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02-26-2013 Lot 61 Wyndham Ord 13-03 & Dev AgreementDEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ( "Agreement ") is made and entered into as of a , 2013, by and between WYNDHAM VACATION RESORTS, INC., a Delawar c rporation ( "Owner "), and the Town of Avon, a municipal corporation of the State of Colorado ( "Town ") (individually referred to as "Party" and collectively as "Parties "). RECITALS A. Owner is a corporation duly organized and in good standing under the laws of the State of Delaware and authorized to do business in the State of Colorado. ' Owner is the owner of approximately 0.845 acres within the Town that is legally described as: Lot 1, a Resubdivision of a Replat of Lot 61, Block 2, Benchmark at Beaver Creek, according to the Plat thereof filed February 23, 2004 at Reception no. 868662, County of Eagle, State of Colorado ( "Property "). B. The Town has authority to zone, rezone and regulate development of the Property in accordance with this Agreement, the Comprehensive Plan, the Municipal Code, and other applicable Town ordinances and policies. The Town's authority to enter into this Agreement is derived from its home rule charter, state statutes, and the power generally held by Colorado home rule municipalities to address matters of local concern by contract or ordinance. C. The Owner has submitted an application to the Town for approval of a Code Text Amendment through Ordinance No. 13 -02; a Rezoning, Development Agreement, Major Design and Development application and Alternative Equivalent Compliance application through Ordinance No. 13 -03 ( "Applications "). The Town's approval of the Applications is conditioned upon the execution of this Agreement. D. The Owner intends to create a plan to create and sell a points -based Time -share Plan for the sale of Time -share Interests (as defined below) on the Property ( "Wyndham Time -share Plan "), which shall be used by Time -share Occupants; E. A Time -share Owner in the Wyndham Time -share Plan shall purchase a Time -share Interest that includes a specific number of points ( "Time -share Points "), whereby a Time -share Owner of the Wyndham Time -share Plan shall use the Time -share Points to reserve that Time- share Owner's Time -share Period (as defined below); 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 Comprehensive Plan, ensure reasonable certainty, stability and fairness in the land use planning process, stimulate economic 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. Page 1 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 G. The Owner proposes a public - private partnership through which the Owner will utilize portions of Town land and right -of -way ( "ROW "), including Lettuce Shed Lane, Tract G, Benchmark Road, and the Transportation Center, for the purpose of calculating site coverage and minimum landscaped area, will construct certain private and public improvements on Town land and ROW as described in this Agreement, and will pay certain taxes and fees as described in this Agreement. The Town and Owner find that the size and configuration of the Property presents unique challenges and opportunities and that terms of this Agreement present creative solutions through which the Owner may enjoy a viable development and the Town may realize certain goals and policies of the Avon Comprehensive Plan and through which the Owner may contribute taxes and fees to the Town on an equitable basis with other similar Time -share developments in the Town. AGREEMENT NOW, TBEREFORE, 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: 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 Amenities Fee. A consensual fee intended to mitigate the impact of a Time -share Interest, including the cost of transportation and recreational facilities. 1.2 Association. The common interest community association and/or other entity formed or to be formed 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 VIII of this Agreement. 1.3 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. 1.4 Benchmark Road. The Town right -of -way known as Benchmark Road, located in part to the south and east of the Property. 1.5 Comprehensive Plan. The Avon Comprehensive Plan adopted by the Planning and Zoning Commission of the Town in February, 2006, and any amendments thereto, and including the Avon West Town Center District Investment Plan dated August 2007. Page 2 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 1.6 Development. The project to be constructed on the Property as described in the Development Plan. 1.7 Development Plan. The approved Major Design and Development Plan, as well as the Alternative Equivalent Compliance, that define the Development, attached hereto as Exhibit A. 1.8 Effective Date. The date the Town Council Ordinance No. 13 -03 approving this Agreement becomes effective. 1.9 Exchanger. A Time -share Owner in a Time -share Plan who is a member of an Exchange Program. 1.10 Exchange Program. Any method, arrangement, or procedure for the voluntary exchange of the right to use and occupy accommodations and facilities among Time -share Owners of one or more Time -share Plans. 1.11 Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by reference into and made a part of this Agreement: Exhibit A Major Design and Development Plan for the Property. Exhibit B Public Property Improvement Map Exhibit C Trash Removal Operations Map 1.12 Fire District Impact Fee. The impact fee levied and collected by the Town pursuant to Chapter 3.40, Impact Fee, of the Municipal Code. 1.13 Heat Recovery. The system utilized by the Town that utilizes effluent heat from the Avon Wastewater Treatment Plant for snow melt and other heating purposes. 