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09-24-07 Town Council PacketSNOWMASS VILLAGE I REGULAR MEETING AGENDA SEPTEMBER 24, 2007 Continued from 09-17-07) PLEASE NOTE THAT ALL TIMES ARE APPROXIMATE — ITEMS COULD START EARLIER OR LATER THAN THEIR STATED TIME CALL TO ORDER AT 5:00 P.M. Item No. 1: ROLL CALL Item No. 2: PUBLIC HEARING AND SECOND READING OF ORDINANCE NO.15, SERIES OF 2007- MINOR PUD AMENDMENT TO BASE VILLAGE PUD CONDITION NO. 7: (Time: 60 Minutes) ACTION REQUESTED OF COUNCIL: Approve second reading of Ordinance No.15, Series of 2007. (Continued from 9-17-07) Chris Conrad Item No. 3: ADJOURNMENT NOTE: ALL ITEMS AND TIMES ARE TENTATIVE AND SUBJECT TO CHANGE WITHOUT FURTHER NOTICE. PLEASE CALL THE OFFICE OF THE TOWN CLERK AT 923-3777 ON THE DAY OF THE MEETING FOR ANY AGENDA CHANGES. PLEASE JOIN TOWN COUNCIL FOR A SOCIAL AT SPENCER'S AFTER TONIGHT'S MEETING. MEMORANDUM TO: Snowmass Village Town Council FROM: Planning Department MTG DATE: September 24, 2007 SUBJECT: PUBLIC HEARING AND SECOND READING - ORDINANCE NO. 15, SERIES OF 2007 MINOR PUD AMENDMENT TO BASE VILLAGE PUD CONDITION Public Hearing and Second Reading of Ordinance No. 15, Series of 2007, an ordinance considering a minor PUD amendment to conditionally delete Condition No. 07 of Ordinance No. 21, Series of 2004 (Base Village PUD). Applicant: Related WestPac, LLC on behalf of Base Village Owner, LLC Planner: Chris Conrad, Planning Director 1. PURPOSE AND ACTIONS REQUESTED OF COUNCIL: Purpose: Related WestPac is requesting second reading approval to modify Condition No. 7 ("Condition 7") of Ordinance No. 21, Series of 2004 (Final PUD approval for the Base Village) to specifically allow Buildings 13A and 13B ("Base Village Hotel") to be operated by Kor Hotel Group as a Viceroy Hotel brand. Their specific request proposes that two (2) conditions be applied, as stated in Conditions 1 and 2, Section Four, of the enclosed Ordinance, that implement a development agreement (see Exhibit "D" of the enclosed ordinance) and carry forward the Condition 7 requirement that an agreement be provided to ensure that the Base Village Hotel will be operated at a level that meets the American Automobile Association's "Four Diamond" standards. The Ordinance received First Reading approval on August 6, 2007 with direction that the development agreement be amended prior to Second Reading. The September 17 Town Council meeting was continued to September 24 in order to further consider this application. An amended development agreement was submitted and has been included as Exhibit "C" of the ordinance. Action Requested: The Applicant's request to modify Condition 7 is a Minor PUD Amendment. The Town Council shall: 1) Review the enclosed Ordinance and development agreement to determine whether the proposed amendment is consistent with the following standards: a. Consistent with original PUD. The proposed amendment shall be consistent with, or an enhancement of, the original PUD approval. i b. No substantially adverse impact. The proposed amendment shall not have a substantially adverse effect on the neighborhood surrounding the land where the amendment is proposed, or have a substantially adverse impact on the enjoyment of land abutting upon or across the street from the subject property. c. Not change character. The proposed amendment shall not change the basic character of the PUD or surrounding areas. d. Comply with other applicable standards. The proposed amendment shall comply with the other applicable standards of this Division 3, Planned Unit Development, including but not limited to Section 16A-5-300(c), General Restrictions, and Section 16A-5-310, Review Standards. [Please refer to Section 1 of the application notebook that outlines these General Restrictions and Review Standards.]; AND 2) Receive public comment as part of the continued Public Hearing; AND 3) Consider Second Reading of the enclosed ordinance, as may be amended at the meeting; AND 4) Approve by at least 3/4 of the members of the Town Council present and voting, approve with conditions by at least 3/4 of the members of the Town Council present and voting or deny the application; OR 5) table Second Reading of the ordinance until the October 1 Town Council meeting. 2. BACKGROUND: Condition No. 7 of Ordinance No. 21, Series of 2004 ("Condition 7) concerned the Base Village Hotel as follows: Section Three. Conditions. As conditions of the final approvals granted herein, the Applicant will comply with the following: 7. Phase 2A Condition Precedent. Prior to the issuance of a building permit for Phase 2A or any subsequent phase of the Project, the Applicant will provide to the Town evidence that: a. the Applicant has entered into an agreement with a nationally-recognized hotel chain (such as a Westin, Hyatt or Hilton) that requires Buildings 13A and 13B to be operated as a "four diamond" hotel, as such standards are determined by the American Automobile Association, under such chain's brand name; and b. all residential two and three-bedroom units with bedrooms located on or having access to a main hallway in Buildings 13A and 13B have been converted to 14 additional lockoffs. 2] This condition may only be waived or modified in accordance with the provisions of Section 16A-5-390 of the Municipal Code for a PUD amendment approved by at least 3/4 of the members of the Town Council present and voting. It should be noted that the Base Village Hotel is contained within Phase 2A of the Base Village project. The development agreement proposed with this application may be found as Exhibit "C" of the enclosed ordinance. Attachment 1 of this report is a copy of the agreement with line numbers added for reference during the meeting. The Applicant has provided an Executive Summary (See Attachment 2) outlining the terms of the agreement. Attachments:1) Development Agreement with line numbers for reference 2) Applicant's Executive Summary RE: Development Agreement 3] ATTACHMENT 1 1 HOTEL DEVELOPMENT AGREEMENT 2 THIS HOTEL DEVELOPMENT AGREEMENT is made and entered into as of this _ 3 day of 2007 (the "Effective Date"), by and between the TOWN OF 4 SNOWMASS VILLAGE, a home rule municipal corporation and political subdivision of the 5 State of Colorado (`Town"), BASE VILLAGE OWNER LLC, a Delaware limited liability 6 company (together with its successors and assigns, `BVO"), BRUSH CREEK ESTATES LLC, a 7 Colorado limited liability company (together with its successors and assigns, "BCE"), and 8 RELATED WESTPAC LLC, a Delaware limited liability company (together with its successors 9 and assigns, "Related WestPac"). 10 Recitals 1 I This Agreement is made with reference to the following facts: 12 A. Capitalized terms in this Agreement not otherwise defined in the body of this 13 Agreement have the meanings set forth in Exhibit A. 14 B. BVO is the owner in fee simple of the Base Village Property. The Base Village 15 Property is a planned unit development under the Code pursuant to the Base Village Planned 16 Unit Development (the "BV PUD") approved by the Town Council pursuant to Ordinance No. 17 21, Series of 2004 (`Ordinance 21"). 18 C. Condition 7 of Ordinance 21 concerned Buildings 13A and 13B within the Base 19 Village Property and set forth certain requirements that needed to be satisfied prior to the 20 issuance of a building permit for the construction of any buildings within Phase 2A or any 21 subsequent phase of the BV PUD. Pursuant to its final approval on second reading of Ordinance 22 No. 15, Series of 2007, the Town Council has approved a modification of Condition 7 for the 23 purpose of modifying and extending the timeframe for compliance with some of these 24 requirements and transferring them, through this Agreement, to the West Village in connection 25 with Related WestPac's future redevelopment plans for the West Village. This modification to 26 Condition 7 was made for the purpose of allowing construction of Buildings 13A and 13B to 27 proceed and to permit such buildings to be operated by Kor Hotel Group as a Viceroy Hotel. 28 D. BVO, BCE and Related WestPac desire to enter into this Agreement with the 29 Town to satisfy the requirements Ordinance No. 15, Series of 2007. 30 NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth in 31 this Agreement, and other good and valuable consideration, the receipt and sufficiency of which 32 are hereby acknowledged, the Parties agree as follows: 33 Agreement 34 1. QUALIFIED HOTEL STANDARDS. The term "Qualified Hotel" means a 35 new Hotel that will: 36 A. At the time a building permit is issued (and as a condition to the issuance 37 of such building permit by the Town) be subject to an agreement with a nationally- 38 recognized hotel chain that requires the Hotel to be operated under such chain's brand 39 name. 40 B. Have at least 234 Hotel Rooms. 41 C. Include conference facilities with a net floor area of 40 square feet per 42 Hotel Room, including conference meeting spaces and ballroom space, but not including 43 pre-function areas, kitchens, bathrooms, storage areas or other back-of-house areas. 44 D. Be a condominium Hotel (meaning the rooms are separate condominium 45 units), which Hotel must include a rental/management program and a legal structure that 46 will encourage owners, consistent with the limits of applicable securities laws, to enroll 47 their units in such rental/management program. In addition, Related WestPac, for itself 48 and the other RW Affiliates, agrees that as a condition to final approval of the Qualified 49 Hotel, the Town will have the right to require that drafts of the proposed condominium 50 and rental/management documents be provided to the Town to enable it to verify the 51 implementation of the required legal structure. 52 2. OBLIGATION TO CONSTRUCT A QUALIFIED HOTEL. Subject to the 53 other terms of this Agreement, Related WestPac shall cause a Qualified Hotel to be constructed 54 (as evidenced by a certificate of occupancy) within the West Village by not later than April 15, 55 2017. 56 3. TOWN REMEDY. The following provisions provide the remedy the Town will 57 have if Related WestPac fails to cause a Qualified Hotel to be constructed (as evidenced by a 58 certificate of occupancy) within the West Village by not later than April 15, 2017. 59 A. Related WestPac shall be required to pay the Town $8,000,000.00 (the 60 Remedy Amount"), if Related WestPac does not cause a Qualified Hotel to be 61 constructed (as evidenced by a certificate of occupancy) within the West Village by not 62 later than April 15, 2017. 63 B. Upon the Town's receipt of the Remedy Amount from Related WestPac 64 pursuant to Section 3 above, this Agreement and all additional obligations under this 65 Agreement shall terminate. In addition, notwithstanding the provisions of Section 3 66 above, this Agreement shall terminate and Related WestPac shall be released from its 67 obligation to cause a Qualified Hotel to be constructed within the West Village if Related 68 WestPac is prevented from constructing a Qualified Hotel within the West Village by 69 April 15, 2017 as a result of: 2 70 i.a successful Legal Challenge to any Town approval for a Qualified Hotel 71 within the West Village, or 72 ii. the Town Council's final denial of a "Qualified Application" (as defined 73 below) for a Qualified Hotel in the West Village submitted by any RW 74 Affiliate. The term "Qualified Application" means an application for a 75 Qualified Hotel in the West Village that: (a) satisfies the submission 76 requirements of the Code, including consent from the land owner if other 77 than the applicant; (b) does not seek any variations or other special 78 approvals requiring approval from a super-majority of the Town Council; 79 and (c) is processed diligently and in a good faith attempt to obtain 80 approval, with the applicant making adjustments and modifications in 81 response to the Town staff's, the Planning Commission's and the Town 82 Council's reasonable concerns and comments. 83 4. SECURITY FOR TOWN REMEDY. The remedy available to the Town under 84 Section 3 shall be secured pursuant to the following provisions of this Section 4. As of the 85 Effective Date, BCE shall deliver to the Town a fully executed and notarized deed of trust, in the 86 form attached to this Agreement as Exhibit D, granting a first position lien on the Brush Creek 87 Estates Property to secure the payment obligation of Related WestPac contained in Section 3 (the 88 "BCE Deed of Trust"). Within two weeks following the Effective Date, BCE shall deliver to 89 the Town an appraisal of the fair market value of the Brush Creek Estates Property prepared by a 90 qualified, independent appraiser approved by the Town Manager. If the appraised fair market 91 value of the Brush Creek Estates Property pursuant to such appraisal is less than the Remedy 92 Amount (the amount of such shortfall being the "Shortfall Amount"), then Related WestPac 93 shall be required to provide the Town with an irrevocable financial instrument (the "Shortfall 94 Security Instrument") that will have a liquid cash value of not less than the Shortfall Amount as 95 of April 15, 2017. The BCE Deed of Trust and the Shortfall Security Instrument shall remain in 96 effect until the earlier to occur of (a) the satisfaction by Related WestPac of its obligation to 97 cause the construction of a Qualified Hotel pursuant to Section 2, (b) the termination of such 98 obligation pursuant to Section 3.13, or (c) Related WestPac causes the BCE Deed of Trust and the 99 Shortfall Security Instrument to be replaced with (X) another first position deed of trust on real 100 property with a value at least equal to the then Remedy Amount, or (Y) security in the form of an 101 irrevocable financial instrument that will have a liquid cash value of not less than the Remedy 102 Amount as of April 15, 2017, or (Z) a combination of another first position deed of trust and an 103 irrevocable financial instrument that together will provide the Town with security in an amount 104 of not less than the Remedy Amount as of April 15, 2017. 105 5.ADDITIONAL OBLIGATIONS. 106 A. West Village Phasing. Related WestPac agrees that (i) the Town shall 107 have the right to withhold building permits for all construction proposed by the RW 108 Affiliates in West Village in excess of 50% of the total rentable and/or saleable floor area 109 proposed in West Village by all RW Affiliates until such time as a building permit has 110 been obtained for a Qualified Hotel in West Village; and (ii) no certificate of occupancy 111 may be received by any RW Affiliate for more than 50% of the total rentable and/or 112 saleable floor area proposed in West Village by all RW Affiliates until a certificate of 3 113 occupancy has been issued for a Qualified Hotel in West Village. Related WestPac, for 114 itself and the other RW Affiliates, agrees that the phasing obligation described in the 115 preceding sentence shall be incorporated into the final approval for the Qualified Hotel 116 and shall be articulated in terms of actual square footage numbers for the Qualified Hotel 117 property and the other areas of West Village being developed by the RW Affiliates. 118 B. No Opposition to Certain Code Changes. Related WestPac, for itself and 119 all RW Affiliates, agrees that it will not oppose the Town's adoption of overlay zoning 120 regulations that will apply specifically to the Qualified Hotel property for the purpose of 121 reasonably limiting owner occupancy.of the units within the Qualified Hotel to a specific 122 number of consecutive days per stay within the summer and off-season times of each 123 year. 124 C. Availability of Conference Space. Related WestPac will work in good 125 faith to provide continuously available conference facilities within the Town during the 126 course of construction within Base Village Property, the West Village and the Snowmass 127 Center property. Given the uncertainty of future development and entitlements 128 processes, it is agreed that demolishing the existing conference structures and providing 129 new conference facilities will be addressed in the specific conditions of future 130 entitlements in either the West Village and/or the Snowmass Center. 131 D. LEED Rating. In addition to the other obligations contained in this 132 Agreement, BVO agrees that it will use commercially reasonable efforts to obtain a 133 LEED Silver" rating for Buildings 13A and 13B in the BV PUD pursuant to the 134 Leadership in Energy and Environmental Design (LEED) Green Building Rating 135 SysteroTM promulgated and administered by the U.S. Green Building Council. 136 6. NO TOWN ZONING OBLIGATIONS. Nothing in this Agreement is intended 137 to or shall be construed as imposing any obligation on the Town or the Town Council to approve 138 any comprehensive plan revision or any zoning, rezoning, planned unit development, subdivision 139 or similar application submitted by any RW Affiliate. The Town and the Town Council shall 140 retain discretion to deny any such application to the fullest extent permitted by applicable law, 141 including, without limitation, the Code. 142 7. MISCELLANEOUS PROVISIONS. 143 A. Amendment of this Agreement. This Agreement may be amended, 144 terminated or superceded only by mutual consent in writing of the Parties, following the 145 Town's public notice and public hearing procedures required for approval of this 146 Agreement. No consent of any third party will be required for the negotiation and 147 execution of any such amendment. 