disclosure statement for hacienda club at angel fire, a ......hacienda club at angel fire rules,...
TRANSCRIPT
Pamela Prindle
[COMPANY NAME] [Company address]
DISCLOSURE STATEMENT FOR HACIENDA
CLUB AT ANGEL FIRE, A CONDOMINIUM
Disclosure Statement Summary
Name of Property: Hacienda Club at Angel Fire, a Condominium
Name of Project: 25 Spyglass Hill, Angel Fire New Mexico 87710
Name of Sales Person:
This Disclosure Statement contains information which deserves your careful study. The
Disclosure Statement contains answers to the following questions which should be
particular importance to you.
Before you sign any contract which obligates you to purchase a time share, you should
consider:
1. When will my time share be available to me:
May 2004
2. What will be my total cost, including my initial cost, periodic fees and other charges?
Purchase Price:
Reserve Payment:
Assessment:
Cleaning Fee:
Total:
3. Who may change these charges and how?
Hacienda Club at Angel Fire Condominium Association.
4. How will the time share project be maintained in the future?
See Disclosure Statement, Section 9
5. When will each amenity and recreation facility (swimming pool, golf course, tennis
courts, etc.) be available for my use?
See Disclosure Statement Section 16.
6. Will I be able to exchange my time share for a time share somewhere else? If so,
how?
No
7. How and when will the title to my time share be recorded?
See Disclosure Statement Section 13.
Exhibit “A”
Hacienda Club At Angel Fire
Rules, Regulations and Reservation Procedures
These Rules, Regulations and Reservation procedures (Rules), are promulgates and
effective as of the ____ day of _______, 2002 (Effective Date).
These Rules govern the reservation, use and occupancy of the Club Residences of Hacienda
Club at Angel Fire, a Condominium located in Angel Fire, New Mexico (Project). They shall
remain in effect until amended by the Board of Directors of Hacienda Club at Angel Fire
Association (Association), and shall apply to and be binding upon all Members and
Occupants. Members and Occupants shall at all times comply with these Rules and use their
best efforts to ensure that such Rules are fully and faithfully observed by other Members
and Occupants. These Rules are subordinate to the Declaration for Hacienda Club at Angel
Fire, as the same may be amended from time to time (the “Declaration”). In the event of any
conflict between these Rules and the Declaration, the Declaration shall control.
1. Definitions.
Unless otherwise specifically defined in these Rules, all terms used in these Rules having
the meanings given to them in the Declaration. Certain key definitions contained in the
Declaration are also set forth below, together with some additional definitions.
1.1 Club Residence: A Unit within the Project.
1.2 Club Year: The period from October 1st each year to September 30th of the
succeeding year.
1.3 Designated Season: with respect to use of Hacienda Club at Angel Fire by a Member,
the seasons into which each calendar year is divided, pursuant to the Rules, during
which periods Members may use and occupy units in the manner set forth in the
Declaration and the Rules.
1.4 Managing Agent: a person, firm, corporation or other entity employed or engaged as
an independent contractor pursuant to a Management Agreement to perform
management services for the Association. The Managing Agent for the Project is
currently Hacienda Club Real Estate.
1.5 Member: the Owner vested with legal title to an Interval, his or her spouse and
dependent children under the age of 24. If the Owner of a Club Interest is not an
individual (i.e. a corporation, partnership, joint venture, limited liability company or
other association, or a trust), then the owner shall designate on the form as
designated by the Managing Agent one individual as the beneficial user who shall be
considered the “Member” with respect to such Interval for the applicable Calendar
Year. The designated beneficial user may be changed no more frequently than
annually, upon written notice thereof by the owners to the Managing Agent.
1.6 Occupant: any member of a Member’s family, or a Member’s guests and invitees
who occupy a Club Residence or are on the Common Elements of the Project for any
period of time.
1.7 Planned Vacation: those pre-reserved Club Weeks when a Member can use his or
her Club Residence(s) or send Sponsored Guests to use those Club Residence(s) at
no additional occupancy charge, except for the published housekeeping fee (if
applicable). Member may reserve up to forty-two (42) days of Planned Vacations (6
Club Weeks) each Club Year, for a total of twenty-one (21) days in the Fall/Winter
Season and twenty-one (21) days in the Spring/Summer Season, divided as follows:
(i) a “First”, “Second” and “Third” Planned Vacation, each a maximum of seven (7)
days in length, during the Fall/Winter Season; and (ii) a “First” , “Second” and “Third”
Planned Vacation, each a maximum of seven (7) days in length, during the
Spring/Summer Season. Any Member who reserved a Planned Vacation that is less
than seven (7) days in length shall be deemed to have used the entire Club Week for
which the reservation was made. A Member may cancel a Planned Vacation in
accordance with §2.3.2 below. Fall/Winter Season Planned Vacation may be
reserved only during the Planned Vacation Reservation Period and Planned Vacation
Additional Reservation Period for the Fall/Winter Season, and Spring/Summer
Season Planned Vacation may be reserved only during the Planned Vacation
Reservation Period and Planned Vacation Additional Reservation Period for the
Spring/Summer Season.
1.8 Planned Vacation Additional Reservation Period: the period just prior to the Winter
Season or the Summer Seasons, as applicable, after Planned Vacations have been
scheduled and confirmed by the Managing Agent and before Space Available
Vacations or reserve, during which Members can reschedule their Planned Vacations
or reserve their First, Second and/or Third Planned Vacations during the applicable
season if such Members did not or were unable to reserve a First, Second or Third
Planned Vacation Additional Reservation Period for the Winter Season is the fifteen
(15) day period from August 1st to August 15th of each year. The Planned Vacation
Additional Reservation Period for the Summer Season is the fifteen (15) day period
from March 1st to March 15th.
1.9 Planned Vacation Reservation Periods: (i) the forty-five (45) day period from June 1st
to July 15th of each calendar year, during which Members can reserve their Planned
Vacations for the upcoming Winter Season; and (ii) the forty-five (45) period from January
1st to February 15th of each calendar year, during which Members can reserve their
Planned Vacations for the upcoming Summer Season.
1.10 Reservation Form: the form or forms published by the Association from time to
time, and used by Members to request Planned Vacation dates. The Reservation Form
shall provide each Member with the ability to select at least three (3) alternative dates
for each Planned Vacations, so that if a Member does not receive his or her choice of a
Planned Vacation , such Member may then receive his or her second or third choice,
without submitted another Reservation Form.