1.14 Lettuce Shed Lane. The Town right -of -way located immediately to the northwest of the Property and identified as "Benchmark Court" on the Plat. 1.15 LSL Path. The paved pedestrian path to be installed in Lettuce Shed Lane. 1.16 Municipal Code. The Avon Municipal Code, as may be amended from time to time. 1.17 Plat. The Plat of Resubdivision of a Replat of Lot 61, Block 2, Benchmark at Beaver Creek, filed February 23, 2004 at Reception No. 868662, County of Eagle, State of Colorado 1.18 Public Accommodations Tax. The tax levied and collected by the Town pursuant to Chapter 3.28 of the Municipal Code, or any subsequent tax levied upon the lease or rental of hotel rooms, condominiums or other accommodations. 1.19 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. Page 3 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 1.20 Real Property Transfer Tax. For purposes of this Agreement, Real Property Transfer Tax shall mean any municipal real estate transfer tax imposed, levied and collected by the Town pursuant to Chapter 3.12, Real Property Transfer Tax, of the Municipal Code, as may be amended, or any similar code provision enacted during the Term of this Agreement. 1.21 Sales Tax. The tax levied and collected by the Town pursuant to Chapter 3.08, Sales Tax, of the Municipal Code, as may be amended, or any similar code provision enacted during the Term of this Agreement. 1.22 Term. The term of this Agreement as provided in Article III hereof. 1.23 - Time- share. Time -share means a time share estate, as defined in Section 38- 33- 110(5), Colorado Revised Statutes, or a time share use, as defined in Section 12 -61- 401(4), Colorado Revised Statutes. 1.24 Time -share Interest. The Time -share ownership interest of a Time -share Owner. 1.25 Time -share Occupants. Any person occupying or permitted to occupy a Time -share Unit, including but not limited to a Time -share Owner, members of the Time -share Owner's family, the Time -share Owner's guests, invitees, and any Exchangers and their respective family members, guests and invitees. 1.26 Time -share Owner. A person with legal ownership of a Time -share Interest. 1.27 Time -share Period. A Time -share Owner's period of occupancy in a unit submitted to the Time -share Plan, which is reserved in accordance with the reservation system established to govern the operation of the Time -share Plan. 1.28 Time -share Plan. Any arrangement, plan, or similar device, other than an Exchange Program, whereby a person acquires a Time -share Interest. Notwithstanding any reference to the name "Vacation Ownership Plan" or the use of the term "Club ", the Wyndham Time -share Plan is considered to be Time -share as defined in this Agreement and Section 12- 61- 401(4), Colorado Revised Statutes. 1.29 Time -share Points. This term shall have the meaning given it in Recital E to this Agreement, above. 1.30 Time -share Unit. A unit at the Property which has been submitted to the Time -share Plan, which is designated for the use and occupancy of Time -share Occupants. 1.31 Town. The Town of Avon, a home rule municipal corporation of the State of Colorado. 1.32 Town Council. The Town Council of the Town. 1.33 Tract G. Portions of Tract G, Block 2, Benchmark at Beaver Creek subdivision that is located immediately to the north of the Property. Page 4 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 1.34 Transportation Easement. The easement for transportation facility purposes granted to the Town by the Owner in that certain Deed of Easement recorded in the real property records of Eagle County, Colorado, on April 13, 2007 as Reception No. 200709655. 1.35 Transportation Center. Area generally to the south of the Property that includes, but is not limited to, the Transportation Easement, bus shelter and area used for pedestrians and bus movement. ARTICLE H ZONING AND DEVELOPMENT PLAN 2.1 Zoning. Concurrently with the approval of this Agreement, the Property is being rezoned as Town Center through Ordinance No. 13 -03. 2.2 Development Plan. The Development Plan sets forth the approved scope of development of the Property and has been approved by the Town through Ordinance No. 13 -03. 2.3 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, 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 term of this Agreement shall be perpetual and shall terminate only five (5) years after such time as the primary building that comprises the Development is no longer in existence on the Property and the Property is not used for Time -share use. In the event the primary building which comprises the Development is destroyed by fire or other calamity and then reconstructed within five (5) years, this Agreement shall continue in full force and effect. The Parties may terminate this Agreement earlier by mutual agreement. ARTICLE IV TOWN AMENITIES FEES AND TAXES 4.1 Amenities Fee. (a) Commencing as of the effective date of this Agreement and continuing in perpetuity with respect to each Time -share Interest except as provided in Section 4.1(c) below, the Association shall collect from each Time -share Owner other than the Owner and remit to the Town on a semi - annual basis an Amenities Fee in the amount of $0.000082 per year per Time -share Point owned by such Time -share Owner based on the current 2012 fee, which is hereby agreed by the Town and Owner to be the equivalent of $33.06 per year per Page 5 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 approximate weekly interest in the Development. The obligation for each Time -share Owner to pay the Amenities Fee shall be a covenant running with the land and shall be described in all Association covenants. The amount of the semi - annual Amenities Fee payments will be calculated according to the following formula: Number of total points owned by Time -share Owners per semiannual period (January-June, calculated as of June 1, and July- December calculated as of December 1), multiplied by an amount equivalent to $0.000082 per Time -share Point as defined above (or as adjusted by CPI- $, as defined below and rounded to the nearest one - millionth decimal place), divided by 2. The $0.000082 per Time -share Point is based on total available Time -share Points of 1,186,000,000. Should the total number of available Time -share Points change the Amenities Fee shall be recalculated based on the total number of points so that the fee per Time- share Point is the equivalent of $33.06 per year per weekly interest. The due dates for the semiannual payments are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2013 and on the first day of each year thereafter, the amount of the Amenities Fee shall be increased or decreased by the percentage change 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 "). It shall be the duty of the Association to assure that such records as are necessary to determine the amount of Amenities Fees due hereunder are maintained by the Association. 