08-27-2019 Colorado World Resorts, LLC Development AgreementEagle County, CO 201921221
Regina O'Brien 12/12/2019
Pgs: 18 04:33:14 PM
REC: $98.00
DOC: $0.00
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into as of
August 27th , 2019, by and between COLORADO WORLD RESORTS, LLC., a
Colorado limited liability corporation ("Owner"), and the Town of Avon, a home rule municipal
corporation of the State of Colorado ("Town") (Owner and Town may be referred to individually
as "Party" and collectively as "Parties"), and, as to Article V of this Agreement only, UPPER
EAGLE REGIONAL WATER AUTHORITY, a quasi -municipal corporation and political
subdivision of the State of Colorado ("Authority").
as:
RECITALS
A. The Owner owns approximately 21.52 acres within the Town that is legally described
38388 Highway 6, Town of Avon, County of Eagle, State of
Colorado as is also described in the Quit Claim Deed recorded in the
Eagle County Clerk and Recorder's office at Reception Number
201803580 ("Property").
B. The Owner submitted an application to the Town for approval of a Major Design and
Development application for a condominium project referred to as Colorado World Resorts
Application").
C. After holding a public hearing on September 18, 2018, the Town of Avon Planning and
Zoning Commission approved the Application conditioned upon the execution of this Agreement
prior to a building permit.
D. The Application includes a Landscape Plan and Irrigation Plan, which includes a
limited irrigated area and drought tolerant species.
E. The Application includes public improvements that necessitate further review,
warranty, and acceptance upon satisfactory completion.
F. Development of the Property in accordance with this Agreement will provide for
orderly growth in accordance with the policy and goals set forth in the Town's Comprehensive
Plan; ensure reasonable certainty, stability and fairness in the land use planning process; stimulate
econornic growth; secure the reasonable investment -backed expectations of the Owner; foster
cooperation between the public and private sectors in the area of land use planning; and otherwise
achieve the goals and purposes of the "Town.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals set forth above, the terms, conditions,
covenants and mutual promises set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner and the
Town agree as follows with respect to the development of the Property:
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ARTICLE I
DEFINITIONS
Definitions. The following terms shall have the meanings set forth below unless the
context in which they are used clearly indicates otherwise:
1.1 Association. The common interest community association and/or other entity formed
or to be fonned for purposes of governing the rights, obligations and interests of owners of Time -
Share Interests and other interests in the Development upon completion of construction thereof.
Certain provisions relating to the rights and obligations of the Association are provided in Article
X of this Agreement.
1.2 Association Governing Documents. The declaration of covenants, articles of
incorporation, bylaws, rules and regulations, and any other documents creating or governing the
Association and its members, as in existence from time to time.
1.3 Development. The project to be constructed on the Property as described in the
Development Plan.
1.4 Development Plan. The approved Major Design and Development Plan is made part of
the land use approval for the Development Plan.
1.5 Development Plan Components. The following plan set sheets contained in the
Development Plan are incorporated by reference into and made a part of this Agreement:
Sheet C1.0 C6.01 Public Property Improvement Map
Sheets L1.0 -L3.0 & 1111.0-I111.31 Landscape Plan & Irrigation Plan
Sheets C1.0—C6.01 Owner Maintained Public Improvements
1.6 Exhibits. The following Exhibit is to this agreement is incorporated by reference and
made part of this Agreement:
Exhibit A Amenity Fees
1.7 Landscape & Irrigation Plan. The approved Landscape Plan and Irrigation Plans,
Sheets LI.0-L3.0 & IR1.0-IR1.3of the Development Plan, is made part of the land use approval
for the Development Plan.
1.8 Municipal Code. The Avon Municipal Code, including the Avon Development Code,
as may be amended from time to time.
1.9 Public Improvements. Those improvements to be acquired, constructed or installed for
the benefit of the public, including, but not limited to, the Public Improvements described in Article
IV and in the Public Property Improvement Map.
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1.10 Public Property Improvement Map. The approved Public Property Improvement Map,
Sheets CLO — C6.Oof the Development Plan, is made part of the land use approval for the
Development Plan.
1.11 ROW. "ROW" shall mean that certain public right of way as described in the
Development Plan.
1.12 Term. The term of this Agreement as provided in Article 111.
ARTICLE II
DEVELOPMENT PLAN
2.1 Development Plan. The Development Plan sets forth the approved scope of development
of the Property and has been approved by the Town through action by the Town of Avon Planning
and Zoning Commission.
