MEMBERSHIP PLAN
FOR
SEDONA VACATION CLUB
AT LOS ABRIGADOS
TABLE OF CONTENTS
Page
PREAMBLE 1
ARTICLE I - DEFINITIONS...................................................... 2
Section 1.01. Articles.......................................... 2
Section 1.02. Assessments....................................... 2
Section 1.03. Board............................................. 2
Section 1.04. Bylaws............................................ 2
Section 1.05. Capital Assessment................................ 2
Section 1.06. Check-In-Time and Check-Out-Time.................. 2
Section 1.07. Club.............................................. 2
Section 1.08. Common Areas...................................... 3
Section 1.09. Common Expenses................................... 3
Section 1.10. Common Furnishings................................ 3
Section 1.11. CPI Dues Adjustment Percentage.................... 3
Section 1.12. Dedicated Percentage.............................. 3
Section 1.13. Deed.............................................. 3
Section 1.14. Deed of Trust..................................... 3
Section 1.15. Dues.............................................. 3
Section 1.16. Every Year Membership............................. 4
Section 1.17. Every Other Year Membership....................... 4
Section 1.18. Excepted Areas.................................... 4
Section 1.19. Exchange Program.................................. 4
Section 1.20. Exchange User..................................... 4
Section 1.21. Fiscal Year....................................... 4
Section 1.22. Lender............................................ 5
Section 1.23. Maintenance Period................................ 5
Section 1.24. Managing Agent.................................... 5
Section 1.25. Member............................................ 5
Section 1.26. Membership........................................ 5
Section 1.27. Membership Certificate............................ 5
Section 1.28. Occupancy Period.................................. 5
Section 1.29. Occupancy Right................................... 5
Section 1.30. Occupancy Year.................................... 5
Section 1.31. Permitted User.................................... 6
Section 1.32. Personal Charges.................................. 6
Section 1.33. Plan.............................................. 6
Section 1.34. Property.......................................... 6
Section 1.35. Purchase Agreement................................ 6
Section 1.36. Record Book of Members............................ 6
Section 1.37. Renter............................................ 6
Section 1.38. Resort............................................ 7
Section 1.39. Rules and Regulations............................. 7
Section 1.40. Seller............................................ 7
Section 1.41. Time Period....................................... 7
Section 1.42. Unit.............................................. 7
Section 1.43. Unoccupied Unit................................... 7
ARTICLE II - RESERVATION RIGHTS, OCCUPANCY RIGHTS AND RESTRICTIONS........... 7
Section 2.01. Type of Ownership................................. 7
Section 2.02. Reservation and Occupancy Rights of Members....... 8
Section 2.03. Member's Obligations During Occupancy............. 9
Section 2.04. Additional Membership Rights...................... 9
Section 2.05. Failure to Vacate.................................10
Section 2.06. Occupancy Restrictions............................10
Section 2.07. Easement for Sales, Customer Service and
Related Purposes..............................11
Section 2.08. Rental of Units by Seller.........................11
Section 2.09. Restrictions on Resale of Club Memberships........11
ARTICLE III - THE CLUB.......................................................12
Section 3.01. Club..............................................12
Section 3.02. Membership in the Club............................12
Section 3.03. Issuance and Transfer of Membership Certificates..13
Section 3.04. Membership Protection.............................13
Section 3.05. Voting............................................13
Section 3.06. Actions of the Club Requiring Membership Approval.14
Section 3.07. Counting of Votes.................................14
Section 3.08. Board of Directors................................14
Section 3.09. Dedicated Percentage of Expenses Payable
by the Club...................................14
ARTICLE IV - MANAGEMENT......................................................15
Section 4.01. Powers and Duties Generally.......................15
Section 4.02. Specific Powers and Duties of the Club............15
Section 4.03. Authority and Duty to Engage Managing Agent.......17
ARTICLE V - DUES AND ASSESSMENTS.............................................18
Section 5.01. Creation of Personal Obligations for Assessments..18
Section 5.02. Use of Assessments................................19
Section 5.03. Basis of Maximum Dues.............................19
Section 5.04. Commencement and Collection of Dues...............19
Section 5.05. Payment of Assessments............................19
Section 5.06. Capital Assessments...............................19
Section 5.07. Personal Charges..................................19
Section 5.08. Exchange Program..................................20
ARTICLE VI - ENFORCEMENT OF RESTRICTIONS.....................................20
Section 6.01. General...........................................20
Section 6.02. Suspension and Termination of Privileges..........20
ARTICLE VII - DAMAGE, DESTRUCTION, CONDEMNATION..............................21
Section 7.01. General...........................................21
Section 7.02. Extensive Damage or Destruction...................21
Section 7.03. Excess Insurance Proceeds.........................22
ARTICLE VIII - SELLER'S RIGHTS...............................................22
ARTICLE IX - MISCELLANEOUS PROVISIONS........................................22
Section 9.01. Amendment.........................................22
Section 9.02. Termination.......................................23
Section 9.03. Notices...........................................23
Section 9.04. Severability......................................24
Section 9.05. Successors........................................24
Section 9.06. Violation or Nuisance.............................24
Section 9.07. Interpretation....................................24
Section 9.08. No Waiver.........................................24
Section 9.09. Applicable Law....................................24
MEMBERSHIP PLAN FOR
SEDONA VACATION CLUB
AT LOS ABRIGADOS
This Membership Plan (the "Plan"), dated January 11, 1995, has been
developed by SEDONA VACATION CLUB INCORPORATED, an Arizona nonprofit corporation
(the "Club"), and LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP, an Arizona limited
partnership ("Seller"). This Plan amends and supercedes all other membership
plans previously recorded on behalf of the Club.
PREAMBLE:
A. The Club proposes to issue individual memberships in the Club
("Membership" or collectively the "Memberships") pursuant to which the person
purchasing the Membership ("Member") shall have certain defined rights to occupy
and use certain real property, described in Exhibit A attached hereto and made a
part hereof (the "Property") and to use the Common Areas and the Common
Furnishings as hereinafter defined during certain specified time periods and
reserving to Seller and its successors the exclusive right to occupy and use the
Property and to use the Common Areas and the Common Furnishings during all other
periods of time, subject to the limitations, covenants, and conditions set forth
in this Plan.
B. Seller is the owner of the Property and certain other areas situated
upon the Property (collectively referred to herein as the "Resort"). Seller
currently operates the Resort as a hotel and shall continue to operate the
Resort as a hotel to the extent of unsold or unused Memberships. See "Rental of
Units by Seller" at Sec. 2.08.
C. On October 18, 1988, the Club entered into a contractual agreement with
the predecessor-in-interest to Seller (the "Transfer Agreement"), whereby the
Club, on behalf of its future Members, acquired the right, in perpetuity, to use
the Property, subject to the terms and conditions set forth in the Transfer
Agreement, and the predecessor-in-interest to Seller acquired ownership of and
the exclusive right to market Club Membership interests.
D. Pursuant to an amendment to the Transfer Agreement dated September 10,
1991, as further amended by an Amendment of Amended Transfer Agreement dated
August 12, 1992, Seller has reserved the right to issue to each consenting
Member a Deed evidencing said Member's undivided fractional fee title interest
in and to the Property, to be held in common with all other Members, and all
Members receiving a Deed, except those who have paid in full for their
Membership, shall contemporaneously execute a Deed of Trust to Seller which
shall further secure the unpaid balance of each Member's Membership. The Deed
for Members who purchased an Every Year Membership prior to January 11, 1995
conveys a 1/8,925 interest in and to the Property. The Deed for Members who
purchased an Every Other Year Membership prior to January 11, 1995 conveys a
1/17,850 interest in and to the Property. On January 11, 1995, the Club and
Seller executed a Third Amendment of the Transfer Agreement that increased the
number of Memberships available for sale from 51 Memberships per Unit to 52
Memberships per Unit. Accordingly, the Deed for Members who purchase an Every
Year Membership on or after January 11, 1995 shall convey a 1/9,325 interest in
and to the Property. The Deed for Members who purchase an Every Other Year
Membership on or after January 11, 1995 shall convey a 1/18,650 interest in and
to the Property.
E. By this Plan, Seller and the Club intend to establish a common plan for
the use, enjoyment, repair, and improvement of the Property and the interests
therein and for the payment of taxes, assessments, insurance premiums and other
expenses. The Club and Seller intend to comply with the terms and conditions of
the Arizona Real Estate Time Shares Act (Arizona Revised Statutes Sec 32-2197 et
seq.).
F. In furtherance of such intent, Seller and the Club declare that the
Property is and shall be held, conveyed, mortgaged, leased, used, and improved
subject to the limitations, covenants and conditions set forth in this Plan, as
this Plan may be further amended, and in such other rules and regulations as are
instituted pursuant to this Plan or pursuant to the Bylaws of the Club. All such
limitations, covenants, conditions, rules and regulations shall be binding upon
and for the benefit of the Club and each Member thereof and any party having or
acquiring any right, title, interest or estate in the Property.
G. The Club shall be responsible for the payment of a percentage of the
costs of owning, operating, managing and maintaining the Property (such costs
being hereinafter referred to as the "Dedicated Percentage"). The Dedicated
Percentage of expenses payable by the Club shall be equal to the total expenses
incurred by Seller multiplied by a fraction, the numerator of which is the
number of Memberships then sold by Seller and the denominator of which is the
total number of authorized Membership interests in the Club (the "Total
Authorized Memberships"). See "Type of Ownership" at Sec. 2.01. Any expenses
related to the ownership, operation, management or maintenance of the "Excepted
Areas" as defined in Sec. 1.16 shall be the sole responsibility of Seller. See
"Dedicated Percentage of Expenses Payable by the Club" at Sec. 3.09.
ARTICLE I
DEFINITIONS
In addition to other definitions provided for herein, the following terms
shall have the following meanings:
Section 1.01. Articles. "Articles" means the Articles of Incorporation of
the Club as the same may be amended from time to time.
Section 1.02. Assessments. "Assessments" means that portion of Dues,
Personal Charges and Capital Assessments which a Member is required to pay.
Section 1.03. Board. "Board" means the Board of Directors of the Club.
Section 1.04. Bylaws. "Bylaws" means the Bylaws of the Club adopted by the
Board, as the same may be amended from time to time.
Section 1.05. Capital Assessment. "Capital Assessment" shall mean a charge
against each Member and his/her Membership, representing a portion of the cost
to the Club for installation or construction of any capital improvements on or
to, or for the benefit of, the Resort or for reconstruction of any capital
improvements on any of the Resort which the Board may approve from time to time.
Such charge shall be levied among all of the Memberships in the same proportions
as are Dues.
