DECLARATION OF RECIPROCAL EASEMENTS AND GARAGE OPERATING AGREEMENT

Transcription

1 DECLARATION OF RECIPROCAL EASEMENTS AND GARAGE OPERATING AGREEMENT Introduction Imagine a parcel of property, subdivided into three lots. A resort hotel stands on the westerly lot. A new condominium/fractional interest development is planned for construction on the easterly lot. An existing condominium project occupies the lot in the middle, and the association for that existing project holds an easement over the resort hotel s lot, providing access from the street to the existing condominium project s surface parking area. The owners of the new condominium development and the hotel have agreed with the existing condominium association that all three projects will benefit from a new parking garage to be constructed under the surface of all three lots. Access to the new garage will be provided by an entrance from the street abutting the hotel site to the west, and by a second entrance from the street abutting the new condominium/fractional interest development to the east. This declaration represents one approach for allocating among the three parties the various rights and responsibilities relating to the garage to be constructed beneath all three lots. This Declaration of Reciprocal Easements and Garage Operating Agreement (this Declaration ) dated as of, is executed by Hotel Properties, Inc. ( Hotel Owner ), New Condo Associates, LLC ( New Condo Developer ), and Existing Condominium Association (the Existing Condo Association ). Background and Purpose A. Hotel Owner is the owner in fee simple of the real property located in the Town of Nonesuch, Blue Sky County, Colorado (sometimes called the Town ), which property is more fully described on the attached Exhibit A (the Hotel Parcel ), including the improvements consisting of a hotel and related amenities known (and referred to here) as the Hotel Resort. B. New Condo Developer is the owner in fee simple of a second parcel of real property in the Town of Nonesuch, Blue Sky County, Colorado, described on the attached Exhibit B (the New Condo Parcel ). C. The Existing Condo Association is the owners association charged with administering the condominium project in the Town of Nonesuch, Blue Sky County, Colorado, located between the Hotel Parcel and the New Condo Parcel, on the property more fully described on the attached Exhibit C (the Existing Condo Parcel ). The Existing Condo project consists of 20 condominium units (the Existing Condo Units ), more fully described

2 with reference to the Declaration for the Existing Condominium recorded in Book 001 at Page 001, and the map for Existing Condo recorded in Book 001 at Page 002, both as supplemented, restated or otherwise modified from time to time and recorded in the office of the Clerk and Recorder of Blue Sky County, Colorado (the Existing Condo Declaration and the Existing Condo Map, respectively). D. Hotel Owner intends to construct (i) an expansion of the Hotel Resort with a series of new improvements, including (among others) an underground parking facility below the surface of the Hotel Parcel (together with related improvements, the Hotel Garage ), and (ii) an underground parking facility below the surface of the Existing Condo Parcel (with related surface parking and other improvements, the Existing Condo s Garage ), pursuant to a Development Agreement between Hotel Owner and the Existing Condo Association. E. New Condo Developer intends to construct a condominium and fractional ownership interest project (the New Condo Project ), which will include an underground parking facility below the surface of the New Condo Parcel (the New Condo Garage ). F. The preliminary floor plan for the Hotel Garage, the Existing Condo s Garage and the New Condo Garage (sometimes called, together, the Garage ) is duplicated on the attached Exhibit D. G. Hotel Owner, New Condo Developer and the Existing Condo Association intend this Declaration to bind each of them and their respective successors and assigns, and all others holding an interest in the Hotel Parcel, the Existing Condo Parcel or the New Condo Parcel (together, the Property ) with equitable terms governing the use and enjoyment of the Garage. This Declaration will address, among other concerns, (i) the permanent allocation of 20 parking spaces for the exclusive use of the Existing Condo Association, 100 parking spaces for the exclusive use of Hotel Owner, and 50 parking spaces for the exclusive use of New Condo Developer, (ii) the management of the Garage, (iii) an equitable allocation of the expenses of maintaining, insuring, operating and repairing the Garage, (iv) a method for determining an annual budget for such expenses, (v) reciprocal rights for access to and from the Garage, and (vi) permanent easements required for the maintenance, repair and administration of the Garage and for utilities and other installations serving any portion of the Property. ARTICLE I DEFINITIONS In addition to the terms defined above and other terms defined in other sections of this Declaration, the following words and phrases, when used in this Declaration, shall have the following specified meanings: Section Benefitted Site shall mean the Site for which, or for the Owner(s) of which, a particular easement is created pursuant to this Declaration. Section Declaration shall mean this instrument, as it may be amended or restated from time to time and recorded in the real property records of Blue Sky County, Colorado. 2

