AMENDED AND RESTATED DECLARATION OF MOUNTAINSIDE CONDOMINIUM PHASE III

Transcription

1 AMENDED AND RESTATED DECLARATION OF MOUNTAINSIDE CONDOMINIUM PHASE III This Amended and Restated Declaration of Mountainside Condominium Phase III, and the Appendices attached hereto, is made and executed in the Town of Stowe, County of Lamoille, and State of Vermont, this day of, 2012, by Mountainside Resort at Stowe Owners Association, Inc., a Vermont non-profit corporation, hereinafter called the Declarant, for itself, its successors, grantees, and assigns, pursuant to the Vermont Common Interest Ownership Act (Title 27A Vermont Statutes Annotated). WITNESSETH: WHEREAS, Mountainside Condominium #3 was created and made subject to the Vermont Condominium Ownership Act (27 V.S.A., Chapter 15) by the filing of a Declaration dated August 29, 1973 at Book 73, Page 228 of The Town of Stowe Land Records; which Declaration was amended by recording of a First Amendment to Declaration dated September 5, 1981 and recorded at Book 99, Page 510 of the Town of Stowe Land Records; WHEREAS, the Owners comprising the Mountainside Condominium #3 believe it is in their best interest to subject Mountainside Condominium #3 to the provisions of the Vermont Common Interest Ownership Act; WHEREAS, Mountainside Resort at Stowe Owners Association, Inc. serves as the managing body of Mountainside Condominium #1, Mountainside Condominium #2, Mountainside Condominium #3, and Mountainside Resort at Stowe Condominium Phase IV; WHEREAS, Section XXV of the First Amended Declaration provides that the provisions of the Declaration may be amended upon recording of an instrument certifying that such amendment has been approved by a vote of seventy-five percent (75%) of the total vote of affected Owners; and 1

2 WHEREAS, at a Special Meeting of Mountainside Resort at Stowe Owners Association, Inc. held in Stowe, Vermont on, 2012 record Owners holding at least seventy-five percent (75%) of the total vote of affected Owners voted to approve and ratify this Amended and Restated Declaration of Mountainside Condominium Phase III. NOW, THEREFORE, the Declarant does hereby publish and declare that the property referenced above, and described more particularly herein, shall be subject to this Amended and Restated Declaration of Mountainside Condominium Phase III, all Appendices hereto, the Amended and Restated Bylaws of Mountainside Resort at Stowe Owners Association, Inc., and the Vermont Common Interest Ownership Act, and that the conditions contained therein shall be deemed to run with land and shall burden and benefit the Declarant, the Unit Owners, and their heirs, successors, grantees, executors, administrators, devisees, and assigns. I. NAME OF THE CONDOMINIUM PROPERTY The name by which this condominium property shall be known is MOUNTAINSIDE CONDOMINIUM PHASE III. II. DEFINITIONS Certain terms, as used in this Declaration, and in the Amended and Restated By-Laws of Mountainside Resort at Stowe Owners Association, Inc., shall be defined as follows, unless the context clearly indicates a different meaning therefore: A. "Association of Owners" shall mean "Association", Unit Owners Association, and/or Master Association as those terms are defined in the Vermont Common Interest Ownership Act, and also means the Mountainside Resort at Stowe Owners Association, Inc., by which all Owners hereunder, together with the Unit Owners in adjoining phases of the condominium, act collectively in accordance with the Amended and Restated By-Laws of Mountainside Resort at Stowe Owners Association, Inc. and their respective Declarations; B. Bylaws shall mean the Amended and Restated Bylaws of Mountainside Resort at Stowe Owners Association, Inc. recorded simultaneously herewith; C. "Board of Directors" shall mean the Executive Board as defined in the Vermont Common Interest Ownership Act, designated to act on behalf of the Association and elected 2

3 pursuant to Paragraph II of the By-Laws; C. "Common Elements" are as defined in the Vermont Common Interest Ownership Act and are more fully described in Sub-paragraph D of Paragraph III hereof; E. "Common Expenses" shall mean and include: 1. All sums lawfully assessed against the Owners by the Association of Owners, which may collectively be referred to as the Common Expense Fund ; 2. Expenses of Administration, maintenance, repair or replacement of the Common Elements; 3. Expenses agreed upon as Common Expenses by the Association of Owners; 4. Expenses declared Common Expenses by the provisions of the Vermont Common Interest Ownership Act, by this Declaration, or the By-Laws; F. "Condominium" shall mean the entire estate in the real property owned by any Owner, consisting of an undivided interest in the Common Elements and ownership of a separate interest in a Unit; G. '"Declarant" shall mean, Mountainside Resort at Stowe Owners Association, Inc. who has executed this Declaration; H. "Declaration" shall mean this instrument by which the property is made subject to the Vermont Common Interest Ownership Act; I. Interval Ownership shall mean a Time Share estate as defined by the Vermont Common Interest Ownership Act and 32 V.S.A. 3619, and is further defined as the form of ownership of property whereby a Unit and the share of the Common Elements, Limited Common Elements, and Limited Interval Common Elements appurtenant to the Unit are conveyed for recurring periods of time, the purchaser thereby receiving usage during a stated time period annually; J. Limited Interval Common Elements are as defined in Subparagraph E of Paragraph III hereof; L. Maintenance Fee shall mean an annual fee assessed to Owners of Units committed to Interval Ownership which covers all expenses incurred in the normal operation and maintenance of such Units, which are more fully described in Paragraph XXX hereof, the total sum collected from Unit Week Owners may be referred to as the Maintenance Fee Fund ; K. "Limited Common Elements" are as defined in the Vermont Common Interest 3

