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TC Res. No. 1987-16RESOLUTION NO. 87-16 SERIES OF 1987 A RESOLUTION APPROVING A FINAL SUBDIVISION PLAT AND CONDOMINIUM MAP OF THE FALCON POINTE CONDOMINIUM, LOT 45, BLOCK 2, TOWN OF AVON, EAGLE COUNTY, COLORADO AND FINAL SUBDIVISION PLAT AMENDMENT NO. 4, BENCHMARK AT BEAVER CREEK WHEREAS, Pointes of Colorado Corporation, A Colorado Corporation has submitted a Final Subdivision Plat and Condominium Map of the Falcon Pointe Condominium, Lot 45 and part of Lot 46, Block 2, Town of Avon, Eagle County, Colorado and Final Subdivision Plat, Amendment No. 4, Benchmark at Beaver Creek; and WHEREAS, the Final Subdivision Plat and Condominium Map of the Falcon Pointe Condominium and related documents have been reviewed by the Town Staff and was found to be substantially in accord with the Preliminary Plat approved by Resolution No. 86-4, Series of 1986 and the Subdivision Regulations of the Town of Avon. NOW, THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Avon, that the Final Subdivision Plat and Condominium Map of the Falcon Pointe Condominium and related documents are hereby approved subject to: 1. Review by the Town,Attorney. 2. The completion and execution of all Certificates, and documents relating to the subdivision, in a manner satisfactory to the Town Attorney prior to filing with the Clerk and Recorder of Eagle County. ADOPTED AND DATED THIS 28th day of July , 1987. TOWN COUNCIL TOWN OF AVON, COLORADO /Ll! . C:~alA Al an R. Notta.ngha , Mayor TO: William D. James, Town Manager FROM: Ray Wright, Engineering Technician DATE: July 24, 1987 SUBJECT: Resolution No. 87-16, Series of 1987, Final Subdivision Plat and Condominium Map of the Falcon Pointe Condominium, Lot 45, and part of Lot 46, Block 2, Town of Avon, Eagle County, Colorado and Final Subdivision Plat - Amendment No. 4, Benchmark at Beaver Creek Pointes of Colorado has submitted a Final Subdivision Plat and Condominium Map for the Falcon Pointe Condominium, Lot 45, and part of Lot 46, Block 2, Benchmark at Beaver Creek. The Plat has been reviewed by Town Staff and was found to be in general conformance with Town of Avon Subdivision Regulations for a Condominium Subdivision. Resolution 87-16 approves the Final Subdivision Plat and Condominium Map of the Falcon Pointe Condominium, and related documents, subject to: 1. Review by the Town Attorney 2. The completion and execution of all Certificates, and documents relating to the subdivision, in a manner satisfactory to the Town Attorney prior to filing with the Clerk and Recorder of Eagle County. RECOMMENDED ACTION: 1. Approve Resolution No. 87-16, Series of 1987. AGREEMENT CONCERNING APPROVAL FOR TIMESHARE USE AND SUBDIVISION AGREEMENT THIS AGREEMENT is made and entered into this day of December, 1986, by and between A.C.P., Inc., a Colorado corporation, having its principal office at 5850 Ulster Circle East, DTC Building 14, Englewood, Colorado 80111 (hereinafter sometimes referred to as "A.C.P.") and THE TOWN OF AVON, COLORADO, (hereinafter sometimes referred to as "the Town of Avon"). RECITALS WHEREAS, A.C.P. is the owner of the property within the Town of Avon, Colorado more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"); WHEREAS, A.C.P. intends to remodel and renovate the existing thirty-one (31) apartment units constructed on the Property into not more than sixty (60) apartment units, in one or more phases which A.C.P. intends to market as a timeshare project to be known as the Falcon Pointe Condominium; WHEREAS, The Town.Council of the Town of Avon has designated the Property as a Specially Planned Area and as a part of the precise plan for said Specially Planned Area has approved the Falcon Pointe Condominium Timeshare project pursuant to the provisions of Section 17.20.070, Avon Municipal Code; and WHEREAS, A.C.P. and the Town of Avon have entered into this Subdivision Agreement pursuant to the Section 16.24.040(F), Avon Municipal Code. WITNESSETH NOW THEREFORE, in consideration of the mutual promises and covenants of A.C.P. and the Town of Avon, A.C.P. and the Town of Avon hereby agree as follows: 1. Timeshare Subdivision. The Town of Avon, through designation of the Property as a Specifically Planned Area and approval for the precise plan for said Specially Planned Area, has approved a timeshare project subject to Section 16.36, Avon Municipal Code. The provisions of this Subdivision Agreement shall govern and control the sale and use of all timeshare units in the Falcon Pointe Condominium Timeshare project, in addition to the terms and provisions of the Condominium and Time Share Declaration for Falcon Pointe Condominium (the "Declaration"), the Articles of Incorporation and Bylaws of Falcon Pointe Condominium Association (the "Association"), and the Colorado statutes governing the use and sale of timeshare units. 2. Building Permit. The Town of Avon and A.C.P. acknowlege that A.C.P. has obtained a building permit for remodeling and renovation of the Falcon Pointe Condominium project from the Town of Avon Building Department. 