Section 1.06. Check-In-Time and Check-Out-Time. "Check-In-Time" and
"Check-Out- Time" mean the times designated as such in the Plan or in the then
current Rules and Regulations.
Section 1.07. Club. "Club" means Sedona Vacation Club Incorporated, an
Arizona nonprofit corporation, or any successor-in-interest by merger or express
assignment of the rights of the Club hereunder.
Section 1.08. Common Areas. "Common Areas" means all portions of the
Property other than (a) the interiors of the Units and, where applicable,
connected patio or balcony areas, and (b) the Excepted Areas.
Section 1.09. Common Expenses. "Common Expenses" shall mean a portion of
the actual and estimated costs of ownership, maintenance, management, operation,
repair and replacement of the Property, all improvements benefiting the Property
and the Common Furnishings including but not limited to taxes, insurance,
utilities, reserves, maintenance fees, legal and accounting fees.
Section 1.10. Common Furnishings. "Common Furnishings" means all furniture,
furnishings, appliances, fixtures and equipment, and all other personal property
from time to time owned, leased or held for use by the Club and which are
located in or upon the Property, except any furniture, furnishings, appliances,
fixtures, equipment and all other personal property located in the Excepted
Areas.
Section 1.11. CPI Dues Adjustment Percentage. "CPI Dues Adjustment
Percentage" means a percentage equal to the sum of the percentage increase
during the twelve (12) months ending on September 30th in the preceding calendar
year in the Consumer Price Index in the Metropolitan Phoenix Area as determined
by the United States Department of Labor, Bureau of Labor Statistics plus five
percent (5%). In the event the Consumer Price Index is discontinued, the Board
shall select an appropriate alternative economic indicator.
Section 1.12. Dedicated Percentage. "Dedicated Percentage" means that
portion of the expenses related to the ownership, operation, management and
maintenance of the Property required to be paid by the Club to Seller, which
Dedicated Percentage shall be equal to the total expenses incurred by Seller
multiplied by the total amount of the undivided fractional ownership interests
then held by Members to whom Seller sold a Membership. Any expenses related to
the ownership, operation, management or maintenance of the Excepted Areas shall
be the sole responsibility of Seller.
Section 1.13. Deed. "Deed" means a fee simple interest to an undivided
fractional interest in the Property, as evidenced by a recorded warranty deed
executed by Seller on behalf of a Member, which Deed shall be subject to the
terms and conditions of this Plan.
Section 1.14. Deed of Trust. "Deed of Trust" means a recorded deed of trust
executed by a Member on behalf of Seller which secures any unpaid balance of the
Member's Membership, as evidenced by the Member's Purchase Agreement and any
unpaid Dues or Common Assessments owed by such Member.
Section 1.15. Dues. "Dues" shall mean a charge against each Member and
his/her Membership, representing a portion of the annual costs of maintaining,
improving (including reserves), repairing and managing a portion of the Property
and all other Common Expenses which are to be paid by each Member to the Club as
provided herein.
Section 1.16. Every Year Membership. "Every Year Membership" means a
Membership that entitles the Member to reserve and use his or her Membership in
every year.
Section 1.17. Every Other Year Membership. "Every Other Year Membership"
means a Membership that entitles the Member to reserve and use his or her
Membership in either every Odd Year or every Even Year. If the Member has
purchased an Every Other Year Membership for every Odd Year, then he or she may
reserve and use the Property only during those Occupancy Years ending in an odd
number (for example, 1993, 1995, and so on). If the Member has purchased an
Every Other Year Membership for every Even Year, then he or she may reserve and
use the Property only during those Occupancy Years ending in an even number (for
example, 1992, 1994, and so on).
Section 1.18. Excepted Areas. "Excepted Areas" means the following areas
situated at the Resort:
(1) the On the Rocks Lounge and any and all other lounge or bar
facilities (except those bar facilities located in the Units) now or hereafter
existing on the Property,
(2) the Sedona Health Spa at Los Abrigados together with the
reception, business offices and patio areas on the second floor adjacent to the
Sedona Health Spa at Los Abrigados and any and all health or fitness related
facilities (except the swimming pool and the tennis courts) now or hereafter
existing on the Property,
(3) the Canyon Rose Dining Room and any and all other dining
facilities, snack bars, gift shops and stores now or hereafter existing on the
Property,
(4) all conference rooms including the Landmark Room, Coffee Pot Room,
Indian Gardens Room, Steamboat Rock Room, Snoopy Rock Room and any and all other
conference rooms (except those conference rooms located within the Units) now or
hereafter existing on the Property, and
(5) the entire first floor of the main hotel structure, which floor
contains the hotel registration desk and lobby areas.
Section 1.19. Exchange Program. "Exchange Program" means a service provided
by Resort Condominiums International, Inc. ("RCI") or such other independent
exchange company as may, from time to time, be selected by the Club, whereby
Members, for a fee, may exchange Occupancy Periods in the Property for
comparable use privileges in other projects in the RCI (or other exchange
company) network program.
Section 1.20. Exchange User. "Exchange User" means an owner of a time
period in an unrelated project who occupies a Unit in the Club and uses the
Club's Common Areas pursuant to an Exchange Program.
Section 1.21. Fiscal Year. "Fiscal Year" means the one year period
commencing on January 1 of each year.
Section 1.22. Lender. "Lender" means the financial institution or
institutions that shall from time to time finance on behalf of Seller the Resort
and/or the unpaid Membership contracts.
Section 1.23. Maintenance Period. "Maintenance Period" means, with respect
to each Unit, a period of not more than one (1) day and night during each
Occupancy Year, reserved by the Seller for maintenance and repair of a Unit and
the Common Furnishings therein. The Club shall determine which day and night
will comprise the Maintenance Period for each Unit, which determination may be
changed from time to time.
Section 1.24. Managing Agent. "Managing Agent" means ILX Incorporated, an
Arizona corporation, or such other agent engaged by the Board pursuant to and in
the manner provided in Section 4.03 hereof.
Section 1.25. Member. "Member" means the owner of a Membership in the Club
or Seller with respect to any Memberships held for sale by Seller.
Section 1.26. Membership. "Membership" means a Member's right to occupy a
Unit, the Common Areas and the Common Furnishings during an Occupancy Period
provided such occupancy is reserved and used in accordance with the applicable
provision of the Plan, Bylaws and Rules and Regulations. The Club shall issue
and sell no more than fifty-two (52) Memberships per Unit. For purposes of
calculating "Memberships Per Unit," each Every Year Membership shall count as
one Membership and each Every Other Year Membership shall count as one-half of a
Membership. Each Membership shall be evidenced by a Membership Certificate and
Deed. The Club shall offer five types of Memberships, which shall be identified
as Jerome Memberships, Sedona Memberships, Oak Creek Memberships, Flagstaff
Memberships and Stone House Memberships. Within each type of Membership, the
Club shall offer "Every Year Memberships" and "Every Other Year Memberships."
Every Other Year Memberships are further subdivided into Memberships for either
every even year or every odd year.
Section 1.27. Membership Certificate. "Membership Certificate" means a
certificate issued by the Club identifying the person to whom it is issued as a
Member and specifying the type of Membership purchased. The person to whom is
issued a Membership Certificate shall also be issued a Deed.
Section 1.28. Occupancy Period. "Occupancy Period" means seven (7) time
periods (as defined in Sec. 1.40) during each Occupancy Year (as defined in Sec.
1.30), not necessarily consecutive, during which a Member has reserved the use
of a Unit in accordance with the provisions of this Plan, the Bylaws and the
Rules and Regulations.
Section 1.29. Occupancy Right. "Occupancy Right" means the maximum number
of persons (either four (4) or six (6) specified in a Membership Certificate)
who may occupy a Unit at any one time during the Occupancy Period of the Member
owning such Membership Certificate.
Section 1.30. Occupancy Year. "Occupancy Year" means each thirteen (13)
month period commencing at Check-In-Time on the first Monday in January of each
calendar year (unless December 31 is a Monday in which event an Occupancy Year
shall commence at Check-In-Time on December 31) and concluding on January 31 of
the following year, provided, however, that for purposes of Members who own
Every Other Year Memberships for every odd year, the Occupancy Year shall
commence at Check-In-Time on the first Monday in January of each odd calendar
year, for example, January 1, 1993, 1995 and so on (unless December 31 is a
Monday in which event an Occupancy Year shall commence at Check-In-Time on
December 31) and conclude on January 31 of the following year; and for Members
who own Every Other Year Memberships for every even year, the Occupancy Year
shall commence at Check-In-Time on the first Monday in January of each even
calendar year, for example January 1, 1992, 1994, and so on (unless December 31
is a Monday in which event an Occupancy Year shall commence at Check-In-Time on
December 31) and conclude on January 31 of the following year. The Rules and
Regulations may designate another period as constituting the Occupancy Year. The
first Occupancy Year of each Every Year Membership shall be the Occupancy Year
in which the Member purchases his or her Membership. For purposes of the
Exchange Program described in Section 1.19 above, an exchange may be effected
only during each calendar year or for subsequent calendar years or as otherwise
administered by the exchange company from time to time conducting the Exchange
Program.
Section 1.31. Permitted User. "Permitted User" means any person, other than
an Exchange User or a Renter, occupying a Unit in the Property by or through any
Member, including, but not limited to, such Member's family, guests, licensees
or invitees (inclusive of those persons to whom the Member rents the Unit).
Section 1.32. Personal Charges. "Personal Charges" shall mean a charge
against a particular Member and his/her Membership, directly attributable to, or
reimbursable by, the Member, equal to the cost incurred by the Club for
corrective action performed pursuant to the provisions of this Plan, or a
reasonable fine or penalty assessed by the Club, plus interest and other charges
thereon as provided for in this Plan. Personal Charges shall also include any
and all charges attributable to or incurred by a Member or a Permitted User
during his/her use of the Property. Any act or omission by a Permitted User
shall be deemed the act or omission of the Member under whom such Permitted User
occupies the Property.
Section 1.33. Plan. "Plan" means this instrument, as may be amended from
time to time.
Section 1.34. Property. "Property" means that certain real property located
in Sedona, Arizona, as more particularly described in Exhibit A hereto, which
description does not include the Excepted Areas.
Section 1.35. Purchase Agreement. "Purchase Agreement" means a Purchase
Agreement between Seller and the person, firm or entity named therein as "Buyer"
providing for the sale by Seller and the purchase by Buyer of one or more
Memberships to be evidenced by one or more Membership Certificates and one or
more Deeds.
Section 1.36. Record Book of Members. "Record Book of Members" means the
official register of the then current Members of the Club, as kept by the
Secretary of the Club in accordance with the Bylaws.