4 Ownership Act and more fully described in Subparagraph E of Paragraph III hereof; M. "Manager" shall mean the person or firm designated by the Board of Directors pursuant to the By-Laws to manage the affairs of the Association; N. "Mortgage" shall mean a Security Interest as defined by the Vermont Common Interest Ownership Act; O. "Mortgagee" shall mean a beneficiary under a Mortgage; P. "Owner" means "Unit Owner" as defined under the Vermont Common Interest Ownership Act and shall mean the person owning a Unit or Unit Week in fee simple absolute and an undivided interest in the fee simple estate of the Common Elements in the percentage specified and established in the Declaration; Q. "Person" shall have the meaning given in the Vermont Common Interest Ownership Act; R. "Plans" shall mean the lot plan and floor plans of the Mountainside Condominium Phase III, entitled Portion of Holmstead Properties Phase III Stowe, Vermont filed by Declarant February 1975 at Map Book 1, Page 121 of the Town of Stowe Land Records; S. "Property" shall mean the entire parcel of real property referred to in this Declaration to be divided into condominiums comprised of interests in Units, Common Elements, and Limited Common Elements, including the land described in Appendix A, buildings, and all improvements and structures thereon together with all easements, rights, and appurtenances belonging thereto, and all articles of personal property intended for common use in connection therewith; T. "Record" or "recording" shall mean to file of record with the Town Clerk of Stowe, Vermont; U. "Unit" shall have the meaning given by the Vermont Common Interest Ownership Act and shall mean those parts of the Property which are not Common Elements and shall be comprised of one or more rooms or enclosed spaces located on one or more floors in a building with a direct exit to Common Elements. Boundary lines of each Unit are shown particularly in the Plans. Each Unit encompasses the space bounded by the unfinished interior surfaces of is perimeter walls, including the interior of surfaces of windows and window frames, doors and door frames, trim, and the interior surfaces of the lowermost floors, uppermost ceilings and bearing walls; 4

5 V. "Unit Number" means the number, letter, or combination thereof, designating the Unit in Exhibit B of this Declaration and/or the Plans; W. Unit Week means a recurring period of ownership in a Unit committed to Interval Ownership; Unit Weeks are computed as follows: Unit Week No. 1 is the seven (7) days commencing in the first Saturday in each calendar year. Unit Week No. 2 is the seven (7) calendar days succeeding. Additional Unit Weeks up to and including Unit Week No. 51 are computed in a like manner. Unit Week No. 52 contains seven (7) days succeeding the end of Unit Week No. 51 without regard to the month or year plus any excess days not otherwise assigned. Unit Weeks run from noon local time on the first Saturday of the period to noon on the last Saturday of the period. A detailed calendar of each Unit Week shall be maintained by the Association. III. DETAILED DESCRIPTION A. Description of Land. The land on which Mountainside Condominium Phase III is located is that certain tract or parcel of land in the Town of Stowe, County of Lamoille, State of Vermont, more particularly described in Appendix A included herein and made a part hereof. B. Description of Buildings. Mountainside Condominium Phase III shall consist of 22 Units located in two separate buildings. Said buildings are 3 stories in height and are constructed principally of wood, wood framing, and wooden materials. C. Description of Units. The number, location, approximate area and number of rooms in each Unit are as set forth in Appendix B attached hereto and in the Plans incorporated herewith by reference. The immediate Common Element to which each Unit has access is the corresponding entrance way to each Unit as more particularly shown in the Plans. A Unit shall not be deemed to contain the undecorated and/or unfinished surfaces of the perimeter walls, bearing walls, floors, ceilings, and doors bounding the Unit, nor shall the Unit be deemed to contain the utilities running through the Unit which are utilized for, or serve more than one Unit. A Unit, however, shall be deemed to contain the inner surfaces of the walls, floors, ceilings, and doors bounding the Unit. D. Description of Common Elements. "Common Elements" shall mean all land and all other portions of the property not contained within any Unit and also includes, but not by way of 5

