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09-22-14 Town Council PacketsSNOWMASS VILLAGE TOWN COUNCIL REGULAR MEETING AGENDA SEPTEMBER 22, 2014 PLEASE NOTE THAT ALL TIMES ARE APPROXIMATE — ITEMS COULD START EARLIER OR LATER THAN THE STATED TIME CALL TO ORDER AT 4:00 P.M. Item No. 1: ROLL CALL Item No. 2: PUBLIC NON - AGENDA ITEMS (5- minute time limit) Item No. 3: COUNCIL UPDATES Item No. 4: BRUSH CREEK/WOOD ROAD ROUNABOUT UPDATE (Time: 20 Minutes) ACTION REQUESTED OF COUNCIL: Listen to presentation, informational update at this time. - -Dean Gordon, Town Engineer /Anne Martens, Public Works Director .......................... ...........................Page 4 Item No. 5: SNOWMASS ICE AGE DISCOVERY CONCEPT PLAN AND FEASIBILITY STUDY (Time: 30 Minutes) ACTION REQUESTED OF COUNCIL: Listen to presentation and provide feedback. - -Tom Cardamone, Executive Director /Andy Anway, Amaze Design ....................... ..............................Page 10 Item No. 6: RESOLUTION NO. 31 SERIES OF 2014 — A RESOLUTION (Time: 15 Minute) OF THE TOWN COUNCIL OF THE TOWN OF SNOWMASS VILLAGE AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT FOR THE FINANCIAL SUPPORT OF THE COLORADO WEST REGIONAL MENTAL HEALTH CENTER DBA MIND SPRINGS HEALTH DETOX CENTER OPERATED IN PITKIN COUNTY ACTION REQUESTED OF COUNCIL: Approve, modify or deny Resolution No. 31, Series of 2014. - -John Dresser, Town Attorney /Brian Olson, Chief of Police ....................... ..............................Page 14 Item No. 7: PUBLIC HEARING — SECOND READING OF ORDINANCE NO. 3 SERIES OF 2014 — AN ORDINANCE REGARDING A MINOR PUD AMENDMENT TO BASE VILLAGE INVOLVING REQUESTED VESTED 09- 22 -14tc Agenda Page 2 of 3 RIGHTS EXTENSION, AND COMPLETION OF CERTAIN PUBLIC IMPROVEMENTS, AND TIMEFRAME FOR COMPLETION OF CERTAIN PRIVATE IMPROVEMENTS (Time: 120 Minutes) ACTION REQUESTED OF COUNCIL: Approve, modify or deny second reading of Ordinance No. 3, Series of 2014 - -Julie Ann Woods, Community Development Director ........................ ............................... Page 26 Item No. 8: AGENDA FOR NEXT TOWN COUNCIL MEETING: • October 6, 2014 — Regular Meeting • October 20, 2014 — Regular Meeting • November 17,2014 — Regular Meeting ..................... ............................... Page 235 Item No. 9: MANAGER'S REPORT (Time: 10 minutes) - -Clint Kinney ........ ...........................Page 241 Item No. 10: COUNCIL COMMENTS /COMMITTEE REPORTS /CALENDARS: • September • October • November ......................... ...........................Page 242 Item No. 11: EXECUTIVE SESSION Town Council will now meet in Executive Session pursuant to C.R.S. 24 -6- 402(4) and Snowmass Village Municipal Code Section 2- 45(c), to specifically discuss one item: a) Conferences with an attorney for the purposes of receiving legal advice on specific legal questions pursuant to C.R.S. 24- 6- 402(4)(c) and Snowmass Village Municipal Code Section 2- 45(c)(2); Provided, there is an affirmative vote of two - thirds of the quorum present at this meeting to hold an Executive Session and for the purposes of considering item (a) above. Provided further, that no adoption of any proposed policy, position, resolution, regulation, or formal action shall occur at this Executive Session. Item No. 12: ADJOURNMENT 09- 22 -14tc Agenda Page 3 of 3 NOTE: Total time estimated for meetinq: Approx 3.5 hours (excluding items 1 -3 and 9 —13) 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. AGENDA ITEM SUMMARY Meeting Date: September 22, 2014 Agenda Item: Brush Creek & Wood Road Roundabout Update Presented By: Anne Martens, Public Works Director and Dean Gordon, Town Engineer Core Issues: Town Staff, Town Engineer and Development team would like to update Council on the current roundabout construction details. Per the Base Village PUD approval and associated agreements the developer for Base Village is to construct a roundabout at the intersection of Brush Creek Road and Wood Road. The design is to meet the standards as outlined in the funding agreement. The roundabout and work within the public ways are to meet the levels of service for the current and future traffic volumes, including turning movements, radius, pedestrian and transit elements, and to meet the engineering standards for roundabouts. The design team has met. on several occasions with the adjacent property owners, specifically the Conoco, town departments and affected agencies, and to discuss design elements. The intention of the developer is to submit construction documents on October 1 st to be reviewed and approved by the Town Engineer. This allows time for preparation for construction to commence in the spring of 2015. The entire project is to be completed by the spring of 2016. Coordination relative to staging, phasing and construction are being discussed and a public outreach program will be established. The design team is finalizing wall details and it is recommended a tiered wall system for the corner of Brush Creek Road and Upper Kearns. This system will impact the town parcel, but will allow for a more aesthetically pleasing improvement. Attached are 5 exhibits to outline the general intent of the design. Attachments: Exhibit 1 Brush Creek Roundabout — Site Plan Exhibit 2 Brush Creek Roundabout — Landscape Plan Exhibit 3 Brush Creek Roundabout — Retaining Wall Site Plan Exhibit 4 Brush Creek Roundabout — Upper Retaining Wall Exhibit 5 Brush Creek Roundabout — Lower Retaining Wall Financial Impact: The Town has included in the 2015 Road Fund Budget for the Town's contribution in the amount of $800,000 for the Roundabout per the Base Village funding agreement. 09 -22 -14 TC Packet 4 Exhibit 1 09 -22 -14 TIC Packet 5 SNOWMASS VILLAGE / TOWN HALL pp KEARNS ROAD c z CONOCO •+ ALPINE BANK w� ? tY 81 AD � i ..- -'.-.Z c I FA Mil �_ - -- i CREEK BRUSH EEK � . j _CARRIAGEWAY _.. k HATCH LEGEND ;. r1 09 -22 -14 TIC Packet 5 0 F--"::",xhibit 2 L0 M 0 C C ALIFNE BANK 1 0 u 0 J, J" 2 C' SEEINSET BJ ADAM 1 • Ul J., — TREES LEGEND FLAMING LIST -OUTER AREAS ASPEN TA Pt EM ITIM" Jp ip "�,ZN— Jp =1=2 AS A. TURF AND REWEGETAMN PLANTINGLIST-ROUNDABOUTC MEN WTO-OFSW—XSS I.A.E F7 D,(EA) J, AS P L F—] i7= 1-1. 1 p A8 JPZ, AD-SMEE—EDMD A= S fx,=.P — R—T —0. —77 ip =SF;. NOMSEECIVILFORAU iNsEr. ROUNDABOUT CENTER SCALE: 114�1- ECAPEMATIERIALS Ll A 09-22-14 TC Packet 6 Each i bit 3 09 -22 -14 TC Packet - - ------- -- ----------- --- —2 tlJ]_ —. 8- — — — — — — — — — — CROSS—SECTION PROPOSED 2 7� 6370 ---- — - - - -- - awz---- --- ----- -____'__'__ -- F — — - - — - - - - - CROSS—SECTION PROPOSED EXAMPLE OF GRAVITY WALL FACING -1m-1 09-22-14 TIC Packet 8 Exhibit 4 SETS�CK t•v PROFILE VIEW — CRUSHED STONE FOOTING Z IL 0 -5 FOR PLANNING AND BIDDING PURPOSES El 4b1rP.EM 'A(RJ5 ( ^ECUJPJAGE�BYAD. 2P�."vl aW�D DH I — 8L RULES ? :EE* UY cEH1ER \� I/ 56ECLED Br C9"1FAL SEE DEiuG -5/6� ( WY DE U�fr BEHIIA�� £cHEiE � GUR PPE- 'P("iFJG _ � � __ ` l,M!fA (SEE SLDfCDULC) (SEE scHED'JIFJ BNTI . —TV (r iJ,E I RTH U DEPENDS UP(.N LA1 ILA HT — 1. BOnD.V N. wlAi� SCM1 P� rR6`li Dr eiH F£tExTI. AT i %CSUA TI %+�,ODUi DRPwALEE N FRONT" THE EMM HEIEIITpx. SECTION SOIL NAIL PERMANENT 3 6 HDT 1. YALE + .D S III, PAAUIxC'+� rA(9q 11, c. T.Tll - (HHEF CASs- PJ -PLIrE HD+CS+LIE UHCKr fW..rg15PETE IEUP.flART FA_HG _ .D S IESH HCe,GDHCna: vERPG1 GIPS �(20 (I B.IY � —��-` dYRD. WF>FI EDfA OP EuJrvMENI i -5 IEHV-lH, -6 r� — � MILERE ( ?) 05 BAR fINIIMIWE. W% 0' -r- (C NN 5� LSPIAiE /� � ALU VES (r.E- SCHEIxR[) k m, sx�rcv.(TE uw Hors Ps,. l V RT�hCEUiE ST�AfST J DU EUTTW C ' DETAIL NAIL HEAD AND BAR E G x01 t0 sEICE Exh i bit ,5 "A% n'_U' HURIZ— ­T11 B' DETAIL FACING �6 6 of To sum 09 -22 -14 TIC Packet 9 E E -5/5 fC FGi.J fY N PSI TT / E \ ISOMETRIC DRAIN GRATE EXAMPLE OF SHOTCR.ETE STRUCTURAL FACING FOR PLANNING AND BIDDING PURPOSES G Y Yu; z � o � ,y ter{ �alp7 � 1 Uhd� H0. (E IIJ CENIEF Imo. D DETAIL BEARING PLATE Fj O IIGL i0 SC:.LE lrPEIC OPT URA9�y 5� TE : AOHG 'C CQ'Y£CPDx S�NATIYE -1 \r BR, —EIEA EP�I DRAIN GRATE DETAILS E E -5/5 fC FGi.J fY N PSI TT / E \ ISOMETRIC DRAIN GRATE EXAMPLE OF SHOTCR.ETE STRUCTURAL FACING FOR PLANNING AND BIDDING PURPOSES G Y Yu; z � o � ,y ter{ �alp7 � 1 Uhd� Dear Snowmass Town Council Members, Snowmass discovery is pleased to be presenting the Concept Plan and Feasibility Study produced by Amaze Design in collaboration with Barrie Projcets and Algonquin Advisors. This project began in May with generous funding ($25,000) from the Town of Snowmass Village and additional funding from private contributions. The team organized by Amaze Design founder Andrew Anway and informally known as Team Amaze included: Andrew Anway, founder of Amaze Design who brings thirty years' experence in project planning, interpretive design, and management. He has led international teams in the development of national museums for the governments of Malaysia, Australia, Qatar, and the United States. In the USA his collaborations have included the Chicago History Museum, National Children's Museum, and the Smithsonian Institution. Michael S. Devine, senior managing director at Algonquin Advisors, brings twenty years of financial and investment experience to the firm's museum services efforts, including concept development, capital funding, development, and project operations for museum complexes, visitor centers, theaters, and other cultural facilities. Among his credits is the International Spy Museum. Dennis Barrie, Principal of Barrie Projects, has been an internationally distinguished museum director, cultural historian, and expert in popular culture with positions at the Smithsonial Instutution, and as founding Executive Director of the Rock and Roll Hall of Fame and Museum. He also led the development of the International Spy Museum and is noted for developing unusual and unexpected