2.2 Compliance with General Regulations. The approval of the Development Plan and this
Agreement shall not preclude the application of Town ordinances and regulations, or state or federal
laws and regulations, which are general in nature and are applicable to all property subject to land use
regulation by the Town, including, but not limited to, building, exterior energy offset, fire, plumbing,
electrical and mechanical codes, as all such regulations exist on the date of this Agreement or may be
enacted or amended after the date of this Agreement.
ARTICLE III
TERM
3.1 Term. The tern of this Agreement shall be for so long as the building which comprises
the Development continues to exist and for five (5) years after such time the building that comprises
the Development is no longer in existence on the Property. In the event the building which comprises
the Development is destroyed by fire or other calamity and then reconstructed within five (5) years,
such reconstructed building shall be deemed the building that comprises the Development and this
Agreement shall continue in full force and effect until five (5) years after the reconstructed building
no longer exists. The Parties may terminate this Agreement earlier by mutual agreement.
ARTICLE IV
PUBLIC IMPROVEMENTS
4.1 Public lmprovements. The Owner agrees to construct and install the public improvements
set forth in this Agreement (the "Public Improvements"). Such obligations directly relate to the
Application complying with the minimum required development standards set forth in the Code and
are material to the tenns, conditions, covenants and mutual promises bargained for by Town and the
Owner in this Agreement. The Owner shall install or cause to be installed all Public Improvements
that the Owner is required to construct in a good and workmanlike manner in accordance with the
applicable regulations of the Town and applicable Utilities, as defined below, and in accordance with
this Agreement.
king &F.3
a) Utility Improvements. The Owner agrees to install all utility improvements as
described in the Development Plan.
b) Drainage lmeovements. The Owner shall install drainage improvements for
stonnwater control and quality as described in the Development Plan.
c) Sidewalk. The Owner shall install the sidewalk adjacent to Highway 6 running
the length of the project, as described the Development Plan.
d) Turn Lanes. The Owner shall install turn lanes off Highway 6, as described in
the Development Plan.
4.2 Timing of Public Improvements. The Owner shall complete the Public
Improvements and the Town shall have provided written notification of acceptance of the Public
Improvements from the Town (the "Town's Notification of Acceptance") on or before the date of
completion of the Development. The date of completion of the Development shall be defined as the
date that the Owner receives from the Town a Temporary Certificate of Occupancy for the
Development. The Owner shall inform the Town of all construction plans within Town property and
within the ROW at least ninety (90) days prior to the start of construction that is to occur within Town
property or the ROW. If the Owner has not received the Town's Notification of Acceptance from
the Town of all Public Improvements, the Town may withhold the issuance of a Temporary
Certificate of Occupancy.
4.3 Warranty Period. The Public Improvements constructed and installed by the Owner
shall be warranted to be free from defects in material, workmanship and quality for a period of two
2) years after the date of the Town Notification of Acceptance (the "Warranty Period"). In the
event of any such defect arising during the Warranty Period, the Town may require the Owner to
correct the defect in material, workmanship or quality. Ten percent (10%) of the total actual cost
of completion of all Public Improvements to be installed and constructed by the Owner shall be
collected by the Town from the Owner as security during such two (2) year period as the
improvement warranty pursuant to Code § 7.32.100, as may be amended. In the event any
corrective work with respect to the material, workmanship and quality is performed during the
Warranty Period then the warranty on said corrected work with respect to the material,
workmanship and quality shall be extended for two (2) years from the date on which it is
completed. Security equal to 125% of the cost of any corrected work with respect to the material,
workmanship and quality, as estimated by the Town, shall be retained by the Town or immediately
paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance with
Code § 7.32.100, for a period of two (2) years from the date of completion of the corrected work.
4.4 Engineering Certification. Upon completion of portions of the Public
Improvements to be installed and constructed by the Owner, the Owner- will cause its engineers
who shall have been actively engaged in observing to a commercially reasonable degree the
construction of the Public Improvements and who are licensed in the State of Colorado) to provide
a written opinion. The written opinion shall be in form and content reasonably satisfactory to the
Town's Engineer, and based upon on-site observation, review of sufficient construction -
observation reports, field test reports, and material test reports and certifications by qualified
personnel, shall opine that the installation of the Public Improvements, or portions thereof as may
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be completed from time to time, have been completed, and that to the best of the opining engineer's
knowledge and professional judgment, the Public Improvements are in confonnance with all
Standards (as defined below), plans, and specifications as submitted to and previously approved
by the Town, or the pertinent utility supplier, as depicted on Sheets CLO — C6.0 of the
Development Plan. Inspection reports, test results, as -constructed plans, including surveys, and
other supporting documentation shall be submitted with the certification. The as -constructed plans
shall be submitted on paper and in a digital format, either AutoCad DWG, AutoCad DXF, or ESRI
GIS shapefile.