6 limitation, roofs, foundation, pipes, ducts, flues, chutes, conduits, wires and other utility installations to the outlets; bearing walls, perimeter walls, columns and girders, to the interior surfaces thereof, regardless of location; walkways, gardens, parking areas, recreational areas and facilities which are now or hereafter contained within the Property; all installations of power, lights, gas, hot and cold water existing for common use, all devices or installations existing for common uses and all other elements of the property rationally of common use or necessary to its existence, upkeep, and safety. E. Description of Limited Common Elements. "Limited Common Elements" shall mean all balconies, patios, decks, porches, and enclosed storage areas, adjacent to or associated with one particular Unit and intended for use with that particular Unit or several particular Units, but not all Units, as the respective interests of which are set forth in Appendix B hereof. All areas which do not fall within the above definitions of Limited Common Elements or Unit, shall be deemed to be part of the Common Elements set forth in Subparagraph D above. F. Description of Window Assemblies and Trim. Window assemblies serving only one Unit shall be deemed 50% a Limited Common Element and 50% a common element, while the interior window trim shall be deemed a limited common element and the exterior window trim shall be deemed a Common Element. G. Description of Limited Interval Common Elements. Limited Interval Common Elements means a class of Limited Common Elements in addition to those described above which is applicable solely to the furnishings and interior areas in Units committed to Interval Ownership. These furnishings include but are not limited to furniture, fixtures, appliances, cooking utensils, art work, carpeting, television sets, and other furnishings. Units which are not committed to Interval Ownership do not participate in these furnishings, and Owners of such Units therefore have no interest in the Limited Interval Common Elements. An undivided prorata share of all Limited Interval Common Elements is appurtenant to each Unit Week. H. Proportionate Value of the Property and each Unit. The proportionate value of the Property and each Unit and the percentage of undivided interest in the Common Elements appertaining to each Unit and its Owner for all purposes, including voting, is set forth in Appendix B attached hereto and made a part hereof. Each Unit Week entitles the Owner thereof to 1/51 of the percentage of interest in the appurtenant Common Elements set forth in Appendix B for the respective Unit. 6

7 IV. STATEMENT OF PURPOSES, USE AND RESTRICTIONS The Units, Common Elements, Limited Common Elements, and Limited Interval Common Elements shall be occupied and used as follows: A. An Owner shall not occupy or use his Unit, or permit the same or any part thereof to be occupied or used for any purpose other than for the personal use for dwelling purposes by the Owner and Owner's family or the Owner's guests, or as part of a resort Interval Ownership condominium operation. B. No commercial business other than the operation of a resort Interval Ownership condominium shall be allowed within the buildings. C. There shall be no obstruction of the Common Elements. Except in the case of designated storage areas, nothing shall be stored in the Common Elements without the prior consent of the Board of Directors or its delegate. D. Nothing shall be done or kept in any Unit or in the Common Elements or Limited Common Elements which will increase the rate of insurance on said Common or Limited common Elements without the prior written consent of the Board of Directors or its delegate. No Owner shall permit anything to be done or kept in his Unit or in the Common or Limited Common Elements which will result to the cancellation of insurance of any Unit or any part of the Common or Limited Common Elements, or which would be in violation of any law. No waste will be committed of' the Common or Limited Common Elements or Limited Interval Common Elements. E. No sign or flag of any kind shall be displayed to the public view or from any Unit or from the Common or Limited Common Elements without the prior consent of the Board of Directors or its delegate, provided, however, that this provision shall not apply to signs placed by the Manager of the Mountainside Resort at Stowe Condominiums and necessary to the operation of the Property, and is subject to restrictions set forth in 27A V.S.A (d). F. No animals, livestock, or poultry of any kind shall be raised, bred, or housed in any Unit or in the Common or Limited Common Elements. No dogs, cats, or other household pets may be housed in any Unit or in the Common or Limited Common Elements. The prohibitions set forth in this section shall not be construed to limit the use of service animals as defined in the Americans With Disabilities Act, 42 U.S.C et seq., as the same may be amended from 7

8 time to time. G. No noxious or offensive activity shall be carried on in any Unit, or in the Common or Limited Common Elements, nor shall anything be done therein which may be or become an annoyance or nuisance to other Owners. H. Nothing shall be altered or constructed in or removed from the Common, Limited Common, or Limited Interval Common Elements, except upon the written consent of the Board of Directors or its delegate. I. There shall be no violation of any Rules or Regulations for the use of the Common, Limited Common, or Limited Interval Common Elements adopted by the Board of Directors or its delegate and made available in writing to the Owners, and the Board of Directors or its delegate is authorized to adopt such Rules. In addition to other remedies which may be available to it, the Board of Directors or its delegate shall have the right in its sole discretion to suspend any Owner or authorized user of the Common, Limited Common, or Limited Interval Common Elements from the use of same for a period not to exceed seven (7) days for any infraction or violation of the adopted Rules and Regulations pertaining to said facilities, and such suspension of use privileges shall not reduce the assessments due and payable by or accruing to said Owner or authorized user. Where such sanctions are imposed upon the Owner of a Unit Week, they shall be of no force and effect against Unit Weeks within the same Unit which are owned by other persons. J. In the event any Owner of a Unit Week in a Unit committed to Interval Ownership fails to vacate his Unit at the expiration of his Unit Week each year, or at such earlier time as may be fixed by the Rules and Regulations adopted by the Association from time to time, he shall be deemed a Holdover Owner. It shall be the responsibility of the Association to take such steps as may be necessary to remove such Holdover Owner from the Unit. In addition to such other remedies as may be available to it, the Association shall secure, at its expense, alternate accommodations during the holdover period for any Owner who may not occupy his Unit during his Unit Week due to the failure to vacate of any Holdover Owner. Such accommodations shall be as near in value to the Owner s own Unit as possible. The Holdover Owner shall be charged a sum equal to three times the cost of such alternate accommodations, any other costs incurred due to his failure to vacate, and an administrative fee of $50 per day during his period of holding over. In the event it is necessary that the Association contract for a period greater than the actual 8