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. 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 delinquent Association. The amount properly determined to be owing shall bear interest from the due date at the Town's rate imposed by Chapter 3.32 of the Municipal Code on past due accounts. The current rate as of the date of this Agreement established by Chapter 3.32 of the Municipal Code is eighteen percent (18 %) per annum until paid. (b) The Association, upon formation, shall be deemed to hereby assign and grant a continuing security interest in the Association's right to future income, including the right to receive common expense assessments of any kind levied pursuant to its condominium declaration, and its lien therefor, to secure payment of the Amenities Fee. Upon default of the Association in collection and/or remittance of the Amenities Fee and notice thereof to the Page 6 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 Time -share Owners, the Town shall have the right to directly receive common expense assessments and exercise any rights of the Association against non - paying Time -share Owners in order to collect same. The creation of the security interest and other rights contained in this Section 4.1(b) shall be included in the Association Governing Documents. (c) The intent of the Amenities Fee is to assist the Town in providing certain services that are of benefit to the Development, such as bus service and recreational amenities. The nature of the Development as a Time -share project may cause additional demand for Town services above what might typically be expected for residential properties located within the Town. Notwithstanding this, the Town and Owner expect that the Time- share Interests will be classified by the Eagle County Assessor as residential property for purposes of real estate tax assessment, and therefore pay proportionally less real property taxes than a comparable commercial property. For this reason, the Amenities Fee shall only be in force and effect during such times as the Time -share Interests are classified by the Eagle County Assessor as residential property for purposes of real estate tax assessment, and if the Time -share Interests are classified as commercial the Amenities Fee shall thereafter not be due or payable under this Agreement and this Section 4.1 shall be of no force or effect. 4.2 Public Accommodations Tax. Usage of the Development by Time -share Occupants, and for sales and marketing purposes by the Owner or the Association, shall not be considered a lease or rental of an accommodation unit subject to the Public Accommodations Tax. The Public Accommodations Tax shall be levied and collected upon the rental of all or any portion of a Time -share Period on a short-term (less than 30 days) basis to any party not described above, in accordance with the provisions of the Municipal Code related thereto in effect from time to time. Each Time -share Owner or its rental agent shall be responsible for payment of the Public Accommodations Tax due upon the leasing or rental of all or any portion of a Time -share Period by the Time -share Owner. Because neither Owner (solely in its capacity as developer of the Development) nor the Association would be the party renting a Time -share Period for use by another party, neither Owner nor the Association shall be responsible for collecting or liable to the Town for payment of any amounts due from rental of any Time -share Period by a Time -share Owner if the Time -share Owner rents directly to a third -party. However, Owner shall be liable for payment of any Public Accommodations Tax due or owing as a result of the rental of any Time -share Periods associated with Time -share Interests owned by it, and any rental management company affiliated with Owner will collect and remit payment of any Public Accommodations Tax due or owing as a result of the rental of any Time -share Periods through such entity. 4.3 Sales Tax. The Town's sales tax levy, as provided for in Chapter 3.08 of the Municipal Code shall apply in all circumstances to the Development. Similar to the provision for Public Accommodations Tax in Section 4.2 of this Agreement, usage of the Development by Time -share Occupants, and for sales and marketing purposes by the Owner or the Association shall not be considered lodging services as defined by Chapter 3.08 of the Municipal Code or subject to the Sales Tax. Sales tax shall be levied and collected upon any lodging services provided to any party not described above. Page 7 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 4.4 Real Property Transfer Tax. All transfers of interests or possessory rights in and to real estate located within the Development by deed, lease, assignment of lease, agreement for sale of stock or contract and including the sale of Time -share Interests represented by Time -share Points shall be subject to the Town's Real Property Transfer Tax as provided for in Chapter 3.12 of the Municipal Code. The Town acknowledges that, in certain circumstances, the sale of a Time -share Interest may be subject to a statutory right of rescission in favor of the buyer. In acknowledgment of the fact that the exercise of such rescission right has the effect of voiding the conveyance of the Time -share Interest, the Town determines that the transfer of the Time -share Interest is not complete until expiration of the rescission period for purposes of Municipal Code §3.12.030, and for this reason the Real Property Transfer Tax shall be held in escrow following the