becomes available fox use within BCI.
Use Yeax End Date -shall mean the last day that a Club Member's annual allotment of Club
Points is available fox use within BCI.
Week -shall mean a period of seven (7) consecutive nights during which an accommodation
unit, or combination of accommodation units within a single Club Resort, may be used
pursuant to the Resort Documents fox a Club Resort.
II. Club Operation
IL1 Membershin - To participate in BCI, each Club Member must purchase a qualifying
Fractional Interest at a Club Resort Membership in BCI is an appurtenance to each
Fractional Interest at a Club Resort as set forth in the Resort Documents fox each
such Club Resort. Membership in BCI is not an appurtenance to ownership
interests at a Club Resort. In order to enjoy the benefits of membership in BCI, a
purchaser of an ownership interest at a Club Resort must be enrolled as a Club
Member and comply with all terms and conditions fox membership as determined by
BCI fox that Club Resort. The usage rights conveyed to individual Club Members
are represented by an associated Club Points value assigned or conveyed to such
Club Member. Club Points can be redeemed through BCI fox accommodations at
any of BCI's Club Resorts, or fox other Club services ox benefits as may be available
from time to time, throughout the life of the Club Member's BCI membership,
subject to the provisions and conditions described herein. Membership in BCI with
respect to a specific Fractional Interest automatically terminates fox a given Club
Member in the event the Club Member voluntarily or involuntarily transfers that
Fractional Interest, or in the event the Member's Home Resort ceases to be a Club
Resort.
IL2 Management -BCI is expressly authorized to take such actions as it deems necessary
or appropriate for its operation, including, but not limited to, the implementation of
the reservation system duties as outlined in these Rules and Regulations.
IL3 Club Dues -Costs and expenses incurred by BCI fox the operation and management
of the reservation system and the delivery of other BCI services and benefits shall
constitute common expenses of BCI and shall be charged on an annual basis as Club
Dues to the individual Club Members based upon a reasonably determined pxo-
xadon formula. Club Dues charged against Club Members shall be billed annually,
one hundred percent (100%) of which is to be paid no later than January 31" of each
Use Yeax, except fox a Club Member's initial Use Year. Failure on the part of any
individual Club Member to pay their assessed Club Dues by the prescribed date will
result in immediate suspension of BCI privileges including any and all usage rights
associated with Club Resorts and/or BCI services and benefits. Further, no
reservation fox Club Resort accommodations ox any other BCI service will be
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confirmed unless the Club Member has paid in full the annual Club Dues. Use of
Club Points may be restricted ox denied by BCI if the Club Member is not current in
the payment of the Member's Home Resort assessments and charges or is in default
under the Member s Home Resort project documents, ox any mortgage ox deed of
trust encumbering the Member's Fractional Interest. Continued failure on the part of
the Club Membei to rectify any delinquent payment may ultimately result in
termination of the Club Member's BCI membership. Except as otherwise provided
in the Resort Documents, a Club Member who uses BCI to make a reservation -
othex than a reservation fox a Week during the applicable Home Resort Preference
Period - shall be liable for any transaction fees charged by BCI from time to time.
Unless provided otherwise in the Resort Documents, a Club Member who reserves
accommodations through BCI in the name of a friend ox guest shall also be liable for
any Guest Certificate processing fee charged by BCI from time to time.
All Club Dues owed to BC from the owners of Fractional Interests at a Club Resort
shall be assessed by the Managing Entity of such Club Resort to the owners of
Fractional Interests within such Club Resort together with other common expenses
of such Club Resort; shall be remitted to BC by the Managing Entity as collected;
and shall be paid according to the terms and conditions of these Rules and
Regulations and the Resort Agreement for such Club Resort. Pursuant to the
Resort Documents fox such Club Resort, the homeowners association fox such Club
Resart is obligated to collect and remit to BCI the total amount of Club Dues which
axe charged to the owners, as Club Members, of such Club Resort. Notwithstanding
the foregoing, the Managing Entity of a Club Resort may collect Club Dues from
individual owners, and not as a common expense of the Club Resort, provided that
the Resort Documents fox such Club Resort provide for Club Dues to be charged
dixecdy to the individual owners. Fox any Club Resort, a Club Member's failure to
pay the Club Member's share of the Club Dues shall not relieve the Managing Entity
of that Club Resort from its obligation to pay the entire amount of Club Dues due
and owing BCI.