148 B. Entire Agreement. This Agreement contains the entire agreement between 149 the Parties and no statement, promise or inducement made by either Party or the agent of 150 either Party that is not contained in this Agreement will be valid or binding. 151 C. Third Party Challenges. In the event of any Legal Challenge by a third 152 party to the validity or enforceability of any provision of this Agreement, the Parties will 4 153 cooperate in the defense of such challenge, but will bear their own costs and attorneys' 154 fees. Unless otherwise provided herein, during the pendency of any such Legal 155 Challenge, the Parties will abide by and carry out all of the terms of this Agreement, 156 unless otherwise ordered by a court of competent jurisdiction. 157 D. Severability of Provisions. If any term, provision, covenant or condition 158 of this Agreement is held by a court of competent jurisdiction to be invalid, void or 159 unenforceable, the remaining provisions of this Agreement will continue in full force and 160 effect so long as enforcement of the remaining provisions would not be inequitable to the 161 Party against whom they are being enforced under the facts and circumstances then 162 pertaining, or substantially deprive such Party of the benefit of its bargain. 163 E. Applicable Law. This Agreement will be enforceable according to the 164 laws of the State of Colorado. 165 F. Notices. Any notice or communication required or permitted under this 166 Agreement must be in writing, and may be given either personally, by Federal Express or 167 similar next-day delivery service, or by registered or certified mail, return receipt 168 requested. If given by registered or certified mail, the same will be deemed to have been 169 given and received on the first to occur of (i) actual receipt by any of the addressees 170 designated below as the Party to whom notices are to be sent, or (ii) five days after a 171 registered or certified letter containing such notice, properly addressed, with postage 172 prepaid, is deposited in the United States mail. If given by Federal Express or similar 173 next-day delivery service, a notice will be deemed to have been given and received on the 174 immediately following business day. If personally delivered, a notice will be deemed to 175 have been given and received when delivered to the Party to whom it is addressed. Any 176 Party hereto may at any time, by giving written notice to the other Party hereto as 177 provided in this Section F, designate additional persons to whom notices or 178 communications will be given, and designate any other address in substitution of the 179 address to which such notice or communication will be given. Such notices or 180 communications will be given to the Parties at their addresses set forth below: 181 If to Town: 182 Town of Snowmass Village 183 Attn: Town Manager 184 P.O. Box 5010 185 16 Kearns Road 186 Snowmass Village, CO 81615 187 With a required copy to: 188 Town of Snowmass Village 189 Attn: Town Attorney 190 P.O. Box 5010 191 16 Kearns Road 192 Snowmass Village, CO 81615 5 193 If to BVO, BCE or Related WestPae: 194 c/o Related WestPac 195 Attn: Patrick Smith 196 132 West Main, Suite A 197 Aspen, CO 81611 198 With required copies to: 199 Otten, Johnson, Robinson, Neff&Ragonetti,.P.C. 200 Attn: Bart Johnson 201 420 E. Main Street, Suite 210 202 Aspen, Colorado 81611 203 G. No Third Party Beneficiaries/Third Party Agreements. Nothing expressed 204 or implied in this Agreement is intended or will be construed to confer upon, or to give 205 to, any legal person other than the Parties, any right, remedy, or claim under or by reason 206 of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of 207 the covenants, terms, conditions, and provisions in this Agreement by and on behalf of 208 the Parties will be for the sole and exclusive benefit of the Parties. Nothing in this 209 Agreement is intended to interfere with the agreements of the Parties with third parties. 210 H. Further Assurances. Each Party will execute and deliver such documents 211 or instruments and take such action as may be reasonably requested by the other Party to 212 confirm or clarify the intent of the provision hereof and to effectuate the agreements 213 herein contained and the intent hereof. 214 1.Waiver. No waiver of one or more of the terms of the Agreement will 215 constitute a waiver of other terms. No waiver of any provision of this Agreement in any 216 instance will constitute a waiver of such provision in other instances. 217 J.Titles of Sections and Articles. Any titles of the several parts, articles and 218 sections of this Agreement are inserted for convenience or reference only and will be 219 disregarded in construing or interpreting any of its provisions. 220 K. Exhibits. All exhibits to this Agreement will be incorporated herein and 221 deemed a part of this Agreement. 222 remainder of page intentionally blank] 223 6 223 IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized 224 representatives to executed this Agreement as of the day and year first above written. 225 TOWN: 226 TOWN OF SNOWMASS VILLAGE, 227 COLORADO 228 229 Douglas Mercatoris, Mayor 230 ATTEST: 231 232 Rhonda Coxon, Town Clerk 233 APPROVED AS TO FORM: 234 235 John C. Dresser, Jr., Town Attorney 236 7 236 BCE: 237 BRUSH CREEK ESTATES LLC, a Colorado 238 limited liability company 239 By: 240 Name: Patrick N. Smith 241 Title:Manager 242 BVO: 243 BASE VILLAGE OWNER LLC, a Delaware 244 limited liability company, 245 By: 246 Name: Patrick N. Smith 247 Title: Manager 248 RELATED WESTPAC: 249 RELATED WESTPAC LLC, a Delaware 250 limited liability company, 251 By: 252 Name: Patrick N. Smith 253 Title: Manager 254 STATE OF COLORADO 255 ss: 256 COUNTY OF PITKIN 257 The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as 258 Manager of BRUSH CREEK ESTATES LLC, a Colorado limited liability company, this 259 day of 2007. 260 WITNESS my hand and official seal. 261 My commission expires: 262 263 Notary Public 8 264 STATE OF COLORADO 265 ss: 266 COUNTY OF PITKIN 267 The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as 268 Manager of RELATED WESTPAC LLC, a Delaware limited liability company. 269 WITNESS my hand and official seal. 270 My commission expires: 271 272 Notary Public 273 STATE OF COLORADO 274 ss: 275 COUNTY OF PITKIN 276 The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as 277 Manager of BASE VILLAGE OWNER LLC, a Delaware limited liability company. 278 WITNESS my hand and official seal. 279 My commission expires: 280 281 Notary Public 9 EXHIBIT A Definitions For purposes of this Agreement, the following terms_ and references have the following meanings: 1.Agreement" means this Hotel Development Agreement and any Exhibits attached hereto, all of which are incorporated herein by this reference, as amended in accordance with its terms. 2.Base Village Property" means the real property that is legally described on Exhibit C. 3.Brush Creek Estates Property" means the real property that is legally described on Exhibit B. 4.Code" means the Snowmass Village Land Use and Development Code, codified as Chapter 16A of the Snowmass Village Municipal Code, as amended from time to time. 5.Effective Date" means the date set forth in the initial paragraph of this Agreement, which is the effective date of Ordinance No. 15, Series of 2007, adopted by Town Council to approve this Agreement. 6.Hotel" means a building or group of buildings or portion thereof that (A) contains rooms, areas or separate spaces intended for temporary occupancy by guests typically by the day or week (though it may be for longer periods), each of which contains sanitation facilities and may contain a small kitchen area, and (B) generally offers one or more enhanced levels of service, such as: (i) a level of staffing, amenities, service or facilities above that customarily found in multi- family dwellings; (ii) twenty-four-hour front lobby check-in with in-house maid, concierge, room and maintenance services; and (iii) standardized fixtures and furnishings with central telephone, internet, cable television, heating, air conditioning and hot water systems for all units. 7.Hotel Room" means each separately rentable unit, room or group of rooms within a Hotel. Each so-called "lock-off' room or group of rooms that may be separately rented by locking it/them off from the room or group of rooms to which they are ordinarily connected shall count as a separate Hotel Room for the purposes of this definition. 8.Legal Challenge" means any of the following: (1) any third party commences any legal proceeding or other action that directly or indirectly challenges any action of approval by the Town Council, whether by resolution or ordinance; or 2) any person submits a petition for a referendum seeking to reverse or nullify any such approval by the Town Council; or (3) any person submits a petition for A-1 an initiated measure that would have the effect of directly or indirectly invalidating any such approval by the Town Council. 9.Party(ies)" means, individually or collectively as applicable, the original signatory parties to this Agreement and their respective successors or assigns. 10. "RW Affiliates" means BVO, BCE, Related WestPac and any other entity that (a) is the owner in fee simple of real property in the Town; and (b) controls, is controlled by, or is under common control with Related WestPac. 11. "Town Council" means the town council of the Town. 12. "West Village" means the area of the Town bounded to the east by the Fanny Hill ski run of the Snowmass Ski Area, to the south by Gallun Lane, to the west by the west boundary of the Town's numbered parking lots and to the north by Campground Lane. A-2 EXHIBIT B Legal Description of the Brush Creek Estates Property Parcels H and H-1, Faraway Ranch Subdivision, as shown on the Gross Parcel Plat of Faraway Ranch Subdivision recorded on March 18, 1985 in Plat Book 17 at Page 5, County of Pitkin, State of Colorado. B-1 EXHIBIT C Legal Description of the Base Village Property Lots 1 through 9, inclusive, according to Base Village P.U.D. Final Plat recorded February 2, 2006, at Reception No. 520483, Plat Book 77, Page 30, Pitkin County, Colorado records. C-1 EXHIBIT D Form of Deed of Trust from BCE see pa d5ar, OPINAWce C}tIB T FoR of TILM sT" D-1 ATTACHMENT 2 EXECUTIVE SUMMARY OF HOTEL DEVELOPMENT AGREEMENT Changes indicated in Bold Underline) Related WestPac will be obligated to cause a"Qualified Hotel" to be constructed in West Village by not later than April 15, 2017. The Qualified Hotel will: (a) be subject to an agreement with a nationally-recognized hotel chain that requires the Hotel to be operated under such chain's brand name; (b) have at least 234 keys; (c) have net conference space of 40 square feet per key; and (d) have a condominium structure and rental/management contract that will strongly motivate owners to participate in the rental program, with supporting documentation required to be provided to the Town. Related WestPac will be required to pay the Town $8,000,000.00 if Related WestPac does not cause a Qualified Hotel to be constructed within the West Village by April 15, 2017. And Related WestPac also could not get building permits for more than 50% of its West Village development until it obtained a building permit for the Hotel and it could not get a certificate of occupancy on more than 50% of its development in West Village until the Oualified Hotel is completed. Related WestPac would only be relieved of its obligation to build the Qualified Hotel if a) the necessary final Town approval is overturned by court action, referendum or initiative, or (b) the Town Council denies a good faith application that does not require any special approvals from a super-majority of Town Council. All contingencies related to Comp Plan revisions have been removed. The intermediate remedy amount of$2,000,000 has been removed. Related WestPac's financial obligations to the Town will be secured by a first deed of trust on the Brush Creek Estates single-family property, with the value verified by an appraisal and additional security put up as needed: This deed of trust could only be released before Related WestPac fulfills its obligations if cash-equivalent financial security is put up in its place. Related WestPac will not oppose the Town's adoption of overlay zoning regulations that will reasonably limit owner occupancy of the units within the Qualified Hotel to a specific number of consecutive days per stay within the summer and off-season times of each year. Related WestPac will work in good faith to provide continuously available conference facilities within the Town during the course ofconstruction within Base Village Property, the West Village and the Snowmass Center property. Related WestPac will use commercially reasonable efforts to obtain a "LEED Silver" rating for Buildings 13A and 13B in Base Village. 763034.2 MOM 091201071118 1 1 2 TOWN OF SNOWMASS VILLAGE 3 TOWN COUNCIL 4 5 ORDINANCE NO. 15 6 SERIES OF 2007 7 8 AN ORDINANCE CONSIDERING A MINOR PUD AMENDMENT TO CONDITIONALLY 9 DELETE CONDITION NO. 07 OF ORDINANCE NO. 21, SERIES OF 2004 (BASE Io VILLAGE FINAL PUD). II 12 WHEREAS, the Base Village Final Planned Unit Development ("BV PUD") was 13 approved by Town Council Ordinance No. 21, Series of 2004 ("Ordinance 21"); and 14 15 WHEREAS, Condition No. 7 ("Condition 7) of Ordinance 21, attached as Exhibit 16 "A" of said ordinance, concerned Buildings 13A and 13B ("Base Village Hotel") within the 17 BV PUD and set forth certain requirements that needed to be satisfied prior to the 18 issuance of a building permit for said buildings, Phase 2A or any subsequent phase of 19 the BV PUD; and 20 21 WHEREAS, Related WestPac, LLC on behalf of Base Village Owner, LLC 22 ("Applicant') submitted a Minor PUD Amendment application dated May 16, 2007, to 23 modify certain provisions of Condition 7, as described in Exhibit 'B" attached hereto and 24 incorporated herein by reference; and 25 26 WHEREAS, the request principally involved a conditional waiver of the 27 requirements of subparagraph (a) of said condition specifying that the Applicant enter 28 into an agreement with a nationally-recognized hotel chain (such as a Westin, Hyatt or 29 Hilton); and 30 31 WHEREAS, this waiver request was to conditionally allow the Base Village Hotel 32 to be operated by Kor Hotel Group as a Viceroy Hotel brand; and 33 34 WHEREAS, said request was considered by the Planning Commission on said 35 date and their recommendations were set forth in Resolution No. 12, Series of 2007; 36 and 37 38 WHEREAS, the Applicant submitted an addendum to their application dated 39 June 11, 2007 and the application, as amended, was presented to the Town Council 40 during their June 18, 2007 meeting; and 41 42 WHEREAS, Town Council Ordinance No. 9, Series of 2007, being an ordinance 43 considering granting first reading approval of the subject application, was denied on said 44 date; and 45 46 WHEREAS, a new application was submitted on July 6, 2007 requesting an 47 amendment of Ordinance 21 to modify Condition 7 whereby the Applicant offered to 48 enter into a Development Agreement, attached hereto as Exhibit "C', to transfer certain 49 requirements in Ordinance 21 and to secure a location for a new conference hotel in 50 Snowmass Village, subject to the review and standards of the Town; and TC Ord. 07-15 Page 2 of 4 51 52 WHEREAS, the Applicant further proposes that the amendment to modify 53 Condition 7 would be subject to certain conditions as specified in Section Four below; 54 and 55 56 WHEREAS, a meeting was held before the Planning Commission on July 18, 57 2007; and 58 59 WHEREAS, the request was considered by the Planning Commission on said 60 date and their recommendations were set forth in Resolution No. 13, Series of 2007; 61 and 62 63 WHEREAS, the Public Hearing before the Town Council was held on September 64 4, 2007 to receive public comment on the Application; and 65 66 WHEREAS, the Town Council has reviewed the application, heard the 67 recommendations of the Town Staff and Planning Commission as well as the public 68 comments; and 69 70 WHEREAS, pursuant to the terms of Condition 7, this amendment must be 71 approved by at least 3/4 of the members of the Town Council present and voting. 72 73 NOW, THEREFORE, BE IT ORDAINED by the Town Council of the Town of Snowmass 74 Village, Colorado: 75 76 Section One: General Findings. Subject to the provisions of Section Four of this 77 Ordinance, the Town Council generally finds: 78 79 1.The Applicant has submitted sufficient information pursuant to Section 80 16A-5-390 of the Municipal Code to permit the Town Staff and the Town 81 Council an adequate review of the proposed Minor PUD Amendment. 82 83 2.The application is consistent with the applicable review standards 84 specified within Section 16A-5-390(3) of the Municipal Code. 85 86 Section Two: Specific Findings. The Town Council specifically finds: 87 88 A. Consistent with original PUD. The amendment is consistent with, or an 89 enhancement of, the original PUD approval. The report submitted to the Town of 90 Snowmass Village by Hunden Strategic Partners concludes that a Viceroy hotel 91 could achieve the underlying goals of the Base Village P.U.D. approval regarding 92 High Occupancy Turnover ("H.O.T.") beds and occupancy; however, it indicates 93 that the approved design of the buildings may not be ideally suited for larger 94 conference business use. 95 PAuser\cconrad\MS Word Docs\Base Village\Post Final PUD12007 Minor PUD Amend Condition 7 Dev AgrmtlTC Second Reading\TC Ord 0745 - BV Minor PUD 2nd Amend Dev Agrmt 2nd Read.doc TC Ord.07-15 Page 3 of 4 96 The proposed Development Agreement proposes the development of a new hotel 97 within the West Village area as set forth within Exhibit "C". The Town Council 98 finds that this proposal, if successfully implemented, represents an enhancement 99 of the purpose and intent of Condition 7 as originally approved. 