Section 1.37. Renter. "Renter" means an individual, other than a Member,
Exchange User or Permitted User, who has obtained the right to occupy a Unit in
the Property on an overnight basis.
Section 1.38. Resort. "Resort" means the Property and the Excepted Areas.
Section 1.39. Rules and Regulations. "Rules and Regulations" means the
rules and regulations adopted by the Board as may be amended from time to time
pursuant to the Bylaws of the Club.
Section 1.40. Seller. "Seller" means LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP, an Arizona limited partnership, and its successors and assigns, or
any designated affiliate or subsidiary thereof and their successors and assigns.
Seller is the owner of the Resort, the seller of Memberships under the Purchase
Agreements and the grantor of Deeds.
Section 1.41. Time Period. "Time period" means any single overnight period
of time during the Occupancy Year, commencing at Check-In-Time and terminating
at Check-Out-Time.
Section 1.42. Unit. "Unit" means any separate living unit located on the
Property which the Club, on behalf of its Members, has acquired the right to
occupy. Units are divided into five different types of suites, which are
identified as Jerome, Sedona, Flagstaff, Oak Creek and Stone House suites.
Section 1.43. Unoccupied Unit. For as long as the Seller or its successors
or assigns is operating the Resort as a hotel, an "Unoccupied Unit" shall be a
Unit with respect to which the Seller or any affiliate or subsidiary has the
right to rent pursuant to Section 2.08 of this Plan, subject to the Occupancy
Rights of Members as set forth in Section 2.06 of this Plan. Any Unit that has
not been reserved by a Member within six (6) days of its intended use shall be
deemed an Unoccupied Unit, provided, however, that during such six (6) day
period a Member shall have the right to reserve a Unit if Seller has not
otherwise rented it.
ARTICLE II
RESERVATION RIGHTS, OCCUPANCY RIGHTS
AND RESTRICTIONS
Section 2.01. Type of Ownership. The Club shall offer five types of
Memberships, which shall be identified as Jerome, Sedona, Flagstaff, Oak Creek
and Stone House Memberships. The names of these Memberships correspond to the
type of Unit that each Member has acquired the right to use. For example, the
owner of a Jerome Membership shall be entitled to reserve a type of Unit
identified as a Jerome Suite for one (1) Occupancy Period during each Occupancy
Year. In addition, Members may choose to purchase either an Every Year
Membership or an Every Other Year Membership. If a Member owns an Every Other
Year Membership, the Member is entitled to reserve and use the Property only
every other year. Members who own Every Other Year Memberships have the right to
designate, at the time such Member purchases his or her Membership, whether the
Every Other Year Membership will apply to every even year or every odd year.
Based upon the number of Units currently existing on the Property, the Club
shall have the right to generate 9,100 Memberships (the Total Authorized
Memberships) subject to the provisions set forth in Sec. 2.06 hereof. For
purposes of determining the Total Authorized Memberships, Every Year Memberships
shall count as one Membership, and Every Other Year Memberships shall count as
one-half (1/2) of a Membership. Based upon the types of Units currently existing
on the Property, the Total Authorized Memberships shall be divided as follows:
TYPE # UNITS # MEMBERSHIPS
Jerome ................................... 134 6,968
Sedona ................................... 20 1,040
Flagstaff ................................ 8 416
Oak Creek ................................ 12 624
Stone House .............................. 1 52
TOTAL .................................... 175 9,100
Members shall have the non-exclusive right to use the Property during their
reserved Occupancy Period. Such right shall exist forever ("in perpetuity"),
subject to compliance with the terms and conditions of such Member's Purchase
Agreement, this Plan, the Bylaws and the Rules and Regulations. All Member
reservations shall be made on an as-available basis. All reservations must be
made in accordance with the terms and conditions for reservation set forth in
the then current Rules and Regulations.
Membership in the Club shall be evidenced by a Membership Certificate, by a
Deed (for all Members who purchase their Membership after September 10, 1991,
and for all Members who purchase their Membership before September 10, 1991 and
elect pursuant to the terms and conditions of this Plan, to receive a Deed), by
recordation of the Member's name and address in the Record Book of Members, and
by a Deed of Partial Release and Reconveyance of Lender's underlying
encumbrances ("Deed of Partial Release and Reconveyance"), executed by Lender.
The Membership interest created pursuant to this Plan shall not be defined as a
lease or a rental agreement nor shall it be subject to the provisions of the
Residential Landlord and Tenant Act (Arizona Revised Statutes Sec. 33-1301 et
seq.) or to the Landlord and Tenant Act (Arizona Revised Statutes Sec. 33-301 et
seq.).
With respect to Members who purchased their Memberships before
September 10, 1991, Seller notified each such Member of their right to receive a
Deed evidencing said Member's undivided 1/8,925 fractional fee title interest in
and to the Property, to be held in common with all other Members. Those Members
who purchased, but have not finished paying, for their Memberships before
September 10, 1991, have the right to receive a Deed evidencing said Member's
undivided 1/8,925 fractional fee title interest in and to the Property to be
held in common with all other Members, provided the Member executes a Deed of
Trust which shall secure the unpaid balance of the Member's Membership. Each
Member who elects to receive a Deed will be required to pay administrative fees
relating to the recordation and processing of the Deed.
Except as otherwise set forth herein, Seller shall issue to each Member a
Deed evidencing said Member's undivided fractional fee title interest in and to
the Property, to be held in common with all other Members. If a Member purchased
an Every Year Membership before January 11, 1995, the Deed shall reflect a
1/8,925 interest. If a Member purchased an Every Other Year Membership before
January 11, 1995, the Deed shall reflect a 1/17,850 interest. If a Member
purchases an Every Year Membership on or after January 11, 1995, the Deed shall
reflect a 1/9,325 Membership interest. If a Member purchases an Every Other Year
Membership on or after January 11, 1995, the Deed shall reflect a 1/18,650
Membership interest. All Deeds shall be subject to the terms and conditions of
this Plan and no Member shall convey, transfer, sell or assign their Deed
separate from said Member's Membership, and all such conveyances, transfers,
sales or assignments of any nature shall be accomplished in accordance with the
terms and conditions set forth in Section 2.09 of this Plan. Any attempt to
effect a transfer prohibited by this Section 2.01 shall be void. Except as
otherwise set forth herein, contemporaneous with the delivery of a Deed to a
Member who has not paid in full for his/her Membership, such Member shall
execute and deliver to Seller a Deed of Trust, which Deed of Trust shall be
released by Seller upon payment in full of said Member's Membership. With
respect to those Members who purchase a Membership pursuant to an Agreement for
Sale, each such Member shall not be entitled to receive a Deed until such time
as he or she shall have paid for such Membership in full and shall have
otherwise complied with the terms and conditions of the Agreement for Sale
Addendum to the Purchase Agreement.
Section 2.02. Reservation and Occupancy Rights of Members. Subject to all
the terms and conditions contained elsewhere in this Plan, each Member or
his/her Permitted User shall have the right, for each Membership owned, to
occupy a Unit of a type corresponding to the type of Membership purchased by
such Member, and to use the Common Furnishings contained within such Unit, and
the non-exclusive right to use and enjoy the Common Areas for one (1) Occupancy
Period during each Occupancy Year, provided that such Member shall have reserved
such occupancy in accordance with the requirements and procedures for the making
of reservations set forth in the then current Rules and Regulations.
A Member may reserve seven consecutive time periods or may reserve any
combination aggregating seven time periods, subject to the restrictions
contained in this Plan and in the then current Rules and Regulations.
No use or occupancy by any Member will be permitted if such Member is not
registered in the Record Book of Members as a Member of the Club, does not
possess a Membership Certificate issued by the Club or is delinquent in the
payment of any amounts owed to the Club or owed to Seller or its assigns
pursuant to the Purchase Agreement for such Member's Membership at the time of
reservation or at the commencement of any time period falling within such
Member's Occupancy Period.
Section 2.03. Member's Obligations During Occupancy. Each Member shall keep
the Unit occupied by him/her and the Common Furnishings therein in good
condition during the Occupancy Period, vacate the Unit at the expiration of the
Occupancy Period, remove all persons and property therefrom, excluding only the
Common Furnishings, leave the Unit and the Common Furnishings therein in good
and sanitary condition and otherwise comply with such check-out and other
regulations as may be contained in the Rules and Regulations. Any Member may
permit a Permitted User to exercise such Member's Occupancy Right for the
purposes permitted by this Plan during his/her Occupancy Period, but such Member
shall be responsible for any loss, damage, or violation of this Plan or the
Rules and Regulations that occurs during such Occupancy Period as if such Member
were occupying the Unit.
Except as required to prevent damage or injury to persons or property in an
emergency, no Member shall make or authorize any alterations to a Unit or its
Common Furnishings; paint or otherwise refinish or redecorate the inner surfaces
of the walls, ceilings, floors, windows or doors bounding any Unit which such
Member may from time to time occupy; or remove, alter or replace any portion of
the Common Furnishings without the prior written consent of the Club. The right
to perform all of the foregoing acts has been retained by the Club and by Seller
unless otherwise expressly stated in this Plan. The foregoing prohibitions,
however, shall not modify or affect the obligation of each Member for the
prudent care and ordinary maintenance and upkeep of all property subject to
his/her use. No animals shall be allowed or kept in or upon any Unit.
Section 2.04. Additional Membership Rights. All Members shall have, in
addition to their occupancy and ownership rights, the opportunity to
participate, for a fee, in the Exchange Program. Members who purchase
Memberships directly from Seller shall also be entitled to: (a) reserve
discounted accommodations, on an as-available basis, at the Property; (b)
unlimited day use (365 days per year) of all the Resort facilities; (c) at no
extra fee, unlimited use of the Sedona Health Spa subject to the then current
Rules and Regulations. Day use of Resort facilities and use of the Sedona Health
Spa shall be limited to the number of persons described under "Occupancy Right"
in Section 1.29 above.