4.5 Inspection Procedures. All Public Improvement work shall be done under the
published inspection procedures and standards (collectively, "Standards") established by the
Town, Holy Cross Energy, Eagle River Water and Sanitation District, Upper Eagle Regional Water
Authority, Xcel Energy, CenturyLink, Comcast, or any other utility ("Utilities"), as applicable and
shall be subject to the reasonable satisfaction of the Town and applicable Utilities. No work shall
be deemed complete until the reasonable approval and acceptance of the Public Improvements by
the Town or the Utilities. Inspections by the Town and Utilities shall not relieve the Owner or the
Owner's agents from any responsibility or obligation to ensure that all work is completed in
conformance with all Standards, plans, and specifications as submitted to and previously approved
by the Town and Utilities.
a) Cost of Inspections: The cost, if any, of inspections, by Town employees,
or an independent third -party inspector, shall be paid by the Owner.
b) Notice of Non -Compliance: In the event that the Town, through its
inspectors, reasonably determines that the Public Improvements to be installed and
constructed by the Owner are not in compliance with the Development Plan, it shall give
written notice of such non-compliance ("Notice of Non -Compliance") to the Owner. The
Notice of Non -Compliance shall include a narrative describing the unsatisfactory
construction work with specific reference to the applicable construction plans and
specifications with which the Public Improvements fail to comply. The Notice of Non -
Compliance must be provided to the Owner within two (2) working days of the date of the
inspection.
4.6 Indemnification and Hold Harmless. The Owner shall indemnify, defend and hold
hannless the Town (and its officials, agents, representatives, employees, contractors, and successors
and assigns) from all claims, demands, damages (including, without limitation, consequential
damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including
reasonable attorneys' fees) resulting from claims for bodily injury (including death) to any person or
damage to any property, arising during the construction of the Public Improvements or otherwise
arising on the Property or from the Owner's activities while performing this Agreement (including,
without limitation, maintenance, repair and replacement activities), including without limitation any
claim that all or any portion of the Public Improvements installed and constructed by the Owner on
Town property or ROW constitute a dangerous and/or unsafe condition within a public right-of-way;
provided, however, that this indemnity shall not apply to any claims, demands, damages (including,
without limitation, consequential damages), causes of action, fines, penalties, losses, liability,
judgments, costs or expenses (including reasonable attorneys' fees) resulting from any act or omission
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of the Town or its officials, agents, representatives, employees, inspectors, including independent
third -party inspectors, contractors, and successors and assigns.
4.7 With respect to Owner's obligation with respect to and/or any claims arising from the
construction or installation of the Public Improvements, all Owner's or Owner's contractor's
insurance policies related in any way to the Public Improvements shall be endorsed to include the
Town and the Town's officers and employees as additional insureds/loss payees, applicable within
each policy. Every policy covering the Public Improvements shall be primary insurance, and any
insurance carried by the Town, its officers, or its employees, or carried by or provided through any
insurance pool of the Town, shall be excess and not contributory insurance to that provided by the
Owner or the Owner's contractors. No additional insured endorsement to the policy required herein
shall contain any exclusion for bodily injury or property damage arising from completed
operations. The Owner and its contractor shall be solely responsible for endorsement/additional
insured costs, premiums and deductible losses under any policy required above.
ARTICLE V
WATER PROVISION, WATER USE AND ENFORCEMENT
5.1 Water Eights. The Property has not been allocated water rights by the Town and
must dedicate water rights to serve 81 SFEs and irrigate 0.91 acres of landscaped area as required
by the Authority or, in the alternative, the Owner shall pay the Authority cash -in -lieu of a water
rights dedication. The Owner shall provide proof of dedication or of payment of cash -in -lieu of
water rights dedication and proof of water system impact fees in the amount of $56,379.00 prior
to the issuance of a building permit.