9 period of holding over, in order to secure alternate accommodations as set forth above, the entire period shall be the responsibility of the Holdover Owner, although the $50 per day administrative fee shall cease upon actual vacating by the Holdover Owner. The Association shall submit a bill to the Holdover Owner in accordance with this paragraph. In the event the Holdover Owner fails to pay the same within ten (10) days of the receipt of same, a lien shall be filed against said Holdover Owner s Unit Weeks in accordance with the provisions of subparagraph VI. B. of the By-Laws. The above provisions shall not abridge the Association s right to take such other action as is provided by law including, but not limited to, eviction proceedings. K. None of the rights and obligations of the Owners created herein, or by the Deeds conveying Units shall be altered in any way by encroachments due to settlement or shifting of strictures or any other cause. There shall be valid easements for the maintenance of said encroachments so long as they shall exist; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner or Owners if said encroachment occurred due to the willful conduct of said Owner or Owners. L. The Board of Directors, and persons it may select, shall have the right of ingress and egress over, upon and across the Common, Limited Common, and Limited Interval Common Elements and the right to store materials thereon and make such other use thereof as may be reasonably necessary incident to construction, development, sale, operation, and maintenance of the Units and other phases of the overall development of which the Property is a part, including operation of the Property as a resort Interval Ownership condominium facility. M. No Unit Owner or resident shall direct, supervise, or in any manner attempt to assert any control over the employees, agents, delegates, or contractors of the Manager, the Association, or the Board of Directors, nor shall any employee, agent, delegate, or contractor of the Manager, the Association, or the Board of Directors be sent off the Property by any Unit Owner, or guest, at any time for any purpose. N. No citizen band, short wave radio or television installation wiring or antennas shall be installed without the written consent of the Board of Directors. O. All refuse and bagged garbage shall be deposited only in the designated areas or containers. P. No flammable, combustible or explosive fluid, chemicals or substance and no poison 9

10 materials, shall be housed in any Unit or Limited Common Element except as are required for normal household use. Q. All Owners of Unit Weeks shall vacate their Units no later than 10:00 A.M. Eastern Standard Time on the last day of their Unit Week. No Owner of a Unit Week shall take possession of his Unit earlier than 3:00 P.M. Eastern Standard Time on the day which his Unit Week commences. R. No Unit shall be occupied by more than the allowable posted number of persons at any one time without written approval of the Board of Directors. S. The Manager, as long as a management agreement exists, and thereafter the Board of Directors of the Association, reserves the right to make additional Rules and Regulations as may be required from time to tome to preserve the peace and tranquility and general health and welfare of the Association and its members. Such Rules and Regulations shall be binding as all other Rules and Regulations previously adopted. V. AGENT FOR SERVICE OF PROCESS The name and address of the person authorized by the Mountainside Resort at Stowe Owners Association, Inc. to accept service of notice or process in matters pertaining to the Property is: VI. DESTRUCTION Mountainside Resort at Stowe Owners Association, Inc. Attn. General Manager 171 Cottage Club Road Stowe, VT VOTING REOUIREMENTS IN THE EVENT OF DAMAGE OR A. In case of fire, casualty, or any other disaster resulting in damage or destruction to any building in the condominium, the insurance proceeds, if sufficient to reconstruct the building, shall be applied to such reconstruction. Reconstruction of the building, as used in this paragraph means restoring the buildings to substantially the same condition in which they existed prior to the fire, casualty, or other disaster, with each Unit, Common Elements, and Limited Common Elements having the same vertical and horizontal boundaries as before. Such reconstruction shall be accomplished by the Board of Directors. 10

11 B. If the insurance proceeds are insufficient to reconstruct the building, damage to or destruction of the building shall be promptly repaired and restored by the Board of Directors, using proceeds of insurance, if any, on the buildings for that purpose, and the collective Unit Owners in all phases of the condominium shall be liable for an assessment for any deficiency. VII. TERMINATION OR DISSOLUTION A. The Property may be removed from the provisions of the Vermont Common Interest Ownership Act and the terms of this Declaration, if (1) the Owners by an affirmative vote of all (100%) of the voting power at a meeting of the Association of Owners, duly called for such purpose, elect so to do, and (2) if the holders of all liens affecting any of the Units consents thereto or agrees, in either case by instrument duly recorded, that their liens be transferred to the percentage undivided interest of the Owner in the Property. B. Upon a proper vote to sell the Property, such action shall be binding upon all Owners and it shall thereupon become the duty of every Owner to execute and deliver such instruments and to perform all acts as in manner and form may be necessary to affect the sale. C. Upon removal of the Property from the Vermont Common Interest Ownership Act, the Property shall be considered to be owned, in common by the Owners. The undivided interest in the Property owned in common which shall appertain to each Owner shall be the percentage of undivided interest previously owned by the Owner in the Common Elements. D. Prior to any Annual Meeting of the Association of Owners, the Owners of Units committed to Interval Ownership may request a vote to terminate Interval Ownership in the condominium properties. To do so, such Owners shall, not less than seventy-five (75) days prior to the Annual Meeting, submit a petition signed by 33% of the Voting Members of Units committed to Interval Ownership to the Board of Directors requesting such question be added to the agenda and ballot of the Annual Meeting. A quorum for such vote shall be a majority in person or by proxy of the total outstanding votes of all Owners of Units committed to Interval Ownership, by and through their Voting Members. If a quorum is not represented at such meeting no vote shall be taken and the petition rendered null and void. Termination of Interval Ownership shall require the vote of 67% of the total outstanding votes of all Units committed to Interval Ownership, by and through their Voting Members. All votes attributable to Units committed to Interval Ownership which are not cast at such meeting, including abstentions, shall 11