Section 2.05. Failure to Vacate. If any Member or any Permitted User fails
to vacate a Unit at the end of his/her Occupancy Period, or otherwise makes
unauthorized use or occupancy of a Unit during a period other than his/her
Occupancy Period or any reserved time period therein, or prevents another
Member, Permitted User or Exchange User (the "Detained Member" or "Detained
User") from using or occupying a Unit during such other Member's Occupancy
Period, such Member (the "Detaining Member") or Permitted User (the "Detaining
User") shall (a) be subject to immediate removal, eviction or ejection from the
Unit wrongfully used or occupied; (b) be deemed to have waived any notice
required by law with respect to any legal proceedings regarding removal,
eviction or ejection; (c) reimburse the Club and the Detained Member or Detained
User for all costs and expenses incurred by him/her as a result of such conduct,
including, but not limited to, costs of alternate accommodations, travel costs,
court costs and reasonable attorneys' fees incurred in connection with removing,
evicting or ejecting the Detaining Member or Detaining User from such Unit, and
costs (including reasonable attorneys' fees) incurred in collecting such
amounts; and (d) pay to the Detained Member or the Detained User entitled to use
and occupy the Unit during such wrongful occupancy, as liquidated damages (in
addition to the costs and expenses set forth in this Section 2.05), a sum equal
to two hundred percent (200%) of the fair rental value per day of the Unit for
each day or portion thereof, including the day of surrender, during which the
Detaining Member or Detaining User prevents use and occupancy of the Unit. "Fair
rental value" for a Unit shall be the then current market rental rate ("rack
rate") for comparable accommodations at the Property or in the event no such
accommodations shall be available at the Property, the then current market rate
for comparable accommodations in the Sedona area. The Club shall use reasonable
efforts to remove such Detaining Member or Detaining User from the Unit, to
assist the Detained Member or Detained User in finding alternate accommodations
during such holdover period, or to secure, at the expense of the Club, alternate
accommodations for any Detained Member or Detained User. Such alternate
accommodations shall be as near in value to the Detained Member's or Detained
User's Unit as possible and the cost thereof shall be assessed to the Detaining
Member as a Personal Charge. If the Club, in its sole discretion, deems it
necessary to contract for a period greater than the actual period for which the
use is prevented in order to secure alternate accommodations, the cost of the
entire period shall be assessed to the Detaining Member as a Personal Charge. By
accepting issuance of a Membership Certificate, each Member agrees that, in the
event of a wrongful occupancy or use by such Member, or such Member's Permitted
User, damages would be impracticable or extremely difficult to ascertain and
that the measure of liquidated damages provided for herein constitutes fair
compensation to those who are deprived of occupancy. If a Member or his/her
Permitted User by intentional or negligent act renders a Unit uninhabitable for
all or any portion of one or more successive Occupancy Periods, then (i) such
Member shall be deemed a Detaining Member, (ii) the foregoing provisions of this
Section 2.05 shall apply, (iii) such Member shall be liable to any Member or
Permitted User during any such successive Occupancy Period just as if such
Member had refused to vacate the Unit at the end of his/her Occupancy Period and
(iv) such Member shall additionally be responsible for all Personal Charges
related to his/her occupancy. For the purposes of this Section, the act or
negligence of a Permitted User shall be deemed to be the act of the Member
authorizing the Permitted User to use such Member's Membership rights.
Section 2.06. Occupancy Restrictions. Pursuant to certain agreements
between Seller and Lender and the Transfer Agreement between the Club and
Seller, certain restrictions and limitations may be imposed with respect to the
number of Units that may be occupied by Members at any given time. The type of
Units initially available for occupancy were as follows: 20 Jerome suites; 3
Sedona suites; 3 Flagstaff suites; 3 Oak Creek suites; and 1 Stone House suite.
Occupancy of thirty (30) Units at any given time shall be available to Members
until such time as 1,500 Memberships have been sold by Seller to third parties
unrelated to Seller. Thereafter, occupancy of ten (10) additional Units shall
become available to Members, at Seller's election, in the manner described
below. Seller shall have the right to designate the type of Units available for
occupancy. Additional Units, in increments of ten (10) Units, shall be added to
the existing pool of available Units each time Seller has sold at least 500
additional Memberships arising from the addition of the previous ten (10) Units.
Section 2.07. Easement for Sales, Customer Service and Related Purposes.
Without limitation thereto, the Club, Seller and Lender, respectively, on behalf
of themselves, their successors and assigns, and their respective agents,
employees, and other authorized personnel, retain the right to enter the Units,
the Common Areas for the purposes of: (1) marketing and selling Memberships, (2)
maintaining customer relations and providing post-sale services to Members; (3)
displaying signs and erecting, maintaining and operating, for sales and
administrative purposes, model Units and a customer relations, customer service
and sales office complex on the Property; (4) showing the Units and Common Areas
and arranging for the use of any recreational facilities within the Common Areas
by prospective purchasers; and Lender exercising its right of inspection under
the loan documents; and (5) performing administrative, maintenance and other
obligations under this Plan. The exercise of such rights shall not unreasonably
interfere with or diminish the rights of Members to occupy Units in accordance
with this Plan and the Rules and Regulations.
Section 2.08. Rental of Units by Seller. Seller shall operate the Resort as
a hotel. Seller or any affiliate or subsidiary thereof shall have the exclusive
right, during all times a Unit is unoccupied (see Section 1.43 above), to rent
said Unit as part of the hotel operation. Members shall not be entitled to
receive any proceeds resulting from or related to Seller's operation of the
Property as a hotel. No rental shall interfere with or diminish the rights of
Members to occupy Units in accordance with this Plan, the Bylaws and the Rules
and Regulations. The cost of repair or replacement incurred by reason of damage
or destruction (excluding normal wear and tear) to a Unit, or the Common
Furnishings therein, which damage or destruction occurs during the rental of
such Unit pursuant to this Section 2.08, shall be borne by Seller to the extent
not otherwise covered by insurance. Seller, on behalf of itself, its successors
and assigns, and its and their agents, employees and other authorized personnel,
reserves the right to enter the Units, the Common Areas and the Excepted Areas
for the purpose of conducting rental activities pursuant to this Section 2.08.
Section 2.09. Restrictions on Resale of Club Memberships. Seller, on behalf
of itself, its successors and assigns, has retained a right of first refusal on
all Memberships. Members seeking to sell their Membership must first submit a
written offer to sell the Membership to Seller. The offer must set forth a
price, not to exceed the purchase price agreed to between the Member and the
prospective third party purchaser, the type of Membership, and the date the
offer is to expire. Seller shall be entitled to repurchase the Membership on the
terms and conditions set forth in such written offer. In the event Seller does
not respond within 20 days after actual receipt of the written offer, then said
Member(s) may offer the Membership and Deed, to a third-party in accordance with
the terms and conditions set forth below. In no event may a Member offer or list
with a real estate broker a Membership for resale at a price less than the
average selling price for the same type of Membership established by Seller
during the sixty (60) days preceding the date of such Member's offer or listing.
(1) The buyer, transferee or assignee of the Membership and Deed
("Buying Member") must agree in writing ("Buyer's Agreement"), to the
following conditions (a) to abide by the Plan, the Bylaws and the Rules and
Regulations, and (b) to pay the balance, if any, due under the Selling
Member's Purchase Agreement. The Buyer's Agreement must also state the
name, address and telephone number of the Buying Member and the type of
Membership to be transferred. The Buyer's Agreement must be in a form
acceptable to Seller or its successor or assign and to the Club; and
(2) Selling Member must pay any and all amounts then due and owing to
Club and/or Seller or its successor or assign; and
(3) Selling Member must deliver to the Club his/her Membership
Certificate and a deed conveying Selling Member's ownership interest in the
Property (as evidenced by Selling Member's Deed); and
(4) Selling Member shall deliver to the Club a written affidavit which
states that said Selling Member is not seeking to sell, convey or encumber
less than all of his/her interest in any single Membership. Any sale,
conveyance or encumbrance by any Member of less than all of his/her
interest in a Membership and Deed shall be null, void and of no effect.
Upon satisfaction of the above terms and conditions, the Board, or its duly
authorized representatives, shall determine, in their sole discretion, whether
the Membership and Deed may be sold, transferred or assigned. The Club will not
arbitrarily withhold its approval of any proposed Membership sale, transfer or
assignment. In the event sale, transfer or assignment is approved, the Board
shall levy upon said Selling Member a reasonable transfer fee to cover the
actual costs of the transaction, which fee must be paid prior to issuance of the
Buying Member's Membership Certificate. Upon receipt of the transfer fee, the
Board shall instruct the Secretary of the Club to enter the Buying Member's name
in the Record Book of Members, and Seller shall issue a new Membership
Certificate and Deed to the Buying Member and cancel the Membership Certificate
and Deed of the Selling Member. At such time the ownership of such Membership
shall be deemed to be transferred. During the Occupancy Year in which the Buying
Member acquired his/her Membership, said Buying Member shall be entitled to the
occupancy of a Unit only to the extent of the time periods remaining in the
Selling Member's Occupancy Period for that Occupancy year.
In the event the sale, transfer or assignment of the Membership is
disapproved, the Club shall transmit written notice of such disapproval and the
reasons therefor to the Selling and Buying Members, and shall return to the
Selling Member his/her Membership Certificate and Deed, if previously delivered
to Seller. Membership in the Club shall not be limited by race, color, religion,
national origin, sex, marital status or age (provided the Buying Member has the
capacity to contract).
ARTICLE III
THE CLUB
Section 3.01. Club. Sedona Vacation Club Incorporated, an Arizona nonprofit
corporation, shall be the Club.
Section 3.02. Membership in the Club. Each owner of a Membership shall be a
Member of the Club and shall remain a Member thereof until he or she ceases to
own a Membership. The Membership of each Member of the Club is connected to and
inseparable from his/her ownership of a Membership Certificate and Deed.
Section 3.03. Issuance and Transfer of Membership Certificates. The Club is
empowered, pursuant to the Bylaws, to issue Membership Certificates, in such
form as determined by the Board. The Membership Certificate shall be signed by
the President and Secretary of the Club. MEMBERSHIP IN THE CLUB IS IN PERPETUITY
provided the Member abides by this Plan, the Bylaws, the Rules and Regulations
of the Club and such Member's Purchase Agreement. Memberships are transferable
by gift or by will or intestate succession. Additionally, such Memberships may
be resold subject to the restrictions set forth in Section 2.09 hereof.
Notwithstanding any statement on the Membership Certificate, the owner of a
Membership shall be determined by the Record Book of Members, as kept by the
Secretary of the Club in accordance with the Bylaws.
Section 3.04. Membership Protection. Seller holds fee simple title to the
Property. Seller has conveyed to the Club, on behalf of its Members and only to
the extent of the Memberships sold, the right to use the Property in perpetuity,
subject to the terms and conditions of that certain amended Transfer Agreement
between Seller and the Club dated April 1, 1991. Neither the Club nor Seller is
currently aware of any mortgage, deed of trust or other monetary encumbrance
affecting title to the Property, except for the mortgage held by Lender. Except
as otherwise set forth herein, Lender has agreed to issue on behalf of each
Member a Deed of Partial Release and Reconveyance upon such Member's purchase of
a Membership interest in the Club (or immediately with respect to Members
existing before September 10, 1991). When a Member is in full compliance with
the Purchase Agreement, this Plan, the Bylaws and the Rules and Regulations, the
Deed of Partial Release and Reconveyance will protect such Member's Membership
interest in the event Lender forecloses upon Seller's interest in the Property.