100 101 A. No substantially adverse impact. The proposed amendment will not have a 102 substantially adverse effect on the neighborhood surrounding the land or have a 103 substantially adverse impact on the enjoyment of land abutting upon or across 104 the street from the subject property. 105 106 B. Not change character. The proposed amendment will not change the basic 107 character of the PUD or surrounding areas. 108 109 C. Comply with other applicable standards. The proposed amendment has 110 been found to comply with the other applicable standards of this Division 3, III Planned Unit Development 112 113 Section Three: Action. The Town Council hereby approves the Minor PUD Amendment 114 of Ordinance 21 to modify Condition 7 and require a Development Agreement, attached 115 hereto as Exhibit "C", that will secure a location for a conference hotel. Said approval 116 shall be subject to the conditions contained within Section Four below. 117 118 Section Four: Conditions of Approval. The Town Council hereby approves the 119 Application subject to the following conditions: 120 121 1. Prior to issuance of building permit for foundation construction purposes, the 122 Applicant must provide to the Town an executed agreement with Kor Hotel 123 Group that requires Buildings 13A and 13B to be operated as a Viceroy 124 brand hotel that meets the American Automobile Association's "Four 125 Diamond" standards. 126 127 2. The effectiveness of the foregoing amendment is conditioned on the 128 Applicant causing Related WestPac, LLC and Brush Creek Estates, LLC to 129 enter into with the Town a "Development Agreement Concerning Center 130 Conference Hotel" in the form attached as Exhibit "C". 131 132 3. Said agreement shall be recorded, at Applicant's expense, in the records of 133 the Pitkin County Clerk and Recorder. 134 135 4. The final condominium documents for the Master Association and 136 condominium unit association for the Base Village Hotel shall be reviewed 137 and approved by the Town prior to recording the condominium map to 138 ensure the operational model outlined within the governance structure 139 described in Exhibit `D" will be implemented. 140 P:\useAcconrad\MS Word Docs\Base Village\Post Final PUD2007 Minor PUD Amend Condition 7 Dev Agrmf\TC Second Reading\TC Ord 07-15 - BV Minor PUD 2nd Amend Dev Agrmt 2nd Read.doc TC Ord. 07-15 Page 4 of 4 141 Section Five. Severability. If any provision of this Ordinance or application hereof to 142 any person or circumstance is held invalid, the invalidity shall not affect any other 143 provision or application of this Ordinance which can be given effect without the invalid 144 provision or application, and, to this end, the provisions of this Ordinance are severable. 145 146 INTRODUCED, READ, AND APPROVED on first reading by the motion of Mayor 147 Mercatoris and the second of Council Member Wilkinson by a vote of 4 in favor and 1 14s against, on this 6th day of August, 2007. Council Member Mordkin opposed. 149 150 APPROVED, READ, AND ADOPTED on second reading by the motion of 151 Council Member and the second of Council Member 152 by a vote of in favor and against, on this 24th day of September, 2007. 153 154 TOWN OF SNOWMASS VILLAGE 155 156 157 158 Douglas Mercatoris, Mayor 159 160 ATTEST: 161 162 163 164 Rhonda B. Coxon, Town Clerk 165 166 167 APPROVED AS TO FORM: 168 169 170 171 John C. Dresser, Jr., Town Attorney 172 P.\usercconrad\MS Word Docs\Base Village\Post Final PUD\2007 Minor PUD Amend Condition 7 Dev Agrmt\TC Second Reading\TC Ord 07-15 - BV Minor PUD 2nd Amend Dev Agrmt 2nd Read.doc Exhibit "A" Ordinance No. 15, Series of 2007 Page 1 of 1) Condition No. 7 (the "Condition") of Ordinance No. 21, Series of 2004 concerned Buildings 13A and 13B, Base Village PUD as follows: Section Three. Conditions. As conditions of the final approvals granted herein, the Applicant will comply with the following: 7. Phase 2A Condition Precedent. Prior to the issuance of a building permit for Phase 2A or any subsequent phase of the Project, the Applicant will provide to the Town evidence that: a. the Applicant has entered into an agreement with a nationally- recognized hotel chain (such as a Westin, Hyatt or Hilton) that requires Buildings 13A and 13B to be operated as a "four diamond" hotel, as such standards are determined by the American Automobile Association, under such chain's brand name; and b. all residential two and three-bedroom units with bedrooms located on or having access to a main hallway in Buildings 13A and 13B have been converted to 14 additional lockoffs. This condition may only be waived or modified in accordance with the provisions of Section 16A-5-390 of the Municipal Code for a PUD amendment approved by at least 3/4 of the members of the Town Council present and voting. Exhibit "B" Ordinance No. 15, Series of 2007 Page 1 of 1) Proposed Condition 7 Amendment being the subject of Ordinance No. 9, Series of 2007 Ordinance Denied on June 18, 2007) The requirements of subparagraph (a) of Condition 7 of Ordinance 21, Series of 2004, are hereby waived to permit Buildings 13A and 13B to be operated by Kor Hotel Group as a Viceroy brand hotel. The foregoing waiver is limited by and subject to the following conditions: 1) Prior to issuance of a building permit for excavation purposes, the Applicant must provide to the Town an executed agreement with Kor Hotel Group that requires Buildings 13A and 13B to be operated as a Viceroy brand hotel that meets the American Automobile Association's "Four Diamond" standards. 2) If Kor Hotel Group (or any successor to it by merger or acquisition) ceases to operate Buildings 1 3A and 13B as a hotel under its Viceroy brand, then at the Town Council's request, the owner shall be required to either a) enter into a new operating agreement to operate Buildings 1 3A and 13B under a nationally-recognized hotel chain with a level of recognition comparable to Westin, Hyatt or Hilton pursuant to the American Automobile Association's "Four Diamond" standards; or b) obtain approval of a waiver or modification of this requirement for another specified operator by a three-fourths (3/4) majority of the present and voting members of the Town Council pursuant to the procedures for a PUD amendment in Section 16A-5-390 of the Snowmass Village Municipal Code. Exhibit "C" Ordinance No. 13, Series of 2007 Page 1 of 25) HOTEL DEVELOPMENT AGREEMENT THIS HOTEL DEVELOPMENT AGREEMENT is made and entered into as of this_ day of 2007 (the "Effective Date"), by and between the TOWN OF SNOWMASS VILLAGE, a home rule municipal corporation and political subdivision of the State of Colorado ("Town"), BASE VILLAGE OWNER LLC, a Delaware limited liability company(together with its successors and assigns, `BVO"), BRUSH CREEK ESTATES LLC, a Colorado limited liability company (together with its successors and assigns, "BCE"), and RELATED WESTPAC LLC, a Delaware limited liability company (together with its successors and assigns, "Related WestPae"). Recitals This Agreement is made with reference to the following facts: A. Capitalized terms in this Agreement not otherwise defined in the body of this Agreement have the meanings set forth in Exhibit A. B. BVO is the owner in fee simple of the Base Village Property. The Base Village Property is a planned unit development under the Code pursuant to the Base Village Planned Unit Development (the `BV PUD") approved by the Town Council pursuant to Ordinance No. 21, Series of 2004("Ordinance 21"). C. Condition 7 of Ordinance 21 concerned Buildings 13A and 13B within the Base Village Property and set forth certain requirements that needed to be satisfied prior to the issuance of a building permit for the construction of any buildings within Phase 2A or any subsequent phase ofthe BV PUD. Pursuant to its final approval on second reading of Ordinance No. 15, Series of 2007, the Town Council has approved a modification of Condition 7 for the purpose of modifying and extending the timeframe for compliance with some of these requirements and transferring them, through this Agreement, to the West Village in connection with Related WestPac's future redevelopment plans for the West Village. This modification to Condition 7 was made for the purpose of allowing construction of Buildings 13A and 13B to proceed and to permit such buildings to be operated by Kor Hotel Group as a Viceroy Hotel. D. BVO, BCE and Related WestPac desire to enter into this Agreement with the Town to satisfy the requirements Ordinance No. 15, Series of 2007. NOW, THEREFORE, in consideration ofthe terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows: Exhibit "C" Ordinance No. 15, Series of 2007 . Page 2 of 25) Agreement 1. QUALIFIED HOTEL STANDARDS. The term "Qualified Hotel" means a new Hotel that will: A. At the time a building permit is issued (and as a condition to the issuance of such building permit by the Town) be subject to an agreement with a nationally- recognized hotel chain that requires the Hotel to be operated under such chain's brand name. B. Have at least 234 Hotel Rooms. C. Include conference facilities with a net floor area of 40 square feet per Hotel Room, including conference meeting spaces and ballroom space, but not including pre-function areas, kitchens, bathrooms, storage areas or other back-of-house areas. D. Be a condominium Hotel (meaning the rooms are separate condominium units), which Hotel must include a rental/management program and a legal structure that will encourage owners, consistent with the limits of applicable securities laws, to enroll their units in such rental/management program. In addition, Related WestPac, for itself and the other RW Affiliates, agrees that as a condition to final approval of the Qualified Hotel, the Town will have the right to require that drafts of the proposed condominium and rental/management documents be provided to the Town to enable it to verify the implementation of the required legal structure. 2. OBLIGATION TO CONSTRUCT A QUALIFIED HOTEL. Subject to the other terms of this Agreement, Related WestPac shall cause a Qualified Hotel to be constructed as evidenced by a certificate of occupancy) within the West Village by not later than April 15, 2017. 3. TOWN REMEDY. The following provisions provide the remedy the Town will have if Related WestPac fails to cause a Qualified Hotel to be constructed (as evidenced by a certificate ofoccupancy) within the West Village by not later than April 15, 2017. A. Related WestPac shall be required to pay the Town $8,000,000.00 (the Remedy Amount"), if Related WestPac does not cause a Qualified Hotel to be constructed (as evidenced by a certificate of occupancy) within the West Village by not later than April 15, 2017. B. Upon the Town's receipt of the Remedy Amount from Related WestPac pursuant to Section 3 above, this Agreement and all additional obligations under this Agreement shall terminate. In addition, notwithstanding the provisions of Section 3 above, this Agreement shall terminate and Related WestPac shall be released from its obligation to cause a Qualified Hotel to be constructed within the West Village ifRelated WestPac is prevented from constructing a Qualified Hotel within the West Village by April 15,2,017 as a result of: 2 Exhibit "C" Ordinance No. 15, Series of 2007 Page 3 of 25) i.a successful Legal Challenge to any Town approval for a Qualified Hotel within the West Village,or ii. the Town Council's final denial of a "Qualified Application" (as defined below) for a Qualified Hotel in the West Village submitted by any RW Affiliate. The tent "Qualified Application" means an application for a Qualified Hotel in the West Village that: (a) satisfies the submission requirements of the Code, including consent from the land owner if other than the applicant; (b) does not seek any variations or other special approvals requiring approval from a super-majority of the Town Council; and (c) is processed diligently and in a good faith attempt to obtain approval, with the applicant making adjustments and modifications in response to the Town staff's, the Planning Commission's and the Town Council's reasonable concerns and comments. 4. SECURITY FOR TOWN REMEDY. The remedy available to the Town under Section 3 shall be secured pursuant to the following provisions of this Section 4. As of the Effective Date,BCE shall deliver to the Town a fully executed and notarized deed of trust, in the form attached to this Agreement as Exhibit D, granting a first position lien on the Brush Creek Estates Property to secure the payment obligation of Related WestPac contained in Section 3 (the BCE Deed of Trust"). Within two weeks following the Effective Date, BCE shall deliver to the Town an appraisal of the fair market value of the Brush Creek Estates Property prepared by a qualified, independent appraiser approved by the Town Manager. If the appraised fair market value of the Brush Creek Estates Property pursuant to such appraisal is less than the Remedy Amount (the amount of such shortfall being the "Shortfall Amount"), then Related WestPac shall be required to provide the Town with an irrevocable financial instrument (the "Shortfall Security Instrument")that will have a liquid cash value of not less than the Shortfall Amount as of April 15, 2017. The BCE Deed of Trust and the Shortfall Security Instrument shall remain in effect until the earlier to occur of (a) the satisfaction by Related WestPac of its obligation to cause the construction of a Qualified Hotel pursuant to Section 2, (b) the termination of such obligation pursuant to Section 3.13, or(c)Related WestPac causes the BCE Deed of Trust and the Shortfall Security Instrument to be replaced with (X) another first position deed of trust on real property with a value at least equal to the then Remedy Amount, or(Y) security in the form of an irrevocable financial instrument that will have a liquid cash value of not less than the Remedy Amount as of April 15, 2017, or(Z) a combination of another first position deed of trust and an irrevocable financial instrument that together will provide the Town with security in an amount of not less than the Remedy Amount as of April 15,2017, 5. ADDITIONAL OBLIGATIONS. A. West Village Phasing. Related WestPac agrees that (i) the Town shall have the right to withhold building permits for all construction proposed by the RW Affiliates in West Village in excess of 50% of the total rentable and/or saleable floor area proposed in West Village by all RW Affiliates until such time as a building permit has been obtained for a Qualified Hotel in West Village; and (ii) no certificate of occupancy may be received by any RW Affiliate for more than 50% of the total rentable and/or saleable floor area proposed in West Village by all RW Affiliates until a certificate of 3 Exhibit "C" Ordinance No. 15, Series of 2007 Page 4 of 25) occupancy has been issued for a Qualified Hotel in West Village. Related WestPac, for itself and the other RW Affiliates, agrees that the phasing obligation described in the preceding sentence shall be incorporated into the final approval for the Qualified Hotel and shall be articulated in terms of actual square footage numbers for the Qualified Hotel property and the other areas ofWest Village being developed by the RW Affiliates. B. No Opposition to Certain Code Changes. Related WestPac, for itself and all RW Affiliates, agrees that it will not oppose the Town's adoption of overlay zoning regulations that will apply specifically to the Qualified Hotel property for the purpose of reasonably limiting owner occupancy of the units within the Qualified Hotel to a specific number of consecutive days per stay within the summer and off-season times of each. year. C. Availability of Conference Space. Related WestPac will work in good faith to provide continuously available conference facilities within the Town during the course of construction within Base Village Property, the West Village and the Snowmass Center property. Given the uncertainty of future development and entitlements processes, it is agreed that demolishing the existing conference structures and providing new conference facilities will be addressed in the specific conditions of future entitlements in either the West Village and/or the Snowmass Center. D. LEED Rating. In addition to the other obligations contained in this Agreement, BVO agrees that it will use commercially reasonable efforts to obtain a LEED Silver" rating for Buildings 13A and 13B in the BV PUD pursuant to the Leadership in Energy and Environmental Design (LEED) Green Building Rating SystemTMpromulgated and administered by the U.S. Green Building Council, 6. NO TOWN ZONING OBLIGATIONS. Nothing in this Agreement is intended to or shall be construed as imposing any obligation on the Town or the Town Council to approve any comprehensive plan revision or any zoning,rezoning,planned unit development, subdivision or similar application submitted by any RW Affiliate. The Town and the Town Council shall retain discretion to deny any such application to the fullest extent permitted-by applicable law, including,without limitation,the Code. . 