concepts, using innovative approaches. Together this team has worked extensively with Snowmass Discovery since May 2014 to produce the Concept Plan and Feasibility Study being presented to you Monday September 22 by Andrew Anway at your regular meeting. Attached please find the Executive Summary and Conclusion sections from the Report. John Rigney and I will be present as well, as chairman and executive director of Snowmass Discovery. We are truly grateful for the Town's support of the Feasibility Study and excited about working with the Town and the community to bring the vision of Snowmass Discovery to fruition. Best regards, Tom Cardamone 09 -22 -14 TC Packet 10 When fossils were discovered in 2010 during a routine excavation for the expansion of the town reservoir, it set in motion a series of events that led to the creation of Snowmass Discovery, Inc. Over the course of the last several years groups consisting of elected officials, scientists, community leaders and stakeholders have convened to explore ways in which this major discovery of ice age fossils in Snowmass could be leveraged into a larger strategy to provide new, exciting visitor experiences while extending the Snowmass brand. In the summer of 2014, Snowmass Discovery, Inc. engaged the services of Amaze Design in association with Barrie Projects and Algonquin Partners to conduct a feasibility study for Snowmass Discovery. The goal of this feasibility study was to conduct the market and economic research necessary to determine the size, capital cost, operating pro -forma and physical character of a visitor attraction associated with Snowmass Discovery. Snowmass Discovery Concept Plan & Feasibility Study August D, 2014 The study recommends a visitor attraction consisting of three parts: • an indoor venue located in Base Village featuring a signature orientation film, interactive exhibits and educational programs; • a series of outdoor observation platforms along the Dawdler and Sam's Knob trails that will serve as a base for two -hour on- mountain facilitated programs overlooking Ziegler Reservoir; • and, an interpretive trail leading to an observation area at the southeast rim of Ziegler Reservoir as a location for a naturalist -led interpretive talks, subject to frequency and quantity to be approved by the landowner(s). The new Snowmass Discovery Center will provide educational programs at its indoor facility and in its outdoor venues. Partnerships are a key part of the vision for Snowmass Discovery, thus it is anticipated that a Base Village food and beverage partner could assist the facility with food service and that the Base Village conference center may be a cooperative venue for larger events and programs. It is also anticipated that the Discovery Center will be a function venue for after -hours events. Paid attendance to the Snowmass Discovery Center is estimated to be stabilized at 35,000 visitors annually. Of these, approximately 80% will be 09 -22 -14 TC Packet 12 Executive Summary tourists. About 7,000 of all visitors are expected to be visiting primarily to see and to experience Snowmass Discovery. It is anticipated that existing guests will extend their stay by a half day on average as a result of their interest in Snowmass Discovery. The capital costs, depending on the final size of the venue, range from $3.2 - $5.6 million based on a size of 2,750 square feet and 7,500 square feet, respectively. Revenue is projected to be $670 - $83OK; operating expenses are projected to be $633 - $857K. The primary differences in the size are related to flexible space for programming and private events and internal food & beverage operations. Due to the partnership potential we would recommend a smaller facility, closer to the 2,750 square foot version, be the optimal starting point for the Discover Center. It is assumed there will be no land costs and space will be provided rent -free. A small operating loss is projected, thus an endowment to meet this shortfall is recommended. Snowmass Discovery is part of a larger strategy to extend the brand of Snowmass. To accomplish this rebranding will require strong leadership and a coordinated effort among elected officials, business leaders and stakeholders. Snowmass has the opportunity to leverage the ice age fossil discovery into a new, modern identity that will distinguish it significantly from other leisure and vacation venues. The discovery of Ice Age fossils in Snowmass was a galvanizing moment for the community. The excitement the discovery evoked then still resonates today. The desire to capitalize on the discovery and to use it as an opportunity to re- envision how Snowmass is perceived in the future is widespread. The audience projections and economic model suggest that a Snowmass Discovery Center of 2,750 to 7,500 square feet will generate sufficient demand so as to be sustainable with a modest endowment. The project strengths are: 1. Snowmass Discovery has a specific niche and will offer a unique set of experiences. 2. Snowmass Discovery will leverage the work of leading scientists by partnering with established research institutions in the region. 3. Snowmass Discovery can capitalize on the increasing interest in environmental education. 4. The project has backing of key members or the Snowmass —Aspen community. 5. The project will offer economic benefit to surrounding area business. Snowmass Discovery Concept Plan & Feasibility Study August 27, 2014 Considerations Moving Forward: 1. The residential base for the Greater Snowmass area is relatively small, therefore it will be important to continue to keep the community involved in the project's development. 2. There are other projects that may be competing for donor funding. 3. Operations are not projected to be self - sustaining, therefore and endowment will be required. 4. Start-ups are most vulnerable after their 3rd year, when the novelty of the new institution has subsided. Strong programming, charismatic leadership, and on -going marketing will be critical to long -term sustainability. 5. Successful negotiations with the landowners on the mountain and at the reservoir will be necessary to implement the proposed outdoor programs. 6. Strong leadership from Board, City and /or Ski Company must emerge to move this project forward. 09 -22 -14 TC Packet 13 Conclusion Next Steps: 1. Consider the creation of expanded Snowmass Discovery working group to include representatives from the Town, SkiCo, Related and others. This group would address the larger branding and identity strategy for Snowmass. 2. Conduct a fundraising feasibility study. 3. Begin negotiations with entities required for real estate and for access to the mountain and the reservoir. 4. Develop timeline for fundraising and planning. 5. Develop program plan for 2015. AGENDA ITEM SUMMARY TOWN OF SNOWMASS VILLAGE Meeting Date: September 22, 2014 Agenda Item: RESOLUTION NO. 31, SERIES OF 2014 — A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF SNOWMASS VILLAGE AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT FOR THE FINANCIAL SUPPORT OF THE COLORADO REGIONAL MENTAL HEALTH CENTER DBA MIND SPRINGS HEALTH DETOX CENTER OPERATED IN PITKIN COUNTY Presented By: Brian Olson, Chief of Police Core Issues: . Colorado West Regional Mental Health Center closed its detoxification program on October 18, 2012 • Aspen's Right Door closed its doors January 2013 • Entering into this IGA will provide detox services for the Town of Snowmass Village population. Financial Impact: Council Options: Approve, modify or deny Resolution No. 31, Series of 2014 Staff Approve Resolution No. 31, Series of 2014 entering into an IGA with Pitkin Recommendation: County. 09 -22 -14 TC Packet 14 TOWN OF SNOWMASS VILLAGE TOWN COUNCIL RESOLUTION NO. 31 SERIES OF 2014 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF SNOWMASS VILLAGE AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL AGREEMENT FOR THE FINANCIAL SUPPORT OF THE COLORADO WEST REGIONAL MENTAL HEALTH CENTER DBA MIND SPRINGS HEALTH DETOX CENTER OPERATED IN PITKIN COUNTY WHEREAS, on October 18th, 2012 Colorado West Regional Mental Health Center closed its detoxification program operating out of the Garfield County Jail; and WHEREAS, on that same day (October 18th, 2012), Aspen's The Right Door announced it would close its doors by January, 2013, and would no longer provide drug and alcohol case management services to the community or criminal justice system; and WHEREAS, Participating Members have historically supported both the detoxification services offered by Colorado West Regional Mental Health Center and the drug and alcohol case management services offered by the Right Door as ways to protect the health, safety and welfare of their residents; and WHEREAS, the Participating Members desire to have a sustainable continuum of services from detoxification through drug and alcohol case management; and WHEREAS, Pitkin County and Colorado West Regional Mental Health Center DBA Mind Springs Health Detox Center have entered into a contract to provide detoxification services and drug and alcohol case management programs; and WHEREAS, the Participating members reached an agreement on an initial funding model for 2013, based on historic funding contributions, to provide detoxification and drug and alcohol case management programs; and 09 -22 -14 TC Packet 15 14 -31 tc Reso Page 2 of 3 WHEREAS, the Participating members have agreed to refine the funding model for 2014 to ensure a fair and equitable distribution of responsibility for future financial support of detoxification and drug and alcohol case management programs; and WHEREAS, pursuant to the provisions of Section 29 -1 -201, et seq., Colorado Revised Statutes, as amended and Article XIV of the Constitution of the State of Colorado, each