12 be counted as votes against termination of Interval Ownership. If Interval Ownership is terminated, the Owners of Units committed to Interval Ownership shall become tenants in common, and the Board of Directors shall file suit in a court of competent jurisdiction in Lamoille County, Vermont, for a partition of the Units and Unit Weeks. In the event the Board of Directors fails to do so, notwithstanding any provisions to the contrary herein, any Owner of a Unit Week, as agent for the Board of Directors, may file suit for partition of the Units. The Association shall be liable to such Unit Week Owner for court costs involved in such proceeding. So long as Interval Ownership continues in effect, the following restrictive covenants shall be deemed to have been adopted: 1. Each Owner shall have the exclusive right to occupy his Unit, and as between Owners to use and enjoy the Common, Limited Common, and Limited Interval Common Elements and the rights and easements appurtenant to his Unit during his Unit Week, and to authorize others so to do, together with the non-exclusive right in common with all other Owners, but only when acting through the Association, to maintain and repair the Units during Maintenance Weeks. No Owner shall occupy his Unit, or exercise any other rights herein provided to him, during any other Unit Week unless expressly so authorized by the Owner entitled to occupy the Unit during such Unit Weeks or during any Maintenance Week except when acting through the Association. Each Owner shall keep his Unit and all Limited Common and Limited Interval Common Elements in good condition and repair during his Unit Weeks, vacate the Unit at the expiration of his Unit Week, remove all persons and property therefrom excluding only Limited Interval Common Elements, leave the Unit in good and sanitary condition and repair, and otherwise comply with such reasonable checkout and other procedures as may from time to time be contained in Rules and Regulations promulgated by the Association. 2. No Unit Week Owner or other person or entity acquiring any right, title, or interest in a Unit shall seek or obtain through any legal procedures, judicial partition of the Unit or sale of the Unit in lieu of partition at any date prior to a final vote by the Unit Week Owners to terminate Interval Ownership as set forth in Sub-paragraph D of this Section VII. If, however, any Unit Week shall be owned by two or more persons as tenants-in-common or as joint tenants, nothing herein contained shall prohibit a judicial sale of the Unit Week in lieu or partition as between such co-tenants or joint tenants. 12

13 VIII. BY-LAWS The By-Laws shall be the Amended and Restated By-Laws of Mountainside Resort at Stowe Owners Association, Inc. recorded simultaneously herewith in the Town of Stowe Land Records. These By-Laws may be amended either by an instrument in writing signed and acknowledged by the Board of Directors of the Mountainside Resort at Stowe Owners Association, Inc., or the delegate of the Board of Directors, provided that such instrument includes a certification that the proposed amendment included in the instrument has been approved by record Owners holding at least seventy-five (75%) percent of the total aggregate vote of the Mountainside Resort at Stowe Condominium project participating in the Association of Owners; or, if such amendment affects less than all of the Phases of the Mountainside Resort at Stowe Condominium project, by an instrument in writing signed and acknowledged by the record Owners holding at least seventy-five (75) percent of the total aggregate vote within each of the affected condominium projects, which amendment shall be effective upon recording. IX. VOTING At any meeting of the Association of Owners, each Owner, either in person or by proxy, shall be entitled to cast a number of votes on behalf of his Unit or Units corresponding with the percentage of ownership in the Common Elements as shown on Appendix B, attached hereto and incorporated herein by reference. The total number of votes entitled to be cast within the Association of Owners shall correspond to the aggregate total of percentages shown on the Appendix B for each of the four Mountainside Resort at Stowe Condominium projects included within the Association of Owners. If there is more than one record Owner with respect to any one Unit which has not been committed to Interval Ownership, any or all of such persons may attend any meeting of the Association, but it shall be necessary for those record Owners present to act unanimously with respect to the vote pertaining to the Unit. The respective vote of each Unit which has been committed to Interval Ownership shall be cast only by a person who has been designated, through election or appointment, as the Voting Member for that Unit. In order to be elected or appointed as a Voting Member for a given Unit the candidate must be a current Unit Week Owner of that Unit in good standing. Voting Members shall serve five year terms. As a Voting Member s term is scheduled to expire, the Board of Directors shall instruct the Manager to notify each Unit Week Owner for a 13