3 Section Default Rate shall mean an annual rate of 6% over the prime rate of interest as published from time to time in the Wall Street Journal. Section Easement Area shall mean any one of the areas on, over, under, across or through which an easement has been created pursuant to this Declaration, together with all improvements located on the area which are utilized for the easement. Section Owner shall mean, initially, Hotel Owner with respect to the Hotel Parcel; the Existing Condo Association with respect to the Existing Condo Parcel; and New Condo Developer with respect to the New Condo Parcel; and subsequently, the respective successors and assigns of each of those parties, as such successors and assigns are limited by Section 9.03 below and designated in an assignment of the Owner s interest under this Declaration, recorded in the real property records of Blue Sky County, Colorado. Section Permittee shall mean any officer, director, employee, agent, contractor, customer, guest, visitor, invitee, licensee, assignee, tenant or concessionaire of an Owner. Section Person (whether capitalized or not) shall mean an individual or a corporation, partnership, association, trust or other legal entity with the legal right to hold title to real property in Colorado. Section Responsible Owner shall mean the Owner of the Hotel Parcel. Section Site shall mean any one of the following: the Hotel Parcel, the New Condo Parcel, and the Existing Condo Parcel. ARTICLE II DECLARATION OF EASEMENTS Section Current Grant. Subject to the terms and conditions set forth in this Declaration, Hotel Owner, New Condo Developer and the Existing Condo Association hereby create, grant and convey the easements described in this Declaration below, and declare that each of the Sites shall be held, sold and conveyed subject to this Declaration, which is for the purpose of enhancing and protecting the value and desirability of all the Sites. Each easement granted and conveyed under this Declaration shall be for the benefit of, and may be enforced by, an Owner of the respective Benefitted Site and the successors and assigns of such Owner. Each easement granted and conveyed under this Declaration shall run with the land and shall be appurtenant to the respective Benefitted Site, such that a transfer of legal title to all or any portion of such Benefitted Site shall automatically transfer an interest in the respective easement. Section Conforming Amendment After Construction. Following construction of each of the New Condo Garage, the Existing Condo s Garage and the Hotel Garage, each of the Owners, upon reasonable request from any other Owner, will enter into one or more amendments to this Declaration or to the exhibits to it, to accurately show the location of the easements, the parking spaces and the other features of the Garage as actually constructed. 3

4 ARTICLE III RECIPROCAL GARAGE EASEMENTS Section Hotel Garage Easement. The Owner of the Hotel Garage, subject to the terms and conditions set forth in this Declaration, hereby grants and conveys the following: (a) To the Owner of the Existing Condo Parcel and the Owner of the New Condo Parcel, a perpetual, nonexclusive pedestrian and vehicular access easement and right-ofway over, across, on and through the Hotel Garage; and (b) To the Owner of the Existing Condo Parcel, a perpetual and exclusive pedestrian and vehicular access easement and a perpetual and exclusive parking easement on, across and through those four parking spaces located in the Hotel Garage and numbered 80 through 83, inclusive, shown on Exhibit D. Notwithstanding the foregoing, the Owner of the Existing Condo Parcel and the Owner of the New Condo Parcel understand and agree as follows: (i) The parking spaces located in the Hotel Garage (except as otherwise granted to the Owner of the Existing Condo Parcel in clause (b) of this Section 3.01 above) are for the sole and exclusive use of the Owner of the Hotel Parcel; (ii) Any elevator located in the Hotel Garage is reserved primarily for the use of the Owner of the Hotel Parcel and such Owner s Permittees; and (iii) The access from Town Road into the Hotel Garage is reserved primarily for the use of the Owner of the Hotel Parcel and the Existing Condo Owners and their respective Permittees, and the Owner of the New Condo Parcel shall use that access as a secondary route only, when access via New Condo Road is not readily available. Section Existing Condo s Garage Easement. Subject to the terms and conditions set forth in this Declaration, the Existing Condo Association hereby grants and conveys the following: (a) To the Owner of the Hotel Parcel and the Owner of the New Condo Parcel, a perpetual, non-exclusive pedestrian and vehicular access easement and right-of-way over, across, on and through the Existing Condo s Garage; and (b) To the Owner of the Hotel Parcel, a perpetual and exclusive pedestrian and vehicular access easement and a perpetual and exclusive parking easement on, across and through those four parking spaces located in the Existing Condo s Garage and numbered 109, 110, 114 and 115, shown on Exhibit D. Notwithstanding the foregoing, the Owner of the Hotel Garage and the Owner of the New Condo Parcel understand and agree as follows: 4

5 (i) The parking spaces located in the Existing Condo s Garage (except as otherwise granted to the Owner of the Hotel Parcel in clause (b) of this Section 3.02 above) are for the sole and exclusive use of the those parties who own the Existing Condo Units from time to time (the Existing Condo Unit Owners ), as such rights may be assigned and allocated to the Existing Condo Unit Owners by the Existing Condo Association; and (ii) Any elevator located in the Existing Condo s Garage is reserved primarily for the use of the Existing Condo Unit Owners and their Permittees. Section New Condo Garage Easement. The Owner of the New Condo Garage, subject to the terms and conditions set forth in this Declaration, hereby grants and conveys the following: (a) To the Owner of the Hotel Parcel, a perpetual, nonexclusive pedestrian and vehicular access easement and right-of-way over, across, on and through the New Condo Garage, including without limitation access to the loading docks located in the New Condo Garage; and (b) To the Owner of the Existing Condo Parcel, a perpetual, nonexclusive pedestrian and vehicular access easement and right-of-way over, across, on and through the New Condo Garage, but excluding access to the loading docks located in the New Condo Garage; and (c) To the Owner of the Hotel Parcel, a perpetual and exclusive pedestrian and vehicular access easement and a perpetual and exclusive parking easement on, across and through those 17 parking spaces located in the New Condo Garage and numbered 43 through 60, inclusive, shown on Exhibit D. Notwithstanding the foregoing, the Owner of the Existing Condo Parcel and the Owner of the Hotel Parcel understand and agree as follows: (i) The parking spaces located in the New Condo Garage (except as otherwise granted to the Owner of the Hotel Parcel in clause (c) of this Section 3.03 above) are for the sole and exclusive use of the Owner of the New Condo Parcel; (ii) Any elevator located in the New Condo Garage is reserved primarily for the use of the Owner of the New Condo Parcel and such Owner s Permittees; and (iii) The access from New Condo Road into the New Condo Garage is reserved primarily for the use of the Owner of the New Condo Parcel and such Owner s Permittees, and the Existing Condo Unit Owners shall use that access as a secondary route only, when access via Town Road is not readily available. The Owner of the Hotel Parcel likewise shall use the New Condo Road access as a secondary route only, except when access is required to the loading dock in the New Condo Garage. 5