1.11 The Reservation Priority Group Letter: The letter assigned to each Interval at
Closing is permanent and is used by the Managing Agent to allocate Planned Vacations
when the request Reservations exceeds the number of Club Weeks available in a
Residence during that time period. Within each Club Residence, the priority of each
Reservation during that time period. Within each Club Residence, the priority of each
Reservation Priority Group Letter rotates forward each year to equitably allocate Planned
Vacations to all members. The rotation is set forth on Exhibit “A” attached hereto. For
example, for the 2002-2003 Winter Season, Reservation Priority Group Letter A will have
the first reservation priority for the First Planned Vacation, Reservation Priority Group
Letter B will have the second reservation priority for the First Planned Vacation, etc. For
the 2003-2004 Winter Season, Reservation Priority Group Letter H will have the first
reservation priority for the First Planned Vacation, Reservation Priority Vacation,
Reservation Priority Group Letter A will have the second reservation priority for the First
Planned Vacation, etc. For the 2003 Summer Season, Reservation Priority Group Letter
H will have the first reservation priority for the First Planned Vacation, Reservation
Priority Group Letter G will have the second reservation priority for the First Planned
Vacation, etc. For the 2004 Summer Season, Reservation Priority Group Letter G will
have the first reservation priority for the First Planned Vacation, Reservation Priority
Group Letter F will have the second reservation priority for the First Planned Vacation,
etc. The priority among Member in the same Club Residence Category with the same
Reservation Priority Group Letter is determined on a first-come, first served basis.
1.12 Sleeping Capacity: the maximum number of persons permitted to lodge in a
Residence. The Sleeping Capacity of a Club Residence is the number of beds times two,
plus the number of sleeper sofas times two.
1.13 Space Available Vacation: Access to and usage of a Club Residence that each
Member has on a space-available basis. Members can lodge in a Club Residence during
any Space Available Vacation for periods of up to seven (7) days. Each Member can have
only one (1) Space Available Vacation reservation on the Project reservation books at a
time (except as detailed in this §1.13). Starting on September 1st of each calendar year,
Members may reserve Space Available Vacations during the remainder of the Fall/Winter
Season. Starting on April 1st of each calendar year, Members may reserve Space
Available Vacations during the remainder of the Summer Season. Each Member can
request one (1) additional Space Available Vacation within five (5) days of the desired
arrival date. All space Available Vacation requests will be processed on a first-come, first-
served basis.
1.14 Sponsored Guest: any guest who lodges at a Club Residence without a Member
during such Member’s Planned Vacation, at no additional occupancy charge, or who
lodges at a separate Club Residence during a Member’s Planned Vacation at the same
time such member is using another Club Residence. A Member requesting lodging for a
Sponsored Guest (Sponsoring Member) must provide the Managing Agent with written
notice of the Sponsored Guest’s name, address and telephone number at least fourteen
(14) days prior to such Sponsored Guest’s arrival so that the Managing Agent can send a
notice to that Sponsored Guest, confirming the terms of his or her stay at Hacienda Club.
Members may request and are permitted to have more than one (1) Club Residence
occupied by Sponsored Guests at a given time. Sponsored Guests are required to pay all
applicable housekeeping fees unless payment has been arranged in advance by the
Sponsoring Member. The Sponsoring Member is responsible for any unpaid charges
incurred by the Sponsored Guests and for any damages to Project facilities caused by
such Sponsoring Member’s Sponsored Guest. The number of persons lodged with a
Sponsored Guest in a Club Residence cannot exceed the Sleeping Capacity of that Club
Residence.
1.15 Spring/Summer Season: April 1 to September 30 of each year.
1.16 Fall/Winter Season: October 1 to March 31st of each year.
2. Reservation Procedures.
These Project reservation procedures have been designed to insure that all Members
have equal access to Club Residences and have been carefully formulated in an
attempt to be fair and equitable to all Members. Each Member is allowed to use the
Project for: (a) three (3) Planned Vacations during the Fall/Winter Season; (b) three
(3) Planned Vacations during the Spring/Summer Season; and (c) such Space
Available Vacations as may be reserved in accordance with the rules for making such
reservations set forth below. Each Planned Vacation will be for a Club Week of a
maximum of seven (7) days. All arrivals and departures shall occur between or on
Saturday, i.e. each seven (7) day period begins and ends of Saturday. Exceptions to
the arrival and departure times may be made at any time by the Managing Agent.
As permitted in the Declaration and Bylaws, the Board of Directors of the Association
reserves the right to alter these Project Reservation Procedures from time to time as
conditions warrant in order to assure a manageable and fair system.
Although the Deed to each Interval will show a specific Club Residence, Members
may be assigned to any Club Residence at Check-In Time.
2.1 Fall/Winter Season.
2.1.1 Fall/Winter Season Planned Vacations.
2.1.1.1 Reservation Forms. Prior to June 1st of each year, the Managing Agent will
provide to all Members, a Planned Vacation Reservation Form, requesting that Members
select First, Second and Third Planned Vacations dates for the following Fall/Winter
Season. The priority of each Reservation Priority Group Letter will be noted on that form
by the Managing Agent. If the Planned Letter will be noted on that form by the Managing
Agent. If the Planned Vacation Reservation Form for the Winter Season is not received by
the Member by June 14th, the Member should immediately notify the Managing Agent.
Fall Planned Vacation Reservations do not require a priority group letter.
Prior to July 15th of each year, Members must return the completed Planned Vacation
Reservation Forms for the Fall/Winter Season to the Managing Agent. It is the Member’s
responsibility to complete and return the Planned Vacation Reservation form by July 15th
to preserve priority rights for the upcoming Winter Season. Planned Vacation Reservation
Forms received after July 15tth will be considered on a first-come, first-served basis after
all Planned Vacation Reservation Forms received in a timely manner have been
processed.
2.1.1.2 Priority Assigned Club Weeks. After July 15th of each year, the Managing Agent
allocated the Planned Vacations for the Winter Season as follows:
First Planned Vacation- Members are confirmed for a maximum of seven (7) days based
on their requests and their Reservation Priority Group Letters. When demand for certain
dates exceeds lodging supply, the Member with the Reservation Priority Group Letter
with the highest reservation priority (i.e. starting with the Reservation Priority Group
Letter with the first reservation priority and ending with the Reservation Priority Group
Letter with the last reservation priority) for such year as shown on Exhibit “A” will be
confirmed.
Second Planned Vacation- After the First Planned Vacations are confirmed for Members,
reservations are confirmed for up to seven (7) additional days. When demand for certain
dates exceed lodging supply, the Member with the Reservation Priority Group Letter with
the highest reservation priority for such year as shown on Exhibit “A” will be confirmed.
2.1.1.3 Written Confirmation. By August 1st of each year, the Managing Agent shall
provide written confirmation of the Planned Vacations for the Winter Season to each
Member. Additionally, a reservation calendar will be provided indicating which dates
have been reserved by members and which are still available.
2.1.1.4 Rescheduling and Reserving Planned Vacations. From August 1st through August
15th of each year, Members who desire to reschedule a confirmed Planned Vacation or
to reserve their First or Second Planned Vacation may contact the Managing Agent to
request to reschedule and/or reserve such Planned Vacation during the Winter Season.
When demand for certain Planned Vacation dates exceeds lodging supply, requests will be
processed on a first-come first-served basis. By September 1st of each year, the Managing
Agent will provide written confirmation of the Planned Vacations for the Winter Season to
each Member and a revised reservation calendar indicating which dates have been reserved
by Member and which are still available.