of the Participating Members is legally authorized to cooperate and contract with the others for the purpose of providing, on an intergovernmental basis, any function, service or facility authorized to it, including without limit the sharing of costs and incurring of debt, and further including authority to provide for the joint exercise of such function, service or facility; and WHEREAS, the Participating Members do hereby collectively determine and declare that this Intergovernmental Agreement is necessary, proper and convenient for the continued fostering and preservation of the public peace, health and safety. NOW, THEREFORE, in consideration of the premises and of the respective covenants and undertakings of the parties, as herein set forth, in Attachment A READ, APPROVED AND ADOPTED by the Town Council of the Town of Snowmass Village, Colorado this 22nd day of September 2014, upon a motion made by Council Member , the second of Council Member and upon a vote of _ in favor to _ opposed. TOWN OF SNOWMASS VILLAGE, COLORADO Bill Boineau, Mayor 09 -22 -14 TC Packet 16 14 -31 tc Reso Page 3 of 3 ATTEST: Rhonda B. Coxon, Town Clerk APPROVED AS TO FORM John Dresser, Town Attorney 09 -22 -14 TC Packet 17 ARTICLE I — TERM AND EFFECT Effect of IGA. Except as expressly provided herein, this IGA shall replace and supersede all prior agreements of any kind between all or any of the Participating Members and any or all other Participating Members hereto, to the extent and for the limited purpose as such other agreements may be related to the provision of funding detoxification and drug and alcohol case management services. 2. Term. The initial term of this IGA shall commence on , 2014 and will be in effect until any one of the parties terminates the agreement per paragraph _ of Article ARTICLE II — Fiscal Aunt Aueement 1. Pitkin County agrees to be the fiscal agent providing payment to CWRMHC dba Mind Springs Health Detox Center in the amount of $238,100 in 2014 for detoxification and drug and alcohol case management services per the contract and approved in the County's 2014 budget. 2. The Participating members agree to provide funding in return for detoxification and drug and alcohol case management services as follows. By October each year CWRMHC dba Mind Springs Health Detox Center will provide the County with a budget to fund detoxification and drug and alcohol case management services for the next fiscal year. The percentage share for each entity will be determined as follows: a. In Kind Contributions: i. Pitkin County shall provide, at no cost, space in the Shultz Health and Human Services Building to CWRMHC dba Mind Springs Health Detox Center for detoxification and drug and alcohol treatment services. ii. Aspen Valley Hospital agrees to provide, at no cost, laundry services. b. Cash Funding for detoxification and drug treatment services: Any changes to the total amount for detox or the formula in subsequent fiscal year contributions will be approved by the managers of Participating Members and will replace Exhibit A. i. In 2014, Aspen Valley Hospital agrees to pay 30% of the detoxification and drug and alcohol case management services provided by CWRMHC dba Mind Springs Health Detox Center. 09 -22 -14 TC Packet 18 ii. In 2014, Pitkin County, the City of Aspen, Snowmass Village and the Town of Basalt agree to pay 70% of detoxification and drug and alcohol case management services provided by CWRMHC dba Mind Springs Health Detox Center. The formula for division of the 70% will be agreed upon by the Managers of the Participating Members. The 2014 formula can be seen in Exhibit A. iii. Pitkin County will pay CWRMHC dba Mind Springs Health Detox Center one half of the total twice a year (March and October) and will invoice ARTICLE VI — GENERAL PROVISIONS 1. Waiver. The failure of any party to exercise any of its rights under this IGA shall not be deemed to be a waiver of any rights provided for under this IGA. 2. Appropriation of funds. a. Notwithstanding anything herein to the contrary, the obligations of each individual Participating Member under this IGA shall be, where appropriate, subject to the annual appropriation by that Participating Member's governing body, of funds sufficient to meet those obligations provided herein. In the event that sufficient funds are not so appropriated by any Participating Member, this Agreement may be terminated by either said Participating Member or the County as to said Participating Member. b. Nevertheless, no Participating Member shall be permitted to terminate or withdraw from this IGA prior to the end of a fiscal or calendar year due to such non - appropriation of funds, and in no circumstances shall any portion of any type of contribution of the Participating Member failing to so appropriate sufficient funds be returned or pro -rated due to such non- appropriation. c. No obligation provided in this IGA is intended to, or shall be interpreted to, constitute a multiple year direct or indirect debt or other financial obligation whatsoever within the meaning of the Constitution or laws of the State of Colorado. 3. Notice. Any notice required or permitted under this Agreement shall be in writing -id shall be hand - delivered or sc .. ` -- registered or certified regular mail, postage 09 -22 -14 TC Packet 19 pre -paid to the addresses of the parties as follows. Each party by notice sent pursuant to this paragraph may change the address to which future notices, requests, consents, approvals written instructions reports or other communications should be sent. If given in person, notice shall be deemed given when actually given. If given by certified mail, notice shall be deemed given at the time indicated on the duly completed return receipt. If delivered electronically notice shall be deemed given at the time the message was sent according to the metadata in the electronic communication. Notification and Contact Information Notice to Pitkin: With copy to: Notice to City of Aspen: With copy to: Notice to Town of Basalt: With copy to: 09 -22 -14 TC Packet 20 Jon Peacock Pitkin County Manager 530 East Main Street Aspen, CO 81611 970 - 920 -5067 Pitkin County Attorney 530 East Main Street Aspen, CO 81611 970 -920 -5190 Steve Barwick City Manager 130 South Galena Street Aspen, CO 81611 970 - 920 -5212 City of Aspen Attorney 130 South Galena Street Aspen, CO 81611 970 - 920 -5212 Mike Scanlon Town Manager 101 Midland Avenue Basalt, CO 81621 970 - 927 -4701 Town of Basalt Attorney 101 Midland Avenue Basalt, CO, 81621 970 - 927 -4701 Notice to Town of Snowmass Village With copy to: Notice to Aspen Valley Hospital With copy to: Gary Suitor Town Manager P.O. Box 5010 130 Kearns Road Snowmass Village, CO 81615 970 - 923 -3777 Town of Snowmass Village Attorney P.O. Box 5010 130 Kearns Road Snowmass Village, CO 81615 970 - 923 -3777 Dan Bonk Chief Executive Officer 0401 Castle Creek Road Aspen, CO 81611 970 - 925 -1120 Aspen Valley Hospital Attorney 0401 Castle Creek Road Aspen, CO 81611 970 -925 -1120 4. No Benefit to Inure to Third Parties. This IGA does not, and shall not be deemed to, confer upon or grant to any third party any right to claim damages or to bring any lawsuit, action or other proceedings against any Participating Member because of any breach hereof, or because of any terms, covenants, agreements or conditions contained herein. 5. Modifications. No modification or waiver of this IGA, or modification of any covenant, condition, or provision herein contained, shall be made unless duly executed by a three quarters (75%) majority of the Participating Member entities. 6. Agreement. This IGA constitutes the entire agreement and understanding between the Participating Members on the subject matter hereof, and supersedes any prior agreements or understandings relating to the subject matter of this IGA, except for other written agreements and understandings referred to herein. 7. Benefit. This IGA shall be binding upon and shall inure to the benefit of the 09 -22 -14 TC Packet arties hereto, their successors o: 21 ; s. S. Severability. All agreements and covenants contained herein are severable, and in the event that any such agreement or covenant is held invalid, by a court of competent jurisdiction, this IGA shall be interpreted as if such invalid agreement or covenant were not contained herein. 9. Governmental Immunity. No Participating Member hereto intends to waive, expressly or implicitly, by any provision of this IGA, the monetary limits or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, Section 24 -10 -101, et seq., C.R.S., as amended from time to time, or any other privilege or immunity provided by law. 10. Attorney's Fees. If an action is brought to enforce this IGA, the prevailing party shall be entitled to reasonable attorney's fees and costs. 11. Applicable Law. This IGA shall be interpreted in all respects in accordance with the laws of the State of Colorado. Venue shall only be proper in Pitkin County, Colorado. 12. Paragraph Headings. Paragraph headings are inserted for convenience only and in no way limit or define the interpretation to be placed upon this IGA. 13. Individual obligations. Each Participating Member is required to carry out and perform all the obligations of a Participating Member under this IGA independently of the actions of any and all other Participating Members. No Participating Member shall be responsible or liable for the failure of any other Participating Member to perform its obligations herein. ARTICLE VIII — EFFECTIVE DATE & EXECUTION In accordance with CRS §29 -1- 203(1), this IGA shall not become effective as to any party unless and until it has been approved by all Participating Members hereto. Provided, however, that if any potential Participating Member fails to approve this IGA 09 -22 -14 TC Packet 22 by September 1, 2014 this IGA may become effective as to approving Participating Member as an absolute condition of any Center service by unilateral order of the Board of County Commissioners of Pitkin County, Colorado. Participating Members have the right to seek reimbursement as allowed by law from any Participating Member which does not sign this agreement. Accordingly, the initial term of this IGA and the rights and obligations inuring there under shall run concomitantly for all Participating Members hereto, regardless of the date of signature of any one Participating Member. 