3. Marketing of Timeshare Units. A. "Timeshare Units" shall be defined as that term is used in Section 16.08.230, Avon Municipal Code, and specifically includes the Fractional Estate interests provided for in the Declaration consisting of an undivided interest as tenant-in- common plus the right to use the "Use Weeks" established by the Declaration. B. A.C.P. warrants and represents that all timeshare units will be sold or marketed by A.C.P. or an employed timeshare marketing company in accordance with all rules and regulations of the Colorado Real Estate Commission, and all applicable rules or regulations of real estate commissions having jurisdiction in any state where efforts to sell timeshare units in the Falcon Pointe Condominium occur. All salespersons selling timeshare units in the Falcon Pointe Condominium in Colorado shall be licensed real estate brokers or salespersons properly licensed in the state of Colorado. All original timeshare sales made within the Town of Avon, Colorado shall be conducted and closed in accordance with the rules and regulations of the Colorado Real Estate Commission and the Town of Avon. 4. Capital Improvements and Capital Improvement Fees. A. A.C.P. and the Town of Avon agreed that a bus shelter is needed for the Town of Avon Bus System at the bus stop located at the intersection of the private road entrance to the Falcon Pointe Condominium and Benchmark Road. The precise location for the bus shelter shall be determined by the Town of Avon. Said bus shelter was designed by the Town of Avon and construction was completed prior to the date of this Agreement. A.C.P. and the Town of Avon acknowledge that A.C.P. has paid Ten Thousand Dollars ($10,000) to the Town of Avon for construction of said Bus Shelter. At or before execution of this Agreement, the Town of Avon shall provide A.C.P. with a written statement setting -2- forth all costs and expenses incurred in construction of the bus shelter, and to the extent the costs and expenses are less than Ten Thousand Dollars ($10,000.00), the difference between the actual costs and expenses and the sum of Ten Thousand Dollars ($10,000.00) shall be refunded by the Town of Avon to A.P.C. B. A.C.P. agrees to pay to the Town of Avon any and all fees which may be due and owing to the Town of Avon pursuant to the terms and provisions of Town of Avon Ordinance No. 85-6. 5. Maintenance of Timeshare Units and Common Area Facilities at Falcon Pointe Condominium. It is the intention of A.C.P. that al timeshare units an the related general common areas shall be maintained in a first class condition. To assure that this level of maintenance is achieved, A.C.P. agrees that, in addition to the other normal fees and assessments paid by the owner of each timeshare unit in Falcon Pointe Condominium, each timeshare unit owner shall pay a replacement reserve assessment to be held in a special escrow account to be used for the purpose of replacing, as needed, all furniture, furnishings, and equipment in each timeshare unit. 6. Management of Timeshare Units. The management of the timeshare units shall be the responsibility of the management company employed by the Association. Any management and service fees shall be assessed to the timeshare unit owner with the other normal and regular assessments made to said owner. 7. Town of Avon to be Held Harmless. A.C.P. shall hold the Town of Avon, its officers, employees, and agents harmless from any and all costs, including attorneys' fees, damages,- and liabilities which may occur or be claimed to occur by reason of any approval or action by said Town, its officers, employees, and/or agents related to the approval by the Town of Avon of the timeshare subdivision at Falcon Pointe Condominium or approval by said Town of the Final Plat for Falcon Pointe Condominium or any amendments thereto. 8. Compliance with Section 16.36.020, Avon Municipal Code. A.C.P. warrants and represents that all sales of timeshare interest will be made in compliance with the requirements of Section 16.36.020 of the Avon Municipal Code. The Town of Avon acknowledges receipt, review and approval of the Declaration and the Purchase Agreement and Disclosure Statement for Fractional Ownership, The Falcon Pointe Condominium, Avon, Colorado which discloses to Purchasers of timeshare interests all information required by Section 16.36.020 of the Avon Municipal Code. The -3- information disclosed to prospective purchasers includes but is not limited to the following: A. A first year budget, which budget includes a description of reserves for maintenance and replacement, along with projected common expenses for each timeshare unit; B. A written statement of any and all services which will be provided by A.C.P. either on a one-time or continuing basis; C. A description of any liens or encumbrances which may affect the timeshare unit purchaser receiving a title insurance commitment on his or her unit; D. A statement as to the limitation on warranties affecting his or her unit; E. A statement that any earnest money deposit made by a prospective purchaser in connection with the purchase of a timeshare unit will be held in a special escrow account until the transaction is closed and shall be returned to the prospective purchaser in the event closing does not occur by the scheduled or extended closing date; F. A statement that there are no restraints on alienation of a timehare unit and that any timeshare unit owner may sell, transfer, or convey his or her timeshare unit in any manner he or she wishes, subject only, of course, to the provisions of local and state laws and the requirements of the Declaration; G. A description of the insurance coverage applicable to the timeshare unit; H. The extent to which any one timeshare unit may be subject to a tax or other lien arising out of claims against or the tax liability of other owners of the same timeshare unit or other units. Presently, all