Except as otherwise set forth herein, promptly after the Member purchases his or
her Membership (or immediately with respect to Members existing before
September 10, 1991), the Deed of Partial Release and Reconveyance will be
recorded at the Office of the Coconino County Recorder. Seller or its agent will
retain possession of the recorded Deed of Partial Release and Reconveyance until
such time as the Member has fully paid for the Membership in accordance with the
terms and conditions of the Purchase Agreement, whereupon Seller shall promptly
transmit said Deed of Partial Release and Reconveyance to the Member. With
respect to those Members who purchase a Membership pursuant to an Agreement for
Sale, Lender will not issue or record a Deed of Partial Release and Reconveyance
for any such Member until such time as he or she shall have paid for such
Membership in full and shall have otherwise complied with the terms and
conditions of the Agreement for Sale Addendum to such Member's Purchase
Agreement. In the event a Member executes a Deed of Trust in favor of Seller to
secure the unpaid balance of said Member's Membership then, upon payment in full
for said Membership in accordance with the terms and conditions of the Member's
Purchase Agreement, Seller or its agent will promptly execute, record and
deliver to the Member a Deed of Release and Reconveyance of the Deed of Trust.
Section 3.05. Voting. In accordance with the provisions of the Bylaws, the
Club shall have two (2) classes of Membership.
Members owning Every Year Memberships (with the exception of Seller) shall
be entitled to two (2) votes for each Membership owned. Members owning Every
Other Year Memberships (with the exception of Seller) shall be entitled to one
(1) vote for each Membership owned. Until such time as 80% of the Total
Authorized Membership Interests in the Club have been sold by Seller or its
successor or assign, Seller shall be entitled to six (6) votes for each Every
Year Membership then held for sale by Seller and three (3) votes for each Every
Other Year Membership then held for sale by Seller. At such time as 80% of the
Total Authorized Memberships have been sold by Seller or its successor or
assign, then Seller shall be entitled to two (2) votes for each Every Year
Membership then held for sale by Seller and one (1) vote for each Every Other
Year Membership then held for sale by Seller. Where there is more than one (1)
record owner of a Membership ("co-owners"), all of those co-owners shall be
Members and may attend any meeting of the Club, but only one (1) of those
co-owners shall be entitled to exercise the vote to which the Membership is
entitled. Co-owners of a Membership shall from time to time designate in writing
one (1) of their number to vote. Fractional votes shall not be allowed, and the
vote for each Membership shall be exercised, if at all, as a unit. Where no
voting co-owner is designated or if the designation has been revoked, the vote
for the Membership shall be exercised as the co-owners owning the majority
interests in the Membership mutually agree. Unless the Board receives a written
objection in advance from a co-owner, it shall be conclusively presumed that the
corresponding voting co-owner is acting with the consent of the co-owners. No
vote shall be cast for any Membership if the co-owners present in person or by
proxy owning the majority interests in such Membership cannot agree to said vote
or other action. The nonvoting co-owner or co-owners shall be jointly and
severally responsible for all of the obligations imposed upon the jointly-owned
Membership and shall be entitled to all other benefits of ownership.
Section 3.06. Actions of the Club Requiring Membership Approval.
Notwithstanding other provisions of the Plan or the Bylaws, the following
actions of the Club shall require approval of the Membership as set forth below:
(a) Any action taken by the Club to fail to renew any existing
contract with Seller or its subsidiary or affiliate for the management and
maintenance of the Property shall require the consent of ninety percent
(90%) of the votes of all Members including the Seller.
(b) Ninety percent (90%) of the votes of all Members shall be required
to approve the dissolution of the Club at any time prior to the year 2040;
from the year 2040 and thereafter, seventy-five percent (75%) of the votes
of all Members shall be required to approve dissolution of the Club.
Section 3.07. Counting of Votes. All votes on any action taken shall be
counted by an independent organization or individual selected by the Board.
Section 3.08. Board of Directors. The Directors shall be elected annually
by a vote of the Members.
Section 3.09. Dedicated Percentage of Expenses Payable by the Club. During
each Fiscal Year the Club shall pay to Seller, or its successor or assign, the
Dedicated Percentage of the total costs and expenses related to the Property.
The Dues and Assessments paid by the Members to the Club shall provide the
source of funds for the Club's payment to Seller of the Dedicated Percentage.
The following example illustrates how the Dedicated Percentage shall be
calculated. Assume that Seller had sold the equivalent of 5,016 Every Year
Memberships prior to January 11, 1995, and the equivalent of 500 Every Year
Memberships subsequent to such date. As such, Seller would have sold 5,016/8,925
and 500/9,325 of undivided fractional interests in the Property. The percentage
equivalents (rounded) of these fractions are 56% and 5% respectively, or a total
of 61%. Assume that for a given year, the total costs and expenses related to
the Property were $1,000,000. The Dedicated Percentage of the expenses which
must be paid by the Club to Seller in such year would be determined by
multiplying $1,000,000 (total costs and expenses) by 61%, which would result in
a Dedicated Percentage for such year of $610,000.
$ 1,000,000 x 61% = $610,000
Assume instead that the Seller had sold 250 Every Year Memberships and 250 Every
Other Year Memberships subsequent to January 11, 1995. In that case, the
dedicated percentage would be
$1,000,000 x 5,016 + 250 + 250 =
(----- ----- ------ )
8,925 9,325 18,650
$1,000,000 x (56% +3% +1%) = $1,000,000 x 60% = $600,000
See "Creation of Personal Obligations for Assessments" at Sec. 5.01.
ARTICLE IV
MANAGEMENT
Section 4.01. Powers and Duties Generally. The Club, acting through its
Board, may, subject to the provisions of the Articles, the Bylaws and this Plan,
exercise any and all of its rights and, except as specifically limited herein,
all the rights and powers of a nonprofit corporation formed under the laws of
the State of Arizona.
Section 4.02. Specific Powers and Duties of the Club. The management and
operation of the Club including the use and occupancy of the Units by Members
and the payment of certain expenses and costs described in this Plan shall be
the duty of the Club, acting through its Board. The Board shall have the duty to
administer the Membership Plan and to levy, collect and enforce the Dues and
Assessments provided for in this Plan.
The Club and Seller shall have exclusive possession of each Unit during the
Maintenance Periods for maintenance and repairs on such Unit. The Club and
Seller shall have the power to do all things that are required to be done
pursuant to this Plan. Without limitation of the above powers and duties, the
Board is expressly authorized, in its discretion and on behalf of the Members,
to do any or all of the following:
(a) Maintenance and Repair. The Club shall be responsible for the
payment of the Dedicated Percentage of the total costs and expenses
associated with the repair, maintenance, repainting, furnishing or
refurnishing of the Property and the Common Furnishings and the
establishment of reserves in connection therewith. The Dedicated Percentage
of maintenance and repair expenses shall be a Common Expense of the
Members. Maintenance and repair expenses related to the Excepted Areas
shall be the sole responsibility of Seller.
(b) Taxes. The Club shall be responsible for payment of the Dedicated
Percentage of the total taxes and assessments, and other costs affecting or
relating to the Property or the Common Furnishings. The Dedicated
Percentage of taxes and assessments shall be a Common Expense of the
Members. Taxes and assessments attributable to the Excepted Areas shall be
the sole responsibility of Seller.
(c) Utilities. The Club shall be responsible for payment of the
Dedicated Percentage of the total expenses related to electrical,
telephone, gas and other utility services for the Property. The Dedicated
Percentage of utilities expenses shall be a Common Expense of the Members.
Utilities expenses attributable to the Excepted Areas shall be the sole
responsibility of Seller.
(d) Allocation to Excepted Areas. At no time shall maintenance and
repair expenses, taxes or utilities expenses, allocated to the Excepted
Areas exceed ten percent (10%) of the total (per category) maintenance and
repair expenses, taxes and utilities expenses incurred at the Resort.
(e) Rules and Regulations. The Club shall adopt, publish and enforce,
from time to time, Rules and Regulations relating to the possession, use
and enjoyment of the Property, which Rules and Regulations shall be
consistent with this Plan.
(f) Legal and Accounting. The Club shall obtain legal and accounting
services necessary or proper in the operation of the Club and the
enforcement of this Plan, the Bylaws and the Rules and Regulations. Legal
and accounting fees shall be a Common Expense of the Members.
(g) Insurance. Seller or its agent shall obtain (i) insurance covering
the Property and the Common Furnishings against loss or damage by fire and
other hazards customarily covered by fire insurance policies written with
extended coverage; (ii) public liability insurance, insuring against
liability for personal injury or property damage resulting from an
occurrence in, on or about the Property and (iii) any other insurance,
including, but not limited to workers' compensation insurance, deemed
necessary or desirable by Seller. The policies of insurance shall cover
such risks, be written by such insurers and be in such amounts as Seller
shall deem proper under the circumstances. The Club shall be responsible
for payment of the Dedicated Percentage of the total insurance expenses
related to the Property. The Dedicated Percentage of insurance expenses
shall be a Common Expense of the Members. Insurance expenses attributable
to the Excepted Areas shall be the sole responsibility of Seller, provided
that the insurance expense allocated to the Excepted Areas shall not exceed
ten percent (10%) of the total insurance expenses.
(h) Levy and Collection of Assessments. The Club shall levy, collect
and enforce Assessments against the Members in the manner provided in
Articles V and VI hereof in order to pay the expenses of operation,
including the fee of the Managing Agent, and to enforce each Member's
obligations.
(i) Financial Statements and Accounting. The Club shall cause to be
prepared regularly and distributed to all Members an annual report, which
shall be distributed, within one hundred twenty (120) days after the end of
each Fiscal Year, consisting of the following (1) a balance sheet as of the
last day of each Fiscal Year, (2) an operating statement for such Fiscal
Year, (3) a statement of changes in financial position for the Fiscal Year,
and (4) a list of the names and mailing addresses of the members of the
Board. In the event the annual report is not prepared by an independent
accountant, the annual report shall be accompanied by the certificate of an
authorized officer of the Club that the statements were prepared without
audit from the books and records of the Club. Any Member may, upon ten (10)
days written notice to the Club, request the opportunity to inspect the
Club's books and records during normal business hours.