2.1.2 Fall/Winter Season Space Available Vacations. Starting on September 1st of each
year, Members may reserve Space Available at any time during the remainder of the
Fall/Winter Season. All Space Available Vacation request will be processed on a first-come,
first-served basis.
2.2 Spring/Summer Season.
2.2.1 Spring/Summer Season Planned Vacations.
2.2.1.1 Reservation Forms. Prior to January 1st of each year, the Managing Agent will
provide to all Members, a Planned Vacation Reservation Form, requesting that Member
select First, Second, Third Planned Vacation dates for the following Summer Season. The
priority of each Reservation Priority Group Letter will be noted on that form by the Managing
Agent. IF the Planned Vacation Reservation Form is not received by the Member by January
14th, the Member should immediately notify the Managing Agent. Spring Planned Vacation
Reservations do not require a priority Group Letter.
Prior to February 15th of each year, Members must return the completed Planned Vacation
Reservation Forms for the Summer Season to the Managing Agent. It is the Member’s
responsibility to complete and return the Planned Vacation Reservation Form by February
15th to preserve priority rights for the upcoming Summer Season. Planned Vacation
Reservation Forms received after February 15th will be considered on a first-come, first-
served basis after the Planned Vacation Reservation Forms received in a timely manner
have been processed.
2.2.1.2 Priority Assignment of Club Weeks. After February 15th of each year, the Managing
Agent allocates the Planned Vacations for the Summer Season as follows:
First Planned Vacation- Members are confirmed for a maximum of seven (7) days based on
their requests and their Reservation, Priority Group Letters. When demand for certain dates
exceeds lodging supply, the Member with the Reservation Priority Group Letter with the
highest reservation priority for such year as shown on Exhibit “A” will be confirmed.
Second Planned Vacation- After the First Planned Vacation is confirmed for Members,
reservations are confirmed for up to seven (7) additional days. When demand for certain
dates exceeds lodging supply, the Member with the Reservation Priority Group Letter with
the highest reservation priority for such year as shown on Exhibit “A” will be confirmed.
2.2.1.3 Written Confirmation. By March 1st of each year, the Managing Agent shall provide
written confirmation of the Planned Vacations for the Summer Season to each Member.
Additionally, a reservation calendar will be provided indicating which dates have been
reserved by which members and which periods are still available.
2.2.1.4 Rescheduling and Reserving Planned Vacations. From March 1st through March 15th
of each year, Members who desire to reschedule a confirmed Planned Vacation or to reserve
their First or Second Planned Vacation may contact the Managing Agent to request to
reschedule and/or reserve such Planned Vacations during the Spring/Summer Season.
When demand for certain dates exceeds lodging supply, requests will be processed on a
first-come, first-served basis. By April 1st of each year, the Managing Agent will provide
written confirmation of the Planned Vacations, for the Spring/Summer Season to each
Member and a revised reservation calendar indicating which dates have been reserved by
Members and which are still available.
2.2.2 Spring/Summer Season Space Available Vacations. Starting on April 1st of each year,
Members may reserve Space Available Vacations at any time during the remainder of the
Spring/Summer Season. All Space Available Vacation requests will be processed on a first-
come, first-served basis.
2.3 Miscellaneous.
2.3.1 Reservation Request. Except as otherwise provided herein, all written Reservation
Forms and requests shall be provided to the Managing Agent in the manner required by the
Managing Agent at the following address, or at such other address as the Managing Agent
designates from time to time by written notice to all members:
Hacienda Club at Angel Fire
P.O. Box 410
Angel Fire, NM 87710
Fax: 505-377-1569
Attention: Reservations
2.3.2 Cancellation/Failure to Cancel.
2.3.2.1 Planned Vacations. If a Member wishes to cancel a Planned Vacation, but retain the
usage right associated with the cancelled Planned Vacation, a written request for
cancellation must be received by the Managing Agent at least fourteen (14) days prior to the
Member’s scheduled arrival at the Project. If the notice of cancellation is received in writing
at least fourteen (14) days prior to the scheduled arrival, the cancelling Member is entitled
to request the reservation of another Club Week in the same Club Year on a space-available
basis, but there is no guarantee that a canceling Member will be able to secure another
reservation in that same Club Year. If the notice of cancellation is not received in writing at
least fourteen (14) days prior to the scheduled arrival, the Managing Agent will deem all of
the Planned Vacation days for which proper notification was not received to have been used.
If a Member wished to cancel a portion, but not all, of a Planned Vacation a written request
for cancellation of such portion must be received by the Managing Agent at least thirty (30)
days prior to the Member’s scheduled arrival at the Project or the Member will be required to
pay a fee set by the Board of Directors based upon the rate charged to Sponsored Guests
pursuant to Section 5.3, below for reserved but unused time for which proper notification
was not received.
2.3.2.2 Space Available Vacations. If a Member fails to check in at the Project for a Space
Available Vacation, without giving notice to the Project’s Managing Agent at least fourteen
(14) days prior to such Member’s scheduled check-in, or if the Space Available Vacation
reservation was made less than fourteen (14) days prior to such Member’s scheduled
check-in, at least seventy-two (72) hours prior to such Member’s scheduled check-in, the
Member must pay a fee set by the Board of Directors based upon the rate charged to
Sponsored Guests pursuant to Section 5.3, below for reserved but unused time for which
proper notification was not received.
2.3.3 No Carry Forward of Use Rights. If, for whatever reason, a Member or Occupant does
not use all of the Club Week(s) that such Member is entitled to reserve or use in each Cub
Year, the unused time cannot be accumulated and carried forward for future use at the
Project. Such Member remains responsible to comply with all of the provisions of the
Condominium Documents, including but not limited to the payment of all Assessments and
other amounts levied by the Association against his or her Interval.
2.3.4 Exchanges. Members may exchange their confirmed Planned Vacations or Space
Available Vacations with other Members. Members will be provided a reservation calendar
after Planned Vacations have been confirmed, for the Fall/Winter Seasons and
Spring/Summer Season, respectively. Exchanges may be arranged directly between
Members; provided, however, written notice of an exchange must be provided to the
Managing Agent at least Fourteen (14) days prior to the arrival date of the Member using the
earliest Planned Vacation or Space Available Vacation involved in the exchange. The
Managing Agent encourages and will make all reasonable efforts to facilitate such
exchanges between members. Such facilitation may include, without limitation, an Internet
website for the exclusive use of Members seeking such exchanges.
3 Transfers
All transfers of Intervals within the Project shall be governed by the terms, conditions and
restrictions contained in the Declaration. After the initial transfer of a Club Interest by the
Declarant, immediately upon any subsequent transfer of such Club Interest as permitted by
the Declaration, the transferee Member shall give written notice thereof, by registered or
certified mail, to the Managing Agent. The written notice shall state the name and address of
the transferee and shall be accompanied by a non-refundable administrative fee of one
hundred dollars ($100.00). Said notice shall also be accompanied by a true and correct
copy of the applicable recorded deed pursuant to which title is vested in the new Member.