Club Members who own Fractional Interests ar other ownership interest at Club
Resorts are charged Club Dues directly by BCI or through the Managing Entity of
the Club Resort, depending upon the terms and conditions pursuant to which the
Club Resort became affiliated with BCI. Club Dues charged against Club Members
who own Fractional Interests or other ownership interests at Club Resorts shall also
be paid under the terms and conditions of these Rules and Regulations.
III. Club Points
IIL1 Creation of Club Points -The total number of Club Points in BCI is the sum of all
of the Club Point values represented by each unit week ox other use period and/or
all occupancy and other rights associated therewith conveyed or assigned to BCI.
This inventory has an associated Club Point value fox every night of the year and this
value is based upon factors such as the cost of the resort product, relative supply and
demand fox the accommodation size and type (collectively, "Unit Twes"), historical
market average occupancy rates, resort seasonality, holidays and special events, and
other applicable factors such as day of week. Furthermore, the total number of Club
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Points within BCI may vary slightly from year to year if there is a point differential
between weekend and weekday values, since each weekend/weekday distribution will
vary slightly across calendar years. In addition, Club Points may be increased upon
the addition of future phases of existing Club Resorts or other xesoxt locations
widen BCI.
IIL2 Reallocation of Club Points -BCI may elect to reallocate Club Points across
seasons, resort locations, and/ox Unit Types. Any such reallocation shall be based
upon apparent supply and demand of BCI's accommodations, ox in the absence of
such information upon other accessible market data specific to BCI's resort
locations, as experienced over a period of at least three (3) consecutive calendar
years. The maximum annual reallocation shall not exceed fifteen percent (15%) of
the total Club Points involved in the categories containing the redistribution.
Additionally, if the reallocation includes adjustments to multiple Unit Types or
locations, BCI may only change one aspect of the relationship per year.
Notwithstanding the foregoing, Club Members will be notified of any planned
reallocation of Club Points, other than a reallocation resulting from the addition ox
deletion of Club Resorts ox locations, at least twelve (12) months prior to any such
reallocation becoming effective.
III.3 Club Point Charts -Club Point Charts are issued by BCI and describe the associated
Club Point value required for Club Members to reserve accommodations at each
Club Resort location within a given unit size, Unit Type, season and day of week, as
well as to access other services and benefits provided by BCI from time to time.
BCI reserves the right to periodically modify, change, and/or amend the Club Point
Charts based on changes in demand pattems, resort substitutions, xesoxt additions,
new products and services, or use patterns created by additional resort participation
in BCI. BCI xeseroes the right to revise the number of Club Points required to
reserve the use of various Weeks, Split Weeks, and/or Daily Use Periods at each
location within BCI from time to time, without Club Member consent. Pursuant to
this reserved right, BCI has the right to change the composition of its existing
seasons set forth in the Club Point Chart or to create additional seasonal bands to be
set forth in a revised Club Point Chart in response to anticipated Club Member
demand for a particular Club Resort, Unit Type or Week.
III.4 Annual Club Point Allocations to Members - On an annual basis, Club Members
shall be allocated the number of Club Points set forth in such Club Member s
Membership Certificate. The date that this annual allocation is performed may vary
across Club Members.
The first day that an annual allotment of Club Points is available for use is called the
Use Year Begin Date, and the date that Club Points are scheduled to expire is called
the Use Yeax End Date. Club Members have a twelve (12) month period during
which they may use their Club Points to make Home Resort and/or Club Resort
reservations, access BCI products ox services, or to utilize BCI's flexible features,
such as Banking ox Borrowing. Club Points that remain unused at the end of the
applicable twelve (12) month period (i.e., upon arrival of the Use Year End Date)
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will expire and all usage rights associated with the expired Club Points will be
deemed to be forfeited by the Club Member for that Use Year.
Club Members whose Fractional Interest includes a specifically deeded Fixed
Week(s) will receive an assigned number of Fixed Club Points fox use during the
Home Resort Preference Period; provided, however, that in the event that such Club
Members fall to timely exercise their priority reservation rights during the Home
Resort Pxefexence Period ox the Club Member voluntarily elects to access the BCI
reservation system during the Home Resort Pxefexence Period to xeseroe another
Week at the same ox another Club Resort, to make an exchange through the External
Exchange Pxogxam or to access other Club Benefits, such Fixed Club Points shall be
automatically converted to an equivalent number of Floating Club Points, fox use
subject to these Rules and Regulations.