14 particular Unit and seek nominations to fill the pending vacancy. Upon the deadline for such nominations, the following shall apply: (a) if there is only one qualified nominee for a given Unit, such nominee shall be deemed appointed; (b) if there is no qualified nominee for a given Unit, the Board of Directors may appoint a Voting Member for that Unit from the Owners of Unit Weeks in that Unit; or (c) if there are more than two qualified nominees the Board of Directors shall hold an election for the Voting Member of such Unit, by delivering to each Unit Week Owner a ballot and a return deadline by which to respond. As vacancies occur prior to the expiration a Voting Member s term, such vacancy shall be filled for the remainder of the term by appointment by the Board of Directors of a Voting Member for that Unit from the Owners of Unit Weeks in that Unit. If despite the best efforts of the Board of Directors to appoint a Voting Member for a given Unit, either as result of a failure to receive any nominees for Voting Members or to fill a vacancy for the remainder of a term, no Unit Week Owner for a that Unit agrees to serve as Voting Member the Board of Directors may appoint a Unit Week Owner from another Unit to serve in such capacity, which person may also serve as Voting Member for their own Unit as well. The Unit Weeks (Maintenance Weeks) conveyed to the Association of Owners for the purposes of maintenance pursuant to subparagraph XXX.B. herein shall be disregarded for purposes of determining any quorum, majority, or other voting level required under any provision of this Declaration or of the By-Laws of the Association, and the Association shall not be entitled to either participate in the designation of any Voting Member or to cast any vote in any proceeding of the Association by virtue of its ownership of such Unit Weeks. X. NOTICES The Association shall deliver any notice required to be given by the Association to any mailing or electronic mail address a Unit Owner designates. Otherwise, any notice permitted or required to be delivered as provided herein may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered forty-eight (48) hours after a copy of same has been deposited in the U.S. Postal Service air mail, postage prepaid, addressed 14

15 to each such person at the address given by such person to the Board of Directors or Manager for the purpose of service of such notice or to the unit of such person if no address has been given to the Board of Directors or Manager. Such address may be changed by a Unit Owner from time to time by providing notice in writing to the Board of Directors or the Manager. XI. MORTGAGE PROTECTION Notwithstanding all other provisions hereof: A. The liens created hereunder upon any Condominium shall be subject to, and shall not affect the rights of the holder of the indebtedness secured by any recorded first mortgage (meaning a mortgage with first priority over other mortgages) upon such interest made in good faith and for value, provided that after the foreclosure of any such mortgage there may be a lien created pursuant to Paragraph VI-B of the By-Laws on the interest of the purchaser at such foreclosure sale to secure all assessments, whether regular or special, assessed hereunder to such purchaser as an owner after the date of such foreclosure sale, which said lien, if any claimed, shall have the same effect and be enforced in the same manner as provided here. B. No amendment to this paragraph shall affect rights of the holder of any such mortgage recorded prior to the recordation of such amendment who does not join in the execution thereof. C. By subordination agreement executed by a majority of the Board of Directors, the benefits of subparagraph A and B above may be extended to mortgages not otherwise entitled thereto. XII. EXCLUSIVE OWNERSHIP AND POSSESSION BY OWNER A. Each Owner shall be entitled to exclusive ownership and possession of his respective Unit or Unit Week subject to the limitations included in this Declaration, the By-Laws, and Rules and Regulations of the Association of Owners, and any agreement entered into by such Owner. Each Owner shall be entitled to an undivided interest in the Common Elements in the percentage expressed in Appendix B of this Declaration. The percentage of the undivided interest of each Owner in the Common Elements, as expressed in Appendix B, shall have a permanent character and shall not be altered without the consent of one hundred percent (100%) of all Owners expressed in an amended Appendix B duly recorded. The percentage of the undivided 15

16 interest in the Common Elements shall not be separated from the Unit to which it appertains and shall be deemed to be conveyed, encumbered, or released from liens with the Unit even though such interest is not expressly mentioned or described in the conveyance or other instrument. Each Owner may use the Common Elements in accordance with the purpose for which they are intended, without hindering or encroaching upon lawful rights of the other Owners. XIII. OWNER'S OBLIGATION TO REPAIR AND MAINTAIN A. Each Owner of a Unit which is not committed to Interval Ownership shall at his expense keep his Unit and its equipment and appurtenances in good order, condition, and repair and in a clean and sanitary condition, and shall do all redecorating, painting, tiling, waxing, papering, or varnishing which may at any time be necessary to maintain the good appearance and condition of his Unit. In addition to decorating and keeping the interior of the Unit in good repair, the Owner of such a Unit shall be responsible for the maintenance, repair, or replacement of any plumbing fixtures, water heaters, air conditioning equipment, lighting fixtures, refrigerators, dishwashers, disposals or ranges, range hoods and fans or carpeting that are located in his Unit or are benefiting his Unit exclusively. B. The Owner of each Unit which is not committed to Interval Ownership shall also, at his own expense maintain his Limited Common Elements in a clean and sanitary condition. The Board of Directors or Manager shall not be responsible to the Owner for loss or damage by theft or otherwise of articles which may be stored by the Owner in or on his Limited Common Elements or Unit. C. Each Owner of one or more Unit Week agrees: 1. To pay his proportionate share of the cost of the maintenance and repair of all interior and exterior components of said Unit, the cost of maintenance, repair, and replacement of all Limited Interval Common Elements within said Unit, and such other costs of repair, maintenance, upkeep and operation of the Unit as is necessary to the continued enjoyment of said Unit by all said Owners of Unit Weeks therein, as is more fully described in Paragraph XXX herein. 2. Not to make, cause, or allow to be made, any repairs, modifications, alterations, or replacements to the exterior or interior of his Unit, or of the Limited Interval Common Elements, without the prior written consent of the Board of Directors and all other Owners of Unit Weeks 16