5.2 Indoor Water Use Limit. The Owner shall adhere to an indoor usage water
budget of no more than 300 gallons per day, per unit, and shall be responsible for managing use to
this limit. Any use in excess of this limit may be subject to an excess use fee as determined by the
Authority.
Colorado World Resorts Indoor Water Usage Limit
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
Use per
Unit 9.3 8.4 9.3 9 9.3 9 9.3 9.3 9 9.3 9 9.3 110
kgal)
Total
existing 753.3 680.4 753.3 729.0 753.3 729.0 753.3 753.3 729.0 753.3 729.0 753.3 8870
kgal)
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5.3 Outdoor Water Usage.
a) The Owner shall install a separate irrigation meter pursuant to Code §
7.28.050(6)(ii)(D). This section establishes a maximum allowable outdoor water
use limit for the development to ensure this Development does not exceed its
outdoor water allocation as established by the Authority's Water Dedication
Requirement and Water Service Agreement between the Owner and the Authority.
During the first two growing seasons, the Owner shall not exceed 639,832 gallons
of outdoor water use in any calendar year. Thereafter, the Owner shall not exceed
319,916 gallons of outdoor water use in any calendar year. The following monthly
budget is based upon a total irrigated area of 0.91 acres or 39,787 square feet:
Colorado World Resorts Outdoor Water Usage Limit
May Jun July August September Total
Gallons 54,641 71,763 78,060 66,350 49,102 319,916
b) Outdoor Water Usage on the Property may be curtailed by the Authority
during periods of low stream flows, and/or during instream flow calls. Once connected, the
Authority will monitor water usage of the Property.
5.4 Enforcement.
a) The Authority, upon determining that the Owner has exceeded the Water
Usage Limits prescribed above in this Article, may provide written notice by mail or e-
mail to the Owner or its successors and assigns of the violation of this Section and demand
that the excessive water usage cease immediately. The Town, in its sole discretion, may
also issue a notice under this Section when it has been notified by the Authority that there
is a violation of this Article.
b) In the event that the water usage of the Property exceeds the Water Usage
Limits in this Article, the Owner shall be obligated to either reduce its water usage to within
the Water Usage Limits, or, at the Authority's sole discretion, pay additional cash in lieu
of a water rights dedication fees for the excess water use. if the Authority, in its sole
discretion, does not accept an additional cash in lieu of water rights dedication fee, the
Owner or its successors and assigns shall be obligated to reduce its water use to the Water
Usage Limits in accordance with all remedies set forth in this Agreement.
e) Even if the Owner ceases excessive water usage immediately, the Authority,
in its sole discretion, may impose excess water usage fees on the Property for the period of
excess usage.
d) Failure to correct excessive outdoor irrigation water use may result in a
seven (7) day Notice of Disconnection, at the sole discretion of the Authority or other
enforcement action commenced by the Authority and/or Town.
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e) The Town has the right, but not the obligation, to enforce the provisions of
this Article and may take such action as permitted or authorized by law, this Agreement or
the ordinances of the Town, as the Town deems necessary to protect the public health,
safety and welfare.
ARTICLE VI
MAINTENANCE AND ONGOING OBLIGATIONS
6.1 Operations and Maintenance. The Owner understands and acknowledge that those
certain aspects of the maintenance, operation and use of the Development, including drainage,
infrastructure, landscaping, and sidewalks ("Owner Maintained Public Improvements"), as
delineated on Sheets C1.0 — C6.0 of the Development Plan and incorporated herein, require
maintenance by Owner.
a) Except in the event such liability arises from the action or omission of Town or its
officials, agents, representatives, employees, inspectors, including independent third -party
inspectors, contractors, and successors and assigns, but without waiving governmental
immunity, the Owner agrees that the Town is not liable, and will not assume any liability,
responsibility, or costs for any damage, maintenance, or repair of any Owner Maintained
Public Improvements erected or maintained by the Owner under this Agreement.
b) If the Owner fails to maintain the Owner Maintained Public Improvements, the
Town may perform the necessary maintenance and/or repair, as determined by the Town in its
sole discretion, after providing at least thirty (30) days written notice to the Owner detailing
the necessary maintenance and/or repair. If, after the remedy period set in the notice, the
Owner fails to perform the necessary maintenance and/or repair, the Town may perform such
maintenance and/or repair. The actual costs of the maintenance and/or repair, together with a
fifteen percent (15%) charge for administration, shall be assessed against the Property. The
Town shall send a notice of assessment to the Owner and upon the expiration of the thirty (30)
period provided in such notice, the costs, including the administrative charge, shall be a lien
upon the Property. If the assessment is not paid within thirty (30) days of the lien, the Town
may impose interest upon such costs and upon the administrative charge, at the rate of eighteen
percent (18%) per year. All costs, interest and charges, including the costs of collection, may
be certified to the County Treasurer and collected in the same manner as taxes.