Club Members whose Fractional Interest does not include a specifically deeded
Fixed Week(s) will receive an assigned number of Floating Club Points for use
within BCI, subject to these Rules and Regulations.
III.S Additional Club Points - If a Club Member does not have sufficient Club Points to
complete a desired transaction during a given Use Yeax, the Club Member may
borrow Club Points from the next successive Use Year ox rent Club Points as set
forth below, or, if available, purchase an additional Fractional Interest ox undivided
interests in increments of no fewer than seven (7) days to supplement the Club
Member's total Club Points. In such instances where a Club Member has acquired
an additional Fractional Interest to supplement that Club Member's total Club
Points, the Club and/or BCI reserves the right but not the obligation to require the
Club Member to consolidate all allocable Club Points into a single Use Yeax.
IIL6 Borrowing Club Points - As described below, a Club Member may, during the
applicable Club Priority Period, Borrow a portion of his ox hex next successive Use
Year's Club Points for use in his ox hex current Use Yeax, subject to the following
restrictions:
IIL6.1 In conjunction with making a BCI reservation, Club Members may
Boxxow up to fifty percent (50%) of their next successive Use Year's
Club Points to reserve multiple nights accommodations, or to access BCI
services and benefits, provided that they have available at least one (1)
Club Point in their Club Point Account to be applied towards the
borrowed reservation transaction
IIL6.2 If a Club Member intends to Boxxow a portion of their Club Points from
their next successive Use Yeax, the Club Member must first pay at least
fifty percent (50%) of the total estimated Club Dues fox the following
Use Yeax.
IIL6.3 BCI reserves the right to prohibit a Club Member from Borrowing Club
Points if the Club Member is delinquent in the payment of his ox her
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Club Dues, Home Resort assessments and charges, or any purchase-
money note obligation.
IIL6.4 BCI reserves the right to prohibit Club Members from Borrowing Club
Points during the first Use Year following the Club Member's BCI
membership purchase date.
IIL6.5 BCI reserves the right, in its sole discretion, to suspend Borrowing
activity at any time if BCI determines that such suspension will result in
an improvement in the quality and operation of BCI.
III.6.6 Club Points which have been deferred to a subsequent Use Year shall, in
no circumstance, be available for Borrowing pursuant to this section.
IIL6.7 In the event that a previously confirmed reservation was made using
Boxxowed Club Points and is subsequently canceled, the unused
Boxxowed Club Points will carry over for use in the Use Yeax from which
they were originally Borrowed.
IIL6.8 A Club Member may not utilize Boxxowed Club Points to make a
reservation through the External Exchange Pxogxam.
IIL7 Banking Club Points - A Club Member may Bank a portion of their crcxxent Use
Year's Club Points for use in the next successive Use Yeax, subject to the following
restrictions:
IIL7.1 Club Members may Bank up to fifty percent (50%) of their current Use
Year's Club Points fox use in the next successive Use Yeax, to reserve
multiple nights accommodations, or to access BCI services and benefits.
Banked Club Points may be used to reserve BCI accommodations up to
twelve (12) months in advance of the Club Member's requested
occupancy dates, subject to the appropriate reservation window then in
effect (e.g., Home Resort Preference Period, Club Priority Period, or
T anited Club Priority Period) to access BCI services and benefits,
anytime during the Club Member's next successive Use Yeax.
IIL7.2 Once a Club Member's Club Points have been designated by BCI as
Banked, use of those Club Points may not be xetumed to their originally
allotted Use Yeax, nor may use of such Club Points be Banked ox
otherwise deferred to another subsequent Use Yeax.
IIL7.3 A Club Member must notify Reservation Services of their intent to Bank
Club Points for use in the Club Member's next successive Use Yeax at
least three (3) months prior to the Club Member's Use Yeax End Date.
Upon receiving such notification, BCI will mail a written statement of
confirmation of the Banking of such Club Points to the address of record
as set forth in the Club Member's Club Point Account.
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IIL7.4 BCI reserves the right to prohibit Club Members from Banking Club
Points during the first Use Yeax following the Club Member's BCI
membership purchase date.