closing. If the buyer exercises its right of rescission, no Real Property'Transfer Tax shall be due or payable. If the buyer does not exercise its right of rescission, the Real Property Transfer Tax shall be distributed to the Town out of escrow promptly after expiration of the rescission period. The Town recognizes that from time to time the Owner will trade or upgrade a Time- share Owner into additional Time -share Interests at the Property or for time -share interests at a new location or for a new product. In order to effectuate these trades and upgrades, from time to time Time -share Owners may need to deed that Time -share Owner's existing Time -share Interest back to Owner in order to receive a new deed with the upgraded Time -share Interest and applicable Time -share Points. Each of the three (3) scenarios for trades and upgrades are further described below: (a) Upgrade at the Property. From time to time an existing Time -share Owner may want to acquire additional Time -share Points at the Property. In order to effectuate such upgrade in Time -share Points, a Time -share Owner would submit the original deed to that Time -share Owner's Time -share Interest to Owner. Owner would then provide a new deed to the Time -share Owner which would show both the Time -share Owner's original Time -share Points, and the newly acquired Time -share Points. (i) Deed to Owner. Owner attributes a value of Ten and No /100 Dollars ($10.00) to the deed from Time -share Owner to Owner, thus the Town acknowledges and agrees that the taxable consideration for any such deed from Time -share Owner to Owner in this instance would be Ten and No /100 Dollars ($10.00). (ii) New Deed to Time -share Owner. Because the Time -share Owner has already paid the applicable Real Property Transfer Tax on the original deed to Time -share Owner, the Parties acknowledge and agree that the total consideration for the new deed being issued to the Time -share Owner in this subsection (a) would be the Time -share Owner's additional consideration paid for the additional Time -share Points. By way of example, if a Time -share Owner originally purchased a Time -share Interest with "X" Time -share Points valued at the equivalent of $50,000, Page 8 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 and that Time -share Owner desired to upgrade and purchase "Y" additional points valued at $25,000 at the Property, although a new deed would be issued to the Time -share Owner for "X +Y" Time -share Points with a total value of $75,000, because the Time -share Owner has already paid the Real Property Transfer Tax for the original $50,000, the total taxable value for the new deed would be $25,000. (b) Trade from the Property. From time to time existing Time -share Owners may desire to trade that Time -share Owner's Time -share Interest toward time -share interest at another property owned by or affiliated with the Owner. By way of example, a Time -share Owner at the Property may desire to trade his or her Time -share Interest for a time -share interest at the Owner's Orlando time- share resort. In this case the Time -share Owner would deed his or her Time -share Interest in the Property back to Owner, and would receive a new deed for a time- share interest at the Orlando property. The Owner attributes a value of Ten and No /100 Dollars ($10.00) to the deed from Time -share Owner to Owner, thus the Town acknowledges and agrees that the taxable consideration for any such deed from Time -share Owner to Owner in this instance would be Ten and No /100 Dollars ($10.00) for the Real Property Transfer Tax. Any Time -share Interests returned to the Owner shall be sold to another third party purchaser, and Owner acknowledges and agrees that upon the resale of any such returned Time -share Interests shall be subject to the full Real Property Transfer Tax, with no limitation on the number of taxable resales on such returned Time -share Interests. (c) Trade to the Property. From time to time existing time -share owners at other time -share resorts owned by or affiliated with the Owner may desire to trade that time -share owner's time -share interest toward a Time -share Interest at the Property. In this situation, the Parties acknowledge and agree that the consideration for the Real Property Transfer Tax shall be the full value of the new Time -share Interest acquired at the Property. By way of example, a time -share owner at Owner's time -share resort in Orlando may desire to trade his or her time- share interest in Orlando for a Time -share Interest and Time -share Points valued at $100,000 at the Property, the total consideration and taxable value of this transaction would be $100,000. Each transfer that is entitled to any exemption from the Real Property Transfer Tax described herein shall be reported to the Town in the manner required by the Avon Town Code from time to time. Neither Owner nor the Association shall be responsible for collecting or otherwise liable for the payment of the Real Property Transfer Tax for the sale of a Time -share Interest sold by a Time -share Owner to a third -party purchaser. [REMAINDER OF PAGE INTENTIONALL Y LEFT BLANK] Page 9 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 ARTICLE V Public Improvements 5.1 Public Improvements. Owner and Town agree to provide the public improvements set forth in this Agreement (the "Public Improvements "). Such obligations directly relate to the Applications complying with the minimum required development standards set forth in the Municipal Code and are a material to the terms, conditions, covenants and mutual promises bargained for by Town and Owner in this Agreement. 