1. This IGA may be executed in counterparts. Execution of this IGA by fewer than all parties shall be governed by this Article. IN WITNESS HEREOF, the parties hereto, acting under authority of their respective governing bodies, have caused this Agreement to be executed the day and year first above written. 09 -22 -14 TC Packet 23 Signature Page: ATTEST: Clerk to the Board ATTEST: BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY, COLORADO mm Robert A. Ittner, Jr. , Chair Date: ASPEN CITY COUNCIL BY: Clerk Steve Skadron, Mayor ATTEST: TOWN OF SNOWMASS VILLAGE Im Bill Boineau, Mayor ATTEST: TOWN OF BASALT I: Clerk Jacque Whitsitt, Mayor ATTEST: ASPEN VALLEY HOSPITAL :• I_ ._ _. 1 In 2014, each entity's funding responsibilities will be determined by taking the combined percentage of each entity's: population from the Colorado State Demographers Office; total number of liquor licenses; and total number of admits (not including hospital admits) from the previous fiscal year. i. For the purposes of the calculation, Pitkin County shall count all admissions not assignable to The City of Aspen, Aspen Valley Hospital, Snowmass Village or Town of Basalt to the County's admission numbers. Model i - HamizS/ ropulazlon/ Liquor Licenses Entity Contribution Factors Aspen Valley Hospital % Contribution Admits %* # of Admits Off the top contribution 30% 38% 54 Estimated Detox Budget * * ** $ 238,100 Estimated 2014 Contribution Liquor % of Total Aspen Valley Hospital $ Population ** Licenses * ** Admits* Combined Pitkin County * * * ** 6,734 24 40 33.79% Aspen 6,615 84 33 44.21% Snowmass Village 2,811 36 4 15.01% Basalt 934 6 10 6.99% Total 17,094 150 87 100% Estimated Detox Budget * * ** $ 238,100 Estimated 2014 Contribution % of Total Aspen Valley Hospital $ 71,430 30.0% Pitkin County $ 56,318 23.7% Aspen $ 73,684 30.9% Snowmass Village $ 25,024 10.5% Basalt $ 11,644 4.9% Total $ 238,100 100% *Based on 2013 detox demographics from Colorado West * *2011 Estimated Population Colorado State Demographer's Office ** *From respective Clerks * ** *Does not include in -kind donations from Pitkin County and AVH * * * * *Pitkin County includes referrals from Mind Springs Health, Family /Friends, Self, Other and SO 09 -22 -14 TC Packet 25 AGENDA ITEM SUMMARY Meeting Date: September 22, 2014 Agenda Item: CONTINUATION OF PUBLIC HEARING AND SECOND READING OF ORDINANCE NO. 3, SERIES OF 2014, AS AMENDED - APPLICATION BY SNOWMASS ACQUISITION COMPANY, LLC, FOR A MINOR PUD AMENDMENT TO THE BASE VILLAGE PUD IN ORDER TO MODIFY VESTED PROPERTY RIGHTS AND THE TERMS OF THE VESTED PROPERTY RIGHTS, INCLUDING CHANGES TO THE DEVELOPMENT AGREEMENT, FUNDING AGREEMENT AND SUBDIVISION IMPROVEMENTS AGREEMENT Presented By: Julie Ann Woods, Director and Jim Wahlstrom, Senior Planner Community Development Department Core Issues: The Public Hearing was opened on August 18, 2014, and was continued to September 8, 2014 when the ordinance was passed, as amended, on first reading with the second reading and continued public hearing scheduled for September 22, 2014. On September 16, 2014, the Applicant, Snowmass Acquisition Company, LLC, (SAC), submitted revised versions of the agreements in connection with the pending application for the Minor PUD Amendment to the Base Village P.U.D., pursuant to Land Use Code Section 16A -5- 70(3), and primarily in response to the Town Council's comments on September 8, 2014. Town Council is being asked to review the attached revised agreements (Exhibits 1, 2 and 3) instead of the previously submitted agreements. Upon the re- opening of the Public Hearing, Town Council should consider the amendment request pursuant to 16A -5- 70(3). The Town Council shall consider and make a determination as to whether the changes alter the nature of the project from that described in the original submission to such an extent that: a. The amendment should not be allowed; b. The amendment should be allowed, but the Planning Commission should have an opportunity to review the amendment and make a recommendation thereon; or c. The amendment should be allowed, and the application should proceed without additional hearings or consideration 09 -22 -14 TC Packet 26 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 thereof. Description: Per the direction of Town Council at the September 8 th meeting, the Applicant has incorporated the terms of the "Funding Agreement" into the revised Subdivision Improvements Agreement and Development Agreement. Therefore, the First Amendment to the Base Village Funding Agreement indicates in paragraph 2. that the Developer contributions have been completed, subject to the obligations set forward in the Development Agreement and Subdivision Improvements Agreement. Staff has provided further comments on this below, under Exhibit 3: First Amendment to the Base Village Funding Agreement. The remaining two agreements, the Development Agreement and the Subdivision Improvements Agreement (SIA) are "Amended and Restated ", again, per Town Council's direction. The intention is to have final agreements that supersede the previous PUD agreements in order to streamline the management of the PUD Amendment. Staff has reviewed the agreements and provides the following comments, in response to the proposed revisions: Exhibit 1: Amended and Restated Base Village Development Agreement The definition of "Cure Period" has been changed to mean fifteen (15) days and eliminates the extraneous language. This has been removed as a condition in amended Ordinance 3, Series of 2014. The definition of "Event of Force Majeure" has been modified to be determined by Town Council. This has been removed as a condition in amended Ordinance 3, Series of 2014. 1.3.1 First Interim Vesting Extension expires on November 3, 2018. 1.3.2 Second Interim Vesting is established as automatically extended to November 3, 2019, provided the Developer meets the milestone deadlines required before that date. 1.3.3 Final Vesting Extension would be automatically extended to November 3, 2024 provided all milestone deadlines have been met. 1.3.5 b.(i) Delayed approval of PUD Amendment Application provides a day- for -day extension through the construction season for each day action on the PUD Amendment is delayed. If the PUD is not approved by Sept 30, commencement of construction will roll to May 31 of the following year. This clause pertains to Lots 2 and 2 09 -22 -14 TC Packet 27 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 3, and any public improvements, except the substantial completion of the Community Facility. This clause also requires the Developer and Town Council to execute an amendment to the agreement setting forth revised milestone dates, if there is a delay in the PUD Action date. 1.3.5 b.(ii) Accelerated Milestone Deadlines for Building 5 Limelight Snowmass, proposes to move up Substantial Completion for the proposed Limelight Hotel and Residences on Lot 2 to November 1, 2018, if approval of the PUD Amendment, including the Limelight Hotel and Residences, is achieved. 1.3.5 b.(iii) Denial of PUD Amendment Application provides that vesting is terminated if a PUD Amendment is denied, except for Bldgs. 7, 8 and 13B and for any building for which commencement of construction has occurred after the date of the agreement. In addition, the Developer has the right to have the vesting reinstated, provided they provide notice to reinstate and they commence and complete public improvements (Wood Road, roundabout and snowmelt at the garage entrance /exit); if achieved, then each milestone would then be extended by 2 years, and the Developer will have the right to submit a new or revised PUD amendment application, regardless if another PUD application has been submitted (the Code only allows the processing of one major PUD application at a time). 1.3.6 Liquidated Damages is a new paragraph that provides for the payment of $1500 per day, up to $1 million, until substantial completion of Building 13B, in the event of nonperformance (the milestone deadline for substantial completion of 13B is December 31, 2016). If not paid, vesting is terminated except for buildings 7, 8 and 13B and any other building that commences construction after the date of this agreement. It also states that the milestone deadline for substantial completion of 13B shall be extended for 2 years from the date of commencement of construction if the PUD Amendment application is denied or "in the event of nonperformance". Staff does not think this last phrase should be included in the agreement. 1.3.7 Construction Interruptions is a new clause requested by the Town that provides $100,000 as additional security in the event of work stoppage, to be used for protecting and securing the building site and bringing it to a safe condition. If not used, the funds will be released upon substantial completion. This has been removed as a condition in amended Ordinance 3, Series of 2014. 3.1b. Assignment by Developer clarifies who the developer can assign his rights to, which is consistent with the previous Development Agreement. 