IIL7.5 BCI reserves the right to prohibit a Club Member from Banking Club
Points if the Club Member is delinquent in the payment of his ox hex
Club Dues, Home Resort assessments and charges, or any purchase-
money note obligation.
IIL7.6 BCI reserves the right, in its sole discretion, to suspend Banking activity
at any time if BCI determines that such suspension will result in an
improvement in the quality and operation of BCI.
IIL7.7 Club Points which have been Borrowed from a subsequent Use Yeax
shall, in no circumstance, be available fox Banking pursuant to this
section.
IIL8 Renting Club Points -BCI reserves the right, in its sole discretion, to permit Club
Members to rent additional Club Points, in order to complete a reservation within
the Home Resort Preference Period, ox to make reservations within the Club Priority
Period, subject to terms and conditions in effect at that time. To the extent a Club
Member elects to rent Club Points to complete a reservation, or to make a
reservation within the Club Priority Period, any Club Point rental fees charged shall
be due and payable upon the issuance of a reservation confirmation.
IV. Reservation Procedures
IV.1 Making aReservation - To reserve accommodations at a Club Resort, ox to access
BCI services and benefits made available from time to tune, a Club Member must
first determine whether sufficient Club Points are available in their Club Point
Account to complete the reservation transaction. To make this determination, a
Club Member may either call BCI fox reservation assistance ox utilize the annual
Club Point Chart provided by BCI to each Club Member. Once a determination has
been made that the Club Member has sufficient Club Points available, the Club
Member must submit a reservation request in writing via regular maIl, email, ox
facsimile, or by telephone, which reservation contact information shall be provided
to Club Members at the tune of purchase of their Fractional Interests. A reservation
request will only be accepted by BCI if the Club Member has paid all applicable Club
Dues, Home Resort assessments and charges, and is in good standing with regard to
any outstanding purchase-money note obligation.
There may be a limited number of particular weeks avaIlable at The Little 12ed
Residence for reservation through BCI due to the fact the developer of The Little
Red Residence intends to dedicate, as specifically deeded Fixed Weeks, up to forty
percent (40%) of the inventory of Fractional Interests from any particular Week.
V. Reservation Priorities
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V.1 Use of Club Points -With the exception of the priority rights a Club Member may
have with respect to reserving the use of a specifically deeded Fixed Week(s) using
Fixed Club Points during the Home Resort Preference Period, Club Member
requests fox accommodations at Club Resorts, ox fox BCI services and benefits, are
fulfilled on afirst-requested, first-served, space available basis, and BCI cannot
ensure that confirmation of a reservation request for any specific Club Resort,
season, Unit Type, or time period will occur since availability will vary. The earlier a
request is submitted, the better the chance that a reservation confirmation can be
secured. Therefore, Club Members axe encouraged to submit requests as far in
advance as possible in order to obtain the best choice of accommodations.
V.2 Reservation Windows -Club Member reservation requests may be submitted to BCI
up to twelve (12) months in advance of the requested occupancy dates, when making
a full-week reservation at the Club Member's Home Resort. Furthermore, to
provide optimum utilization of accommodations available within BCI, BCI has
established various reservation windows that provide a priority to reservation
requests submitted for longer periods of time, such as seven (7) nights, over
reservation requests fox accommodations of shorter duration, such as three (3)
nights. When making reservation requests, Club Members should be aware of the
following reservation windows that govern how fax in advance reservations of
varying lengths can be requested:
V.2.1 Home Resort Preference Period -The following reservation window is
deemed by BCI to be part of the Home Resort Preference Period. During the
Home Resort Preference Period, a Club Member may exercise a priority right
to reserve the use of a full Week at the Member's Home Resort without
competing with other Club Members fox such accommodations, except those
Club Members who also own Fractional Interests at the Club Member's Home
Resort. BCI reserves the right to affiliate Club Resorts that may have Home
Resort Preference Periods of varying lengths
Full-Week Reservation Window -Club Members who have been specifically
deeded a Fixed Week(s) do not need to reserve the use of such Fixed Week(s)
within the Home Resort Preference Period, as such Fixed Weeks shall be
deemed pre-reserved for them. All other Club Members may request
reservations of accommodations in increments of seven (7) consecutive nights
at their Home Resort beginning twelve (12) months prior to the first day of use
of the full Week being sought, or the earliest permissible time a Club Member
may request reservations or accommodations in increments of seven (7)
consecutive nights at their Home Resort pursuant to such Club Resort's Resort
Documents, up to that date which is nine (9) months prior to the first day of
the Week of requested occupancy. A Club Member who has been specifically
deeded a Fixed Week(s) relinquishes their pre-reserved Fixed Week(s)
whenever the Club Member voluntarily elects to convert his/her Fixed Club
Points to Floating Club Points to access the BCI reservation system during the
Home Resort Preference Period to reserve a Week at the same or another Club
Resort, to make an exchange through the External Exchange Program or to
access other Club Benefits.