7. MISCELLANEOUS PROVISIONS. A. Amendment of this Agreement. This Agreement may be amended, terminated or superceded only by mutual consent in writing of the Parties, following the Town's public notice and public hearing procedures required for approval of this Agreement. No consent of any third party will be required for the negotiation and execution ofany such amendment. B. Entire Agreement. This Agreement contains the entire agreement between the Parties and no statement, promise or inducement made by either Party or the agent of either Party that is not contained in this Agreement will be valid or binding. C. Third Party Challenges. In the event of any Legal Challenge by a third party to the validity or enforceability of any provision of this Agreement, the Parties will 4 Exhibit "C" Ordinance No. 15, Series of 2007 Page 5 of 25) cooperate in the defense of such challenge, but will bear their own costs and attorneys' fees. Unless otherwise provided herein, during the pendency of any such Legal Challenge, the Parties will abide by and carry out all of the terms of this Agreement, unless otherwise ordered by a court of competent jurisdiction. D. Severability of Provisions. 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 will continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the Party against whom they are being enforced under the fact's and circumstances then pertaining, or substantially deprive such Party of the benefit of its bargain. E. Applicable Law. This Agreement will be enforceable according to the laws ofthe State of Colorado. F. Notices. Any notice or communication required or permitted under this Agreement must be in writing, and may be given either personally,by Federal Express or similar next-day delivery service, or by registered or certified mail, return receipt requested. If given by registered or certified mail,the same will be deemed to have been given and received,on the first to occur of (i)actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii)five days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar next-day delivery service, a notice will be deemed to have been given and received on the immediately following business day. If personally delivered, a notice will be deemed to have been given and received when delivered to the Party to whom it is addressed. Any Party hereto may at any time, by giving written notice to the other Party hereto as provided in this Section F, designate additional persons to whom notices or communications will be given, and designate any other address in substitution of the address to which such notice or communication will be given. Such notices or communications will be given to the Parties at their addresses set forth below: If to Town: Town of Snowmass Village Attn: Town Manager P.O. Box 5010 16 Kearns Road Snowmass Village,CO 81615 With a required copy to: Town of Snowmass Village Attn: Town Attorney P.O.Box 5010 16 Kearns Road Snowmass Village, CO 81615 5 Exhibit "C" Ordinance No. 15, Series of 2007 Page 6 of 25) If to BVO, BCE or Related WestPae: c/o Related WestPac Attn: Patrick Smith 132.West Main, Suite A Aspen,CO 81611 With required copies to: Otten,Johnson,Robinson,Neff&Ragonetti, P.C. Attn: Bart Johnson 420 E. Main Street, Suite 210 Aspen, Colorado 81611 G. No Third Party Beneficiaries/Third Party Agreements. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon, or to give to, any legal person other than the Parties, any right,remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the Parties will be for the sole and exclusive benefit of the Parties. Nothing in this Agreement is intended to interfere with the agreements of the Parties with third parties. H. Further Assurances. Each Party will execute and deliver such documents or instruments and take such action as may be reasonably requested by the other Party to confirm or clarify the intent of the provision hereof and to effectuate the agreements herein contained and the intent hereof. I.Waiver. No waiver of one or more of the terms of the Agreement will constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance will constitute a waiver of such provision in other instances. J. Titles of Sections and Articles.. Any titles of the several parts, articles and sections of this Agreement are inserted for convenience or reference only and will be disregarded in construing or interpreting any of its provisions. K. Exhibits. All exhibits to this Agreement will be incorporated herein and deemed a part of this Agreement. remainder of page intentionally blank] 6 Exhibit "C" Ordinance No. 15, Series of 2007 Page 7 of 25) IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to executed this Agreement as of the day and year first above written. TOWN: TOWN OF SNOWMASS VILLAGE, COLORADO Douglas Mercatoris,Mayor ATTEST: Rhonda Coxon, Town Clerk APPROVED AS TO FORM: John C.Dresser,Jr.,Town Attorney 7 Exhibit "C" Ordinance No. 15, Series of 2007 Page 8 of 25) BCE: BRUSH CREEK ESTATES LLC,a Colorado limited li bility company Name: Patrick'—N. Smith Title:Manager BVO: BASE VILLAGE OWNER LLC,a Delaware limited liability company, Name: Patrick N. Smith Title: Manager RELATED WESTPAC: RELATED WESTPAC LLC, a Delaware limited liability company, Name: Patrick N. Smith Title:Manager STATE OF COLORADO ss: COUNTY OF PITKIN The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as Manage• of BRUSH CREEK ESTATES LLC, a Colorado limited liability company, this day of rnba r 2007. WITNESS my hand and official seal. My commission expires: I 1 c Notay u im RUaROHR WEtts :8 8 Exhibit "C" Ordinance No. 15, Series of 2007 Page 9 of 25) STATE OF COLORADO ss: COUNTY OF PITKIN 5 O e-m ae l 7 The foregoing instrument was subscribed and sworn to m(Aby Patrick N. Manager ofRELATED WESTPAC LLC,a Delaware limited liability company.BAR..pVe WITNESS my hand and official seal. J AMY 1T 131 H e My commission expires: U 21 o WELLS 4 y) _ OF COQ Notar ublic STATE OF COLORADO ss:V07 COUNTY OF PITKIN The foregoing instrument was subscribed and sworn to menby Patrick p tnith, as N. Manager of BASE VILLAGE OWNER LLC,a Delaware limited liability compan 2 AW j t WITNESS my hand and official seal. My commission expires: 0)27 O$OF Notary Pb is 9 Exhibit "C" Ordinance No. 15, Series of 2007 Page 10 of 25) EXHIBIT A Definitions For purposes of this Agreement, the following terms and references have the following meanings: 1. "Agreement" means this Hotel Development Agreement and any Exhibits attached hereto, all ofwhich are incorporated herein by this reference, as amended in accordance with its terms. 2. "Base Village Property" means the real property that is legally described on Exhibit C. 3. "Brush Creek Estates Property" means the real property that is legally described on Exhibit B. 4. "Code"means the Snowmass Village Land Use and Development Code, codified as Chapter 16A of the Snowmass Village Municipal Code, as amended from time to time. 5. "Effective Date" means the date set forth in the initial paragraph of this Agreement, which is the effective date of Ordinance No. 15, Series of 2007, adopted by Town Council to approve this Agreement. 6. "Hotel" means a building or group of buildings or portion thereof that (A) contains rooms, areas or separate spaces intended for temporary occupancy by guests typically by the day or week(though it may be for longer periods), each of which contains sanitation facilities and may contain a small kitchen area, and (B) generally offers one or more enhanced levels of service, such as: (i) a level of staffing, amenities, service or facilities above that customarily found in multi- family dwellings; (ii) twenty-four-hour front lobby check-in with in-house maid, concierge, room and maintenance services; and (iii) standardized fixtures and furnishings with central telephone, internet, cable television, heating, air conditioning and hot water systems for all units. 7. "Hotel Room" means each separately rentable unit, room or group of rooms within a Hotel. Each so-called "lock-off' room or group of rooms that may be separately rented by locking it/them off from the room or group of rooms to which they are ordinarily connected shall count as a separate Hotel Room for the purposes ofthis definition. 8. "Legal Challenge" means any of the following: (1)any third party commences any legal proceeding or other action that directly or indirectly challenges any action of approval by the Town Council, whether by resolution or ordinance; or 2) any person submits a petition for a referendum seeking to reverse or nullify any such approval by the Town Council; or (3) any person submits a petition for A-1 Exhibit "C" Ordinance No. 15, Series of 2007 Page 11 of 25) an initiated measure that would have the effect of directly or indirectly invalidating any such approval by the Town Council. 9. "Party(ies)" means, individually or collectively as applicable, the original signatory parties to this Agreement and their respective successors or assigns. 10. "RW Affiliates"means BVO, BCE,Related WestPac and any other entity that(a) is the owner in fee simple of real property in the Town; and (b) controls, is controlled by,or is under common control with Related WestPac. 11. "Town Council"means the town council of the Town. 12. "West Village"means the area of the Town bounded to the east by the Fanny Hill ski run of the Snowmass Ski Area,to the south by Gallun Lane, to the west by the west boundary of the Town's numbered parking lots and to the north by Campground Lane. A-2 Exhibit "C" Ordinance No. 15, Series of 2007 Page 12 of 25) EXHIBIT B Legal Description of the Brush Creek Estates Property Parcels H and H-1, Faraway Ranch Subdivision, as shown on the Gross Parcel Plat of Faraway Ranch Subdivision recorded on March 18, 1985 in Plat Book 17 at Page 5, County of Pitkin, State of Colorado. B-1 Exhibit "C" Ordinance No. 15, Series of 2007 Page 13 of 25) EXHIBIT C Legal Description of the Base Village Property Lots 1 through 9, inclusive, according to Base Village P.U.D. Final Plat recorded February 2, 2006,at Reception No. 520483,Plat Book 77, Page 30,Pitkin County, Colorado records. C-1 Exhibit "C" Ordinance No. 15, Series of 2007 Page 14 of 25) EXHIBIT D Form of Deed of Trust from BCE DEED OF TRUST THIS DEED OF TRUST (this "Deed of Trust") is given as of 2007, by the Grantor named below to the Trustee named below, for the use and benefit of the Beneficiary named below. ARTICLE 1 PARTIES, PROPERTY, AND DEFINITIONS The following terms and references shall have the meanings indicated: 1.1 Beneficiary: The TOWN OF SNOWMASS VILLAGE, a home rule municipal corporation and political subdivision of the State of Colorado, whose address is referenced in Section 8.6 below. 1.2 Default Rate: 12.00% per annum. 1.3 Grantor: BRUSH CREEK ESTATES LLC, a Colorado limited liability company, whose address is referenced in Section 8.6 below. 1.4 Related Westpac: Related Westpac LLC, a Delaware limited liability company. 1.5 Hotel Agreement: The Hotel Development Agreement dated 2007, among Beneficiary, Grantor, Related Westpac and Base Village Owner LLC, a Delaware limited liability company, as such agreement may be amended from time to time. 1.6 Permitted Exceptions: The matters of record affecting the Property as of the date this Deed of Trust, as listed on Exhibit B attached to this Deed of Trust. 1.7 Property: The tract or tracts of land described in Exhibit A attached, together with the following: a) Any and all buildings, structures, and improvements now or hereafter located on such tract or tracts, as well as all rights-of-way, easements, and other appurtenances thereto; b) All of Grantor's right, title and interest in any land ,lying between the boundaries of such tract or tracts and the center line of any adjacent street, road, avenue, or alley, whether opened or proposed; 9633193 ICELLE(WPOA)]5:69PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 15 of 25) c) Any and all of the rents, income, receipts, revenues, issues and profits of and from such tract or tracts and improvements, whether such rents, income, receipts, revenues, issues or profits are attributable to the period, or are collected, prior to or subsequent to any default by Grantor; d) Any and all minerals, crops, timber, trees, shrubs, flowers, and landscaping features now or hereafter located on, under or above such tract or tracts; e) Any and all machinery, apparatus, equipment, fittings, and fixtures now or hereafter owned by Grantor and now or hereafter located in, upon, or under such tract or tracts .or improvements and used or usable in connection with any present or future operation thereof; f) Any and all development rights associated with such tract or tracts, whether previously or subsequently transferred to such tract or tracts from other real property or now or hereafter susceptible of transfer from such tract or tracts to other real property; g) Any and all awards and payments, including interest thereon, resulting from the exercise of any right of eminent domain or any other public or private taking of, casualty or injury to, or decrease in the value of, any of such property, including, without limitation, any and all insurance payments and proceeds relating to such property; and h) All other and greater rights and interests of every nature in such tract or tracts and in the possession or use thereof and income therefrom, whether now owned or subsequently acquired by Grantor. 1.8 Secured Obligations: The obligation of Related Westpac to pay Beneficiary 8,000,000 under Section 4.A of the Hotel Agreement, or $2,000,000 under Section 4.B of the Hotel Agreement, to the extent that either such obligation arises under the terms of the Hotel Agreement. 1.9 Trustee: The Public Trustee for the Colorado County, or City and County, in which the Property is located. ARTICLE 2 GRANTING CLAUSE 2.1 Grant to Trustee. As security for the Secured Obligations, Grantor hereby grants, bargains, sells, and conveys the Property to Trustee, in trust, with power of sale, for the use and benefit of Beneficiary, with power of sale, and subject to all provisions hereof. ARTICLE 3 GRANTOR'S TITLE AND AUTHORITY 3.1 Warranty of Title. Grantor represents and warrants to Beneficiary that Grantor has good and marketable title to the Property in fee simple absolute, subject only to the lien of general taxes for the current year, payable the following year, and the Permitted Exceptions. 2 - 7633192 ICEECE 09POffl75.49PNI Exhibit "C" Ordinance No. 15, Series of 2007 Page 16 of 25) Grantor, for itself and its successors and assigns, hereby agrees to warrant and forever defend, all and singular, all of the property and property interest granted and conveyed in trust pursuant to this Deed of Trust, against every person whomsoever lawfully claiming, or to claim, the same or any part thereof. The warranties contained in this Section 3.1 shall survive foreclosure of this Deed of Trust, and shall inure to the benefit of and be enforceable by any person who may acquire title to the Property pursuant to any such foreclosure. 3.2 Waiver of Homestead and Other Exemptions. To the extent permitted by law, Grantor hereby waives all rights to any homestead or other exemption to which Grantor would otherwise be entitled under any present or future constitutional, statutory, or other provision of applicable state or federal law. 3.3 Due Authorization. If Grantor is other than a natural person, then each individual who executes this document on behalf of Grantor represents and warrants to Beneficiary that such execution has been duly authorized by all necessary corporate, partnership, or other action on the part of Grantor. ARTICLE 4 GRANTOR'S AFFIRMATIVE COVENANTS 4.1 Payment of Secured Obligations. Grantor will cause Related Westpac to pay the Secured Obligations, if and when due. 4.2 Payment of Taxes. Grantor will pay, before delinquency, all taxes and assessments, general or special, which may be levied or imposed at any time against Grantor's interest and estate in the Property. Upon Beneficiary's request, Grantor will deliver to Beneficiary an official receipt for such payment. 4.3 Defense of Actions. Grantor will defend, at Grantor's expense, any action, proceeding or claim against any property encumbered hereby or any interest of Beneficiary in such property, and will indemnify and hold Beneficiary harmless from all loss, damage, cost, or expense, including attorneys' fees, which Beneficiary may incur in connection therewith. 4.4 Expenses of Enforcement. Grantor will pay all costs and expenses, including attorneys' fees, which Beneficiary may incur in connection with any effort or action (whether or not litigation or foreclosure is involved) to enforce or defend Beneficiary's rights and remedies under any this Deed of Trust, including, without limitation, all attorneys' fees, appraisal fees, consultants' fees, and other expenses incurred by Beneficiary in securing title to or possession of, and realizing upon, any property encumbered hereby or any interest of Beneficiary in such property, that is security for the Secured Obligations. All such costs and expenses shall constitute part of the Secured Obligations, and may be included in the computation of the amount owed to Beneficiary for purposes of foreclosing or otherwise enforcing this Deed of Trust. 4.5 Further Assurances; Estoppel Certificates. Grantor will execute and deliver to Beneficiary upon demand, and pay the costs of preparation and recording thereof, any further documents which Beneficiary may request to confirm or perfect the liens and security interests created or intended to be created hereby. 