ARTICLE VII
SUBDIVISION
7.1 Future Subdivision. Before acceptance of the Public Improvements, the Owner shall
submit a complete application for a subdivision of land pursuant to the Code. Easements for
Public Improvements shall be provided for public pedestrian usage of the sidewalk, and for the
usage of the stormwater and drainage improvements for their intended purposes.
7.2 Timeshare Amenities Fee. Though not currently permitted, in the event future zoning
provides for such use, if any portion of the property is turned into timeshare intervals, vacation
membership or other similar program, the applicable amenity fee per timeshare interval as set forth
in Exhibit A hereto shall be paid by the Owner for each interval period created e.g., if one week
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intervals, then for each week or, if calendar quarter intervals, then for each calendar quarter. Such
fee shall be due prior to the conveyance of the first timeshare interest is sold to a third party.
ARTICLE VIII
RESTORATION OF SITE
8.1 Restoration Due to Inactivity. Unless a building pen -nit extension is granted in writing
by the building official upon justifiable cause demonstrated by the Owner, the building permit
shall become invalid after 180 days of suspended work. If the building permit becomes invalid,
the Owner shall restore the site to the condition the site was in at the time of issuance of the building
permit (subject to changes reasonably necessary for public safety or preservation of land and
adjoining land, or to prevent waste) within thirty (30) days from the date of notice by the Town
that restoration is required. Upon restoration of the Property in accordance with this Article and
to the reasonable satisfaction of the Town, this Agreement shall automatically terminate.
8.2 Restoration Funds. The Town currently holds funds deposited by the Owner in the
amount of $209,475.00 as security for any possible future required restoration. If the obligation
to restore arises (i.e., if the permit becomes invalid) and if the Owner thereafter fails to restore the
Property in compliance with this Article and to the Town's satisfaction, the Town may use such
funds to cover the costs of any required restoration work. The Town shall maintain an accounting
of such costs and once restoration work is completed, the Town shall return any remaining funds
along with such accounting. If the funds are insufficient to perform the restoration work, the
Owner, upon demand from the Town, shall deposit additional required funds as determined by the
Town. If the Owner fails to provide such funds, the Town's costs of restoration over the amount
of funds current held, shall be a lien upon the Property to be collected in the same manner as
property tax and the Town may certify such amount to the County Assessor for collection,
including an additional 10% imposed by the Town for costs of collection.
8.3 Return of Funds. After the issuance of final Certificate of Occupancy, the Town shall
refund the restoration funds to the Owner.
ARTICLE IX
DEFAULTS, REMEDIES AND TERMINATION
9.1 Default b Town. A "breach" or "default" by the Town under this Agreement shall be
defined as the Town's failure to perform its obligations under this Agreement, after the applicable
cure period described in Section 9.3, below.
9.2 Default by Owner. A "breach" or "default" by the Owner shall be defined as the
Owner's failure to fulfill or perform any obligation of the Owner contained in this Agreement
following the applicable cure period described in Section 9.3, below, or the Owner's failure to
fulfill or perform any obligation of the Owner contained in any other written agreement relating to
the Property between the Town and the Owner or the Town following any applicable cure period
contained in such agreement. The failure by the Owner to cause the Association to collect and
remit the timeshare amenities fee to the Town as provided in Section 7.2 shall constitute a default
by the Owner.
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9.3 Notices of Default. In the event of a default by either Party under this Agreement, the
non -defaulting Party shall deliver written notice to the defaulting Party of such default, at the
address specified in Section 1 1.6, and the defaulting Party shall have five (5) days for monetary
obligations and thirty (30) days for non -monetary obligations from and after receipt of such notice
to cure such default. With respect to non -monetary obligations, if such default is not of a type that
with the exercise of reasonable diligence can be cured within such thirty (30) day period and the
defaulting Party gives written notice to the non -defaulting Party within such thirty (30) day period
that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable
period of time up to one hundred eighty (180) days given the nature of the default to cure such
default, provided that such defaulting Party is at all times within such additional time period
actively and diligently pursuing such cure.