17 therein. 3. Expenses of repairs or replacements to the Unit or its Limited Interval Common Elements occasioned by the specific use or abuse of any Owner of Unit Weeks in any Unit, or any licensee or tenant of said Owner, shall be borne in their entirety by said Owner. D. In the event the Owner of a Unit fails to maintain the said Unit as required herein, or makes any alterations or additions without the required written consent, or otherwise violates or threatens to violate the provisions hereof, the Association, shall have the right to proceed in a court of law for an injunction to seek compliance with the provisions hereof. In lieu thereof and in addition thereto, the Association shall have the right to levy an Assessment against the Owner of a Unit, and the Unit for such necessary sums to remove any unauthorized addition or alteration and to restore the Unit to good condition and repair. Where said failure, alteration, addition, or other violation is attributable to any Owner of Unit Weeks, any such levy of an Assessment shall be of no force and effect as to any other Owner of Unit Weeks in said Unit. Said assessment shall have the same force and effect as all other Special Assessments. The Association shall have the further right to have its employees or agents, or any subcontractors appointed by it, enter a Unit at all reasonable times, with advance notice to do such work as is deemed necessary by the Board of Directors to enforce compliance with the provisions hereof. E. Each Owner shall promptly discharge any Common Expense Assessment, Maintenance Fee, or lien which may hereafter be levied or filed against his Condominium Unit or Unit Week. Should an Owner fail to pay Maintenance Fees or Assessments as required under the terms of this Declaration for the period of time whereby said Assessment becomes delinquent. XIV. PROHIBITION AGAINST STRUCTURAL CHANGES BY OWNER No Owner shall, without first obtaining written consent of the Board of Directors, make or permit to be made any structural alteration, improvement, or addition in or to his Unit, or in or to the Common or Limited Common Elements. No Owner shall do any act or work that will impair the structural soundness or integrity of the buildings or safety of the Property or impair any easement or hereditament without the written consent of all Owners. No owner shall paint or decorate any portion of the exterior of the buildings or other Common or Limited Common Elements without first obtaining written consent of the Board of Directors. No relocation of 17

18 boundaries between adjoining Units or subdivision of Units shall be permitted. XV. ENTRY FOR REPAIRS The Association of Owners shall have the irrevocable right, to be exercised by the Manager or Board of Directors, to have access to each Unit from time to time during reasonable hours as maybe necessary for the maintenance, repair, or replacement of any of the Common or Limited Common Elements therein or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to the Common or Limited Common Elements or to another Unit or Units. XVI. FAILURE OF BOARD OF DIRECTORS TO INSIST ON STRICT PERFORMANCE NO WAIVER The failure of the Board of Directors or Manager to insist in any one or more instances, upon the strict performance of any of the terms, covenants, conditions, or restrictions of this Declaration, or to exercise any right or option herein contained, or to serve any notice or to institute any action shall not be construed as a waiver or a relinquishment for the future, of such term, covenant, condition or restriction; but such term, covenant, condition or restriction shall remain in full, force and effect. The receipt by the Board of Directors or Manager of any assessment from an owner, with knowledge of the breach of any covenant hereof shall not be deemed a waiver of such breach, and no waiver by the Board of Directors or Manager of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the Board of Directors or Manager. XVII. LIMITATION ON BOARD OF DIRECTORS' LIABILITY The Board of Directors shall not be liable for any failure of any service to be obtained and paid for by the Board of Directors hereunder, or for injury or damage to person or property caused by the elements or by another owner or person, or resulting from electricity, water or rain which may leak or flow from outside or from any parts of the buildings, or from any of its pipes, drains, conduits, appliances, or equipment, or from any other place unless caused by gross negligence of the Board of Directors. No diminution or abatement of Common Expense Assessments shall be claimed or allowed for inconveniences or discomfort arising from the 18

19 making of repairs or improvements to the Common or Limited Common Elements or from any action taken to comply with any law, ordinance or orders of a government authority. XVIII. INDEMNIFICATION OF BOARD OF DIRECTORS' MEMBERS Each member of the Board of Directors shall be indemnified by the Owners against all expenses and liabilities including attorney s fees, reasonably incurred by or imposed upon in connection with any proceeding to which he may be a party, or in which he may become involved, by reason of his being or having been a member of the Board of Directors, or any settlement thereof whether or not he is a member of the Board of Directors at the time such expense are incurred, except in such cases where in the member of the Board of Directors is adjudged guilty of willful provided that in the event of a settlement the indemnification misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement the indemnification shall apply only when the Board of Directors approves such settlement and reimbursement as being for the best interests of the Board of Directors. XIX. INSURANCE The Board of Directors shall obtain and maintain at all times insurance of the type and kind and in at least the amounts provided in the By-Laws and in Section of the Vermont Common Interest Ownership Act, which insurance shall be governed by the following provisions: A. Exclusive authority to adjust losses under policies hereafter in force in the Property shall be vested in the Board of Directors as Insurance Trustee or its authorized representative; B. In no event shall the insurance coverage obtained and maintained by the Board of Directors hereunder, be brought into contribution with insurance purchased by individual Owners or their mortgagees; C. Each Owner may obtain additional insurance at his own expense; provided, however, that no Owner shall be entitled to exercise his right to maintain insurance coverage in such a way as to decrease the amount which the Board of Directors, on behalf of all of the Owners, may realize under any insurance policy in which the Board of Directors may have in force on the property at any particular time; D. Each Owner of a Unit which is not committed to Interval Ownership shall be required 19