3 - 76331X.3 JCELLE 09120(19 5:39 PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 17 of 25) ARTICLE 5 GRANTOR'S NEGATIVE COVENANTS 5.1 Waste. Grantor will not commit or permit any waste with respect to the Property. 5.2 Improper Use of Property. Grantor will not use the Property for any purpose or in any manner which violates any applicable law, ordinance, or other governmental requirement, or any private covenant. ARTICLE 6 EVENTS OF DEFAULT Each of the following events will constitute a default (an "Event of Default") under this Deed of Trust and under the Hotel Agreement: 6.1 Failure to Pay Monetary Obligations. Any failure of Related Westpac to pay when due the Secured Obligations, and any failure of Grantor to pay when due any monetary obligation under this Deed of Trust, if, in either case, such failure is not cured within 10 days after Grantor receives notice of such failure from Beneficiary; 6.2 Failure to Perform. Grantor's failure to properly perform any non-monetary obligation contained herein, if a cure for such failure is not commenced within 30 days after Grantor receives notice of such failure from Beneficiary and thereafter diligently prosecutes such cure to completion; 6.3 Assertion of Priority. Except pursuant to a Permitted Exceptions, the assertion of any claim of priority over this Deed of Trust, by title, lien, or otherwise, unless Grantor within 30 days after such assertion either causes the assertion to be withdrawn or provides Beneficiary with such security as Beneficiary may require to protect Beneficiary against all loss, damage, or expense, including attorneys' fees, which Beneficiary may incur in the event such assertion is upheld. ARTICLE 7 BENEFICIARY'S REMEDIES Immediately upon or any time after the occurrence of any Event of Default hereunder, Beneficiary may exercise any remedy available at law or in equity, including, without limitation, those listed below, in such sequence or combination as Beneficiary may determine in Beneficiary's sole discretion: 7.1 Performance of Defaulted Obligations. Beneficiary may make any payment or perform any other obligation under this Deed of Trust which Grantor has failed to make or perform, and Grantor hereby irrevocably appoints Beneficiary as the true and lawful attorney-in- fact for Grantor to make any such payment and perform any such obligation in the name of Grantor. All payments made and expenses (including attorneys' fees) incurred by Beneficiary in this connection, together with interest thereon at the Default Rate from the date paid or incurred until repaid, will be part of the Secured Obligations and will be immediately due and payable by Grantor to Beneficiary. 4 - 763318.'ICHLLH 09C11N175:49 PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 18 of 25) 7.2 Specific Performance and Injunctive Relief. Notwithstanding the availability of legal remedies, Beneficiary will be entitled to obtain specific performance, mandatory or prohibitory injunctive relief, or other equitable relief requiring Grantor to cure or refrain from repeating any default. 7.3 Suit for Monetary Relief. Beneficiary may sue from time to time for any payment due under this Deed of Trust, or for money damages resulting from Grantor's default under this Deed of Trust. 7.4 Possession of Property. Beneficiary may enter and take possession of the Property without seeking or obtaining the appointment of a receiver, may employ a managing agent for the Property, and may lease or rent all or any part of the Property, either in Beneficiary's name or in the name of Grantor, and may collect the rents, issues, and profits of the Property. Any revenues collected by Beneficiary under this Section 7.4 will be applied first toward payment of all expenses (including attorneys' fees) incurred by Beneficiary, together with interest thereon at the Default Rate from the date incurred until repaid, and the balance, if any, will be applied against the Secured Obligations. 7.5 Foreclosure Against Property. Beneficiary may foreclose this Deed of Trust either by judicial action or through Trustee. If this Deed of Trust encumbers more than one parcel of real estate, foreclosure may be by separate parcel or en masse, as Beneficiary may elect in its sole discretion. Foreclosure through Trustee will be initiated by Beneficiary's filing of its notice of election and demand for sale with Trustee. Upon the filing of such notice of election and demand for sale, Trustee shall promptly comply with all notice and other requirements of the laws of Colorado then in force with respect to such sales, and shall give four weeks' public notice of the time and place of such sale by advertisement weekly in some newspaper of general circulation then published in the County or City and County in which the Property is located. Any sale conducted by Trustee pursuant to this Section 7.5 shall be held at the front door of the county courthouse for such County or City and County, or on the Property, or at such other place as similar sales are then customarily held in such County or City and County, provided that the actual place of sale shall be specified in the notice of sale. All fees, costs and expenses of any kind incurred by Beneficiary in connection with foreclosure of this Deed of Trust, including, without limitation, the costs.of any appraisals of the Property obtained by Beneficiary, all costs of any receivership for the Property advanced by Beneficiary, and all attorneys' and consultants' fees incurred by Beneficiary, shall constitute a part of the Secured Obligations and may be included as part of the amount owing from Grantor to Beneficiary at any foreclosure sale. The proceeds of any sale under this Section 7.5 shall be applied first to the fees and expenses of the officer conducting the sale, and then to the reduction or discharge of the Secured Obligations; any surplus remaining shall be paid over to Grantor or to such other person or persons as may be lawfully entitled to such surplus. At the conclusion of any foreclosure sale, the officer conducting the sale shall execute and deliver to the purchaser at the sale a certificate of purchase which shall describe the property sold to such purchaser and shall state that upon the expiration of the applicable periods for redemption, the holder of such certificate will be entitled to a deed to the property described in the certificate. After the expiration of all applicable periods of redemption, unless the property sold has been redeemed by Grantor, the officer who conducted such sale shall, upon request, execute and deliver an appropriate deed to the holder of the certificate of purchase or the last certificate of redemption, as the case may be. Nothing in this 5 - 76331 N3 ICELLE 0920d17 5:49 PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 19 of 25) Section 7.5 dealing with foreclosure procedures or specifying particular actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed to contradict or add to the requirements and procedures now or hereafter specified by Colorado law, and any such inconsistency shall be resolved in favor of Colorado law applicable at the time of foreclosure. ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 Time of the Essence. Time is of the essence with respect to all provisions of this Deed of Trust. 8.2 Rights and Remedies Cumulative. Beneficiary's rights and remedies under this Deed of Trust are cumulative of the right and remedies available to Beneficiary under the Hotel Agreement and those otherwise available to Beneficiary at law or in equity. No act of Beneficiary shall be construed as an election to proceed under any particular provision of this Deed of Trust or the Hotel Agreement to the exclusion of any other provision in the same or any other document, or as an election of remedies to the exclusion of any other remedy which may then or thereafter be available to Beneficiary. 8.3 No Implied Waivers. Beneficiary shall not be deemed to have waived any provision of any this Deed of Trust unless such waiver is in writing and is signed by Beneficiary. Without limiting the generality of the preceding sentence, neither Beneficiary's acceptance of any payment with knowledge of a default by Grantor, nor any failure by Beneficiary to exercise any remedy following a default by Grantor, shall be deemed a waiver of such default, and no waiver by Beneficiary of any particular default on the part of Grantor shall be deemed a waiver of any other default or of any similar default in the future. 8.4 No Third Party Rights. No person shall be a third party beneficiary of any provision of this Deed of Trust. All provisions of this Deed of Trust favoring Beneficiary are intended solely for the benefit of Beneficiary, and no third party shall be entitled to assume or expect that Beneficiary will not waive or consent to modification of any such provision in Beneficiary's sole discretion. 8.5 Preservation of Liability and Priority. Without affecting the liability of Grantor or of any other person (except a person expressly released in writing) for payment and performance of all of the Secured Obligations, and without affecting the rights of Beneficiary with respect to any security not expressly released in writing, and without impairing in any way the priority of this Deed of Trust over the interests of any person acquired or first evidenced by recording subsequent to the recording hereof, Beneficiary may, either before or after the maturity of the Secured Obligations, and without notice or consent: (a) release any person liable for payment or performance of all or any part of the Secured Obligations; (b) make any agreement altering the terms of payment or performance of all or any of the Secured Obligations; c) exercise or refrain from exercising, or waive, any right or remedy which Beneficiary may have under this Deed of Trust or the Hotel Agreement; (d) accept additional security of any kind for any of the Secured Obligations; or (e) release or otherwise deal with any real or personal property securing the Secured Obligations. Any person acquiring or recording evidence of any 6 - 963318.2 WELLE 09/20/095:49PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 20 of 25) interest of any nature in the Property shall be deemed, by acquiring such interest or recording any evidence thereof, to have agreed and consented to any or all such actions by Beneficiary. 8.6 Notices. Any notice or communication required or permitted under this Deed of Trust must be in writing, and may be given either personally, by Federal Express or similar next- day delivery service, or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same will be deemed to have been given and received on the first to occur of (a) actual receipt by any of the addressees designated below as the party to whom notices are to be sent, or (b) five days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar next-day delivery service, a notice will be deemed to have been given and received on the immediately following business day. If personally delivered, a notice will be deemed to have been given and received when delivered to the party to whom it is addressed. Any party hereto may at any time, by giving written notice to the other party hereto as provided in this Section 8.6, designate additional persons to whom notices or communications will be given, and designate any other address in substitution of the address to which such notice or communication will be given. Such notices or communications will be given to the parties at their addresses set forth below: If to Beneficiary: Town of Snowmass Village Attn: Town Manager P.O. Box 5010 16 Kearns Road Snowmass Village, CO 81615 With a required copy to: Town of Snowmass Village Attn: Town Attorney P.O. Box 5010 16 Kearns Road Snowmass Village, CO 81615 If to Grantor: c/o Related WestPac Attn: Patrick Smith 132 West Main, Suite A Aspen, CO 81611 With required copies to: Otten, Johnson, Robinson, Neff& Ragonetti, P.C. Attn: Bart Johnson 420 E. Main Street, Suite 210 Aspen, CO 81611 7 - 763318.1 JCELLE 09/209)75:49 PM Exhibit "C" ordinance No. 15, Series of 2007 Page 21 of 25) 8.7 Release. Beneficiary wiWexecute and deliver to Grantor such documents as are necessary to terminate Grantor's obligations under this Deed of Trust and release the Property from the lien of this Deed of Trust upon satisfaction of the conditions for the release of this Deed of Trust set forth in Section 5 of the Hotel Agreement. Beneficiary will deliver to Grantor and/or Trustee such documents as Grantor and Trustee may reasonably require to evidence such release and termination. 8.8 Illegality. If any provision of this Deed of Trust is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Deed of Trust, the legality, validity, and enforceability of the remaining provisions of this Deed of Trust shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable provision there shall be added automatically as a part of this Deed of Trust a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. If the rights and liens created by this Deed of Trust shall be invalid or unenforceable as to any part of the Secured Obligations, then the unsecured portion of the Secured Obligations shall be completely paid prior to the payment of the remaining and secured portion of the Secured Obligations, and all payments made on the Secured Obligations shall be considered to have been paid on and applied first to the complete payment of the unsecured portion of the Secured Obligations. 8.9 Usury Savings Clause. It is expressly stipulated and agreed to be the intent of Beneficiary and Grantor at all times to comply with the applicable law governing the highest lawful interest rate. If the applicable law is ever judicially interpreted so as to render usurious any amount called for under the Secured Obligations, or, contracted for, charged, taken, reserved or received with respect to the loan evidenced thereby, or if any prepayment by Grantor, or any other circumstance whatsoever, results in Grantor having paid any interest in excess of that permitted by applicable law, then it is the express intent of Grantor and Beneficiary that all excess amounts theretofore collected by Beneficiary be credited to the Secured Obligations (or, if the Secured Obligations have been or would thereby be paid in full, refunded to Grantor), and the provisions of the Hotel Agreement immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder. All sums paid or agreed to be paid to Beneficiary for the use, forbearance or detention of the Secured Obligations shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread throughout the full term of such indebtedness until payment in full so that the rate or amount of interest on account of such indebtedness does not exceed the maximum rate or amount of interest permitted under applicable law. 8.10 Obligations Binding Upon Grantor's Successors. This Deed of Trust is binding upon Grantor and Grantor's successors and assigns, and shall inure to the benefit of Beneficiary and its successors and assigns, and the provisions hereof shall likewise be covenants running with the land. The duties, covenants, conditions, obligations, and warranties of Grantor in this Deed of Trust shall be joint and several obligations of Grantor and Grantor's successors and assigns. 8 - 763318.1 ICELLE 09nOM 5:49 PM Exhibit "C" ordinance No. 15, Series of 2007 Page 22 of 25) 8.11 Governing Laws. The substantive laws of the State of Colorado shall govern the validity, construction, enforcement, and interpretation of this Deed of Trust. 8.12 Joint and Several Obligations. If Grantor is more than one person or entity, then: (a) all persons or entities comprising Grantor are jointly and severally liable for all of the Secured Obligations; (b) all representations, warranties, and covenants made by Grantor shall be deemed representations, warranties, and covenants of each of the persons or entities comprising Grantor; (c) any breach, default or Event of Default by any persons or entities comprising Grantor hereunder shall be deemed to be a breach, default or Event of Default of Grantor; (d) any reference herein contained to the knowledge or awareness of Grantor shall mean the knowledge or awareness of any of the persons or entities comprising Grantor; and (e) any event creating personal liability of any of the persons or entities comprising Grantor shall create personal liability for all such persons or entities. 8.13 Waiver of Jury Trial. GRANTOR HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE ARISING IN CONNECTION WITH THIS DEED OF TRUST OR IN ANY WAY RELATED TO THE NEGOTIATION, ADMINISTRATION, MODIFICATION, EXTENSION OR COLLECTION OF THE SECURED OBLIGATIONS. 9 - 763318.2]CELLS 09/20/07 5:49 PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 23 of 25) Signed and delivered as of the date first mentioned above. GRANTOR: BRUSH CREEK ESTATES LLC, a Colorado limited liability company By: Name: Patrick N. Smith Title: Manager STATE OF COLORADO ss: COUNTY OF PITKIN The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as Manager of BRUSH CREEK ESTATES LLC, a Colorado limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public 10 - 763318.