5.2 Installation of Public Improvements or Payment in Lieu. (a) Area A of Exhibit B: Owner agrees to install all landscaping, hardscape, street lights and other similar improvements, including street lights consistent with the 2012 Mall Improvement Plan, within Area A of Exhibit B as called out in the Development Plan. (b) Area B of Exhibit B: Town agrees to install Area B of Exhibit B (the LSL Path) as called out in the Development Plan. The LSL Path shall be served by a snowmelt system and the cost of the LSL Path shall be borne by the Town. The Town agrees to complete all construction within Area B of Exhibit B on or before the date that construction of the Development is complete, as evidenced by Owner's application to the Town for a certificate of occupancy for the Development. (c) Area C of Exhibit B: Town agrees to install all landscaping within Area C of Exhibit B as called out on the Development Plan, in a manner consistent with the 2012 Mall Improvement Plan. The Town agrees to complete all construction within Area C of Exhibit B on or before the date that construction of the Development is complete, as evidenced by Owner's application to the Town for a certificate of occupancy for the Development. (d) Lettuce Shed Lane Landscaping and Path Design: Town and Owner agree that areas A, B and C may be redesigned to include seating and other pedestrian amenities. Town will be responsible for recommending at its option to Owner in a timely manner and, upon Owner's agreement, the redesign shall proceed to PZC for approval. (e) Area D of Exhibit B: Owner shall install all landscaping approved within Area D of Exhibit B as called out on the Development Plan, but shall not install any other improvements within Tract G, including any paved path therein. (f) Area E of Exhibit B: Owner shall install all landscaping approved within Area E of Exhibit B. Owner shall be responsible for access improvements to the site from Benchmark Road including any snowmelt system installation and related improvements necessary to tie into the Town's proposed sidewalk improvements. An existing heated sidewalk installed by the Town on Benchmark Road encroaches approximately one and one -half (1.5) feet onto the Property which conflicts with the construction of proposed subsurface and surface improvements. The Town shall be responsible for reconstructing this sidewalk to a location outside the Property that is no less than six (6) feet wide and conforms to the Development Plan. Page 10 of 26 Lot 61 — Wyndham Project Development Agreement Version 10 — Feb 26, 2013 (g) Area F of Exhibit B: Owner shall install improvements as called out on the Development Plan that will occur in the Transportation Center including underground utilities. These improvements shall be coordinated with the Transit Superintendent to minimize impacts to the Transportation Center operations. All work in the Transportation Center must occur during spring and fall off - season shoulder periods, as determined by Owner and approved by the Town's Chief Building Official. Any construction that will require closure of the bus lane or pedestrian sidewalk will be limited to 30 days and require 60 days' notice to the Transit Superintendent. (h) Heat Recovery: The Town shall extend the Heat Recovery system to the Transportation Center and to the property in late 2013 or early 2014. Construction entails installing four (4) buried pipelines in Lettuce Shed Lane, two (2) of which will run to a manifold located in the northwest comer of the Transportation Center and two (2) to the property at a location specified by the Owner. The installation of the Heat Recovery pipes requires coordination with the Owner's construction of Public Improvements in Lettuce Shed Lane (Area A of Exhibit 'B). The Owner shall inform the Town of the construction schedule within Lettuce Shed Lane at the issuance of the building and right -of -way permits so that the Town can schedule the construction of the Heat Recovery pipes. Town acknowledges that Owner is not obligated or required to connect to the Heat Recovery system. (i) Damage during Construction Activity: If any construction by Owner, or any encroachment or other site condition, causes damage to any Town -owned improvement within Benchmark Road, Owner shall reconstruct same up to the boundary of the Property to its condition existing immediately prior to any such damage. 5.3 Subdivision. The Owner shall apply for and the Town shall approve a subdivision application consistent with the Municipal Code and Development Plan prior to the issuance of a Temporary Certificate of Occupancy or Certificate of Occupancy. The property line for the Property and Lettuce Shed Lane shall be relocated to two (2) feet to the east of the LSL Path, so that the area to the east is included within the Property, and Lettuce Shed Lane is reconfigured to exclude such area. 5.4 Utilities. The Owner shall install any utilities or other similar improvements consistent with the Development Plan to be constructed within Lettuce Shed Lane. The Town shall grant such easements or a right -of -way permit as are required for same. 5.5 Timing of Public Improvements. The Town shall complete on or before the date of completion of the Development, which date shall be defined as the date that Owner receives from the Town a Temporary Certificate of Occupancy or Certificate of Occupancy for the Development, all improvements required to be provided by the Town in this Agreement. The Owner shall inform the Town of all construction plans within Town land and ROW ninety (90) days prior to the start of construction. 5.6 Warranty Period. The Public Improvements constructed and installed by Owner shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after Page 11 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 acceptance of all the work by the Town. In the event of any such defect, the Town may require Owner to correct the defect in material or workmanship. Ten percent (10 %) of the total actual cost of completion of all Public Improvements to be installed and constructed by Owner shall be collected by the Town from the Owner as collateral during such two (2) year period as a guaranty of performance of any work required pursuant to the above described warranty. In the event any corrective work is performed during the two -year warranty period then the warranty on said corrected work shall be extended for two (2) years from the date on which it is completed. Collateral equal to 125% of the cost of any corrected work, 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 Section 7.32.100, for a period of two (2) years from the date of completion of the corrected work. 5.7 Engineering Certification. Upon completion of portions of the Public Improvements to be installed and constructed by Owner, Owner will cause his engineers (who shall have been actively engaged in observing the construction of the Improvements and be registered in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on -site observation, review of sufficient construction- observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. 