9.4 Remedies for Default by Town. If a default by Town under this Agreement is not cured
as described in Section 9.3, the Owner shall have the right to enforce the Town's obligations by
an action for any equitable remedy, including, without limitation, injunction or specific
performance or an action to recover damages. Each remedy in this Section 9.4 is cumulative and
is in addition to every other remedy provided for in this Agreement or otherwise existing at law or
in equity.
9.5 Remedies for Default by the Owner or Association. If any default by the Owner or the
Association under this Agreement is not cured as described in Section 9.3, the Town shall have
the right to enforce the Owner's or the Association's obligations hereunder by an action for any
equitable remedy, including injunction or specific performance, or an action to recover damages.
Each remedy in this Section 9.5 is cumulative and is in addition to every other remedy provided
for in this Agreement or otherwise existing at law or in equity. In addition, if a default of this
Agreement by the Owner or the Association also constitutes a violation of the Code and non-
compliance with the Development Plan for this Property then the Town shall have all enforcement
rights as described in the Code and other applicable sections of the Code concerning enforcement
and penalties for violations, as the Code may be amended from time to time.
9.6 Mediation. The Parties agree that prior to submitting any controversy or claim arising
out of or relating to this Agreement, including, without limitation, any breach, default, or
interpretation hereof, to a legal process, and as a prerequisite to initiating any legal process, the
Parties shall attempt to resolve the controversy or claim in good faith in accordance with the
procedures stated in this Section 9.6. The Party asserting the breach, default, controversy, or claim
shall first provide written notice to the other Party, citing this Section 9.6, and requesting
consideration by the other Party to resolve the controversy or claim. The Parties shall use
reasonable efforts to resolve the dispute within thirty (30) days from the date of the notice
commencing this process. If the dispute is not resolved within thirty (30) days of the date of the
notice, or by such longer period as may be mutually agreed by the Parties, then either Party may
initiate a legal action. At any time after the written notice citing Section 9.6, the Parties may
mutually agree to appoint an independent neutral third party (the "Mediator") to assist them in
resolving the dispute. In such an instance, (i) each Party agrees to provide the Mediator access to
all relevant and non -privileged documents and may impose reasonable confidentiality provisions;
ii) the Parties may make representations and submissions to the Mediator but there shall be no
formal hearing unless the Mediator requires a formal hearing and provides a written notice to the
Parties; (iii) the Mediator shall make his recommendations in writing as soon as is reasonably
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possible but not later than thirty (30) days following the receipt of representations and submissions
by each Party; (iv) the Mediator's recommendation shall not be binding upon the Parties, but would
become binding upon the Parties if voluntarily accepted by both Parties in writing; and (v) the fees
of the Mediator shall be paid equally by the Parties. hollowing receipt by the Parties of the
recommendations made by the Mediator, the Parties shall have ten (10) days, or such longer period
as may be mutually agreed by the Parties, to accept said recommendation or a mutually acceptable
alternative. Submission of the dispute to the Mediator shall be deemed by the Parties to toll the
applicable statute of limitations until the mediation process is concluded.
ARTICLE X
ASSOCIATION MATTERS
10.1 The Owner shall form the Association upon completion of the Development and prior
to any occupancy thereof; provided, however, that in the event that the Association has not been
formed as required, the Owner shall be liable for all obligations of the Association hereunder until
such time as the Association is formed.
10.2 In addition to the rights and obligations of the Association, as specifically stated in this
Agreement, at such a time as the Association is formed, except for any right of Owner to a refund
of any deposit or other monetary security held by Town hereunder, the Association shall be deemed
to be the Owner with respect to the provisions, rights, and obligations of this Agreement. The
provisions of any other Section of this Agreement necessary to give effect to the Association's
rights and obligations under the foregoing Articles and Sections shall also be deemed to control.
The Association shall indemnify and hold harmless the Town for Owner Maintained Public
Improvements. The Association Governing Documents will contain a provision stating that the
Association shall be subject to this Agreement as provided herein, and recite the Association's
obligations in this Agreement, including the obligation to indemnify the Town, as described herein.
In addition, the Association Governing Documents shall state that the Town is a limited third -party
beneficiary solely for the purpose of enforcing the performance of the Association's agreements
under Section 4.1 and Article VI of this Agreement.