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V.2.2 Club Priority Period -Each of the following reservation windows axe deemed
by BCI to be part of the Club Priority Period. During the Club Priority Period,
a Club Member must compete with other Club Members on afirst-requested,
first-served, space available basis fox a reservation of any available Club Resort
accommodations. Club Members will have only limited rights to reserve full-
Weeks, Split-Weeks or Daily Use Periods within BCI during the Club Priority
Period, as described below:
V.2.2.1 Full-Week Reservation Window -Club Members may request
reservations of accommodations in increments of seven (7)
consecutive nights beginning nine (9) months prior to the first day
of use of the full Week being sought up to that date which is fifteen
(15) days prior to the first day of that Week.
V.2.2.2 flit Week Reservation Window -Club Members may request
xeseroations of accommodation in increments of either four (4)
consecutive nights ox three (3) consecutive nights beginning ninety
(90) days prior to the first day of requested occupancy up to that
date which is fifteen (15) days prior to the first day of that Week.
V.2.2.3 Daily Use Period Reservation Window -Club Members may
request reservations of accommodations in daily increments
comprising a minimum two (2) nights stay beginning forty-five (45)
days in advance of the first date of occupancy up to that date which
is fifteen (15) days prior to the first day of that Week. Some Club
Resorts may allow single night stays during this period in the sole
discretion of such Club Resort up to that date which is fifteen (15)
days prior to the first day of that Week.
V.2.2.4 Limited Club Priority Period -Club Members should be aware that
BCI's ability to confirm reservation requests not received by the
beginning of the Limited Club Priority Period (the fourteen (14)
day period immediately preceding the first day of the period being
sought) will be limited by and subject to the following:
1. Any accommodations removed from availability by a Club
Resort fox maintenance purposes; and
2. Any reservation requests made by a Club Resort for its own
purposes including for exchange, promotion use, rental ox
any other purpose as determined by such Club Resort in its
sole discretion; and
3. BCI reserves the right to provide to Club Members
discounted inventory fox short-notice reservations, from time
to time, if it determines, in its sole discretion, that doing so is
in the best interests of BCI.
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V.3 Confirmations - A written reservation confirmation will be mailed to each Club
Member's address of record, on file with BCI, to document each confirmed
reservation ox transaction. In the event that a particular unit, ox combination of
units, is denoted on the written confirmation as being reserved fox the Club Member,
BCI reserves the right to assign the Club Member to an alternate unit at the time of
check-in, provided that such altemate unit is deemed by BCI, in its sole discretion, to
be at least of the same Unit Type(s) and comparable in terms of location, size and
quality.
V.4 Cancellation and No-Shows -Cancellations on confirmed reservations may be made
at any time up to the day of check-in, and may be subject to a cancellation fee as
determined by BCI from time to time. Notwithstanding the foregoing, a Club
Member who cancels a reservation within twenty-four (24) hours following
confmnation will receive a full refund of the Club Points relinquished and will not be
subject to any cancellation fee. Cancellations made forty-five (45) days or more prior
to check-in, but not within the twenty-four (24) hour period following confirmation
will result in restoration of the related Club Points to the Club Member's Club Point
Account fox further use during that Use Yeax and may be subject to a cancellation
fee. Cancellations less than forty-five (45) days but at least fifteen (15) days ox more
pxiox to check-in will result in the forfeiture of a portion of the Club Points
relinquished, such forfeiture amount to be determined by BCI in its sole discretion
and may be subject to a cancellation fee. Cancellations made less than fifteen (15)
days pxiox to check-in will result in the forfeiture of all Club Points related to the
canceled occupancy dates and may be subject to a cancellation fee. Borrowed Club
Points that were used to secure a canceled reservation will be xetumed, based upon
the aforementioned schedule, to the original Use Yeax; however, no refund of
advance payment of estimated Club Dues will be made. A Club Member who fails
to check-in on the first day of the reserved Week, Split-Week ox Daily Use Period
must notify BCI of the late arrival ox risk cancellation of the reservation without
restoration of Club Points.