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. 5.8 Inspection Procedures. All work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, 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. All work shall not be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Owner or Owner's agents from any responsibility or obligation to assure 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 such inspections, by Town employees, or an independent third party inspector, shall be paid by the Owner and subject to the limitations set forth in paragraph 5.8(b) below. (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 Owner are not in compliance with the Approved Plans, 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 Page 12 of 26 Lot 61— Wyndham Project Development Agreement Version 10 —Feb 26, 2013 specific reference to the applicable construction plans and specifications. The Notice of Non - Compliance must be provided to the Owner within two (2) working days of the date of the inspection. 5.9 Indemnification and Hold Harmless. (a) Owner shall install or cause to be installed all Public Improvements that Owner is required to construct in a good and workmanlike manner in accordance with the applicable regulations of the Town and in accordance with a Subdivision Improvement Agreement between Owner and the Town. Owner shall indemnify, defend and hold harmless 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 Owner's activities in 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 Owner on Town land 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 of the Town or its officials, agents, representatives, employees, contractors, and successors and assigns. (b) Town shall install or cause to be installed all Public Improvements that Town is required to construct in a good and workmanlike manner in accordance with the applicable regulations of the Town. To the extent permitted by law, Town shall indemnify, defend and hold harmless the Owner (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 Town's activities in performing this Agreement (including, without limitation, maintenance, repair and replacement activities); 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 of the Owner or its officials, agents, representatives, employees, contractors, and successors and assigns. [REMAINDER OF PAGE INTENTIONALL Y LEFT BLANK] Page 13 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 ARTICLE VI MAINTENANCE AND ONGOING OBLIGATIONS 6.1 Operations and Maintenance. Owner and the Town understand and acknowledge that certain aspects of the maintenance, operation and use of the Development, Lettuce Shed Lane, Tract G, Benchmark Road, and the Transportation Easement require designation of maintenance responsibilities, rights and obligations. The following provisions shall address such ongoing maintenance matters: (a) Area A of Exhibit B: The Owner shall maintain, repair, and replace all landscaping, storm ceptor and other improvements located within Area A of Exhibit B at Owner's sole expense as called out in the Development Plan. Owner and Town agree to cooperate to ensure that the landscaping located within Areas A and C of Exhibit B are consistently maintained. (b) Area B of Exhibit B: The Town shall maintain, repair, and replace all improvements located within Area B of Exhibit B at the Town's sole expense as called out in the Development Plan. Owner shall not be permitted to use the LSL Path and Lettuce Shed Lane right -of -way as access for the removal of trash from the Development. (c) Area C of Exhibit B: The Town shall maintain, repair, and replace all landscaping and other improvements located within Area C of Exhibit B at Town's sole expense as called out on the Development Plan. The Town agrees with Owner to cooperate to ensure that the landscaping located within Areas A and C of Exhibit B are consistently maintained. (d) Area D of Exhibit B: The Owner shall maintain, repair, and replace all landscaping and other improvements located within Area D of Exhibit B at Owner's sole expense as called out in the Development Plan. (e) Area E of Exhibit B: The Owner shall maintain, repair, and replace all landscaping and other improvements located within Area E of Exhibit B at the Owner's sole expense as called out on the Development Plan. (f) Area F of Exhibit B: The Owner shall be entitled to construct and maintain any and all building overhangs as depicted on the Development Plan, and same shall be entitled to exist as permanent encroachments within the Transportation Easement. 6.2 Snowmelt. The Owner shall have the right, but not the obligation, to connect to the Town's heat recovery system for purposes of providing all or a portion of heat needed to snowmelt the entry drive, patios, trash room access pad, and automobile courtyard at the Development. Any such connection shall be at the Town's then- current standard fees and charges for connection and service. 6.3 Generator Testing. Owner agrees that it shall test the back -up generator located at the Development not more frequently than once per month, and shall conduct any such tests between Page 14 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 the hours of 10:00 a.m. and 5:00 p.m.; provided, however, that Owner may conduct tests at other times if required due to emergency, equipment failure, or other event that, in Owner's reasonable discretion, necessitates that the back -up generator be tested. 