09 -22 -14 TC Packet 28 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 Exhibit 2: Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development The key issues that Town Council should evaluate in this agreement have to do with the timing of trails and landscaping improvements; the amount of surety required; and the future Aerial Connector to the Town Center. 1. Capitalized Terms and Definitions "Final Completion" should be clarified to read ". . the Public Improvement has achieved Completion, including landscaping;" 3. (a) Trails does not specify a milestone by which "the trail west of Building 1 (Treehouse) to the south of Lichenhearth Condominiums to connect to the Benedict Trail as shown on Exhibit B", will be completed. Further, it implies that its construction will be subject to any trail easements to be granted by third parties. Staff suggests that this paragraph be more specific to ensure the trail connection remains a priority, and the applicant will diligently pursue the easement as was the intent of the original PUD. Further, it is not clear in the documentation what the trail improvements will entail (hard surface, crusher fine, width, etc.). The Public Works Director has again expressed that the Town's Mobility Map, which is included as Exhibit B to the SIA, does not provide enough information regarding these future improvements. It is suggested that the applicant provide more detail (including bringing forward the previous Exhibit A to the original SIA) to ensure the improvements will be what the Town expects. A new condition has been added to Ordinance 3, Series of 2014 to address this issue. Paragraph following 3.(c)(iii), relating to the SWSD Improvements Agreement, attempts to make the posting of a Performance Security for the roundabout to be considered remediation related to the "substandard waterline section ", and footnotes the need to have all three parties enter into a subsequent agreement. Staff recommends the Developer work with the SWSD directly, and satisfies their concerns (either through posting of a different Performance Security or other means satisfactory to the District). If Town Council agrees, this paragraph should be modified accordingly. Although stricken in the agreement, formerly Section 3.(i) refers to the Landing Site Construction. It does not appear that the Developer has provided either (ii) "...an interest in the Landing Site sufficient to give the Town the right to construct, operate, maintain, repair and replace a terminal for the Aerial Connector upon the Landing Site", or an easement across the property for purposes of the future Aerial Connector to Snowmass Town Center (apparently the plat was recorded prior to the review of the concurrent :I 09 -22 -14 TC Packet 29 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 Snowmass Center redevelopment application was completed). It should be noted that there is a recorded private easement across the Conoco property to the Snowmass Center for the aerial tram, but that easement does not included lands in Base Village. A new condition has been added to Ordinance 3, Series of 2014 to address this issue. 4. Landscape Improvements refers to landscaping improvements being completed in accordance with the schedule on Exhibit A attached, but Exhibit A does not include a "Final Completion" date for the Upper Wood Road Improvements. Landscaping is typically installed when buildings or improvements are completed. Further, the paragraph references "...Landscape Improvements (including future trail connections required by the PUD that have not yet been constructed and which will be constructed as a condition to issuance of final certificates of occupancy for the building to which the trail connections relate" (the other trail is proposed between Buildings 10AB and the Aquatic Center). However, certificates of occupancy were issued to the Treehouse Building because an easement for the trail had not yet been acquired. As mentioned above, a new condition to address this has been added to the draft ordinance. 7. (c) Security for Improvements: Release of Security indicates that "(T)he Performance Security must be valid for the time period anticipated for Substantial Completion or Final Completion of such Public Improvements..." but should remain valid through Final Completion only. A new condition has been added to Ordinance 3, Series of 2014 to address this issue. 7. (d) Security for Improvements: Release of Security also proposes that "...a letter of credit or performance bond to the Town in an amount equal to five (5 9,o) percent of the cost of that Public Improvement for the purpose of securing that warranty for that Public Improvement." Typically, 10% is set aside for warranties. The Town Engineer should comment on whether he thinks this amount is adequate. Stricken paragraph 6. (m) references that the metro district is responsible for construction of trails, which have not been completed. Although the Developer is agreeing to take on this requirement, this paragraph should remain until the work is completed. Stricken paragraph 6. (n) references that the parties to the GID agree to cooperate in causing the GID to reimburse the developer for all costs incurred to design and construct the Road improvements. It isn't clear what "Road Improvements" are. Since it was stricken, it may not be an issue. But the developer should 5 09 -22 -14 TC Packet 30 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 clarify if their intent is to use GID funding for Wood Rd and or the roundabout. 9. Default clause provides the developer with a sixty (60) day cure period, while the Development Agreement has a fifteen (15) day cure period. The Developer should explain to the satisfaction of Town Council why the additional amount of time is necessary under the SIA vs. the Development Agreement. 16. Amendment. Waiver and Termination clause indicates that if the developer loses the right to develop Base Village for any reason other than failure of the developer to meet its obligations under the Ordinance (presuming Ord. 21, Series of 2004) or any other agreements, the developer is relieved of all obligations hereunder. In other words, it doesn't appear that any obligations are passed along to successors and assigns. Legal counsel should weigh in on this clause. Exhibit 3: First Amendment to Base Village Funding Agreement 2. Developer Contributions Completed indicates that other than the obligations of the Developer under the revised SIA and the Development Agreement, the obligations of the Developer have been satisfied. This essentially wraps the previous terms of the funding agreement into the other two agreements. The Town Engineer should weigh in on whether he agrees that the other obligations in the previous funding agreement have been satisfied. Additional comments have been provided by both the Public Works Director and the Transportation Director, and are included in Exhibit 4. Other comments from the Town Engineer may be forthcoming, but the lateness of the revised submittal has again created an inadequate amount of time for Staff to provide a comprehensive set of review comments. However, it is clear that this amendment and the (presumed) subsequent PUD Amendment will continue to be complicated and will require diligence on the part of both Staff and the Developer to ensure proper noticing is provided and milestone deadlines and other obligations are met. Therefore, Staff also suggests that the Town Council request from the Developer a tool in the form of a timeline and /or matrix that addresses all work and deadlines agreed to be completed to assist in monitoring and ensuring conformance with all aspects of these agreements. Finally, included with this Staff Report are a series of letters that have been submitted following the first and second hearing, regarding the proposed amendment; these new letters are included 0 09 -22 -14 TC Packet 31 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 09 -22 -14 TC Packet 32 as Exhibit 5. The letters are from: Greg Rulon, Realtor and resident George and Sarah Hart, residents Mike O'Connor, resident Attachments: Exhibit 1 First Amendment to Base Village Development Agreement dated September 16, 2014 (including redlined version) Exhibit 2 Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development dated September 15, 2014 (including redlined version) Exhibit 3 First Amendment to Base Village Funding Agreement dated September 12, 2014 Exhibit 4 Review Comments from Public Works Director Anne Martens, Transportation Director David Peckler and Town Attorney John Dresser Exhibit 5 Letters from Public Exhibit 6 Previous packet from the September 8, 2014 Meeting Exhibit 7 Amended Ordinance 3, Series of 2014 Financial Impact: There are no additional revenues proposed in the 2015 Budget as a result of this application. Council Options: Town Council may approve, approve with conditions or deny the request for the vesting extension, pursuant to attached Ordinance No. 3, Series of 2014, as amended. Staff Recommendation: Staff continues to support the extension of the vested rights; however, there has not been adequate time to comprehensively review the revised agreements that have been "amended and restated ". Staff believes that the agreements, as drafted, are largely consistent with the direction of Town Council, but additional time would allow a more comprehensive review to clarify some clauses within the agreements and would better ensure that the Town's interests are adequately addressed. Staff recommends Town Council continue to accept public testimony on the application, provide additional direction to Staff on the draft agreements, and allow Staff more time to work with the Applicant on final revised Agreements. Therefore, Staff recommends that Council continue the public hearing and second reading of Ordinance No. 03, Series of 2014, as amended, to October 6, 2014. Should Town Council prefer to move forward with the adoption of the ordinance on second reading at this meeting, Staff would recommend that all additional conditions proposed by Staff and 09 -22 -14 TC Packet 32 Base Village PUD Amendment for Vesting Extension Staff Report to Town Council September 22, 2014 Council be incorporated and that Staff be authorized to adequately resolve outstanding issues. 