V.5 Snlit-Week and Dail~Use Period Options -Club Members will be permitted to
make reservations fox two-day, three-day, and four-day Split Weeks at certain Club
Resorts, as permitted by the resort and BCI from time to time. Split-Weeks and/ox
Daily Use Periods may not be available at all Club Resorts. A Split-Week ox Daily
Use Period may only be reserved during the Club Priority Period reservation window
fox the Week containing the Split-Week or Daily Use Period desired. All
reservations fox Split-Weeks and Daily Use Periods shall be subject to the reservation
request priorities fox the Week containing the Split-Week ox Daily Use Periods in
question. BCI reserves the right in its sole discretion to designate those Weeks in
which Split-Weeks and/or Daily Use Periods will be permitted to be reserved from
time to time.
Club Points required to reserve aSplit-Week ox Daily Use Period axe subject to
xcasonablc change by BCI from time to timc without Club Member consent in the
best interests of the Club Members as a whole. A Club Member who uses Club
Points to reserve aSplit-Week ox Daily Use Period may use any remaining Club
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Points to reserve another available Week, Split-Week or Daily Use Period. As a
condition of receiving aSplit-Week ox DaIly Use Period reservation confirmation, a
Club Member may be required to pay an additional housekeeping fee to BCI.
VI. Other Club Options
VL1 External Exchange Program - In order to expand the range of options available to
Club Members, BCI has arranged fox an "External Exchange Program". This
program cuxxentiy consists of exchange agreements between and among BCI,
individual Club Resorts, and Interval International, Inc., as the External Exchange
Company. An exchange agreement between the Extemal Exchange Company and
an individual Club Resort allows Club Members whose Fractional Interest is in such
Club Resort to exchange weeks with other resort locations that participate in the
Extemal Exchange Company's exchange network. Club Members associated with
Club Resorts not independently affiliated with the Extemal Exchange Company may
not be able utilize the External Exchange Pxogxam. Neither the External Exchange
Company nor the individual Club Resorts axe obligated to renew any exchange
agreement upon the expiration such exchange agreement. The External Exchange
Company, BCI, the individual Club Resorts and their respective subsidiaries and
affiliates are separate and distinct entities. The External Exchange Company is
managed and operated entirely independent from BCI and the individual Club
Resorts and the External Exchange Company's terms and conditions fox exchange
are consistently applied to all resorts that participate in the External Exchange
Program. Neither the External Exchange Company, BCI, nor the Club Resorts, nor
any subsidiary ox affiliate of the Extemal Exchange Company or BCI has agreed or
will agree to assume, guarantee ox otherwise be responsible fox any of the
obligations, acts, or omissions of the other party in connection with this offering.
Neither BCI nor the Club Resorts are agents for the External Exchange Company
and no representations or promises made by BCI, the Club Resorts, or their agents,
are binding on the External Exchange Company. The External Exchange
Company's responsibility for representations regarding the External Exchange
Program, as well as its current or future services, are limited to those made in written
materials furnished by the External Exchange Company.
VL1.1. -External Exchange Requests -All external exchange requests will be
processed through BCI. A Club Member who is interested in an external
exchange will contact BCI and indicate their preference for an external exchange.
Following verification of the identity of the Club Member and that the Club
Member is in good standing with BCI and is entitled to utilize the Extemal
Exchange Pxogxam, a BCI representative and the Club Member will discuss the
Club Member's desired time, destination and unit type requests. BCI will
forward all requested reservations to the External Exchange Company fox
processing. Club Member participation in the Extemal Exchange Program will
be governed by the terms and conditions of the Extemal Exchange Program and
those restrictions contained in these Rules and Regulations.
VI.2 Club Benefits Program -BCI may offer special services and benefits to Club
Members, from time to time, through its Club Benefits Program. BCI reserves the
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right to establish such rules and regulations as it deems necessary to adequately
govern Club Member access to the Club Benefits Program.