6.4 Ongoing Cooperation. The Owner and Town mutually agree to cooperate with the other Party in a reasonable manner to address any ongoing issues of development or use of the Property, including any unforeseen matters such as encroachment of improvements onto adjacent Town land and ROW and maintenance practices and operations. 6.5 Revocable Encroachment License. The Town hereby grants to the Owner a revocable license ( "License ") for the encroachment and occupation for landscaping, snowmelt system and other improvements constructed by Owner in Areas A, D and E ( "Owner Maintained Public Improvements "), provided, however, that nothing in this Agreement is intended to waive, alter, modify, or permit any violation of any local law applicable within the Town. Town may revoke and terminate this License upon providing ninety (90) days prior written notice to Owner of Town's election to revoke and terminate this License. To the extent that the location or other specifications of this License or any exhibit conflicts with local laws, the local law shall govern. (a) 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) The Owner agrees to repair and reconstruct any damage to the Town land or ROW upon termination of the License and the Owner shall return the Town land or ROW with the Public Improvements installed and constructed by Owner under this Agreement to its condition as accepted by the Town at the cost and expense of the Owner and at no cost or expense to the Town unless such requirement is waived by the Town. The Town may seek recovery of all costs incurred for the restoration of Public Improvements installed and constructed by Owner, including repair of damages to Town land or ROW, legal costs and attorney fees. (c) The Owner agrees to procure and maintain, at its own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the licensed premises in the minimum amount of $600,000.00 per occurrence. Such policy or policies shall name the Town as an "additional insured ". However, the Owner's failure to take such steps to insure the premises shall not waive, affect, or impair any obligation of the Owner to indemnify or hold the Town harmless in accordance with this Agreement. (d) The Owner's rights and interest in the Owner Maintained Public Improvements shall run with the land and shall continue in the event that the Owner conveys all or any portion of the Owner's interest in the property or properties obtaining access or receiving benefit from the improvements and encroachments described in this Agreement. (e) The Owner agrees that it will never institute any action or suit at law or in equity against the Town or any of its officers or employees, nor institute, prosecute, or in any way aid in the institution or prosecution of any claim, demand, or compensation for or on account Page 15 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 of any damages, loss, or injury either to person or property, or both, known or unknown, past, present or future, arising as a result of or from the License granted to the Owner by this Section 6.5. This provision includes but is not limited to claims relating to road maintenance, snow removal or other public works activities performed by or on behalf of the Town. 6.6 Water Rights. The Property is currently allocated 35.8 Single Family Equivalents for water rights and it is anticipated that the property will require additional SFEs for the project to be determined and required by the Upper Eagle Regional Water Authority. The Owner shall purchase cash -in -lieu water rights from the Upper Eagle Regional Water Authority. The Owner shall provide proof of payment of water rights and water tap fees prior to the issuance of a building permit. ARTICLE VII DEFAULTS. REMEDIES AND TERMINATION 7.1 Default by 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 7.3, below. 7.2 Default by Owner. A "breach" or "default" by Owner shall be defined as Owner's failure to fulfill or perform any obligation of Owner contained in this Agreement following the applicable cure period described in Section 7.3, below, or Owner's failure to fulfill or perform any obligation of Owner contained in any other agreement relating to the Property between the Town and Owner or the Town following any applicable cure period contained in such agreement. The failure by Owner to cause the Association to collect and remit the Amenities Fee to the Town as provided in Section 4.1 shall constitute a default by Owner. 7.3 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 9.6, and the defaulting Parry 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 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. 7.4 Remedies for Default by Town. If a default by Town under this Agreement is not cured as described in Section 7.3, the Owner shall have the right to enforce the Town's obligations by an action for any equitable remedy, including injunction or specific performance to the extent permitted by law, or an action to recover damages. Each remedy in this Section 7.4 is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law or in equity. Page 16 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 7.5 Remedies for Default by Owner or Association. If any default by Owner or the Association under this Agreement is not cured as described in Section 7.3, the Town shall have the right to enforce the Owner's or 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 7.5 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, a default of this Agreement by Owner or the Association shall constitute a violation of the Avon Development Code and non - compliance with the Development Plan for this Property and the Town shall have all enforcement rights as described in Sections 7.04.160, 7.04.170, 7.04.180, 7.04.190, and 7.04.200 of the Avon Development Code and other applicable sections of the Avon Development Code concerning enforcement and penalties for violations, as the Avon Development Code may be amended from time to time. 7.6 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 7.6. The Party asserting the breach, default, controversy or claim shall first provide written notice to the other Party, citing this Section 7.6, 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. 