4 Payment of Assessment and Other Fees.
Payment of the annual Assessment shall be due in four (4) quarterly installments on January
1, April 1, July 1 and October 1 of each year. The Association shall bill each Member
quarterly, and shall (if necessary) provide an estimate of any Club Assessment that will be
due prior to the commencement of a Member's Planned Vacation or Space Available
Vacation, at the time that a reservation request is made for such vacation. A Member's
failure to receive a bill shall not excuse payment of an installment. Failure to pay an
installment within thirty (30) days of its due date shall result in the addition of a late fee in
the amount of five percent (5%) of the unpaid fee. All unpaid installments and late fees shall
bear interest at the rate of eighteen percent (18%) per annum until the unpaid
installment(s), late fees and accrued and unpaid interest are paid.
5 Occupancy of Club Residences.
5.1 Check-In and Check-Out Time. During Planned Vacations, check-in time shall be 4:00
p.m. (Check-In Time) Saturdays, the first day of any Club Week. All Members and Occupants
shall vacate and remove all personal belongings from their Club Residences no later than
11:00 a.m. (Check-Out Time) on the last day of their reserved Club Week. The five (5) hour
period between Check-Out Time and Check-In Time is to permit the routine cleaning and
maintenance of Club Residences by the Association. However, a Member or Occupant who
has reserved or is otherwise entitled to consecutive Club Weeks in the same Club Residence
shall not be required to vacate his or her Club Residence during the period of time between
such check-out and check-in times.
5.2 Housekeeping Services. Full housekeeping services will be provided twice a week, once,
prior to the start of the week, and again, mid-week. If a Member or Occupant desires
additional housekeeping services, or causes additional cleaning or housekeeping services to
be required over and above that which would ordinarily be provided, then such Member or
Occupant will be charges fees for such additional services.
5.3 Guests and Tenants. Members may rent only their Planned Vacation Weeks under the
following conditions: each tenant will be a sponsored Guest; Member may not rent Space
Available Reservations; Member may not rent to a number of guests in excess of the
Sleeping Capacity for Member's Club Residence, and Member shall be responsible for all
financial obligations incurred by such persons at the Project. Each Member shall notify the
Managing Agent in writing of the arrival and departure dates for any Sponsored Guests.
Upon check-in at the Project, such Sponsored Guests shall present identification in a form
acceptable to the Managing Agent, together with written authorization to enter and use such
Member's Club Residence for the Club Week(s) in questions. The Managing Agent, in its
discretion, may decline access to such Club Residence in the event adequate identification
is not provided.
5.4 Keys. Each Member and Occupant shall return to the Managing Agent upon check-out all
keys to his or her Club Residence. Members and Occupants shall be responsible for all lost
keys and all costs and charges incurred by the Association to replace lost keys and replace
or repair locks. No Member or Occupant shall alter any lock or install a new lock on the door
of any Club Residence or Common Element within the Project.
5.5 Emergencies. In case of an emergency originating in or threatening the condition of any
Club Residence, Common Element or Club Furnishing, or the health or safety of any person,
the Board of Directors, through an authorized representative thereof, including but not
limited to the Managing Agent, shall have the right to enter any Club Residence for the
purpose of remedying or abating such emergency. In order to facilitate such right of entry,
the Board of Directors and the Managing Agent may retain a pass key to each Club
Residence within the Project.
6 General Use Restrictions.
6.1 Personal Property. Except in areas that may be designated for such purpose by the
Board of Directors or the Managing Agent (such as the Project's long term clothing and
equipment storage facility), the personal property of all Members and Occupants shall be
stored within their Club Residence during their period of occupancy. The Managing Agent
shall not be responsible for any belongings left by a Member or Occupant in an
undesignated location.
6.2 Storage in Common Elements. No Member or Occupant shall place or store baby
carriages, playpens, toys or furniture on any part of the Common Elements, except in those
area that may be expressly be provided for such purpose. No Member shall store or leave
any boats, trailers, bicycles, mobile homes or other recreational vehicles anywhere within
the Project, except in such areas, if any, as may specifically be designated for such items
and as expressly approved in advance by the Managing Agent or the Association.
6.3 Prohibited Activities.
6.3.1 No Member or Occupant shall allow anything whatsoever to fall from the windows,
patios, decks, balconies, entry ways or doors of the Project, nor shall he or she sweep or
throw from his or her Club Residence any first or other substances outside of his or her Club
Residence or in the Common Elements of the Project.
6.3.2 No Member or Occupant shall direct, supervise or in any manner attempt to assert
control over the employees or other agents of the Managing Agent or the Association.
6.3.3 No Member or Occupants of a Club Residence shall make or permit any disturbing
noises or offensive odors, nor do or permit anything that will interfere with the rights,
comfort or convenience of the other Members and Occupants. No Member or Occupant of a
Club Residence shall play upon or suffer to be suffer to be played upon any musical
instrument, or operate or suffer to be operated a stereo, television, radio or sound amplifiers
in his or her Club Residence in such manner as to disturb or annoy other Members or
Occupants. All Occupants of a Club Residence shall lower the volume as to the foregoing
items from 10:00 p.m. to 8:00 a.m. The Board of Directors and Managing Agent shall have
the right to abate all nuisances in or about the Project.
6.3.4 No radio, television installation or other wiring shall be made without the prior written
consent of the Board of Directors or the Managing Agent.
6.3.5 No barbeque grills of any type may be used on balconies, within Club Residences or on
the Common Elements except in areas specifically designated for such use if any.
6.3.6 No flammable, combustible, explosive or otherwise dangerous fluid, chemical or other
substance shall be kept in any Club Residence, except such as are required for normal
household use.
6.3.7 Water shall not be left running for any unreasonable or unnecessary length of time.
6.3.8 No Project service may be used and no Club Residence may be occupied by minors
(persons under the age of 21) unless accompanied by an adult.
6.4 Disposal of Refuse. Refuse and bagged garbage shall be deposited only in such areas
as are expressly provided therefor.
6.5 Conduct of Occupants. Member and Occupants shall be responsible shall be responsible
for the conduct of members of their families, their guests, tenants, invitees and licensees.
Members or Occupants shall ensure that such persons’ behavior is neither offensive to any
Member or Occupant nor damaging to any Club Residence or portion of the Common
Elements or Club Unit Furnishings.
6.6 Complainants; Violations. Complaints regarding the operation and maintenance of the
Project and violations of these Rules, Regulations, and Procedures should be made or
reported, in writing, to the Managing Agent or the Board of Directors.
6.7 Pets. No pet or animal of any kind may be kept in any Club Residence or elsewhere
within the Project, except properly licensed and certified service animals for disabled
persons.
6.8 Smoking. No smoking is permitted in the Club Residences.
6.9 Parking. No parking shall be permitted within the Project, except in designated parking
areas.