VII Miscellaneous Provisions
VIL1 Personal Use: Commercial Purposes -Use of the accommodations and facilities
associated with BCI is limited solely to personal use, during period(s) of occupancy,
by Club Members, their guests, invitees, exchangers and lessees, and to the number
of authorized users permitted to occupy BCI accommodations as may be posted in
the unit or set forth in the Club Resort rules and regulations. Purchase of a
Fractional Interest at a Club Resort ox use of accommodations and facilities
associated with BCI for commercial purposes, for contribution to or use in a
different timeshare, fractional, shared ownership plan or vacation club, ox for any
purpose other than the personal use described above is expressly prohibited.
VIL2 Club Member Rentals - A Club Member may reserve a Week at his ox her Home
Resort during a Home Resort Preference Period, the Club Priority Period, ox any
reservation period and rent it for the Club Member's own personal account. A Club
Member may only rent a week at their Home Resort and only a complete seven (7)
day week can be rented. Split Week and Daily Use Period rental is prohibited. All
renters must comply with the rules and regulations of the Resort Documents
affecting occupancy, and the renting Club Member will be responsible for the acts or
omissions of renters or any other person ox persons permitted by the Club Member
or the renter to use the accommodations.
VIL3 Amendment of Rules and Re ulations -These Rules and Regulations may be
amended by BCI in its sole discretion from time to time without the consent of Club
Members. Notice of any amendment shall be delivered by BCI to each Club
Member at the Club Member's mailing address of record, and such notice shall
include an effective date fox such amendments. Notice of amendments may be
delivered by newsletter, annual mailings, or electronically via a dedicated BCI website
or email distribution.
VIL4 Termination - In the event that the Resort Agreement or other instrument which
affiliates a Club Resort with BCI is terminated or expires in accordance with its own
terms, the terminated Club Resort will no longer be affiliated as a part of BCI.
However, upon termination of such instrument, all confirmed reservations of Club
Members (from the terminating Club Resort and from the non-terminating Club
Resorts) will be honored at both the terminating Club Resort and at non-terminating
Club Resorts.
VIL4.1 Reservation Policies in the Event of Termination. In the event the Resort
Agreement between The Little Red Residence and BCI is terminated, the Managing
Entity of the Little Red Residence or an affiliate will provide Reservation Services
(referred to in this Section as the "Reservation Services Provider") fox the owners
Fractional Interests at The Little Red Residence and the following Reservation
Policies will continue to govern the process by which such owners may reserve the
use and occupancy of accommodations at The Little Red Residence:
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Section III. Club Points -The Reservation Services Provider shall issue and
have the rights and obligations with respect to the Club Points and the Club
Point Chart for The Little Red Residence as set forth in Section III.
Section IV. Reservation Procedures. Section IV will continue to set forth
the procedures and reservation windows by which owners of Fractional
Interests at The Little Red Residence will reserve accommodations at The
Little Red Residence; provided, however, such owners will only be
competing with other owners of Fractional Interests at The Little Red
Residence solely for accommodations at The Little Red Residence during all
reservation periods and all reservations will be on afirst-requested, first-
served basis.
Further, in the event of termination of the Resort Agreement between The Little
Red Residence and BCI, the Reservations Services Provider shall have the right to
revise, amend ox supplement any of the Reservation Policies set forth in Sections III
and IV herein to accommodate ox change the reservation process for The Little Red
Residence.
VII.S Effect of Transfer of Club Member's Fractional Interest - If a Club Member
("Selling Member") sells, assigns, ox transfers the Selling Member's Fractional
Interest to another party ("New Member"), the Selling Member will forfeit any and
all rights to utilize Club Points associated with such Fractional Interest to reserve the
use of BCI accommodations, facilities or services, or to use any previously-reserved
Weeks, Split-Weeks ox DaIly Use Periods. BCI will, within ten (10) business days of
receipt of a certified copy of the recorded instrument transferring a Fractional
Interest from a Selling Member to a New Member change BCI's official records to
reflect such transfer of a Fractional Interest. Upon BCI's change in its records, the
New Member will assume any existing reservations previously made by the Selling
Member, unless the Club Points associated with the Fractional Interest would not be
sufficient to make such reservations. BCI will notify the New Member of those
existing reservations that are being assumed. The New Member will also assume the
Selling Member's Club Points remaining as of the date of BCI's recognition of such
transfer.
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Boutique Club International
Rules and Regulalions