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 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. Following 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. [REMAINDER OF PAGE INTENTIONALL Y LEFT BLANK] Page 17 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 ARTICLE VIII ASSOCIATION MATTERS 8.1 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, Owner shall be liable for all obligations of the Association hereunder until such time as the Association is formed. 8.2 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, the Association shall be deemed to be the Owner with respect to the provisions, rights and obligations of Section 4.1 and Article VI of this Agreement and Wyndham Vacation Resorts, Inc. shall have no further liability or obligations whatsoever with respect to said Section 4.1 and Article VI. 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 specifically have no obligations under Article V of this Agreement except the on -going obligation to 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 under Section 4.1 and Article VI of this Agreement. 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. 8.3 The Association Governing Documents will contain an acknowledgement and disclosure to each 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 Section 4.2 hereof and the Avon Town Code. 8.4 Any failure of the Association Governing Documents to contain provisions required by this Agreement shall be a default by Owner and the Association under this Agreement, and the Town 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 IX MISCELLANEOUS 9.1 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 9.2 No Joint Venture or Partnership. No form of joint 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. Page 18 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 9.3 Applicability of Avon Municipal Code. All matters not covered by this Agreement are controlled by the Municipal 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. 9.4 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. 9.5 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. 9.6 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 facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing Party). 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 Facsimile: 970 -748 -4078 And: Town of Avon Attention: Town Attorney PO Box 975 Avon, CO 81620 If to Owner: Development Planning and Construction Wyndham Worldwide 6277 Sea Harbor Drive Orlando, FL 32821 Page 19 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 Direct: 407 - 626 -4554 Facsimile: 407 - 626 -4530 And: Legal Services Wyndham Vacation Ownership, Inc 6277 Sea Harbor Drive Orlando, FL 32821 Direct: (407) 626 -6271 Facsimile: (407) 626 -5222 And: Greg Perkins, Esq. Gregory Perkins LLC 710 West Lionshead Circle Suite B Vail, Colorado 81657 Telephone: 970 - 306 -7554 Facsimile: 866 - 393 -9835 Each Party may change its addresses and/or fax numbers 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. 9.7 Amendment of Agreement. Except as otherwise set forth in this Agreement, this Agreement may be amended or terminated only by mutual consent of the Town and the Owner in writing following the public notice and public hearing procedures required for approval of this 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 Owner, the power to enter into such amendments. 9.8 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. 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 Owner and comprised of affiliates of Owner. Further, 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; provided, however, that the third party assignee fully assumes in writing all obligations of Owner assigned to such party and the Town consents in writing to such third party assignment, which consent will not be unreasonably withheld or delayed if Owner has reasonably demonstrated to the Town that the third party assignee has the financial capability to perform the obligations Page 20 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 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 Properly. 9.9 Counterparts. 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. 9.10 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 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. 9.11 Article X Section 20 /TABOR. The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi -fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Funds for the construction of Public Improvements by the Town as set forth in Sections 5.2(b) and (c) have been appropriated, therefore, the performance of Town's obligations under Sections 5.2(b), (c) and (g) is not subject to further appropriation and shall not be construed to be a multi-year fiscal obligation in violation of TABOR. Town's obligations to perform operations and maintenance under Sections 6.1(b) and (c) shall be subject to annual appropriation and any reduction of such appropriation or failure to appropriate by the Town shall not constitute a default of this Agreement by the Town. [SIGNATURE PAGE FOLLOWS] Page 21 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the date first written above. yoy :SEAL ATTEST qC own Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) TOWN: TOWN OF AVON Mayor Subscribed before me this 1� day of , 2013 by 'Rl'c,h 014Lcro L as Mayor and - Vzrinu as Town Clerk of Town of Avon, a Colorado municipal corporation. My commission expires: ''j It 61 l3 —(�-- J gnA L �)D ' ["1"(7 - Notary Public Page 22 of 26 Lot 61 — Wyndham Project Development Agreement Version 10 — Feb 26, 2013 1 AAR ' WYNDHAM VACATION /RESORTS, INC., a Delaware corn&001 / �4 Page 23 of 26 Lot 61— Wyndham Project Development Agreement Version 10 — Feb 26, 2013 STATE OF rL.DrVDA ss. COUNTY OF!`1 ) Subscribed before me this cQ) da of � 2013, by 'r27 kr�'r as :5=V . of WYNDHAM VACATION RESORTS, INC., a Delaware corporation. 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