6.10 Noncompliance. A Member who does not comply or a Member whose Occupant does
not comply, with these Rules, or a Member who misuses any other rights or other benefits
granted to such Member by virtue of his or her status as a Member specifically including, but
not limited to, misuse of membership credentials, shall be subject to suspension and loss of
privileges granted to Members for up to one (1) year or such other short period of time as
reasonably determined by the Association.
6.11 Past Due Balance. Any member who’s not current on their membership dues shall not
be allowed to use their Allotted Weeks nor shall they be allowed reserve weeks for the next
reason until such time as the member is current on all dues owed.
Exhibit “B”
Management Agreement
This Management Agreement (agreement) is made and entered into this day of
_____________, 2002, by and between Michael A Tavelli and Gerald S. Halpern, d/b/a
Hacienda Club Real Estate (Manager) and Hacienda Club at Angel Fire Condominium
Association, a New Mexico nonprofit corporation (Association).
Recitals:
Responsibility for the maintenance, repair, replacement, restoration, improvement,
operation, and administration of Hacienda Club at Angel Fire, a Condominium (Club) is
vested in the Association, pursuant to the Declaration for Hacienda Club at Angel Fire, a
Condominium (Declaration); and
The Association has determined to delegate certain of said responsibilities to the Manager,
and the Manager is prepared to accept such engagement upon the terms and subject to the
conditions set forth herein.
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
Agreement
1. Definitions. Unless the context otherwise requires, the capitalized terms used in this
Agreement shall have the meanings ascribed to them in the Declaration.
2. Engagement of Manager. The Association hereby engages the Manager as an
independent contractor to perform or arrange for the performance of the services
described herein, and the Manager hereby accepts such engagement and agrees to
perform or arrange for the performance of such services on the terms and conditions
herein set forth. The Manager acknowledges its fiduciary relationship with, and
responsibilities to, the Association and each of its members, and agrees at all times
during the term hereof to act in good faith and to exercise sound business judgement
in the performance of its duties and responsibilities hereunder.
3. Subcontractors/Assignees of Manager. The Association hereby agrees that the
Manager shall have the right to assign or delegate certain rights, benefits, duties,
and responsibilities or services described herein to other entities or persons
(Subcontractors) whether or not such entities or persons are related to the Manager.
The Association also agrees that it shall be responsible for the payment of the costs
and fees charges by the Subcontractors or assignees and that such charges and fees
are in addition to the Management Fee described in Paragraph 8 herein.
4. Term
4.1 Initial Term; Renewability. Except as otherwise expressly provided herein, this
Agreement shall have an initial term of five (5) years, commencing on the date
hereof, and shall be automatically renewed for successive five (5) year periods
thereafter unless written notice of non-renewal is given by either party hereto not
later than ninety (90) days prior to the end of any such five (5) year period.
4.2 Resignation of Manager. Upon ninety (90) days’ prior written notice to the Association
of its intention to resign hereunder, the Manager may cancel this Agreement, without
cause, whereupon the mutual rights and obligations of the parties hereunder shall
cease forthwith. Manager’s resignation shall be effective at the end of such ninety
(90) day notice period. In the event the Association has in good faith exercised
reasonable efforts during such ninety (90) day period to enter into a new
Management Agreement with respect to the Club but have failed to enter into a new
Management Agreement, this Agreement shall continue in full force and effect for an
additional sixty (60) day period.
4.3 Surrender of Records. On or before the effective date of any termination hereof or
the Manager’s resignation hereunder, the Manager shall surrender to its successor
all books, records, accounts, and other items in its possession, custody, or control
with respect to the Club or the Association, provided however, Manager shall be free
to copy and keep all such books, records, accounts and other items it deems
reasonably necessary.
5 Delegation of Powers and Duties. All of the powers and duties of the association as set
forth in the Declaration and the Bylaws of the Association (except such thereof as are
statutorily required to be exercised by the Associations Board of Directors (“Board”) or its
members) are hereby delegated by the Association exclusively to the Manager, and the
Manager shall perform or arrange for the performance of, by way of illustration and not
of limitation, the following services as often as is reasonably required for the proper
management and operation of the Club and administration of the Association.
5.1 Agents and Subcontractors of Manager. The Manager shall cause to be hired, paid,
supervised, and dismissed such personnel or Subcontractor as the Manager deems
necessary for the maintenance and operation of the Club and the administration of the
Association, including a minimum of one (1) person who shall be designated as the
“Resident Manager”. The Association hereby acknowledges its responsibility for the
payment of any and all wages, or other compensation due to all such individuals or
Subcontractors.
5.2 Maintenance and Repairs; Entry into Condominiums. The Manager shall arrange for
the regular cleaning, maintenance, repair, replacement, and restoration of the
Condominium Unit, the Club Unit Furnishings, and the Common Elements, together with
any additions or alterations thereof, as needed in the reasonable discretion of the
Manager, and/or as directed to do so by the Board. To the extent practicable, all
maintenance, repairs, replacements, additions, and/or changes to the interior of a
Condominium Unit shall be performed at the time when such Condominium Unit is
vacant, whether at the end of a Club Week or during a reserved maintenance period for
the particular Condominium Unit in question. If it becomes necessary, in the judgement
of the Manager, to perform maintenance or repairs within a Condominium Unit Prior to
the end of the Club Week then in progress in order to prevent reasonably foreseeable
personal injury or imminent damage to any of the Condominium Units, Common
Furnishings, Common Elements, or the personal belongings of any Condominium Unit
Occupant, and if such work cannot be performed while the Condominium Unit is
occupied, in the judgement of the Manager, then the Manager shall exercise reasonable
efforts to relocate the Condominium Unit Occupant(s) of such Condominium Unit for the
duration of such displacement to such reasonably comparable nearby accommodations
as possible, at the Association’s expense, to the extent so required by the Declaration.
With respect to any one (1) repair, replacement, or restoration, the expense incurred
by the Manager, on behalf of the Association, shall not exceed Ten Thousand Dollars
($10, 000.00), unless such expense is specifically set forth in the then-current
Association budget or otherwise authorized in writing by the Board; provided, however,
that in the case of an emergency, the Manager is authorized to expend any reasonable
amount necessary to protect and preserve the Club or any portion thereof. For purposes
of this sub-paragraph (b) all expenses incurred by the Manager, on behalf of the
Association, during any twenty-one (21) day period and paid to any single person or an
affiliate thereof, shall be considered to be a single expense unless clearly demonstrated
by the Manager to the contrary.
In addition to the foregoing, the Manager shall have the right to enter into any
Condominium Unit for the purpose of abating any nuisance or any unlawful or prohibited
activity being conducted therein.
5.3 Compliance with Applicable Laws. The Manager shall at all times during the term
hereof comply fully with all applicable statutes, ordinances, rules and regulations, as
each may be amended from time to time. The Manager shall obtain and keep in full
force and affect all permits, licenses, and authorizations required for the maintenance,
repair, replacement, restoration, improvement, operation, and administration of the
Association.