10.3 'The Association Governing Documents will contain an acknowledgement and
disclosure to each owner of a time-share in the Development (`Time-share Owner") that, in the
event the Time-share Owner shall rent its time-share period, the Time-share Owner or its rental
management company must obtain a Town business license and the Public Accommodations Tax
shall apply to such rental as described in the Code.
10.4 Any failure of the Association Governing Documents to contain provisions required by
this Agreement shall be a default by the Owner and the Association under this Agreement, and the
I own shall be entitled as a remedy therefor to obtain an order for reformation of the Association
Governing Documents so that they are in compliance with this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 Applicable l,aw. This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado.
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11.2 No Joint Venture or Partnership. No form ofjoint venture or partnership exists between
the Town and the Owner, and nothing contained in this Agreement shall be construed as making
the Town and the Owner joint venturers or partners.
11.3 Applicability of Avon Municipal Code. All matters not covered by this Agreement are
controlled by the Code to the extent applicable. This Agreement does not prevent the Town from
imposing additional requirements not inconsistent with this Agreement as conditions for approval
of a subdivision or the granting of a building permit.
11.4 Waiver. No waiver of one or more of the terms of this Agreement shall be effective
unless in writing. No waiver of any provision of this Agreement in any instance shall constitute a
waiver of such provision in other instances.
11.5 Severability. If any term, provision, covenant or condition of this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions
of this Agreement shall continue in full force and effect so long at the intent of this Agreement is
not frustrated.
11.6 Notices. Any notice or communication required or permitted under the terms of this
Agreement shall be in writing, may be given by the Parties hereto or such Party's respective legal
counsel, and shall be deemed given and received (i) when hand delivered to the intended
recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the
United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with
return receipt requested; (iii) one (1) business day after the same is deposited with an overnight
courier service of national reputation having a delivery area encompassing the address of the
intended recipient, with the delivery charges prepaid; or (iv) when received via electronic mail to
intended recipient's electronic mail address, provided below. Any notice shall be delivered,
mailed, or sent, as the case may be, to the appropriate address set forth below:
If to Town: Town of Avon
Attention: Town Manager
P.O. Box 975
Avon, Colorado 81620
Telephone: 970-748-4005
Email: eheiluzlavon.org
And: Town of Avon
Attention: Paul Wisor
0070 Benchmark Road, Unit 104
PO Box 5450
Email: pwisorui garFie ldhecht.com
If to Owner: Colorado World Resorts, LLC
6460 S Quebec St, Building 5,
Centennial, CO 801 I 1
Attn: Ranko Mocevic
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And: Les Roos
Leslie J. Roos, LLC
303-916-7145
5555 DTC Parkway
Suite 340
Greenwood Village, Colorado 80111
Email: lesciylcsroos.corn
Each Party may change its addresses and/or email addresses for notices pursuant to a
written notice that is given in accordance with the terms hereof. As used herein, the term "business
day" shall mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail
service is not provided. Whenever any date or the expiration of any period specified under this
Agreement falls on a day other than a business day, then such date or period shall be deemed
extended to the next succeeding business day thereafter.
11.7 Amendment of Agreement. For the purpose of any amendment to this Agreement,
Owner" shall mean only the Owner as defined herein and those parties, if any, who have specifically
been granted, in writing by the Owner, the power to enter into such amendments. No amendment to
this Agreement shall be valid unless signed in writing by Owner and Town.
11.8 Assignment. This Agreement shall be binding upon and shall inure to the benefit of
the successors in interest or the legal representatives of the Parties hereto. The Owner shall have
the right to assign or transfer all or any portion of its interests, rights or obligations under this
Agreement: (a) to the Association; and (b) to an entity or entities formed for the purpose of
developing the Property which are managed by an affiliate of the Owner and comprised ofaffiliates
of the Owner. Further, the Owner shall have the right to assign or transfer all or any portion of its
interests, rights or obligations under this Agreement to third parties acquiring an interest or estate
in the Property, including, but not limited to, purchasers or long-term ground lessees of individual
lots, parcels, or of any improvements now or hereafter located within the Property.
Notwithstanding the forgoing, any assignee shall fully assume in writing all obligations of the
Owner assigned to such assignee and Owner must obtain the I own's written consent to such
assignment, which consent will not be unreasonably withheld or delayed if the Owner has
reasonably demonstrated to the Town that the assignee has the financial capability to perform the
obligations under this Agreement so assigned. In no event shall any time-share Owner be
individually liable for any obligations of the Owner or the Association pursuant to this Agreement.