^-JCELLE 09POA)7 5:19 PM Exhibit "C" Ordinance No. 15, Series of 2007 Page 24 of 25) EXHIBIT A to DEED OF TRUST Legal Description) Parcels H and H-1, Faraway Ranch Subdivision, as shown on the Gross Parcel Plat of Faraway Ranch Subdivision recorded on March 18, 1985 in Plat Book 17 at Page 5, County of Pitkin, State of Colorado. TOGETHER WITH a road easement and right-of-way as set forth in Deed of Easement recorded August 4, 1972 Book 265 at Page 633 and an easement for access and utilities as set forth in Grant of Easements and License Agreement recorded January 23, 2006 as Reception No. 520043 and re-recorded February 2, 2006 as Reception No. 520482 and re-recorded March 17, 2006 as Reception No. 521918. 763318.2)CELLE 09/201095:19 PM A-I Exhibit "C" Ordinance No. 15, Series of 2007 Page 25 of 25) EXHIBIT B to DEED OF TRUST Permitted Exceptions) 1.Right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted and right of way for ditches or canals constructed by the authority of the United States and reserved in United States Patent recorded July 11, 1895 in Book 55 at Page 59. 2.Easements, rights of way and all matters as disclosed on Plat of subject property recorded in Plat Book 17 at Page 4 and Gross Parcel Plat in Plat Book 17 at Page 5. 3.Terms, conditions, provisions, obligations and all matters as set forth in Resolution of the Board of County Commissioners recorded February 24, 1977 in Book 325 at Page 203 as Resolution No. 77-8. 4.Terms, conditions, provisions, obligations and all matters as set forth in Ordinance No. 22, Series of 1984 by Town of Snowmass Village recorded march 18, 1985 in Book 483 at Page 21. 5. Terms, conditions, provisions and obligations as set forth in Grant of Easements and License Agreement recorded January 23, 2006 as Reception No. 520043 and re-recorded February 2, 2006 as Reception No. 520482 and re-recorded March 17, 2006 as Reception No. 521918. 763318.2 WELLE 09/Vldl7 5:49 PM B-1 Exhibit "D" Ordinance No. 15, Series of 2007 Page 1 Of 5) ELATE WESTPAC SECTION 6 Summaty of Governance Structure The operation and management of Buildings 13A and 13B (collectively, "Building 13") will be governed by a four-tier governance structure. First,because the buildings are within the Base Village large planned community, they will be part of the master association for Base Village (the."Master Association"). The Master Association will be charged with maintaining the majority of the landscaping and overall exterior appearance of the entire Base Village. Second, an architectural control committee(the"ACC")will enforce design covenants for all of. Base Village and will be responsible for reviewing and approving changes to the exterior portions of any building in Base Village. Third, Building 13 themselves will be governed by a condominium association(the "Condominium Association"). The Condominimn Association will be,responsible for maintaining and repairing Building 13 generally and enforcing the terms of the condominium declaration. Finally, for so long as Building. 13 are operated as a condominium hotel,the day to day management of the buildings would be delegated to the hotel operator pursuant to a hotel management agreement (the "Management Agreement"). The pages that follow summarize the way each of these tiers of governance will operate and be controlled. 1. . Base V7tlaee. The Master Association will be responsible-for maintaining all of the areas of Base Village (Lots 1-9) that are not included within the boundaries of a condominium. These areas will include much of the landscaping, paths, sidewalks and open areas within Base Village. The Town of Snowmass Village previously reviewed and approved the form of the Master Association declaration as part of the approval ofBase Village in 2004. All of the unit owners within Base Village will be members ofthe Master Association and will have voting rights based on the square footage of each member's unit. The Master Association will be governed by a seven member board of directors elected by the members ofthe Master Association. This board ofdirectors is anticipated to be a class- June 2007 Addendum to the Request for a Wziver 25 Exhibit "D" Ordinance No. 15, Series of 2007 Page 2 of 5) r R1 n ELATE M ESTPAC qualified board composed of two directors who are elected only by the residential owners, two directors who are elected only by the commercial owners,two directors who are elected by only by the owner ofthe"Resort Parcel?'and the"Lodging Management Site"and one director who is elected at-large by all ofthe members. The Master Association declaration contains the statutorily-authorized period of declarant control during which the developer will be permitted to appoint some or all of the members of the board of directors of the Master Association. During this period of declarant control, employees of RelatedlWestpac will serve as members of the board of directors. Upon the expiration of the declarant control period,the developer will continue to have the rightto vote on Master Association matters and elect members to the board of directors so long as it continues to own commercial units in Base Village and/or holds unsold residential unit inventory. As such,it is anticipated that the developer will retain substantial influence over the governance of the Master Association in the longterm by virtue of its ownership of commercial units. 2. Mehitectaral Control Committee. At the same time the Master Association declaration is recorded the developer will record a Declaration of Design and Building Covenants, Conditions and Restrictions (the "Design Declaration"). The Design Declaration will create the ACC, which will be a three member committee appointed by the developer. The developer retains the right to appoint the members of the ACC perpetually and is not forced to turn control over to the owners or any of the associations in Base Village. Ilia ACC will be responsible for reviewing and approving all grading work to be done at Base Village, the design and location of any improvements to be constructed or modified anywhere within Base Village, the placement and design of outdoor signage,and the installation of landscaping anywhere in Base Village. The ACC is also cItarged with enforcing the terms of the.Design Declaration, which require the owners and associations to maintain the exterior appearance of Base.Village. Both the Master Association and the Condominium Association will be required to comply with the requirements ofthe Design Declaration and,as such,the June 2007 Addendum to the Requestfor a Waiver 26 Exhibit "D" Ordinance No. 15, Series of 2007 Page 3 of 5) MELATEU W ESTPAC developer will retain longterm control over the exterior appearance of the entirety of Base Village even after all ofthe residential units in the project have been sold. 3. Condominium Association. Buildings 13A and 13B themselves will be governed by the Condominium Association. The condominium will be comprised of three principal types of spaces—units, limited common elements and general common elements. The units will be all of the residential units, the commercial units and one or more anticipated "hotel units" (all to be identified on the' condominium map). For clarification,the hotel units would be non-commercial areas owned by the developer or the hotel operator in connection with the' operation of Building 13 as, a condominium hotel (such as check-in facilities, housekeeping areas, management offices and similar spaces in the buildings). Limited common elements will be those common elements allocated only to certain units, such as the balconies adjoining each residential unit. General common elements are those common elements used by or'accessible to all unit owners, their lessees and guests, such as parking areas under the buildings. The Condominium Association will be responsible for repairing and maintaining the common elements in the condominium and for keeping the same in good and safe condition, subject to the provisions in the condominium declaration for casualties and condemnation. The unit owners will generally be responsible for maintaining their units and certain limited common elements allocated to their units (such as, again,balconies). Like the Master Association,the Condominium Association will be governed by a class- qualified board of directors. This board of directors would be independent of the Master Association's board of directors, however all actions of the board of directors and the Condominium Association will be subject to the limitations sud regulations, to the extent applicable, of the Master Association governing documents. We anticipate that the board of directors will be composed of three to five members and that separate directors would be elected by the owners of the residential units,the owner(s)ofthe commercial units and the owner ofthe hotel units. Additionally,ifBuilding 13 include a fractional ownership plan,the owners ofthe June 2007 Addendum to die Request for a Waiver 27 Exhibit "D" Ordinance No. 15, Series of 2007 Page 4 of 5) IMI VV E S 1 P A C fractional interests will likely constitute a class of owners entitled to elect their own director to the board of directors. The condominium declaration for the condominium will provide for the statutorily- authorized period ofdeclarant control during which the declarant would be permitted to appoint some or all of the members of the board of directors ofthe Condominium Association. During this period of declarant control,employees of Related/Westpac intend to serve as members ofthe board of directors. Because under Colorado law the developer of a condominium is required to turn over control ofthe condominium to the unit owners following the declarant control period,it is impossible for the developer to indefinitely retain direct control over the Condominium Association. With,that said, upon the expiration of the declarant control period, the developer would continue to have the right to vote on Condominium Association matters and elect members to the board of directors so long as it continues to have unsold residential unit inventory,owns any commercial units or owns the hotel unit. In addition,because the hotel units would be owned by the'developer or the hotel operator,.the Condominium Association and the residential unit owners would only have access to those spaces with the consent of the hotel operator or developer, as applicable. As noted above, the spaces within Building 13 that are anticipated to be hotel units include the check-in area, housekeeping closets, and management offices. Given the importance of these spaces, the Condominium Association has a significant. incentive to retain the hotel operator for the management and operation of the Building 13 over the long term. 4. Management Agreement. Though the developer will be required to ultimately turn over control of the Condominium Association to the unit owners, because Building 13 are intended to be operated as a condominium hotel,the hotel operator would retain significant control over the operation of the condominium itself for so long as it remains the operator of the project. This control would stem from the provisions ofthe Management Agreement between the Condominium Association and the hotel operator. Jum 2007 Addendum to the Request fox a Waiv& 28 Exhibit "D" Ordinance No. 15, Series of 2007 rRELATED( Page 5 of 5) p aVVESTRAC While representatives of Viceroy are providing a separate summary of the terns of such a Management Agreement, it is important to note here that the Management Agreement would give the hotel operator day-to-day manage* control over the Condominium Association as many of the responsibilities otherwise allocated to the Condominium Association would e£fectiyely be delegated to the hotel operator pursuant to the terms of the Management Agreement. As a result, even though the developer. will be forced to give up control of the Condominium Association, the hotel operator would be able to effectively-manage and operate the condominium itself for so long as the Management Agreement remains in effect. In addition to the considerations regarding control of the hotel units discussed above,the various management,operations and other services provided by the hotel operator pursuant to the Management Agreement would provide the Condominium Association with an additional incentive to retain the hotel operator. We anticipate that the services to be provided to residential unit owners (such as food service and valet.parldng) as well as the day-to-day administrative management services provided to the Condominium Association by the hotel operator will all provide signficaut reasons for the Condominium Association to value its relationship with the hotel operator and maintain the Management Agreement in force. Summary Only. This summary is intended only to highlight and describe in general terms the way in which the Master Association, the ACC, the Condominium Association and the Management Agreement will combine'to regulate the use and appearance of Building, 13. The actual governing documents for the Master Association, the ACC and the Condominium Association and the provisions of the Management Agreement will contain other terms not inconsistent with this summary, and, as such, the provisions of this summary are not intended to limit or specify the contents ofany such governing documents(except for the specific matters described above). June 2007 Addendum to the Request for a Waiver 29 r 3mJ-ko e 5t` ' kSih e' iI C'Qol. co(Mw Ct/+-gldtrio76 w9 Regular Meetine Aspen h Council L June 25,2007 ORDINANCE#5,SERIES OF 2007—Lodge At Aspen Mountain Subdivision Councilman Romero stated his firm serves as project manager for the applicant in a different development and he has a conflict of interest. Councilman Skadron said he has seen this application at P&Z. Councilman Johnson stated he lives within 300 feet ofthe project. John Worcester, city attorney,noted the city's charter requires ordinances be adopted by 3 Councilmembers;a quorum is 3 Councihnembers. the x hich statesif a,body is unable to obhc a uorym or unable to mace a- ecrsron, allr bm wlmwoWctotherwise aRiparticipateasiftheydidnothave.aconfliet. Worcester said th AM""'" a member's participation if necessary to obtain a quorum or to act Worcester pointed out Council is the only body who can decide this issue. Worcester noted his research did not find that members are seated by greater or lesser conflicts. Mayor Ireland asked ifthere is an objection from the applicant. John Sarpa,representing the applicants, stated there is no objection to invoking the rule of necessity. Joyce Allgaier,community development department, showed the location of the proposed lodge,the location ofthe swimming pool; the neighborhood context with surrounding uses. Ms. Allgaier said the adjacent property owners have been very involved in this project from the beginning. This is a final planned unit development,including approval of time share units, subdivision and growth management review for multi-year allotments and for affordable housing units outside the city limits. This property is zoned LTR and is being reviewed under a previous iteration of the land use code. Ms.Allgaier told Council this project is proposed at 121 units; 80 hotel units,21 fractional units, 4 free market and 16 affordable housing units totaling 175,000 square feet. There is restaurant,ballroom,meeting rooms and back ofhouse space. There are 264 subgrade parking spaces proposed;the code requires 121 parking spaces. The applicants have proposed 28 affordable housing units at Smuggler and 17 units at the Airport Business Center. The height at the maximum ridge line is 55',at a peak not an average. The proposed improvements are to widen Juan street by dedicating additional rights-of- way. There will be landscaping,sidewalks along South Aspen street. The applicants propose to snowmelt and reconstruct South Aspen street Currently South Aspen street is lacking in functionality. The applicants propose a list of community benefits, exhibit G in the packet. The applicants have also proposed to deed restrict the hotel rooms as hotel rooms for 35 years. Ms. Allgaier handed out two more exhibits,J,which is the exceptional project review criteria to evaluate whether a project is exceptional,and K which is the applicant's letter proposing deed restrictions on lodge rooms. Ms. Allgaier reminded Council there is an approval for 14 free market town homes and 17 affordable units on this property which has vested rights until July 2008. The layout of this project is in Council's packet materials. The applicants have indicated they would preferthe lodge but have submitted building plans for the town house project. Conceptual approval for this project was 8 Lezishieais(T,® SO/ http 198..128.12/mbPrI U719c638.htm Document i of 1 Source: Colorado Statutes/Colorado Revised Statutes /TITLE 24 GOVERNMENT - STATE/ADMINISTRATION/ARTICLE 18 STANDARDS OF CONDUCT/PART 1 CODE OF ETHICS/24-18-102. Definitions. 24-18-102. Definitions. As used in this part 1,unless the context otherwise requires: 1) "Business" means any corporation, limited liability company, partnership, sole proprietorship, trust or foundation, or other individual or organization carrying on a business, whether or not operated for profit. 2) "Compensation" means any money,thing of value, or economic benefit conferred on or received by any person in return for services rendered or to be rendered by himself or another. 3) "Employee" means any temporary or permanent employee of a state agency or any local government,except a member of the general assembly and an employee under contract to the state. 