5.4 Service Contracts. The Manager shall enter into contracts, on behalf of the
Association, for garbage and trash removal, heating and air-conditioning maintenance,
hot tub maintenance, landscaping, telephone service, cable television service, pest
control, and such other services as it deems necessary or appropriate for the property
maintenance and operation of the Club. Except upon the approval of the Board, the
Manager hereby agrees not to enter into any contract on behalf of the Association with
an initial term in excess of one (1) year or which does not permit termination of the
contract by the Association upon no more than thirty (30) days’ written notice.
5.5 Supplied. The Manager shall purchase or lease, for and on behalf of the Association,
all such equipment, tools, vehicles, appliances, goods, supplies, furniture, and other
materials, as are deemed reasonably necessary or appropriate to enable the Manager to
perform its duties hereunder.
5.6 Insurance. The Manager shall procure and maintain in effect, on behalf of the
Association, insurance as required by the Declaration and the Association’s Bylaws and
other applicable documents (“Documents”), and shall perform such other duties in
connection therewith as delegated to the Association by the Declaration and the
connection therewith as are delegated to the Association by the Declaration and the
Bylaws or as directed by the Board. Among other things, the Manager, in its sole
discretion, shall adjust all claims arising under such insurance policies, bring suit
thereon and deliver releases upon payment of claims, otherwise exercise all of the rights,
powers and privileges of the insured parties, and receive, on behalf of the insured
parties, all insurance proceeds, subject to the provisions of the Declaration. Insurance
policies shall name of the Manager as an additional insured or co-insured.
5.7 Association’s Records. The Manager or its Subcontractors shall maintain all books
and records of the Association as required by the Documents and applicable law,
including but not limited to detailed and accurate records of the Association’s receipts
and disbursements, an individual account for each Owner designating such Owner’s
name and address and the amount of any Assessments or other amounts paid by and/or
due from such Owner, minutes of all Association and Board meetings (including
committees thereof), correspondence, amendments to the Documents, and a list of the
names and current mailing addresses of all Owners and their First Mortgagees, which list
shall be updated no less frequently than quarterly. Except as otherwise provided in the
Bylaws and except as necessary to implement rights and privileges of membership in the
Association, the Manager shall not publish or furnish the name or address of any Owner
to any other Owner or authorized agent thereof unless the Owner whose name and
address are requested first approves such disclosure in writing. All books and financial
records related to the Club or the Association shall be maintained in accordance with
sound accounting principles. To the extent required by applicable stature, rules, or
regulation, the Manager shall make the Association’s accounting records and the
minutes of all Association and Board meetings available for inspection and reproduction
by the members, at reasonable times; provided, however, that the Manager may charge
a member or his authorized representative such reasonable reproduction fee as the
Board from time to time establishes.
5.8 Finances of Association. The Manager shall supervise the preparation of, and submit
to the Board, within one hundred twenty (120) days after the close of the each fiscal
year, a complete set of financial statements of the Association for the previous fiscal
year as required by applicable law and/or the Association’s Bylaws, and shall ensure that
copies thereof are furnished to each Officer of the Association and made available for
copies thereof are furnished to each Officer of the Association and made available for
inspection by members of the Association at reasonable times in the office of the
Manager.
5.9 Annual Budget. The Manager shall arrange for the preparation and submission of a
proposed operating and capital improvement budget and schedule of Assessments to
the Board for its review and approval at least sixty (60) days prior to the commencement
of each fiscal year, taking into consideration all applicable provisions of the Documents.
The Manager shall also mail or deliver a copy of said budget to each Owner in
accordance with the requirements of applicable law and/or the Association’s Bylaws.
5.10 Collection of Assessments. Based upon the annual budget submitted to and
approved the Association each fiscal year, the Manager shall bill and attempt to collect
from the Owners, on behalf of the Association, all Assessments, ad valorem and other
taxes, and any other amounts due and owing the Association or a third party pursuant to
the provisions of any applicable law or the documents. The Manager shall be responsible
for collecting any delinquent amounts on behalf of the Association, utilizing such means
as may be established by law or the documents. All funds collected from the
Association’s members or otherwise accruing to the Association shall be deposited by
the Manager in one (1) or more federally insured bank accounts in the name of the
Association, as herein provided, and shall not be commingled with funds of others. The
Manager shall at all times during the term hereof maintain accurate and detailed records
of all receipts into and disbursements from such account(s). The Association shall aid
and assist the Manager in collecting Assessments and other amounts in any reasonable
manner requested by the Manager.
5.11 Payment of Obligations. The Manager shall arrange for the payment of all of the
Association’s authorized financial obligations, to the extent of available Association
funds.
5.12 Manager’s Records. The Manager shall maintain records sufficient to reflect the
performance of its services hereunder, and such financial books and records sufficient
in accordance with sound accounting principles, to identify the source of all funds
collected by it, on behalf of the Association, and the disbursement thereof. To the extent
required by applicable stature, rule or regulation, copies of such records shall be kept at
the office of the Resident Manager and shall be available for inspection by Owners or
their authorized representatives’ at all reasonable times.
(a) Attendance at Meetings. The Manager shall cause a representative thereof to attend
all Association and Board meetings and represent the Association and the members
thereof in such manner as the Board may direct, including but not limited to the casting
of votes on the Association’s and/or individual members’ behalf. It is agreed that the
minutes of all Association meetings shall be taken by the Association’s Secretary,
although the Manager shall obtain a copy of such minutes.
(b) Rules and Regulations. The Manager shall recommend proposed Rules and
Regulations to the Board and ensure that a copy of the then-current Rules and
Regulations promulgated by the Board is kept in each Unit and/or is furnished to the Unit
Occupant(s) thereof, at check-in or otherwise, upon request, and shall ensure that such
Rules and Regulations and the other Project Instruments are strictly observed and
enforced at all times.
(c) Professional Services. The Manager shall retain and engage, on behalf of the
Association, such attorneys, accountants, and other professionals, experts, and
subcontractors whose services may reasonably be required, in the discretion of the
Manager, in order to enable the Manager effectively to perform its duties and exercise its
powers hereunder.
(d) Agreements Regarding the Common Property. Subject to the provisions of the
Documents, the Manager may enter into agreements upon such terms and conditions
and for such purposes as the Manager deems appropriate in its sole discretion, with
respect to the Common Elements of the Club, and may by agreement grant concessions
and licenses to persons or entities to provide facilities and services to and within the
Club and cause coin vending machines and coin operated equipment and pay
telephones to be installed within the Club and to purchase same on behalf of and at the
cost and expense of the Association, or rent same or enter into agreements regarding
same; provided, however, that all net income derived by the Manager form the foregoing
shall inure solely to the benefit of the Association, and all reasonable expenses
pertaining thereto shall likewise be borne by the Association.