(j) Maintenance Fund. The Club shall establish at least one (1)
account (the "Maintenance Fund"), into which shall be deposited all monies
paid to the Club, and from which disbursements shall be made, as provided
herein, in the performance of functions by the Club under this Plan. The
Maintenance Fund may be established as a trust account, a money market
mutual fund or as any other type of account deemed appropriate by the
Board. The Maintenance Fund shall include at least: (1) an operating fund
for current Common Expenses of the Club, and (2) a reserve fund for capital
improvements, replacements, painting and repairs of the Resort and the
Common Furnishings.
(k) Statement of Status. The Club shall upon the request of any
Member, purchaser or other prospective transferee of a Membership
Certificate, issue a written statement setting forth any amounts unpaid
with respect to the Membership Certificate, the use entitlement for the
remainder of the Occupancy Year and the reservation status respecting such
Membership Certificate. Such statement, for which a reasonable fee may be
charged, shall be binding upon the Club in favor of any person who may rely
on it in good faith.
(l) Cleaning and Maid Service. The Club shall provide for cleaning and
maid service.
(m) Rights of Entry. The Club and Seller shall have a right of entry
in and upon the Property and the interior of all Units for the purpose of
inspecting the Property, the Units and the Common Furnishings, and taking
whatever corrective action may be deemed necessary or proper by the Board
of Directors, consistent with the provisions of the Plan. Without limiting
the generality of the foregoing, the Club shall have a right of entry into
any Unit occupied by a Member, a Permitted User, or Exchange User upon
reasonable notice to such occupant for any purpose reasonably related to
the Club's performance of its duties hereunder. The Club's right of entry
shall be exercised so as to avoid any unreasonable interference with the
enjoyment or occupancy of a Unit by any Member, Permitted User, or Exchange
User.
(n) Other Necessary Acts. The Club, acting through the Board or other
duly authorized representatives, shall do all other things or acts deemed
by the Club to be necessary or proper for the operation and maintenance of
the Property pursuant to this Plan.
(o) Delegation. The Club may delegate the authority and
responsibilities of the Club to one or more agents, including, without
limitation, the Managing Agent provided for in Section 4.03 below.
Section 4.03. Authority and Duty to Engage Managing Agent. Seller and the
Club shall use its best efforts to engage and maintain a reputable firm as the
Managing Agent for the Property pursuant to a written agreement (the "Management
Agreement") meeting the requirements of this Section 4.03. Such Management
Agreement shall:
(a) Obligate the Managing Agent to perform all the duties of the Club
specified in Section 4.02 above, provided that the Managing Agent may
delegate its authority and responsibilities to one or more subsidiaries or
affiliates for such periods and upon such terms as the Managing Agent deems
necessary or proper, subject to the limitations set forth below.
(b) Provide for a term of not more than five (5) years, except that
the Management Agreement may provide that the term will be automatically
renewed for successive five (5) year terms unless notice of non-renewal is
given no later than ninety (90) days prior to the end of any term by either
party, provided the Club may not give notice of non-renewal unless
authorized by the vote or written consent of ninety percent (90%) of the
voting power of the Club.
(c) Provide that the Managing Agent may resign only after it has given
at least ninety (90) days prior written notice to the Club.
(1) On or before the effective date of the Managing Agent's
resignation, the Managing Agent shall turn over all books and records
relating to the management and operation of the Property to the
successor Managing Agent.
(d) Provide for a management fee to be paid to the Managing Agent, or
a subsidiary or affiliate thereof, not to exceed ten percent (10%) of the
total Dues (exclusive of such management fee) assessed upon the Members in
each Fiscal Year. Such compensation may be increased if authorized by the
vote or written consent of a majority of the Board or if the Club is unable
to induce a reputable and experienced real estate management firm to act as
Managing Agent without increasing such compensation.
As of April 1, 1991, the Managing Agent shall be ILX Incorporated, an
Arizona corporation, or its successors or assigns.
ARTICLE V
DUES AND ASSESSMENTS
Section 5.01. Creation of Personal Obligations for Assessments. For
purposes of this Article V and to the extent provided for in Section 3.05,
Seller shall be considered to be the owner of all Memberships then held for sale
by Seller pursuant to Paragraph 4 of the Transfer Agreement, as amended. Each
Member, by acceptance of a Membership Certificate, hereby promises to pay to the
Club, for each Membership owned, the Dues, Capital Assessments and Personal
Charges respectively (all of which are sometimes individually and collectively
referred to as "Assessments"). Seller shall have the obligation to pay to or for
the benefit of the Club Assessments relating to each Membership owned by Seller.
Seller is further obligated to pay all other operating expenses related to the
ongoing operation and maintenance of the Property. The Assessments, together
with interest, costs of collection and reasonable attorneys' fees, shall be the
personal obligation of each Member at the time the Assessments become due and
payable, shall bind such Member's successors and assigns, and shall be a lien
and charge upon the Membership and Deed against which the Assessments are made.
No Member may waive or otherwise avoid liability for the Assessments by non-use
or abandonment of his/her Membership or any part thereof.
Section 5.02. Use of Assessments. Assessments shall be used exclusively to
promote the recreation, health, safety and welfare of the Members, the operation
and maintenance of the Resort, and to reimburse the Club for expenses incurred
by the Club in the performance of the duties of the Club as set forth in this
Plan.
Section 5.03. Basis of Maximum Dues. Annual Club Dues for Members owning an
Every Year Membership are currently $266 per Jerome Membership, $277 per Sedona
Membership, $299 per Oak Creek Membership, $310 per Flagstaff Membership, and
$375 per Stone House Membership. Annual Club Dues for Members owning an Every
Other Year Membership are currently $133 per Jerome Membership, $138.50 per
Sedona Membership, $149.50 per Oak Creek Membership, $155 per Flagstaff
Membership, and $187.50 per Stone House Membership. The maximum Dues under this
Article V shall be determined in accordance with the budget of the Club adopted
by the Board.
The Board may, in its sole discretion, determine that the Dues are
insufficient to meet the Common Expenses of the Club and the Board may, by
majority vote, increase such Dues, provided, however, that the Board shall not
be authorized to increase the Dues in an amount in excess of the CPI Dues
Adjustment Percentage. Written notice of any change in the amount of Dues levied
by the Club through the Board shall be given to all Members not less than thirty
(30) days prior to the effective date of such change. Any proposed increase in
annual Dues in excess of the CPI Dues Adjustment Percentage for any type of
Membership must be approved by the majority vote of the Total Authorized
Memberships of that type. For example, the annual Dues payable for Jerome
Memberships in 1992 shall not be increased in an amount greater than the CPI
Dues Adjustment Percentage unless 51% of the Jerome Memberships are voted in
favor of the Dues increase.
Section 5.04. Commencement and Collection of Dues. The Board shall
authorize and levy Dues upon each Membership, as provided herein, by majority
vote of the Board.
Section 5.05. Payment of Assessments. Dues shall be due and payable in
January of each Fiscal Year. Annual dues with respect to Memberships sold during
any Fiscal Year will be payable in the entire amount, without proration, within
thirty (30) days after the sale of such Membership. From time to time the Board
may determine that all excess funds be retained by the Club and used to reduce
the following year's Dues.
Section 5.06. Capital Assessments. Should the Board of Directors or Seller,
with the approval of the Board of Directors, determine the need for installation
or construction of any capital improvement or for reconstruction of any existing
capital improvements or other such addition to the Resort, the Board may levy a
Capital Assessment to cover the cost of such expenditure. Such charge shall be
levied among all of the Memberships in the same proportions as are Dues.
Section 5.07. Personal Charges. Personal Charges shall be paid by each
Member as follows:
(a) If the Club or Seller is able to determine the amount of Personal
Charges at Check-Out-Time, such Personal Charges shall be payable at the
termination of the Member's Occupancy Period.
(b) Personal Charges which are not ascertainable at Check-Out-Time
shall be payable within ten (10) days after receipt of a statement
therefor.
Section 5.08. Exchange Program. A member wishing to exchange his/her
Occupancy Period in the Property for use privileges in another project through
an Exchange Program must, at the time of deposit to the Exchange Program, have
paid in full all Assessments for the year in which the Occupancy Period falls,
as well as all prior Assessments. In the event the Occupancy Period being
deposited is in a future year for which the Assessments are not yet known, the
Member shall pay the equivalent of the current year Assessment for each such
unknown year through and including the year of the Occupancy Period.
ARTICLE VI
ENFORCEMENT OF RESTRICTIONS
Section 6.01. General. If any Member or his/her Permitted User fails to
comply with any of the terms of this Plan, the Bylaws and the Rules and
Regulations, the Board, acting on behalf of the Club, shall have full power and
authority to enforce compliance with the Plan, the Bylaws and the Rules and
Regulations in any manner provided for by law or in equity, including without
limitation, the right to bring an action for damages, an action to prohibit the
violation or to specifically enforce the terms of, this Plan, the Bylaws and the
Rules and Regulations. If the Club shall employ an attorney to enforce the terms
of this Plan, the Bylaws or the Rules and Regulations against any Member, the
Club shall be entitled to recover from the Member violating any such terms
reasonable attorneys' fees and costs in addition to any other amounts due. All
sums payable by a Member hereunder shall bear interest at the rate of eighteen
percent (18%) per annum, from the due date, or, if advanced or incurred by the
Club or any other Member pursuant to authorization contained in this Plan, from
the date of such expenditure. All enforcement powers of the Club shall be
cumulative. Each Member by acceptance of a Membership Certificate shall have
promised and agreed that the Club shall have all of the rights, powers and
remedies set forth in this Article VI and elsewhere in this Plan. The Board
shall take necessary steps to enforce this Plan against any Member.
Section 6.02. Suspension and Termination of Privileges. If any Member or
his/her Permitted User violates this Plan, the Bylaws or the Rules and
Regulations, the Board, or a duly authorized representative thereof, may suspend
the right of such Member and his/her Permitted User to reserve or occupy any
Unit and the right of such Member to participate in any vote or other
determination provided for herein. No such suspension, except for the failure of
such Member to pay any Assessments or other amount owed to the Club or owed to
Seller under the Purchase Agreement for such Member's Membership on or before
the due date therefor, shall be made except after a meeting of the Board, or a
meeting of duly authorized representatives thereof, at which a quorum of the
Board or a quorum of its representatives are present, duly called and held as
provided in the Bylaws for the noticing, calling and holding of a meeting of the
Board. Written notice of such meeting and its purpose, including the reasons for
the suspension sought, shall be given to the Member whose privileges are sought
to be suspended at least fifteen (15) days prior to the holding of such meeting.