20 to notify the Board of Directors of all improvements made by the Owner to his Unit, the value of which is in excess of One Thousand Dollars ($1,000.00); E. Any Owner who obtains individual insurance policies covering any portion of the Property other than personal property belonging to such Owner, shall be required to file a copy of such individual policy or policies with the Board of Directors within thirty (30) days after purchase of such insurance; F. The Board of Directors shall be required to make every effort to secure insurance policies that will provide for the following: 1. A waiver of subrogation by the insurer as to any claims against the Board of Directors, the Manager, the Owners and their respective servants, agents and guests; 2. That the master policy on the Property cannot be cancelled, invalidated, or suspended on account of the conduct of any one or more individual Owners; 3. That the master policy on the property cannot be cancelled, invalidated or suspended on account of the conduct of any officer or employee of the Board of Directors or Manager without prior demand in writing that the Board of Director or Manager cure the defect; 4. That any "no other insurance" clause in the master policy exclude individual Owners' policies from consideration; G. The annual insurance review which the Board of Directors is required to conduct as provided in Paragraph II-E-2 of the By-Laws shall include an appraisal of the improvements in the Property by a representative of the insurance agent writing the master policy. XX. PARKING The Property has or will have certain open parking areas. Said areas shall generally be Common Elements. The Board of Directors is authorized to make such Rules and Regulations as may be required for the efficient and best use of such parking areas. XXI. NO PARTITION There shall be no judicial partition of the Property or any part thereof, nor shall any person acquiring any interest in the property or any part thereof seek any such judicial partition, until the happening of the conditions set forth in Paragraphs VI or VII of this Declaration; provided, however, that if any Unit or Unit Week shall be owned by two or more co-tenants as 20

21 tenants in common or as joint tenants under circumstances other than those provided for in Paragraph VII, nothing herein contained shall be deemed to prevent a judicial partition as between such cotenants. Such partition shall not affect any other Unit or Unit Week. As is set forth in the deed of conveyance, the Interval Ownership of Unit Weeks within a Unit committed to Interval Ownership consists of an estate for years, together with a remainder over as tenants in common with all other Owners of Unit Weeks in such Unit. No owner of one or more Unit Weeks shall have the right to separate, through judicial partition or any other means, the estate for years from the remainder interest. XXII. ENFORCEMENT Each Owner shall comply strictly with the provisions of his Declaration, the By-Laws, and the Rules and Regulations drafted pursuant thereto as the same may be lawfully amended from time to time and with decisions adopted pursuant to said Declaration, By-Laws, Rules and Regulations, and failure to comply shall be grounds for an action to recover sums due for damages or injunctive relief or both, maintainable by the Board of Directors or Manager on behalf of the Association of Owners, or in a proper case, by an aggrieved Owner. XXIII. PERSONAL PROPERTY A. The Board of Directors or Manager may acquire and hold, for the benefit of all Owners, tangible and intangible personal property and may dispose of the same by sale or otherwise, and the beneficial interest in such personal property shall be owned by the Owners in the same proportion as their respective interests in the Common Elements, and shall not be transferrable except with a transfer of a Condominium Unit or Unit Week. A transfer of a Condominium Unit or Unit Week shall transfer to the transferee ownership of the transferor's beneficial interest in such personal property. B. In addition to the personal property described above, the Board of Directors or Manager may acquire and hold, for the benefit of Owners of Unit Weeks in Units committed to Interval Ownership, tangible personal property which replaces or supplements personal property included as Limited Interval Common Elements appurtenant to Units which have been committed to Interval Ownership. Such personal property shall become Limited Interval Common Elements, owned proportionately by all Unit Week Owners as described in Paragraph 21

22 III above. The cost or expense incurred by the Board of Directors or Manager in obtaining, maintaining, or repairing such personal property shall be included in the annual Maintenance Fee and borne collectively by all Unit Week Owners. The Board of Directors shall regularly replace the Limited Interval Common Elements within each Unit committed to Interval Ownership as needed in the discretion of the Board of Directors or its delegate, but in no event shall such replacement fail to be made within seven (7) years of the date when such Limited Interval Common Elements were first placed in use in any Unit. XXIV. INTERPRETATION The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the development and operation of a condominium property including Interval Ownership. Failure to enforce any provisions hereof shall not constitute a waiver of the right to enforce said provision or any other provision hereof. XXV. AMENDMENT Except as otherwise provided herein and except as prohibited by the Vermont Common Interest Ownership Act, the provisions of the Declaration may be amended by either an instrument in writing signed and acknowledged by record Owners holding at least seventy-five (75) percent of the total vote of affected Owners hereunder, or by an instrument in writing signed and acknowledged by the Board of Directors or its delegate which includes a certification that the amendment included in the instrument has been approved by record Owners holding at least seventy-five (75) percent of the total vote of affected owners hereunder, which amendment shall be effective upon recording. Any amendment altering the percentage of ownership in the Common Elements or voting rights shall require the approval of one hundred (100) percent of the Owners of Units or Unit Weeks who will be affected by the amendment if it is implemented. XXVI. SEVERABILITY The provisions hereof shall be deemed independent and severable, and the invalidity or partial invalidity or unenforceability of any one provision or portion hereof shall not affect the validity or enforceability of any other provision hereof. 22