(e) Tax Collection Agent. The Manager shall, at the direction of the Board, serve as the
Association’s agent for the collection of assessments levied against individual Intervals.
5.18 Legal Action. The Manager, subject to the direction of the Board, may represent the
Association in any action, suit, or other proceeding, provided that any such action shall
be brought or defended in the name of the Association.
5.19 Annual Tax Returns. The Manager shall select a reputable independent certified
public accounting firm to prepare the Association’s annual tax returns. True and correct
copies of such tax returns shall be available for inspection by the members of the
Association and any Eligible Mortgagee in the office of the Manager during normal
business hours.
5.20 Assigned Condominium Units. Upon an Owner’s arrival and check-in at the Club, the
Manager shall verify that such Owner has a confirmed reservation for the Interval in
question and shall thereupon designate such Owner’s assigned Unit and otherwise
implement all appropriate check-in procedures.
5.21 Third Party Claims. Association also authorizes Manager, as part of the general
management of the Club, to settle on such terms and conditions as Manager shall deem
in the best interest of the Club, any and all third party claims or demands arising out of
the operation of the Club, irrespective of whether or not legal action has been instituted,
such settlement to be on the Club’s behalf and in the Club’s name, but not to exceed
Two Thousand Dollars ($2,000.00) for each such claim or demand, and Association
agrees that such sums shall be paid out of the Club’s account and be an operating
expense.
5.22 Other Duties. The Manager shall perform such other acts and be responsible for
such additional duties as may from time to time be delegated to it by the Board or the
Documents or as may be imposed upon the Manager by any applicable provision of
statute, rule, or regulation.
6. Application of Funds: Liens. The Manager shall apply all funds collected from the
Owners as it determines, in its sole discretion, with respect to hose items specified in the
Association’s Bylaws, including the Management Fee (as described herein) and its
overhead and operating expenses, which shall be deemed Association Expenses. The
Manager may compromise liens in such amounts as it deems advisable, in its sole
discretion, and may satisfy liens of record and render statements as to the current status
of an Owner’s account. Any lien against an Owner shall be limited to the Interval(s)
owned by such delinquent Owner and shall, in no event, be filed so as to encumber the
Interval(s) of any such Owner.
7 Sufficiency of Association Funds. It is specifically understood and agreed that the
Manager will not be responsible for paying any of the Association’s expenses from its
own funds, and shall only be required to perform its services hereunder and make
disbursements to the extent that and so long as amounts received by the Association
from Assessments and other revenue, if any, are sufficient to pay the costs and
expenses associated with the maintenance, repair, replacement, restoration,
improvement, operating, and administration of the Association; provided, however,
that in the event of an emergency posing imminent danger to the Club or any portion
thereof, including but not limited to the Condominium Unit, Club Unit Furnishings, or
the Common Elements, or the health or safety of any Owner or other person, the
Manager is authorized to expend from its own funds, for the protection of said
property or person, an amount not to exceed Ten Thousand ($10,000.00), and the
Association shall promptly reimburse the Manager therefor, if it shall appear to the
Manager that amounts received by the Association from Assessments and other
revenue, if any, are or likely will become insufficient to satisfy the Club Expenses. The
Manager shall immediately determine that additional Assessment(s) might be
required and advise the Board thereof.
8 Management Fee. It is specifically understood and agreed that the Manager shall
perform all of the services required of it hereunder at no cost and expense
whatsoever to itself, but solely at the cost and expense of the Association and its
members. As compensation for its services hereunder, the Manager shall receive a
“Management Fee” equal to the greater of __________________ Dollars ($________)
per month (Base Fee) or ten percent ($10) of the Association’s annual operating
expense budget (excluding management fees and real property taxes) as prepared by
the Manager and approved by the Board. At such time as the Management Fee is in
excess of the Base Fee, the Management Fee shall increase on the first day of each
fiscal year of the Association in a percentage equal to the increase in the
Association’s budgeted expenses (excluding such management fees and any portion
of the Basic expenses attributable to real property taxes) for the previous year. The
Manager shall be entitled to deduct the current month’s Management Fee from the
Association’s general operating account on or after the tenth (10th) day of each
calendar month during the term hereof.
9 Cooperation with Manager. The Association shall not interfere nor permit, allow, or
cause any of its Officers, Directors, employees, or members to interfere with the
Manager in the performance of its duties and obligations or the exercise of any of its
powers hereunder.
10 Indemnification. The Manager shall not be liable to the Association or its Members
for any loss or damage which is not caused by the Manager’s fraud, gross negligence,
or willful misconduct, and the Association and its members shall protect, negligence,
or willful misconduct, and the Association and its members shall protect, defend,
indemnify, and hold harmless the Manager from and against and all claims,
liabilities, losses, or expenses arising from the injury to any person or property in,
about, or in connection with the Club from any cause whatsoever, unless such injury
was caused by the Manager’s fraud, gross negligence, or willful misconduct not
covered by the Association’s insurance. If reasonably available, the Association shall
carry liability insurance, at its own expense, in amounts which are reasonably
adequate to protect the interests of both of the parties hereto, which policies shall be
written so as to protect the Manager in the same manner and to the same extent as
they protect the Association, and shall name the Manager as an additional insured
thereafter.
11 Assignment of Agreement. Except as provided in Paragraph 3 herein, neither party hereto
shall have the right to assign its duties or obligations hereunder without the prior written
consent of the other party and, in the case of an assignment by the Manager, the prior
written consent of First Mortgagee holding mortgages or security interests on a majority of
the Intervals submitted to the Declaration that are so encumbered.
12 Default by Association. If the Association or its Officers, Directors, or Members interfere
with the Manager in the performance of its duties or the exercise of its powers hereunder, or
if the Association fails promptly to do any of the things required of it hereunder, then the
Manager may declare the Association to be in default under this Agreement thirty (30) days
after having given written notice of said default to the Association by delivering said notice to
any Officer of the Association. Unless such default is cured by the Association to the
Manager’s reasonable satisfaction within thirty (30) days following its receipt of such notice,
the Manager may, in addition to any other remedy available to it by law, terminate this
Agreement and bring an action against the Association for damages and or specific
performance, and the Association shall be liable for the Manager’s reasonably attorney’s
fees and costs incurred in connection therewith. All such rights of the Manager upon the
Association’s default hereunder shall be cumulative and the exercise of one or more
remedies shall not be deemed to preclude or constitute a waiver of the right to exercise any
other remedy.
13 Default by Manager. Failure by the Manager to perform its duties and obligations under
this Agreement and the continuation of such failure for thirty (30) days after receiving
written notice of default from the Association shall be grounds for the Association to
terminate this Agreement and procure comparable services from another management firm.
In such event, the Association may, in addition to any other remedy available to it by law,
bring an action against the Manger for damages, specific performance, and/or other
injunctive relief, and the Manager shall be liable for the Association’s reasonable attorney’s
fees and court costs incurred in connection therewith. All such rights of the Association upon
the Manager’s default hereunder shall be cumulative, and the exercise of one or more
remedies shall not be deemed to exclude or constitute a waiver of the right to exercise any
other remedy.