Such notice shall be given as provided at Section 9.03 below. Such Member shall
be entitled to appear at such meeting and present his/her position as to why
privileges should not be suspended. The decision as to whether such privileges
should be suspended shall be made by a majority of the members of the Board. A
Member's right to occupy a Unit in the Property shall be automatically suspended
without any notice or hearing during any period in which such Member is
delinquent in the payment of amounts due the Club or amounts due Seller under
the Purchase Agreement for such Member's Membership. Written notice of
suspension, the reasons therefor and the length thereof shall be given to the
suspended Member and the suspension shall become effective on the date such
notice is given. In the event such suspension is based on the failure of a
Member to pay Assessments or any other amount owed to the Club, then such
Member's Membership in the Club shall be terminated, in accordance with the
terms and conditions set forth in the Bylaws, if said Member fails to cure the
payment delinquency within ninety (90) days. In the event said Member cures the
payment delinquency within the above stated ninety (90) day period, the
suspended privileges of such Member shall be reinstated automatically at such
time as the Member shall have paid, in cash or by cashier's or certified check,
all amounts past due as of the date of such payment together with any late
charges and interest thereon. If such suspension of privileges is based on the
failure of a Member to pay amounts owed to Seller, or its successors, pursuant
to such Member's Purchase Agreement, then such Member's Membership in the Club
shall be terminated, in accordance with the terms and conditions set forth in
the Purchase Agreement, if said Member fails to cure the payment delinquency
within 30 days of the mailing of a Notice of Default. In the event said Member
cures the payment delinquency within the above stated 30 day period, the
suspended privileges of such Member shall be reinstated automatically at such
time as the Member shall have paid, in cash or by cashier's or certified check,
all amounts past due as of the date of such payment together with any late
charges and interest thereon. If such suspension of privileges is based on any
other act or omission of a Member, the suspended privileges shall be
automatically reinstated upon the expiration of the suspension period stated in
the suspension notice. Nothing herein shall be deemed to limit, or restrict any
of Seller's remedies under such Member's Deed of Trust in accordance with
Arizona law.
ARTICLE VII
DAMAGE, DESTRUCTION, CONDEMNATION
Section 7.01. General. In the event of any damage or destruction of,
whether resulting from an insured or uninsured casualty, or a partial taking in
condemnation proceedings relating to, the Property or the Common Furnishings,
the Club and Seller shall, subject to the provisions of this Article, cause such
damage or destruction to be repaired or replaced, as the case may be, and shall
use any available insurance or condemnation proceeds for such purpose. If the
damage or taking is not covered by insurance proceeds or by condemnation
proceeds, or if the available funds are insufficient, the Board shall, subject
to the provisions of this Article, levy a Capital Assessment at a uniform rate
against all Members for the amount required to meet the cost of such repair or
restoration. If the damage or destruction was caused by the act or omission of
any Member or his/her Permitted User, the cost of such repair or the amount of
such deficiency shall be a Personal Charge and shall be paid by such Member as
provided in Section 5.07 above. To the extent the Club is unable, after
reasonable effort, to collect the cost of the repair or the amount of the
deficiency from such Member, said cost or deficiency shall become a Common
Expense of the Members. Except, however, expenses related to any damage or
destruction caused by a Renter shall, subject to normal wear and tear and to the
extent not covered by insurance, be the sole responsibility of Seller.
Section 7.02. Extensive Damage or Destruction. If the amount of the Capital
Assessment which is required under Section 7.01 above, shall exceed One Hundred
Thousand Dollars ($100,000), such Capital Assessment must be approved in advance
by the vote or written consent of a majority of the Members of the Club. If such
Capital Assessment is not so approved within one hundred eighty (180) days
following the date of such damage, destruction or condemnation judgment, such
Capital Assessment shall be deemed disapproved. Such disapproval shall
constitute an election to terminate this Plan with respect to the portion of the
Property damaged, destroyed or taken by condemnation. With respect to the
portion of the Property so damaged, destroyed or taken, termination of the Plan
shall occur in accordance with Section 9.02 below, and the recordation of an
amendment stating that the Plan, with respect to such portion of the Property,
has been so terminated. Any insurance proceeds or condemnation proceeds received
as a result of such damage, destruction or taking, shall be (i) used by Seller
to purchase an additional number of Units equal to the number of Units destroyed
or rendered unfit for occupancy ("Destroyed Units"), or (ii) paid to Members to
redeem and cancel a number of Memberships and the Deeds relating to such
Memberships equal to the number of Destroyed Units multiplied by the number of
Occupancy Periods in each such Unit, provided that no payment shall be made to
any Member to redeem such Member's Membership until any amounts due Seller under
the Purchase Agreement for such Membership and any amounts due to the Club from
such Member have been paid.
Section 7.03. Excess Insurance Proceeds. Any excess insurance or
condemnation proceeds over the cost of repair or restoration shall be
distributed to Seller and the Club, pro rata.
ARTICLE VIII
SELLER'S RIGHTS
Nothing in the Plan shall limit, and no Member or the Club shall do
anything to interfere with, the right of Seller to complete improvements to and
on the Property or any portion of the Property or to alter the foregoing or its
construction plans and designs, or to construct such additional improvements as
Seller deems advisable in the course of development of the Property. Such right
shall include, but shall not be limited to, the right to hook up to the sewer
system being constructed by the City of Sedona and to install and maintain such
structures, displays, signs, billboards, flags and sales offices as may be
reasonably necessary for the conduct of its business as owner and operator of
the Resort and selling Memberships in the Club. Each Member by accepting a
Membership Certificate acknowledges that certain activities of Seller may
temporarily impair the view of such Member and may constitute an inconvenience
or nuisance to the Members and consents to such impairment, inconvenience or
nuisance. Seller may use any Units in the Property as model complexes or real
estate sales or leasing offices. Seller need not seek or obtain Club approval of
any improvement constructed or placed by Seller on any portion of the Property.
The right of Seller hereunder and elsewhere in this Plan may be assigned by
Seller to any successor in interest by a written assignment. Notwithstanding any
other provision of the Plan, the prior written approval of Seller, as developer
of the Property, will be required before any amendment to this Article VIII
shall be effective.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment. This Plan may be amended as follows:
(a) By the vote or written consent of a majority of the Board, acting
on behalf of the Club, in its discretion at any time, in order that the
provisions of this Plan shall comply with the regulatory requirements of
any jurisdiction in which the Club plans to issue Membership Certificates
or have Members;
(b) By the vote or written consent of seventy-five percent (75%) of
all of the Members (including Seller) of the Club; or,
(c) By the vote or written consent of the Board, acting on behalf of
the Club, in its discretion at any time.
Any amendment shall be binding upon every Member. Any amendment authorized
hereby shall be evidenced by an instrument in writing, signed and acknowledged
by a majority of the Board which amendment shall be effective upon filing with
the Secretary of the Club.
Section 9.02. Termination. This Plan shall terminate with respect to any
portion of the Property upon satisfaction of the conditions set forth in Section
7.02 and upon the registration or recordation of an amendment stating that this
Plan is terminated pursuant to this Section 9.02. Each Member, by acceptance of
a Membership Certificate, whether or not it shall be so expressed in the
Purchase Agreement, hereby appoints the Club as his/her attorney-in-fact for
his/her use and benefit, to execute, acknowledge and deliver on behalf of each
Member any instrument or document which is required in order to effect a sale,
conveyance or transfer of any Membership, Deed, or, if applicable, the Property,
pursuant to this Section 9.02. Each Member does further give and grant unto the
Club, as his/her attorney-in-fact, full power and authority to do any act
necessary and proper to be done in the exercise of the foregoing power as fully
as each Member might or could do. The special power of attorney is coupled with
an interest, irrevocable and binding on the successors and assigns of each
Member. In the event of termination, the proceeds of any sale of the
Memberships, Deeds, or, if applicable, the Property, after satisfaction of any
debt owed to Lender, shall be distributed to each Member (subject to the rights
of any Lender) in the same proportion as the number of Memberships owned by each
Member as of the date of termination of the Plan bears to the Total Authorized
Memberships, provided that no payment shall be made to any Member until any
amounts due Seller under the Purchase Agreement for such Membership and any
amounts due to the Club from such Member have been paid from such Member's
share.
Section 9.03. Notices. Notices provided for in this Plan shall be in
writing and shall be deemed given when hand delivered at the appropriate address
set forth below (in which event such notice shall be deemed effective upon
delivery) or the earlier of actual receipt of any notice or seventy-two (72)
hours after deposit of same in any authorized mailbox, postage prepaid,
addressed as set forth below. Any notice to a Member required under this Plan
shall be addressed to the Member at the last address for such Member appearing
in the records of the Club or, if there be none, at the address of the Property.
Notices to the Club shall be addressed to Sedona Vacation Club Incorporated,
2777 E. Camelback Road, Phoenix, Arizona 85016. Notices to the Managing Agent
shall be addressed to LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP, 2777 E.
Camelback Road, Phoenix, Arizona 85016. The addresses for purposes of this
Section 9.03 may be changed by giving written notice in the manner herein
provided for giving notice. Unless and until such written notice is received,
the last address as stated by written notice shall be deemed to continue in
effect for all purposes hereunder.
Section 9.04. Severability. If any provision of this Plan or the
application thereof in any circumstances, shall be held invalid, the validity of
the remainder of this Plan and the application of such provision or part under
any other circumstances shall not be affected hereby.
Section 9.05. Successors. The provisions of this Plan shall be binding upon
all parties having or acquiring any Membership, Deed, or any right, title or
interest therein and shall be for the benefit of each Member and his/her heirs,
successors and assigns. Each Member (including Seller) shall be fully discharged
and relieved of liability on the covenants herein as such covenants relate to
each Membership upon ceasing to own such Membership and paying all sums and
performing all obligations relating to each Membership up to the time his/her
Membership interest terminated.
Section 9.06. Violation or Nuisance. Every act or omission whereby any
provision of this Plan, the Bylaws or the Rules and Regulations is violated, in
whole or in part, is hereby declared to be a nuisance and may be enjoined or
reduced whether or not the relief sought is for negative or affirmative action,
by the Club or any Member.
Section 9.07. Interpretation. The captions of the Articles and Sections are
for convenience only and shall not be considered to expand, modify or aid in the
interpretation of this Plan. As used herein the singular shall include the
plural, the masculine shall include the feminine and visa versa.
Section 9.08. No Waiver. The failure to enforce any provision of this Plan
shall not constitute a waiver thereof or of the right to later enforce such
provision.
Section 9.09. Applicable Law. This Plan is to be enforced and interpreted
according to the laws of the State of Arizona.
The Club and Seller have executed this Plan to be effective as of the date
first written on page one above.