09 -22 -14 TC Packet 33 Exhibit 1 AMENDED AND RESTATED BASE VILLAGE DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED BASE VILLAGE DEVELOPMENT AGREEMENT (this "Agreement ") dated as of , 2014, is made by and between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). This Agreement amends and restates in its entirety the Base Village Development Agreement dated November 4, 2004 between INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY LLC, a Delaware limited liability company and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation. RECITALS WHEREAS Developer intends to develop that real property situated in the Town of Snowmass Village, Colorado commonly known as Lots 1 -9, Base Village Planned Unit Development (the "Property "), as depicted on the Plat for Base Village P.U.D., filed February 2, 2006 in Plat Book 77 at Page 30, at Reception No. 520483 of the records of Pitkin County, Colorado; WHEREAS the Town and Intrawest/Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Development Agreement dated as of November 4, 2004, recorded as Reception No. 520495 in the real property records of Pitkin County, Colorado (the "Development Agreement "). The Development Agreement describes the "Vested Property Rights ", as such term is defined in the Town Municipal Code (the "Code ") associated with the Base Village Planned Unit Development (the "Base Village Project "); WHEREAS this Agreement amends, restates and supersedes in its entirety, the Development Agreement dated November 4, 2004; WHEREAS the Town Council of the Town granted approval of the development of the Property proposed in the Application by enacting Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "); WHEREAS the Code authorizes the execution of "development agreements" by the Town and the execution of this Agreement is contemplated by the Ordinance; WHEREAS Developer has proposed to extend the Vested Property Rights for the Property, as more particularly described in the Minor PUD Amendment application for Base Village submitted to the Town on June 30, 2014, as amended (the "Application "), and has agreed to provide or contribute to the provision of certain facilities and services within the Town of Snowmass Village for the benefit of the Town and the Base Village PUD as more particularly described below; RTT.Q RF /519214'2 2 09 -22 -14 TC Packet 34 WHEREAS the Town Council of the Town granted approval of the extension of Vested Property Rights for the Property proposed in the Application by enacting Ordinance No. 3, Series of 2014 (the "Minor PUD Vesting Ordinance "); WHEREAS The Town and the Developer have entered into an Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development dated , 2014 (the "SIA "); and WHEREAS The Town and the Developer have entered into a First Amendment to the Base Village Funding Agreement dated , 2014. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I VESTED RIGHTS 1. Capitalized Terms and Definitions. The following capitalized terms and phrases used herein shall have the following meanings: "Approval" means with respect to any land use or zoning action by the Town on a land use or zoning application related to the Base Village Project that the Town has granted a final approval, a administrative or court appeal, if any, has been finally decided in a final, non - appealable judgment or order, and a referendum, if any, as to the Town action has been concluded without reversal of the Town action. "Commencement of Construction" means that, with respect to the each of the milestone deadlines in Section 1.3.5 below that include construction of public or private improvements, that each of the following three conditions have been performed: (i) the Town has issued a building permit for the construction (if a building permit is required) or a right -of -way permit; (ii) a binding construction contract has been executed by the contractor and the Developer (or the owner engaged in such construction), and a true and correct copy thereof has been submitted to Town (provided any confidential or proprietary information may be redacted therefrom); and (iii) the "Mobilization" of the general contractor pursuant to the construction contract as determined by the Town's Chief Building Official. "Cure Period" means fifteen (15) days after the failure of the Developer to observe or perform any of its obligations under any of the milestone dates under Section 1.3.5. "Denial" means with respect to any land use or zoning action by the Town on a land use or zoning application related to the Base Village Project that the Town has denied a final approval, an administrative or court appeal, if any, has been finally decided in a final, non - appealable judgment or order, and a referendum, if any, as to the Town action has been concluded. A Denial also includes Town action that is subsequently reversed by court order, reconsideration or referendum. 2 RTiC RF /SZRR'7dZ � 09 -22 -14 TC Packet 35 "Event of Force Majeure" means the Developer's performance of work is unreasonably delayed, disrupted or interfered with as a result of an Act of God, as reasonably determined by the Town. In the event the Town Council so determines that there was an Event of Force Majeure, the applicable milestone deadlines affected by the Event of Force Majeure will be extended for such period of time as so determined by the Town Council. "Event of Nonperformance" means the failure of the Developer to perform any of the tasks or work set forth in Section 1.3.5 below by the applicable milestone date(s), and the continuance of such failure to perform beyond the expiration of the Cure Period and subject to any Event of Force Majeure. "Final Completion" of a Public Improvement means: (i) the Public Improvement has achieved Substantial Completion (including landscaping); (ii) the Developer has delivered a Certification of Completion for the Public Improvement from an engineer licensed in Colorado to the Town Manager; and (iii) the Certification of Completion has been accepted by the Town Manager. "Mobilization" means transportation of the contractor's personnel, equipment, and operating supplies to the site, establishment of temporary facilities for the contractor's operations, and erection of any required construction fencing for the site. " Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a Public Improvement means that the entire scope of work for that Public Improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the Public Improvement for its intended use and that a Certification of Completion for the Public Improvement has been issued by an engineer licensed in Colorado. "Substantial Completion" of a private improvement means that an improvement is sufficiently complete so that the public (or the owner with respect to the private improvements) can occupy or utilize the improvement for its intended use and a temporary certificate of occupancy has been issued by the Town for the improvement. "Upper Wood Road Improvements" means the improvements and related infrastructure which includes utilities, sidewalks, grading, bus pull -out adjacent to Lot 4 of the Property for Upper Wood Road necessary for the road overlay, curb and gutter and bus shelter near the Enclave. 1.1 Vested Property Rights. a. The Town and Developer agree that all rights of Developer granted, recognized and confirmed in the Ordinance and this Agreement constitute "Vested Property Rights ", as such term is defined in the Code. By way of illustration, and not limitation, "Vested Property Rights" RTTC PP /S'2RQ)Al2 09 -22 -14 TC Packet 36 include the right to develop, plan and engage in land uses on the Property in accordance with the provisions of the Ordinance for the periods of time described in Section 1.3 below. Unless expressly provided to the contrary therein, all modifications and amendments to the Ordinance or any other Approval, agreements or material related to the development of the Property shall become part of the Vested Property Rights recognized hereunder automatically upon Approval or execution by the Town and such vesting shall last throughout the term of the Vested Property Rights. b. The Town shall not enforce against Developer or the Property any amendment to the Code adopted after November 3, 2004, or any other zoning, land use or other legal, administrative rule, regulation, ordinance, resolution or requirement that does not apply to the Property as of November 3, 2004, or otherwise take any other action that would directly or indirectly have the effect of impairing, preventing, diminishing, imposing a moratorium on development, or otherwise delaying the development or use of the Property in accordance with this Agreement or the Ordinance. Except for those conditions contemplated in the Ordinance or the Code in effect as of November 3, 2004, and any other agreements related to the development or use of the Property executed between the Town and Developer, the Town shall not subject development or use of the Property to any exactions, payments, dedication or reservation requirements, obligations for constructing on -site or off -site public improvements or facilities, or the payment of any fees in lieu of any of the foregoing in connection with the development, construction, use or maintenance of the Property as described in the Ordinance or any other exercise of the Vested Property Rights. C. Notwithstanding the foregoing, the Vested Property Rights recognized herein shall not exempt Developer from requirements for building permits, other necessary permits or other approvals required subsequent to the approval of the development of the Property (as required by the Code in effect as of November 3, 2004). The establishment of the Vested Property Rights shall not preclude the application of the requirements of the building code, fire code, plumbing code, electrical code, the mechanical code or of any regulations specifically adopted to correct or mitigate natural or man-made hazards on or in the immediate vicinity of the Property, which hazards could not reasonably have been discovered at the time the Ordinance was approved, and which hazards, if uncorrected, would pose a serious threat to the public health, safety, and welfare, all as more particularly described in Section 24 -68 -105 of the Colorado Revised Statutes. 