14. Termination of Club. If the Club is terminated as provided for in the Declaration then this
Agreements and the rights and duties of the parties hereunder shall automatically also
terminate.
15. Suspension of Privileges. To the extent permitted by law and subject to the requirements
of the Documents, should an Owner be delinquent in the payment of any Assessment levied
by the Association pursuant to the Declaration, the Manager may suspend such Owner’s
right to use, or allow others to use his assigned Unit or any portion of the Common Elements
during his reserved Club Week(s). The Association agrees to indemnify and hold the
Manager harmless from and against any and all claims asserted against the Manager, its
agents employees, or affiliates, arising out of or in connection with any such suspension.
Notice of such suspension shall be provided to the First Mortgagee, if any, holding a
mortgage or other security interest on the applicable Owner’s Interval.
16 No Waiver of Breach. No restriction, condition, obligation, or provision contained herein
shall be deemed to have been abrogated or waived by reason of any failure by a party hereto
to enforce the same, irrespective of the number of violations or breaches thereof which may
occur.
17 Time of the Essence. Time is of the essence with respect to each and every provision and
condition hereof.
18 Entire Agreement. This Agreement, together with the applicable provisions of the
Declaration, Bylaws and other applicable documents, embodies the entire agreement
between the parties hereto relating to the subject matter hereof and supersedes and
replaced any and all prior negotiations, representations, agreements, and understandings ,
both oral and written, in connection therewith. In the event of any conflict between the
provisions of the Declaration, Bylaws and other applicable documents and this Agreement,
the applicable Declaration, Bylaws and other applicable documents shall control. This
Agreement shall not be amended or in any manner modified unless such amendment or
modification is set forth in a written instrument which is signed by both of the parties hereto.
19 Severability. The provisions hereof shall be deemed to be independent and severable,
and the invalidity or unenforceability of any one provision shall not affect the validity or
enforceability of any other provision hereof.
20 Successors and Assigns. This Agreement and all terms, provisions, and conditions hereof
shall insure to the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
21. Relationship of Parties. The Manager shall perform its duties and responsibilities
hereunder strictly as an independent contractor, and neither the execution of this
Agreement nor the complete performance hereof its intended to be, nor shall it be construed
as, evidencing the formation of a partnership, joint venture, or similar arrangement between
the Association and the Manager.
22 Number and Gender. Whenever the context so requires, the use of any gender herein
shall be deemed to include both genders, and the use of the singular shall be deemed to
include the plural, and the plural shall include the Manager.
23 Notices. All notices which either party hereto desires or is required to give the other party
hereunder shall be deemed to have been duly given upon being delivered personally or
three (3) business days after being deposited in the United States mail as certified r
registered mail, postage prepaid, return receipt requested, and addressed as follow:
Association: Hacienda Club at Angel Fire Condominium Association
25 Spyglass Hill Road
Angel Fire, NM 87710
Manager: Hacienda Club Real Estate
30 Sage Lane
P.O Box 410
Angel Fire, NM 87710
24 Authority. The Manager and the Association represent that each is duly organized,
validity existing, and in good standing under the laws of the State of New Mexico, that the
persons signing below have the full right, power, and authority to execute, deliver, and
perform this Agreement on behalf of the respective parties hereto and that this Agreement
constitutes the legal, valid and binding obligation of each party, enforceable against it in
accordance with the terms hereof.
25 Attorney’s Fees. In the event either party hereto institutes an action to enforce its rights
hereunder or to resolve any dispute arising with respect hereto, the prevailing party in such
action shall be entitled, in addition to any other relief granted by the court, to such
reasonable attorney’s fees as such court may award.
26 Captions. The captions contained herein are inserted solely for convenience of reference
and should not replied upon and/or used in interpreting the effect or meaning of any
provision hereof.
27 Choice of Law. This Agreement shall be governed by and construed in accordance with
the Laws of the State of New Mexico. Any legal action or proceeding arising out of or in any
way relating to this Agreement or the Club shall be brought in an appropriate court of
competent jurisdiction located in Colfax County, New Mexico, and both the Manager and the
Association, together with their successors and assigns, hereby irrevocably submit to the
jurisdiction of any such court.
28 Counterparts. This Agreement may be executed in identical counterparts, each of which
shall be deemed an original for all purposes and both of which collectively, shall constitute
one and the same document.
29 Enforcement. Any controversy which shall arise between the parties regarding the rights,
duties or liabilities of either party hereunder shall be settled, by binding arbitration pursuant
to the New Mexico Arbitration Act, and judgment upon the award shall be entered in
accordance with applicable New Mexico Law.
If any action, including arbitration, shall be brought by either party recover any sums
hereunder, or for or on account of any breach, or to enforce or interpret any of the
covenants, terms or conditions of this Agreement, the prevailing parties shall be entitled to
recover costs and expenses, including reasonable attorney’s fees.
If an arbitration proceeding is brought by any party to this Agreement, a request shall be
made by the parties to the arbitrator that in the event a prevailing party is not determined by
the outcome of the act, the arbitrator shall make a final determination concerning payment
of all costs and expenses (including reasonable attorney’s fees) by one or both parties, as
the arbitrator deems appropriate based on the facts and circumstances of the case.
30 Condemnation.
30.1 If the whole of the Club shall be taken or condemned in any eminent domain,
condemnation, compulsory acquisition or like proceeding by any competent authority for any
public or quasi-public use or purpose, or if such a portion thereof shall be taken or
condemned as to make it imprudent or unreasonable to use the remaining portion as a Club
of the type and class immediately preceding such taking or condemnation (either of such
events being hereafter referred to as “total condemnation”), then, in either of such events,
the term of the Agreement shall cease and terminate as of the date on which the
Association shall be required to surrender possession of the Club or such portion thereof as
a consequence of such taking or condemnation. Manager shall continue to supervise and
direct the management and operation of the Club as a consequence or taking such
condemnation. The condemnation award shall belong solely to the Association; provided,
however, that Manager shall be entitled to participate in any condemnation proceedings and
to assert its separate claim to an award.
30.2 if only of the Club shall be taken or condemned and the taking or condemnation or
such part does not make it unreasonable or imprudent to operate the remainder as a Club
of the type and class immediately preceding such taking or condemnation, this Agreement
shall not terminate. In such event, the entire award shall also belong to Association;
provided, however, that Manager shall be entitled to participate in any condemnation
proceedings and to assert its separate claim to an award. Association shall apply such
portions of the award as necessary to modify the Premises so as to permit their continued
operation of the Club.
In witness whereof, the parties hereto have caused this Agreement to be executed on the
date first written above.
Manager:
Hacienda Club Real Estate
By: __________________________________
H. Michael Stille
Association:
Hacienda Club at Angel Fire Condominium Association
A New Mexico Non Profit Corporation.
By _____________________________________
Its _____________________________________