SEDONA VACATION CLUB INCORPORATED,
an Arizona nonprofit corporation
By Alan J. Tucker
--------------------------------
Its President
--------------------------------
"Club"
LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP,
an Arizona limited partnership
By: ILE Sedona Incorporated,
its managing general partner
By Joseph P. Martori
--------------------------------
Its President
--------------------------------
"Seller"
STATE OF ARIZONA )
) ss.
COUNTY OF Maricopa )
This instrument was acknowledged before me this 11th day of January, 1995
by Alan J. Tucker, as President of SEDONA VACATION CLUB INCORPORATED, an Arizona
non-profit corporation, on behalf of the Corporation.
Stephanie D. Castronova
-------------------------------------
Notary Public
My Commission Expires:
March 20, 1998
--------------------------
STATE OF ARIZONA )
) ss.
COUNTY OF Maricopa )
This instrument was acknowledged before me this 11th day of January, 1995
by Joseph P. Martori, as President of LOS ABRIGADOS PARTNERS LIMITED
PARTNERSHIP, an Arizona limited partnership, on behalf of the Partnership.
Stephanie D. Castronova
-------------------------------------
Notary Public
My Commission Expires:
March 20, 1998
--------------------------
EXHIBIT A
SEDONA VACATION CLUB AT LOS ABRIGADOS
LEGAL DESCRIPTION
A parcel of land situated in the Southeast quarter of the Southeast quarter of
Section 7 and the Northeast quarter of Section 18, Township 17 North, Range 6
East of the Gila and Salt River Meridian in Coconino County, Arizona, including
a portion of Lots 1 and 10, and all of Lot 11 in Block I, and a portion of Lot
4, and all of Lots 1, 2 and 3 in Block II of HART'S VILLAGE SUBDIVISION,
according to the plat thereof recorded in Book 2 of Maps, Page 54 of the
Coconino County Recorder's Office, together with portions of Forest Drive, Black
Road and Orchard Drive, abandoned by Order recorded July 25, 1955 in Book 78 of
Official Records, Page 23 and 24, all being more particularly described as
follows:
Commencing at the Northeast corner of said Section 18 as marked by a B.L.M.
brass capped pipe;
thence S 89d 51m 39s W (S 89d 48m W rec.) a distance of 261.99 (262.00 rec.)
feet along the North line of said Section 18 to the Westerly right-of-way line
of Arizona State Highway 179, being the TRUE POINT OF BEGINNING;
thence S 17d 50m 29s W (S 18d 17m W rec.) a distance of 452.29 (452.23 rec.)
feet along said Westerly right-of-way line of Arizona State Highway 179 to a
Point of Curvature;
thence Southwesterly along said Westerly right-of-way line of Arizona State
Highway 179, being a curve concave to the Northwest having a central angle of
10d 48m 11s, chord bearing of S 23d 14m 34.5s W and radius of 921.93 feet a
distance of 173.83 (173.78 rec.) feet to a point;
thence N 61d 21m 20s W (N 60d 55m W rec.) a distance of 100.00 (100.00 rec.)
feet to a point in Oak Creek;
thence S 38d 21m 31s W (S 38d 48m W rec.) a distance of 315.70 (315.71 rec.)
feet to a point in Oak Creek;
thence S 46d 56m 20s E (S 46d 30m E rec.) a distance of 100.00 (100.00 rec.)
feet to a point on said Westerly right-of-way line of Arizona State Highway 179;
thence S 43d 03m 40s W (S 43d 30m W rec.) a distance of 121.37 (121.40 rec.)
feet along said Westerly right-of-way line of Arizona State Highway 179 to a
Point of Curvature;
thence Southwesterly along said Westerly right-of-way line of Arizona State
Highway 179 being a curve concave to the Southeast having a central angle of 18d
10m 54s, chord bearing of S 33d 58m 13s W and radius of 605.96 feet a distance
of 192.29 (201.40 rec.) feet to a point on the following described line;
thence S 89d 42m 41s W (West rec.) a distance of 108.01 (115 rec.) feet along a
line lying 200.00 feet North of and parallel with the South line of the
Northeast quarter of the Northeast quarter of said Section 18 to a point in Oak
Creek; then N 31d 30m 00s E (N 31d 30m E rec.) a distance of 436.04 (430.00
rec.) feet to a point in Oak Creek;
then S 83d 00m 00s W (S 83d W rec.) a distance of 130.00 (125 rec.) feet to a
point in Oak Creek;
then S 78d 00m 00s W a distance of 160.00 (160.5 +or- rec.) feet to a point in
Oak Creek;
then S 44d 25m 00s W a distance of 24.36 (16.33 rec.) feet to a point in Oak
Creek;
then N 11d 53m 00s W a distance of 122.98 (120.59 rec.) feet to a point;
thence N 04d 30m 00s W a distance of 180.60 feet to a point;
thence N 77d 27m 00s W (N 77d 44m W rec.) a distance of 564.08 feet to a Point
of Curvature;
thence Northwesterly along a curve concave to the Northeast having a central
angle of 27d 43m 44s (27d 43m 40s rec.), chord bearing of N 63d 35m 08s W and
radius of 261.07 (261.07 rec.) feet, a distance of 126.35 (126.3 rec.) feet to a
point of non-tangency;
thence West (West rec.) a distance of 51.84 (41.85 rec.) feet to a point;
thence N 05d 20m 14s E (N 05d 17m E rec.) a distance of 54.50 (61.7 rec.) feet
to a point;
thence N 34d 13m 46s W (N 34d 17m W rec.) a distance of 27.64 (26.3 rec.) feet
to a point on the Southeasterly right-of-way line of Brewer Highway according to
the plat thereof recorded in Book 2 of Maps, Page 139 of the Coconino County
Recorder's Office;
thence N 58d 03m 46s E (N 57d 28m E rec.) a distance of 48.71 (44.3 rec.) feet
along said Southeasterly right-of-way line of Brewer Highway to a Point of
Curvature;
thence Northeasterly along said Southeasterly right-of-way line of Brewer
Highway, being a curve concave to the Northwest having a central angle of 43d
33m 43s (43d 57m rec.), chord bearing of N 36d 16m 54.5s E and radius of 176.24
(176.24 rec.) feet, a distance of 134.00 (135.19 rec.) feet to a Point of
Tangency;
thence N 14d 30m 03s E (N 13d 31m E rec.) a distance of 113.94 (109.18 rec.)
feet along said Southeasterly right-of-way line of Brewer Highway to a point on
the North line of said Section 18;
thence N 89d 51m 39s E a distance of 352.42 feet along said North line of
Section 18 to the Southwest corner of the Southeast quarter of the Southeast
quarter of said Section 7;
thence N Old 04m 02s W (N Old 40m 30s W rec.) a distance of 158.79 feet along
the West line of said Southeast quarter of the Southeast quarter of Section 7 to
a point; thence S 83d 17m 23s E a distance of 65.58 feet to a point;
thence S 02d 32m 25s W a distance of 23.84 feet to a point;
thence N 89d 16m 39s E a distance of 15.50 feet to a point on the East line of
said Lot 1 of Block I of the HART'S VILLAGE SUBDIVISION lying N 05d 45m 06s W a
distance of 8.20 feet from a 1/2" pipe found at the Southwest corner of Lot 10
of said Block I;
thence S 89d 48m 35s E (S 89d 22m E rec.) a distance of 176.73 feet to a point;
thence N 00d 11m 34s W a distance of 52.03 feet to a point;
thence N 89d 51m 39s E a distance of 1.50 feet to a point on the center line of
Orchard Drive (presently abandoned) of said HART'S VILLAGE SUBDIVISION;
thence N 89d 51m 39s E a distance of 23.04 feet along the North line (and its
Westerly extension) of Lot 1 of Block II of said HART'S VILLAGE SUBDIVISION to a
point;
thence N 00d 08m 21s W (N 00d 43m 2 rec.) a distance of 112.73 feet to a point
on the center line of a private road easement described in Docket 930, Page 406
of the Coconino County Recorder's Office;
thence N 88d 39m 39s E (N 88d 05m E rec.) a distance of 46.79 feet along said
center line of private road easement to a point;
thence N 58d 01m 39s E (N 57d 27m E rec.) a distance of 11.83 (13.52 rec.) feet
along said center line of private road easement to the East line of Lot 4 of
Block II of said HART'S VILLAGE SUBDIVISION;
thence S 41d 22m 21s E (S 41d 21m E rec.) a distance of 159.50 (159.22 rec.)
feet to the North corner of Lot 3 of Block II of said HART'S VILLAGE
SUBDIVISION;
thence S 47d 58m 21s E a distance of 75.00 (75 rec.) feet to an angle point in
the Northeasterly line of said Lot 3;
thence S 32d 50m 18s E (S 32d 50m E rec.) a distance of 154.77 feet along the
Northeasterly line (and its Southeasterly extension) of said Lot 3 to a point on
the North line of said Section 18;
thence N 89d 51m 39s E a distance of 0.31 feet along said North line of Section
18 to a point;
thence S 34d 46m 21s E (S 34d 50m E rec.) a distance of 160.69 feet to a point;
thence S 63d 10m 57s W a distance of 198.38 feet to a point;
thence S 00d 03m 39s W (South rec.) a distance of 71.38 feet to a point;
thence N 89d 51m 39s E (N 89d 48m E rec.) a distance of 322.58 feet to a point;
thence N 16d 01m 39s E (N 15d 58m E rec.) a distance of 304.70 (304.70 rec.)
feet to a point on the North line of said Section 18;
thence N 89d 51m 39s E (N 89d 48m E rec.) a distance of 154.01 (153.93 rec.)
feet to the TRUE POINT OF BEGINNING.
EXCEPT THE FOLLOWING AREAS SITUATED UPON SUCH REAL PROPERTY:
(1) the On the Rocks Lounge and any and all other lounge or bar facilities
(except those bar facilities located within the Units) now or hereafter existing
on the Property,
(2) the Sedona Health Spa at Los Abrigados together with the patio area on the
second floor adjacent to the Sedona Health Spa at Los Abrigados and any and all
health or fitness related facilities (except the swimming pool and the tennis
courts) now or hereafter existing on the Property,
(3) the Canyon Rose Dining Room and any and all other dining facilities, snack
bars, gift shops and stores now or hereafter existing on the Property,
(4) all conference rooms including the Landmark Room, Coffee Pot Room, Indian
Gardens Room, Steamboat Rock Room, Snoopy Rock Room and any and all other
conference rooms (except those conference rooms located within the Units) now or
hereafter existing on the Property, and
(5) the entire first floor of the main hotel structure, which floor contains the
hotel registration desk and lobby areas.