4)"Financial interest" means a substantial interest held by an individual which is: a)An ownership interest in a business; b)A creditor interest in an insolvent business; c)An employment or a prospective employment for which negotiations have begun; d)An ownership interest in real or personal property; e)A loan or any other debtor interest; or f)A directorship or officership in a business. 5) "Local government" means the government of any county, city and county, city, town, special district, or school district. 6) "Local government official" means an elected or appointed official of a local government but does not include an employee of a local government. 7) "Official act" or "official action" means any vote, decision, recommendation, approval, disapproval, or other action,including inaction,which involves the use of discretionary authority. 8) "Public officer" means any elected officer, the head of a principal department of the executive branch, and any other state officer. "Public officer" does not include a member of the general assembly, a member of the judiciary, any local government official, or any member of a board, commission, council, or committee who receives no compensation other than a per diem allowance or necessary and I of 2 912410'7 235 PM LexigNxis(17M) http://198.197.128.12/colorado/lpext&1?f_(cmplates&fn=fs-main.... 0 ww.. a 'xL,.ws mm.acroseou swe+s4tian>j Gpea c ,r« ii Select View 4111118M oPdnt: *IDownload t-otoraoo Source: "iuraao statutes : uowraao Kevisea statutes : i i i Lt L4 3 Colorado Statutes GOVERNMENT -STATE :ADMINISTRATION : ARTICLE 18 Colorado Revised Stat O. yr vnvv i : r^rt i . yr c i nip. : cw-i u-,vo. Public trust - breach of fiduciary duty. J L4-Id-1U 1. Legistative c X24-18-102. Definitions. X24-18-104. Rules of cor X24-18-105. Ethical print 24-18-106. Rules of con 24-18-103. Public trust- breach of fiduciary duty.24-18-107. Ethical print X24-18-108. Rules of con (1) The holding of public office or employment is a public trust,created 24-18-108.5. Rules of a by the confidence which the electorate reposes in the integrity of publicX24-18-109. Rules of con officers members of the general assembly, local government officials, andX24-18-110. Voluntary I. 24-18-111. Powers of tl. employees. A public officer, member of the general assembly, local 24-18-112. Board of etY government official, or employee shall carry rut his duties for the benefit of 24-18-113. Boa rd of ett the people of the state. 2) A public officer, member of the general assembly, local government official,or employee whose conduct departs from his fiduciary duty is liable to the people of the state as a trustee of property and shall suffer such other liabilities as a private fiduciary would suffer for abuse of his trust. The district attorney of the district where the trust is violated may bring appropriate judicial proceedings on behalf of the people. Any moneys collected in such actions shall be paid to the general fund ofthe state or local government. Judicial proceedings pursuant to this section shall be in addition to any criminal action which may be brought against such public officer, member of the general assembly,local government official, or employee. Source: I..88:Entire article added, p. 900, § 1,effective July 1. 00M IMIRW 02001 Mathew Benders Company,Inc.,a member ofthe LeAst4evs Group.All rights reserved.Portions copyngM 0 etielp Corporation.AN rights reserved. 1 of 2 9/24107 2:42 PM UmsNexrs(I http://198.187.128.12/coloradD/Wxtd l?f=tcmplaWs&fn-fs-main.... Gr IPxisNexis- swtesa« +an t r aG-ftz' ISelect View J 4UMM Mum 4Print:IDownload t.oioraao Source: uoroiaao citames : uuioraao rcevrsea statutes : i i r Lr- z4 a Colorado Statutes GOVERNMENT- STATE :ADMINISTRATION : ARTICLE 18 Colorado Revised Stat STANDARDS OF CONDUCT: PART 1 CODE OF ETHICS : 24.18-104. Rules of conduct for all public officers, members of the general 2124-18-101. Legislative c assembly, local government officials, and employees. 24-18-102. Detinitrons. 24-18-103. Public trust D24-18-105. Ethical orinc X24-18-106. Rules of con 24-18-104. Rules of conduct for all public officers, members of the D24- 18-107. Ethical orinc general assembly.local government officials. and employees.24-18-108. Rules of con X24-18-108.5. Rules of o (1) proof beyond a reasonable doubt of commission of any act 24-18-109. Rules of con enumerated in this section is proof that the actor has breached his fiduciary24-18-110. Voluntary di: 24-18-111. Powers of tt duty and the public trust. A public officer,a member of the general assembly, 2124-18-112. Board of ett a local government official,or an employee shall not: X24-18-113. Board of ett a)Disclose or use confidential information acquired in the course of his official duties in order to further substantially his personal financial interests; or b) Accept a gift of substantial value or a substantial ecorrornic benefit tantamount to a gift ofsubstantial value: 1)Which would tend improperly to influence a reasonable person in his position to depart from the faithfiil and impartial discharge of his public duties; or n Which he knows or which a reasonable person in his position should know under the circumstances is primarily for the purpose of rewarding him for official action he has taken. 2)An economic benefit tantamount to a gift of substantial value includes without limitation a loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services tendered at a rate substantially exceeding the fair market value of such services. 3) The following shall not be considered gifts of substantial value or gifts of substantial economic benefit tantamount to gifts of substantial value for purposes of this section: a)Campaign contributions and contributions in kind reported as required 1 of 2 9/24107 2:43 PM L.e1de Iexis(T hap://198.187.128.12/colocado/lpextdll9f=templates&fn=fs-main.... LexisNexis ua.s .. we f.serese ririam r earsC614aii if Select View mPrint:IDownload Jioiorado Source: uolofaao Statutes : uworatlo KBVlseo Statutes : I I i Lt 14 3 Colorado Statutes GOVERNMENT- STATE :ADMINISTRATION : ARTICLE 18 Colorado Revised Stat STANDARDS OF CONDUCT : PART 1 CODE OF ETHiCS : 24-18-105. Ethical principles for public officers, local government officials, and 24-18-101. Legislative c employees. 124-18-101. Definitions. X24-18-103. Public trust 24-18-104. Rules of cor X24-18-106. Rules of con 24-18-105. Ethical rpinciplesforpublicofficers, local government n24-18-107. Ethical print officials. and employees.24-18-108. Rules of con 24-18-108.5. Rules of c' (1)The principles in this section are intended as guides to conduct and do 0 24-18_109. Rules of con not constitute violations as such of the public trust of office or employment in24-18-110. Voluntary di: 0 24-18-111. Powers of tt state Or local government. X24-18-112. Board of ett 24-18-113. Board of ett (2) A public office, a local government official, or an employee should not acquire or hold an interest in any business or undertaking which he has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by an agency over which he has substantive authority. 3) A public officer, a local government official, or an employee should not,within six months following the termination of his office or employment, obtain employment in which he will take direct advantage, unavailable to others, of matters with which he was directly involved during his term of employment. These matters include rules, other than niles of general application,which he actively helped to formulate and applications,claims, or contested cases in the consideration of which he was an active participant. 4) A public officer, a local government official, or an employee should not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when he has a substantial financial interest in a competing firm or undertaking. Source: l..88:Entire article added, p. 902, § 1,effective July 1. INOMP 1 of 2 9124107 2:43 PM l.exisNexis(f" http:11198.187.128.12/colorado/lpexLdH?f=tcmplates&fn=fs-main.... LexisNexis- C=e 15elect View 4MWM 64Print: 'LDownload Coloraao Source: uoiorado statutes : coiorado Keviseo statutes : I I I Lt 24 Colorado Statutes GOVERNMENT- STATE : ADMINISTRATION : ARTICLE 18 Colorado Revised Stat nrvur rtuo ur vrvuv i : r^n i i uc yr C i nil-0 : tw-i o-f u5. Rules of conduct for local government officials and employees. 24-18-1u1. Legislative c 024-18-102. Definitions. 024-18-103. Public trust c'24-18-104. Rules of cor 024-18-105. Ethical orin( 524-18-106. Rules of con 24-18-109. Rules of conduct for local government officials andX24-18-107. Ethical princ 24-18-108. Rules of con emplovees. X24-18-108.5. Rules of c. (1) Proof beyond a reasonable doubt of commission of any act 24-18-110. Voluntary di: enumerated in this section is proof that the actor has breached his fiduciary c'24-18-111. Powers of tt duty and the public trust 24-18-112. Board ofett 124-18-113, Board of ett (2)A local government official or local government employee shall not: a) Engage in a substantial financial transaction for his private business purposes with a person whom he inspects or supervises in the course ofhis official duties; or b) Perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent. 3)(a)A member ofthe governing body ofa local government who has a personal or private interest in any matter proposed or pending before the governing body shall disclose such interest to the governing body and shall not vote thereon and shall refrain from attempting to influence the decisions of the other members of the governing body in voting on the matter. b) A member of the governing body of a local government may vote notwithstanding paragraph (a) of this subsection (3) if his participation is necessary to obtain a quota n or otherwise enable the body to act and if he complies with the voluntary disclosure procedures under section 24-18-110. 4) It shall not be a breach of fiduciary dtity and the public trust for a local government official or local government employee to: a) Use local government facilities or equipment to communicate or correspond with a member's constituents, family members, or business 1 of 2 9124107 2:44 PM L.exisNeais(fM) hap://198.187.128.12/colorado/lpext.dl?f-templates&fn=fs-main.... f#!"isNexis es. nra d;iswd>txrion { select view oPrint:IDownload JCoioratlo Source: uoioraoo statutes : uotoraoo rceviseo Statutes : i 1 i Lt z4 Colorado Statutes GOVERNMENT- STATE :ADMINISTRATION : ARTICLE 18 Colorado Revised Stat Vr- VIVJUL.t . r Rt t 'JUCVt Ct.^.It J . L4-:C-1 Voluntary disclosure. jL4-16-1U1. Legislative c 24-18-102. Definitions. 24-18-103. Public trust 24-18-104. Rules of cor 24-18-105. Ethical orinc X24-18-106. Rules of con 24-18-110. Voluntary disclosure.24-18-107. Ethical orinc 024-18-108. Rules of con A member of a board, commission, council, or committee who receives 024-18-108.5. Rules of r no compensation other than a per diem allowance or necessary and24-18-109. Rules of con reasonable g y,° expenses, a member of the general assembly, a public officer, a 24-18-111. Powers of tt local government official, or an employee may, prior to acting in a manner 24-18-112. Board of etc which may impinge on his fiduciary duty and the public trust, disclose the 24-18-113. Board of etc nature of his private interest. Members of the general assembly shall make disclosure as provided in the rules of the house of representatives and the senate,and all others shall make the disclosure in writing to the secretary of state, listing the amount of his financial interest, if any, the purpose and duration of his services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his interest. If he then performs the official act involved,he shall state for the record the fact and summary nature of the interest disclosed at the time of performing the acL Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction. Source: L. 88: Entire article added, p. 904, § 1, effective July 1. L. 91: Entire section amended,p. 838, §4,effective March 29. 41111111111111111 ANEW 2001 MaWww Bender&Company.Inc.,a member ofthe Leas*m Group.AN rigYSreserved.Portions oopyriam. ®eHelp Corporation.ANtights reserved. I of 2 9124107 2:44 PM New Hotel Development Agreement Revised 21 September 2007 HOTEL DEVELOPMENT AGREEMENT Revised Friday 9/21-Redlined Version) THIS HOTEL DEVELOPMENT AGREEMENT is made and entered into as of this day of 2007 (the "Effective Date"), by and between the TOWN OF SNOWMASS VILLAGE, a home rule municipal corporation and political subdivision of the State of Colorado ("Town"), BASE VILLAGE OWNER LLC, a Delaware limited liability company (together with its successors and assigns, "BVO"), BRUSH CREEK ESTATES LLC, a Colorado limited liability company (together with its successors and assigns, "BCE"), and RELATED WESTPAC LLC, a Delaware limited liability company (together with its successors and assigns, "Related WestPac"). Recitals This Agreement is made with reference to the following facts: A. Capitalized terms in this Agreement not otherwise defined in the body of this Agreement have the meanings set forth in Exhibit A. B. BVO is the owner in fee simple of the Base Village Property. The Base Village Property is a planned unit development under the Code pursuant to the Base Village Planned Unit Development (the "BV PUD") approved by the Town Council pursuant to Ordinance No. 21, Series of 2004 ("Ordinance 21"). C. Condition 7 of Ordinance 21 concerned Buildings 13A and 13B within the Base Village Property and set forth certain requirements that needed to be satisfied prior to the issuance of a building permit for the construction of any buildings within Phase 2A or any subsequent phase of the BV PUD. Pursuant to its final approval on second reading of Ordinance No. 15, Series of 2007, the Town Council has approved a modification of Condition 7 for the purpose of modifying and extending the timeframe for compliance with some of these requirements and transferring them, through this Agreement, to the West Village in connection with Related WestPac's future redevelopment plans for the West Village. This modification to Condition 7 was made for the purpose of allowing construction of Buildings 13A and 13B to proceed and to permit such buildings to be operated by Kor Hotel Group as a Viceroy Hotel. D. BVO, BCE and Related WestPac desire to enter into this Agreement with the Town to satisfy the requirements Ordinance No. 15, Series of 2007. NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: Agreement 1. QUALIFIED HOTEL STANDARDS. The term "Qualified Hotel" means a new Hotel that will: A. At the time a building permit is issued (and as a condition to the issuance of such building permit by the Town) be subject to an agreement with a nationally- recognized hotel chain that requires the Hotel to be operated under such chain's brand name. B. Have at least 234250 Hotel Rooms. C. Include conference facilities with a net floor area of 40 square feet per Hotel Room, including conference meeting spaces and ballroom space, but not including pre-function areas,kitchens,bathrooms, storage areas or other back-of-house areas. D. Be a condominium Hotel (meaning the rooms are separate condominium units), which Hotel must include a rental/management program and a legal structure that will encourage owners, consistent with the limits of applicable securities laws, to enroll their units in such rental/management program. In addition, Related WestPac, for itself and the other RW Affiliates, agrees that as a condition to final approval of the Qualified Hotel, the Town will have the right to require that drafts of the proposed condominium and rental/management documents be provided to the Town to enable it to verify the implementation of the required legal structure. 2. OBLIGATION TO CONSTRUCT A QUALIFIED HOTEL. Subject to the other terms of this Agreement, Related WestPac shall cause a Qualified Hotel to be constructed as evidenced by a certificate of occupancy) within the West Village by not later than April 15, 2017. 3. TOWN REMEDY. The following provisions provide the remedy the Town will have if Related WestPac fails to cause a Qualified Hotel to be constructed (as evidenced by a certificate of occupancy) within the West Village by not later than April 15, 2017. A. Related WestPac shall be required to pay the Town $8,000,000.00 (the Remedy Amount"), if Related WestPac does not cause a Qualified Hotel to be constructed (as evidenced by a certificate of occupancy) within the West Village by not later than April 15, 2017. B. Upon the Town's receipt of the Remedy Amount from Related WestPac pursuant to Section 3 above, this Agreement and all additional obligations under this Agreement shall terminate. In addition, notwithstanding the provisions of Section 3 above, this Agreement shall terminate and Related WestPac shall be released from its obligation to cause a Qualified Hotel to be constructed within the West Village if Related WestPac is prevented from constructing a Qualified Hotel within the West Village by April 15, 2017 as a result of: 2 i.a successful Legal Challenge to any Town approval for a Qualified Hotel within the West Village, or ii. the Town Council's final denial of a "Qualified Application" (as defined below) for a Qualified Hotel in the West Village submitted by any RW Affiliate. The term "Qualified Application" means an application for a Qualified Hotel in the West Village that: (a) satisfies the submission requirements of the Code, including consent from the land owner if other than the applicant; (b) does not seek any variations or other special approvals requiring approval from a super-majority of the Town Council; and (c) is processed diligently and in a good faith attempt to obtain approval, with the applicant making adjustments and modifications in response to the Town staff's, the Planning Commission's and the Town Council's reasonable concerns and comments. 