Nothing in this Section shall be deemed to limit or in any way restrict the sale or other conveyance
of property within the Property.
11.9 Counteiparts. This Agreement shall be executed in multiple counterparts, each of
which shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Any electronically delivered counterparts shall have the same force and effect
as an "ink -signed" original.
11.10 No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed
to waive, limit, or otherwise modify any governmental immunity that may be available by law to
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the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of
the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado
Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes..
SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the Owner and the Town have executed this Agreement as of
the date first written above.
TOWN:
By:____-- ._.._.
arah Smith Hymes. ayor
ATTEST
Brenda Tones, Town Cl
c.'i r1.47 F;G1
tea.
OWNER:
By:
Its:
STATE OF COLORADO )
ss.
COUNTY OF )
Acknowledged before me this day of
as of
WORLD RESORTS, LLC., a Colorado corporation, on behalf of the corporation
My commission expires:
FMaIIRS 9
Secretary
15 of 18
Notary Public
20—, by
COLORADO
As to Article V of the Agreement only:
AUTHORITY:
IN WITNESS WHEREOF, the Owner and the Town have executed this Agreement as of
the date first written above.
ATTEST
Brenda Torres, Town Clerk
TOWN:
By:
Sarah Smith Hymes, Mayor
OWNER:
By:
Its:
STATE OF COLORADO )
I
ss.
COUNTY OF
Ac nowlc ped before me this A9 10—
day of 20f , by
lUpCe44 as _ of COLORADO
WORLD RESORTS, LLC., a Colorado corpoifftion, on behalf of the corporation.
My conomission expires: 3f 3 07
LYNNE BECKER
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20184011659
MY COMMISSION EXPIRES MARCH 1 anaa
AUTHORITY:
ATTEST:
J
Secretary
16 offs
Nota y Public
the Agreement only:
EXHIBIT A
AMENITY FEES
Amenities Fee.
Commencing as of a first-time sale and conveyance of a Fractional Interest to a third -party
purchaser and continuing in perpetuity with respect to such Fractional Interest, the Owner or
property owner's association for any Fractional Interest Ownership subdivision within the
Colorado World Resorts condominium project ("Association") is obligated to collect from each
Fractional Interest Owner and remit to the Town on a semi-annual basis an Amenities Fee in the
initial amount of $39.30 per year per Fractional Interest or the equivalent if conveyed in some
Fractional Interest other than a one-week period.
The Owner is exempt from the obligation for the Amenities Fee until the first-time sale of a
Fractional Interest. The provisions for the obligation for each Fractional Interest Owner to pay
shall be a covenant running with the land and reflected accordingly on the Resubdivision Plat and
Association covenants. Prior to the assignment of this Agreement to an Association, the Owner
shall be obligated to collect and remit any and all Amenities Fees.
The amount of the semi-annual payments will be calculated according to the following formula:
Number of existing or newly deeded fractional interests per semiannual period (January -
June, calculated as of June 1, and July -December calculated as of December 1), multiplied by an
amount equivalent to $39.30 per weekly interest (as adjusted by CPI -U, as defined below), divided
by 2.
The due dates for the serniannual payment are August 20 and February 20 for the previous
semiannual calculation period.
On January 1, 2020, and on the first day of each year thereafter, the amount of the fee shall
be increased, but not decreased, by the percentage increase from the prior year average consumer
price index for All Urban Consumers for the Denver -Boulder -Greeley metropolitan area as
published semiannually and appearing in the January and July issues of the CPI Detailed. Report
published by the Bureau of Labor Statistics (the "CPI -U"). In the event that the CPI -U remains the
same as the prior year or decreases from the prior year, the amount of the fee shall not be adjusted
for that year.
It shall be the duty of the Association to keep and preserve such records as are necessary to
determine the amount of fees due hereunder. Such records shall be preserved for a period of three
years and shall be open for inspection by representatives of the Town during regular business
hours. Prior to the formation of the Association, the Owner shall have the above -referenced
obligation to keep and preserve such records.
If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the
Town shall make a written demand of the amount due and deliver or mail the same to the office of
the Association. The amount properly determined to be owing shall beat- interest from the due date
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of the remittance at the rate of one and one-half percent per month until paid. Prior to formation
of the Association such written demand will be delivered to the Owner.
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