taxes assessed against an individual unit at Falcon Pointe Condominium are to be paid as part of the Association fee. This practice will continue so that taxes are paid as a part of the Association fee collected by the management company and disbursed by the management company or mortgagee to the Treasurer of Eagle County, Colorado, and paid on the basis of one (1) payment for each unit. The tax or assessment for each unit will be assigned to the timeshare unit owners who collectively own any one (1) unit in accordance with the Declaration, and will be paid along with the Assoication fee paid by the timeshare unit owners; -4- I. The availability, on a voluntary basis, of a program for the exchange of occupancy rights with owners or other timeshare units. Presently, the Falcon Pointe Condominium is affiliated with Interval International ("II") of Miami, Florida. The utilization by a timeshare unit owner of the exchange opportunity through II shall be strictly on a voluntary basis. A.C.P. has paid any affiliation fee for the purpose of including the timeshare project in the exchange network. Any specific exchange fee is to be paid by the timeshare unit owner. 9. Effect of Timeshare Subdivision on Availability of Short-Term Housing in the Town of Avon. Any units at the Falcon Pointe Condominium owned or controlled by A.C.P. may be placed in a rental program until such units are opened for sale to third party purchasers, thus providing the availability for short-term accommodations at the Falcon Pointe Condominium and further providing the Town of Avon with accommodation tax receipts from the rental of such units. For purposes of calculating sales, accommodations, and any other similar taxes which may become due and owing to the Town of Avon, the value (or equivalent rental price) of any and all complimentary nights provided to prospective timeshare purchasers by A.C.P. as part of its timeshare or marketing program shall be the actual costs to A.C.P. of providing such complimentary nights, but an amount not less than $15.00 per night', until such units are opened for sale to third party purchasers. 10. Recording of this Subdivision Agreement. This Subdivision Agreement shall be recorded in the Clerk and Recorder's Office of the County of Eagle, State of Colorado. In the event A.C.P. shall transfer said developer's interest in units at Falcon Pointe Condominium to any third party or person, the transferee shall assume and be liable for all obligations of the developer. A.C.P. agrees that the terms set forth in this Subdivision Agreement shall be binding upon any contract entered into by A.C.P. with a timeshare developer and that contract shall provide that' said developer is to be bound by the terms and, conditions of this Subdivision Agreement. Consequently, any transfer of the rights of A.C.P. shall include an assumption by the transfree of all of the obligations of the developer including the obligations set forth and described in this Agreement; and any such assumption shall be in addition to and shall not relieve A.C.P. from the obligations as set forth in this Subdivision Agreement related to A.C.P. 11. Amendment of Agreement. This Agreement may be amended by the parties hereto only by a written amendment entered into by all parties and/or signatories to this Agreement. -5- 12. Agreement May Be Signed in Counterpart. For the purpose of expediting the execution or signing of this Agreement, this Agreement may be signed in Counterpart. 13. Severability_Clause. If any article, section, subsection, sentence, clause, or phrase of this Agreement is for any reason held to be illegal or invalid, such illegality or invalidity shall not affect the validity of the remaining portions of this, Agreement. 14. Agreement Binding U on Successors and Assigns. This Agreement shall be binding upon the parties hereto, their successors and assigns, including, but not limited to, the Association and/or management company responsible for operations at the Falcon Pointe-Condominium. 15. Com liance with Town Ordinances. This Agreement is subject to A.C.P. complying with all applicable Town-ordinances. 16. Notices. Any and all notices which may be required under the terms and provisions of this Agreement shall be in writing and shall be deemed to have been sufficiently given or served when presented personally or when deposited in the United States mail, by registered or certified mail, addressed as follows: To: A.C.P., Inc. 5850 Ulster Circle East DTC Building 14 Englewood, Colorado 80111 To: Town of Avon Avon Municipal Building Post Office Box 975 Avon, Colorado 81620 Such addresses may be changed by notice of the other party given in the same manner as above provided. -6- IN WITNESS WHEREOF, A.C.P. and the Town of Avon have executed this Agreement the year and date first above written. ATTEST: Secretary ATTEST: A.C.P., INC., a Colorado corporation By: TOWN OF AVON, COLORADO By. Allan R. Nottingham, Mayor Secretary STATE OF COLORADO ) )ss: COUNTY OF EAGLE ) The foregoing Subdivision Agreement was acknowledged before me this _ day of , 1986, by as President of A.C.P., Inc., a Colorado corporation. My commission expires: Witness my hand and official seal. (SEAL) Notary Public -7- STATE OF COLORADO ) )ss: COUNTY OF EAGLE ) The foregoing Subdivision Agreement was acknowledged before me this day of , 1986, by Allan R. Nottingham as Mayor of the Town of Avon,-" Colorado. My commission expires: Witness my hand and official seal. (SEAL) Notary Public -8-