4. SECURITY FOR TOWN REMEDY. The remedy available to the Town under Section 3 shall be secured pursuant to the following provisions of this Section 4. As of the Effective Date, BCE shall deliver to the Town a fully executed and notarized deed of trust, in the form attached to this Agreement as Exhibit D, granting a first position lien on the Brush Creek Estates Property to secure the payment obligation of Related WestPac contained in Section 3 (the BCE Deed of Trust"). Within two weeks following the Effective Date, BCE shall deliver to the Town an appraisal of the fair market value of the Brush Creek Estates Property prepared by a qualified, independent appraiser approved by the Town Manager. If the appraised fair market value of the Brush Creek Estates Property pursuant to such appraisal is less than the Remedy Amount (the amount of such shortfall being the "Shortfall Amount"), then Related WestPac shall be required to provide the Town with an irrevocable financial instrument (the "Shortfall Security Instrument") that will have a liquid cash value of not less than the Shortfall Amount as of April 15, 2017. The BCE Deed of Trust and the Shortfall Security Instrument shall remain in effect until the earlier to occur of (a) the satisfaction by Related WestPac of its obligation to cause the construction of a Qualified Hotel pursuant to Section 2, (b) the termination of such obligation pursuant to Section 3.13, or (c) Related WestPac causes the BCE Deed of Trust and the Shortfall Security Instrument to be replaced with (X) another first position deed of trust on real property with a value at least equal to the then Remedy Amount, or (Y) security in the form of an irrevocable financial instrument that will have a liquid cash value of not less than the Remedy Amount as of April 15, 2017, or (Z) a combination of another first position deed of trust and an irrevocable financial instrument that together will provide the Town with security in an amount of not less than the Remedy Amount as of April 15, 2017. 5. ADDITIONAL OBLIGATIONS. A. West Village Phasing. Related WestPac agrees that (i) the Town shall have the right to withhold building permits for all construction proposed by the RW Affiliates in West Village in excess of 50% of the total rentable and/or saleable floor area proposed in West Village by all RW Affiliates until such time as a building permit has been obtained for a Qualified Hotel in West Village; and (ii) no certificate of occupancy may be received by any RW Affiliate for more than 50% of the total rentable and/or saleable floor area proposed in West Village by all RW Affiliates until a certificate of 3 occupancy has been issued for a Qualified Hotel in West Village. Related WestPac, for itself and the other RW Affiliates, agrees that the phasing obligation described in the preceding sentence shall be incorporated into the final approval for the Qualified Hotel and shall be articulated in terms of actual square footage numbers for the Qualified Hotel property and the other areas of West Village being developed by the RW Affiliates, B. No Opposition to Certain Code Changes. Related WestPac, for itself and all RW Affiliates, agrees that it will not oppose the Town's adoption of overlay zoning regulations that will apply specifically to the Qualified Hotel property for the purpose of reasonably limiting owner occupancy of the units within the Qualified Hotel to a specific number of consecutive days per stay within the summer and off-season times of each year. C. , Availability of Conference Space. Related WestPac will work in good faith to provide continuously available conference facilities within the Town during the course of construction within Base Village Property, the West Village and the Snowmass Center property. Given the uncertainty of future development and entitlements processes, it is agreed that demolishing the existing conference structures and providing new conference facilities will be addressed in the specific conditions of future entitlements in either the West Village and/or the Snowmass Center. D. LEED Rating. In addition to the other obligations contained in this Agreement, BVO agrees that it will use commercially reasonable efforts to obtain a LEED Silver" rating for Buildings 13A and 13B in the BV PUD pursuant to the Leadership in Energy and Environmental Design (LEED) Green Building Rating SystemTm promulgated and administered by the U.S. Green Building Council. 6. NO TOWN ZONING OBLIGATIONS. Nothing in this Agreement is intended to or shall be construed as imposing any obligation on the Town or the Town Council to approve any comprehensive plan revision or any zoning, rezoning, planned unit development, subdivision or similar application submitted by any RW Affiliate. The Town and the Town Council shall retain discretion to deny any such application to the fullest extent permitted by applicable law, including, without limitation, the Code. 7. MISCELLANEOUS PROVISIONS. A. Amendment of this Agreement. This Agreement may be amended, terminated or superceded only by mutual consent in writing of the Parties, following the Town's public notice and public hearing procedures required for approval of this Agreement. No consent of any third party will be required for the negotiation and execution of any such amendment. B. Entire Agreement. This Agreement contains the entire agreement between the Parties and no statement, promise or inducement made by either Party or the agent of either Party that is not contained in this Agreement will be valid or binding. C. Third Party Challenges. In the event of any Legal Challenge by a third party to the validity or enforceability of any provision of this Agreement, the Parties will 4 cooperate in the defense of such challenge, but will bear their own costs and attorneys' fees. Unless otherwise provided herein, during the pendency of any such Legal Challenge, the Parties will abide by and carry out all of the terms of this Agreement, unless otherwise ordered by a court of competent jurisdiction. D. Severability of Provisions. 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 will continue in full force and effect so long as enforcement of the remaining provisions would not be inequitable to the Party against whom they are being enforced under the facts and circumstances then pertaining, or substantially deprive such Party of the benefit of its bargain. E. Applicable Law. This Agreement will be enforceable according to the laws of the State of Colorado. F. Notices. Any notice or communication required or permitted under this Agreement must be in writing, and may be given either personally, by Federal Express or similar next-day delivery service, or by registered or certified mail, return receipt requested. If given by registered or certified mail, the same will be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addressees designated below as the Party to whom notices are to be sent, or (ii) five days after a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. If given by Federal Express or similar next-day delivery service, a notice will be deemed to have been given and received on the immediately following business day. If personally delivered, a notice will be deemed to have been given and received when delivered to the Party to whom it is addressed. Any Party hereto may at any time, by giving written notice to the other Party hereto as provided in this Section F, designate additional persons to whom notices or communications will be given, and designate any other address in substitution of the address to which such notice or communication will be given. Such notices or communications will be given to the Parties at their addresses set forth below: If to Town: Town of Snowmass Village Attn: Town Manager P.O. Box 5010 16 Kearns Road Snowmass Village, CO 81615 With a required copy to: Town of Snowmass Village Attn: Town Attorney P.O. Box 5010 16 Kearns Road Snowmass Village, CO 81615 5 If to BVO, BCE or Related WestPac: c/o Related WestPac Attn: Patrick Smith 132 West Main, Suite A Aspen, CO 81611 With required copies to: Otten, Johnson, Robinson, Neff&Ragonetti, P.C. Attn: Bart Johnson 420 E. Main Street, Suite 210 Aspen, Colorado 81611 G. No Third Party Beneficiaries/Third Party Agreements. Nothing expressed or implied in this Agreement is intended or will be construed to confer upon, or to give to, any legal person other than the Parties, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the Parties will be for the sole and exclusive benefit of the Parties. Nothing in this Agreement is intended to interfere with the agreements of the Parties with third parties. H. Further Assurances. Each Party will execute and deliver such documents or instruments and take such action as may be reasonably requested by the other Party to confirm or clarify the intent of the provision hereof and to effectuate the agreements herein contained and the intent hereof. I.Waiver. No waiver of one or more of the terms of the Agreement will constitute a waiver of other terms. No waiver of any provision of this Agreement in any instance will constitute a waiver of such provision in other instances. J.Titles of Sections and Articles. Any titles of the several parts, articles and sections of this Agreement are inserted for convenience or reference only and will be disregarded in construing or interpreting any of its provisions. K. Exhibits. All exhibits to this Agreement will be incorporated herein and deemed a part of this Agreement. remainder of page intentionally blank] 6 IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized representatives to executed this Agreement as of the day and year first above written. TOWN: TOWN OF SNOWMASS VILLAGE, COLORADO Douglas Mercatoris, Mayor ATTEST: Rhonda Coxon, Town Clerk APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney 7 BCE: BRUSH CREEK ESTATES LLC, a Colorado limited liability company By: Name: Patrick N. Smith Title:Manager BVO: BASE VILLAGE OWNER LLC, a Delaware limited liability company, By: Name: Patrick N. Smith Title: Manager RELATED WESTPAC: RELATED WESTPAC LLC, a Delaware limited liability company, By: Name: Patrick N. Smith Title: Manager STATE OF COLORADO ss: COUNTY OF PITKIN The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as Manager of BRUSH CREEK ESTATES LLC, a Colorado limited liability company, this day of 2007. WITNESS my hand and official seal. My commission expires: Notary Public 8 STATE OF COLORADO ss: COUNTY OF PITKIN The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as Manager of RELATED WESTPAC LLC, a Delaware limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ss: COUNTY OF PITKIN The foregoing instrument was subscribed and sworn to me by Patrick N. Smith, as Manager of BASE VILLAGE OWNER LLC, a Delaware limited liability company. WITNESS my hand and official seal. My commission expires: Notary Public 9 EXHIBIT A Definitions For purposes of this Agreement, the following terms and references have the following meanings: 1.Agreement" means this Hotel Development Agreement and any Exhibits attached hereto, all of which are incorporated herein by this reference, as amended in accordance with its terms. 2.Base Village Property" means the real property that is legally described on Exhibit C. 3.Brush Creek Estates Property" means the real property that is legally described on Exhibit B. 4.Code" means the Snowmass Village Land Use and Development Code, codified as Chapter 16A of the Snowmass Village Municipal Code, as amended from time to time. 5.Effective Date" means the date set forth in the initial paragraph of this Agreement, which is the effective date of Ordinance No. 15, Series of 2007, adopted by Town Council to approve this Agreement. 6.Hotel" means a building or group of adjacent buildings or portion thereof within the West Village operated under a single brand name that (A) contains rooms, areas or separate spaces intended for temporary occupancy by guests typically by the day or week (though it may be for longer periods), each of which contains sanitation facilities and may contain a small kitchen area, and (B) generally offers one or more enhanced levels of service, such as: (i) a level of staffing, amenities, service or facilities above that customarily found in multi-family dwellings; (ii) twenty-four-hour front lobby check-in with in-house maid, concierge, room and maintenance services; and (iii) standardized fixtures and furnishings with central telephone, internet, cable television, heating, air conditioning and hot water systems for all units. 7.Hotel Room" means each separately rentable unit, room or group of rooms within a Hotel. Each so-called "lock-off' room or group of rooms that may be separately rented by locking it/them off from the room or group of rooms to which they are ordinarily connected shall count as a separate Hotel Room for the purposes of this definition. 8.Legal Challenge" means any of the following: (1) any third party commences any legal proceeding or other action that directly or indirectly challenges any action of approval by the Town Council, whether by resolution or ordinance; or 2) any person submits a petition for a referendum seeking to reverse or nullify any such approval by the Town Council; or (3) any person submits a petition for A-1 an initiated measure that would have the effect of directly or indirectly invalidating any such approval by the Town Council. 9.Party(ies)" means, individually or collectively as applicable, the original signatory parties to this Agreement and their respective successors or assigns. 10. "RW Affiliates" means BVO, BCE, Related WestPac and any other entity that (a) is the owner in fee simple of real property in the Town; and (b) controls, is controlled by, or is under common control with Related WestPac. 11. "Town Council" means the town council of the Town. 12. "West Village" means the area of the Town bounded to the east by the Fanny Hill ski run of the Snowmass Ski Area, to the south by Gallun Lane, to the west by the west boundary of the Town's numbered parking lots and to the north by Campground Lane. A-2 EXHIBIT B Legal Description of the Brush Creek Estates Property Parcels H and H-1, Faraway Ranch Subdivision, as shown on the Gross Parcel Plat of Faraway Ranch Subdivision recorded on March 18, 1985 in Plat Book 17 at Page 5, County of Pitkin, State of Colorado. B-1 EXHIBIT C Legal Description of the Base Village Property Lots 1 through 9, inclusive, according to Base Village P.U.D. Final Plat recorded February 2, 2006, at Reception No. 520483, Plat Book 77, Page 30, Pitkin County, Colorado records. C-1 EXHIBIT D Form of Deed of Trust from BCE see attached pages] D-1 LexisNeida(MI) http://198.187.128.12/coloradD/Ipextdil9f wmplatesMn--fs-main. Wl.exisNexis- select view 411011111t anow mPrint:,&Download Colorado source: k:oloraao Staiutes : Uoioraao Heviseo Statutes : I i I Lc 24 Colorado Statutes GOVERNMENT- STATE :ADMINISTRATION : ARTICLE 18 m t .Colorado Revised Stat Q 1 v. Voluntary disclosure. 144-18-!Ul. Leclisiative c c324-18-102. Definitions. 24-18-103. Public trust 24-10-104. Rules of cor 24-18-105. Ethical prin( c'24-18-106. Rules of con 24-18-110. Voluntary disclosure.24-18-107. Ethical oulinc. 024-18-108. Rules of con A member of a board, commission, council, or committee who receives C'24-18-108.5. Rules of ono compensation other than a per diem allowance or necessary and024-18-109. Rules of con 1cmuri'tu t tI penses, a member of the general assembly, a public officer, a 0 24-18-111. Powers of tt local government Official, or an employee may, prior to acting in a manner C3 24-18-112. Board of ett which may impinge on his fiduciary duty and the public trust, disclose the CJT4-18-113. Board of ett nature of his private mWrCSL Members of the general assembly shall make disclosure as provided in the rules of the house of representatives and the senate, and all others shall make the disclosure in writing to the secretary of state, listing the amount of his financial interest, if any, the purpose and duration of his services rendered, if any, and the compensation received for the services or such other information as is necessary to describe his interest. If he than performs the official act involved,he shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Such disclosure shall constitute an affirmative defense to any civil or criminal action or any other sanction. Source: L. 88: Entire article added, p. 904, § 1, effective July 1. L. 91: Entire section amended, p. 838, §4,effective March 29. 0 2001 WaVvew Bender&Comparry,Inc.,a meniberoftM LexW4e)ds Group.AD r4ft reserved.Portions copyright a eHeip corporation.ADrights reserved. 1 of 2 9/24107 2:44 PM Document comparison by Workshare Professional on Friday, September 21, 2007 1:53:23 PM Input: Document 1 ID Powerpocs:HDENVER01/763555/3 Description DENVER01-#763555-v3- Hotel—Development—Agreement---(1—remed Document 2 ID Powerpocs:HDENVER01/763555/4 Description DENVER01-#763555-v4- Hotel_Develo ment_A reement_--(1—remedy) lRendering set 1workshare default Legend. Insertion BeleHee Meved €rex3 Moved to Style change Format change Inserted cell Deleted cell Moved cell Split/Merged cell lPadding cell Statistics: Count Insertions 3 Deletions 1 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 1 4