1.2 Condition Subsequent to Continued Existence of Vested Property Rights. a. Developer has agreed to provide or contribute to the provision of certain facilities and services within the Town for the benefit of the community pursuant to the terms of the following agreements (collectively, the "Other Agreements "): (i) Base Village Services Agreement, dated effective as of November 4, 2004 between Developer and the Town; (ii) Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development dated effective as of , 2014 between Developer and the Town (the "SIA "); 0 ­0 nri<­ 2 09 -22 -14 TC Packet 37 (iii) Base Village Funding Agreement dated effective as of November 4, 2004, as amended by the First Amendment to Base Village Funding Agreement dated effective as of , 2014 between Developer and the Town. (iv) Restricted Housing Agreement dated effective as of November 4, 2004 between Developer and the Town, the First Amendment to Restricted Housing Agreement dated effective as of February 26, 2007 between Developer and the Town, and the Second Amendment to Restricted Housing Agreement dated effective as of May 27, 2014 between Developer and the Town. b. The continued existence and duration of the Vested Property Rights recognized in this Agreement is subject to the condition that no Material Default by Developer shall occur under any of the Other Agreements or the Ordinance. If a Material Default shall occur, then, as provided in Section 16A- 5 -90(c) of the Code, the Vested Property Rights shall be terminated. For purposes hereof, "Material Default" shall mean a failure by Developer to perform any of its obligations under any of the Other Agreements or the Ordinance in any material respect that remains uncured after the expiration of any applicable cure period as such default is conclusively determined by a court of competent jurisdiction in a final, non - appealable judgment or order. 1.3 Duration. 1.3.1 First Interim Vesting Extension. In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required for the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights are vested and shall continue to remain vested for a period commencing on November 4, 2004 and expiring on November 3, 2018 (the "First Interim Vesting Extension Date "). 1.3.2 Second Interim Vesting Extension. If the Developer has performed (or caused to be performed) the tasks or work described in the each of the applicable milestone deadlines set forth in Section 1.3.5 that are required to be performed on or before the First Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another one (1) year period expiring on November 3, 2019 (the "Second Interim Vesting Extension Date "). 1.3.3 Final Vesting Extension. If the Developer has performed (or caused to be performed) the tasks or work described in the each of the applicable milestone deadlines set forth in Section 1.3.5 that are required to be performed after the First Interim Vesting Extension Date and on or before the Second Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another five (5) year period expiring on November 3, 2024. 1.3.4 Termination of Vested Property Rights. Notwithstanding the foregoing, the Vested Property Rights granted under Article I of this Agreement will not be automatically extended and are subject to termination if the Developer is subject to an Event of Nonperformance as to any of such tasks or work described are not performed on or before the applicable deadline(s), and in such event the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings but rather an agreed upon consequence of non - performance by the applicable deadline(s). 5 QT TQ DR /4.2Q "A-' 7 09 -22 -14 TC Packet 38 1.3.5 Milestone Deadlines. The following are the milestone deadlines and the tasks or work the Developer shall perform or cause to be performed on or before the applicable deadline dates, as those dates may be adjusted in accordance with the express provisions of this Agreement: a. October 1, 2014 — Submit Construction Documents Plans for the Roundabout: This date is the deadline for Developer to submit "Construction Documents" for the Roundabout (the "Roundabout CD Plan Set ") consisting of ninety (90 %) percent complete construction drawings. The Roundabout CD Plan Set shall set forth in detail the requirements for construction of the Roundabout and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Roundabout. b. October 15, 2014 — SubmitApplication(s) for PUD Amendment: This date is the deadline for Developer to submit an application to amend the PUD for Lots 2, 3 & 4, to amend and /or affirm the PUD for Lots 5, 6, 7 & 8, and to provide a comprehensive update of all approval and PUD documents affected by such application (the "PUD Amendment Application "). At the option of the Developer, the PUD Amendment Application may include Lot 8 (Building 13B), if the Developer determines that changes are necessary to the current approved plans for Lot 8 or Building 13B. The Developer anticipates that the date of final Town action on the PUD Amendment Application will occur on or before May 31, 2015 (the "PUD Amendment Action Date "). The submission deadline for the PUD Amendment Application shall be subject to Section 1.3.4. Insofar as the Developer does not control the review process, the PUD Amendment Action Date is not subject to the provisions of Section 1.3.4. (i) Delayed Approval of PUD Amendment Application. If the Approval of the PUD Amendment Application is not achieved by the PUD Amendment Action Date (or the PUD Amendment Application is still pending on the PUD Amendment Action Date), the milestone deadlines below (other than Substantial Completion of Community Facility (Section 1.3.5.o), Substantial Completion of Lot 3 (Section 1.3.5.p), and Substantial Completion of Lot 2 (Section 1.3.5.q)), will each be automatically extended on a day- for -day basis by the same number of days after the PUD Amendment Action Date that the Approval is achieved; provided if any extended milestone deadline date involving construction of Public Improvements or private improvements is so extended to a date after the end of the fall construction season ending September 30 of any year, such milestone deadline date will be further extended to the start of the next construction season on May 31 of the next calendar year. To the extent an Approval occurs after the PUD Amendment Action Date, the Developer and the Town will execute an amendment to this Agreement setting forth and confirming the revised milestone deadlines. (ii) Accelerated Milestone Deadlines for Building 5 Limelight Snowmass. If the Approval of the PUD Amendment Application is achieved, and the Approval includes the Aspen Skiing Company's proposed Limelight Hotel and Residences on Lot 2, then there will be a new milestone deadline under Section 1.3.5 for Commencement of Construction on Lot 2, which shall be the date that is 365 days after the date of such Approval. In addition, if the Approval of the PUD Amendment Application is achieved, CZ UTTV TICIZIOOnAl 7 09 -22 -14 TC Packet 39 and the Approval includes the Aspen Skiing Company's proposed Limelight Hotel and Residences on Lot 2, then the milestone deadline under Section 1.3.5.q for Substantial Completion of Lot 2 subject to the Approval will be changed to November 1, 2018. (iii) Denial of PUD Amendment Application. If the action on the PUD Amendment Application is a Denial, the Vested Property Rights granted under Article I of this Agreement will be terminated except as to Buildings 7, 8 and 13B and any other building for which Commencement of Construction has occurred after the date of this Agreement. In such event the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings but rather an agreed upon consequence of Denial of the PUD Amendment Application. Notwithstanding the foregoing, the Developer will have the right to reinstate the Vested Property Rights by: (i) giving notice to the Town within fifteen (15) days after the Denial of its intent to reinstate; (ii) Commencement of Construction of the Public Improvements as soon as practicable but no later than May 31 of the calendar year next following such Denial; and (iii) achieving Substantial Completion of the Public Improvements no later than one (1) year after Commencement of Construction of the Public Improvements. Upon Final Completion of the Roundabout and Substantial Completion of the Upper Wood Road Improvements and Snowmelt System at Garage Entry, the Vested Property Rights will be reinstated retroactively as though never terminated, and each of the applicable milestone deadlines will be extended for a period of two (2) years. Upon Commencement of Construction of the Public Improvements and for so long as the Developer diligently proceeds with the work, the Developer will have the right to submit a new or revised PUD amendment application (notwithstanding the Code provisions of 16A -5 -70(5) that restricts a new application from being submitted for one year after a Denial), and based upon the Vested Property Rights previously in effect. C. Submit and Provide Financial Guarantees for Roundabout Upper Wood Road Improvements and Snowmelt System at Garage Entry: The Developer has delivered to the Town Engineer preliminary cost estimates for the expected costs for the Roundabout, Upper Wood Road Improvements and Snowmelt System at Garage Entry ( "Public Improvements ") for approval by the Town Engineer. Within thirty (30) days after Approval of the Minor PUD Vesting Ordinance, the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security "), based on such preliminary cost estimates. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing the Public Improvements, and (y) any amounts to be contributed by the Town as required by the SIA. Within 30 days after the Town Engineer approves the final cost estimates for these Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the financial security will be adjusted to equal the final cost estimates. d. June 1. 2015 — Commencement of Construction of Roundabout: This date is the deadline for Commencement of Construction of the Roundabout. 7 09 -22 -14 TC Packet 40 e. July 1, 2015 - Commencement of Construction ofBuilding 13B: This date is the deadline for Commencement of Construction of Building 13B. f. October 1, 2015 — Submit Construction Documents Plans for the Upper Wood Road Improvements: This date is the deadline for Developer to submit "Construction Documents" for the Upper Wood Road Improvements (the "Upper Wood Road CD Plan Set ") consisting of ninety (90 %) percent complete construction drawings. The Upper Wood Road CD Plan Set shall set forth in detail the requirements for construction of the Upper Wood Road Improvements and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Upper Wood Road Improvements. g. November 1, 2015— Substantial Completion of Roundabout: This date is the deadline for Substantial Completion of construction of the Roundabout. h. July 1, 2016 — Final Completion of Roundabout: This date is the deadline for Final Completion of construction of the Roundabout. i. October 1, 2016 — Submit Construction Documents Plans for the Community Purpose Facility: This date is the deadline for Developer to submit "Construction Documents" for the Community Purpose Facility (the "Community Purpose Facility CD Plan Set ") consisting of ninety (90 %) percent complete construction drawings. The Community Purpose Facility CD Plan Set shall set forth in detail the requirements for construction of the Community Purpose Facility and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Community Purpose Facility. j. December 31, 2016 - Substantial Completion ofBuilding 13B: This date is the deadline for Substantial Completion of construction of Building 13B. k. May 1, 2017 — Commencement of Construction of Upper Wood Road Improvements: This date is the deadline for Commencement of Construction of the Upper Wood Road Improvements. 1. May 1, 2017— Commencement of Construction ofSnowmelt System at Garage Entry: This date is the deadline for Commencement of Construction of the Snowmelt System at Garage Entry. M. November 1 2017 - Substantial Completion of Upper Wood Road Improvements: This date is the deadline to achieve Substantial Completion of construction of the Upper Wood Road Improvements. n. November 1. 2017 - Substantial Completion ofSnowmelt System at Garage Entry_: This date is the deadline to achieve Substantial Completion of construction of the Snowmelt System at Garage Entry. o. November 1, 2018 - Substantial Completion of Community Facility: This date is the deadline to achieve Substantial Completion of construction of the Community Facility. 2 09 -22 -14 TC Packet 41 P. November 1, 2018 - Substantial Completion o Lot 3: This date is the deadline for Substantial Completion of construction of Lot 2, and this date is also the deadline for Substantial Completion of construction of Lot 3, including Building 7 and Building 8 with the medical clinic space. q. November 1, 2019 - Substantial Completion ofLot 2: This date is the deadline for Substantial Completion of construction of Lot 2; provided that this date may be accelerated as set forth in Section 1.3.5.b(ii). 1.3.6 Liquidated Damages. "Liquidated Damages" means the amount of One Thousand Five Hundred Dollars ($1,500.00) per day, commencing on the first day following termination of the milestone deadline in Section 1.3.5.j for Substantial Completion of Building 13B if an Event of Nonperformance occurs with respect to that milestone deadline. The Liquidated Damages will continue to accrue until the actual date of Substantial Completion of Building 13B, up to an aggregate maximum of One Million Dollars ($1,000,000.00). The Developer acknowledges and recognizes that the Town will sustain damages and losses as a result of any such Developer failure, the exact amount of which will be extremely difficult to ascertain. Therefore, the Town and Developer agree that if Developer fails to achieve Substantial Completion of Building 13B within the applicable milestone deadline, the Town shall be entitled to recover the Liquidated Damages from Developer, as liquidated damages and not as a penalty. Until the Developer pays such Liquidated Damages for failure to perform the milestone deadline in Section 1.3.5.j, the Vested Property Rights granted under Article I of this Agreement shall be deemed terminated, except as to Buildings 7, 8 and 13B and any other building for which Commencement of Construction has occurred after the date of this Agreement. In such event the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings but rather an agreed upon consequence of failure of the Developer to pay the Liquidated Damages to the Town. Notwithstanding anything to the contrary herein, if the Developer pays the Liquidated Damages, the Vested Property Rights granted under this Agreement will be reinstated retroactively as though never terminated. In addition, and for purposes of clarification, in the event the action on the PUD Amendment Application is a Denial, or in the event of any Event of Nonperformance, the milestone deadline for Substantial Completion of Building 13B shall for all purposes be twenty -four (24) months from the date of Commencement of Construction of Building 13B. 1.3.7 Construction Interruptions. Prior to issuance of a building permit for each building, the Developer shall deliver: (i) a letter of credit; (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (the "Construction Interruption Security "), in the amount of One Hundred Thousand Dollars ($100,000.00); and (iv) a reasonable restoration and /or remediation contingency plan as required by Section 16A -5- 310(9) of the Town Municipal Code. In the event construction work on such building shall cease for ninety (90) days or longer prior to a final inspection by the Town of the work authorized by the building permit ( "work stoppage ") and if after fifteen (15) days' prior written notice by the Town the work stoppage has not been cured, and such work stoppage was not a result of any Event of Force Majeure, then the Town in its discretion may draw upon the Construction Interruption Security as needed for purposes of protecting and securing the building site and 09 -22 -14 TC Packet CN improvements from damage by the elements and /or from trespass by unauthorized persons, and for purposes of improving the building site to a safe condition such that it does not become an attractive nuisance or otherwise pose a threat to neighbors or other persons. The Construction Interruption Security shall be released when the building reaches Substantial Completion. ARTICLE II DEFAULT 2.1 Default by Developer. If Developer shall commit a Material Default under the terms of any of the Other Agreements or fail to perform any of its obligations under the Ordinance, which Material Default or failure to perform extends beyond the expiration of any applicable grace and cure period, Developer shall not be entitled to receive additional building permits for the construction of any of the buildings described in the Ordinance until such time as the default or failure to perform is cured or the Town otherwise agrees to issue such a building permit. In addition, (a) the Town shall be entitled to all rights and remedies set forth in such Other Agreements upon such an uncured default, and (b) as noted in Section 1.2.b above, upon a Material Default, the Vested Property Rights recognized hereunder shall be terminated as provided in Section 16A- 5 -90(c) of the Town Municipal Code. 2.2 Default by the Town. If the Town is in default in the performance of its obligations under this Agreement, the Town shall have the right to cure such default within 60 days after written notice by Developer of the default to the Town. If the Town fails to cure such default within 60 days after written notice is given from Developer to the Town specifying the nature of the default, then Developer shall have all rights available to it at law or in equity, specifically including the right to specific performance, injunctive relief and /or damages. Upon a default herein by the Town, the Vested Property Rights shall be extended for a period of time equal to the duration of such default by the Town, which extension shall specifically include any applicable cure period enjoyed by the Town under this Section 2.2. 2.3 Confirmation of Performance. Upon request from the Developer, the Town will execute and deliver a letter acknowledging whether or not the Developer has performed one or more of the milestone deadlines in Section 1.3.5. ARTICLE III ASSIGNMENT 3.1 Assignment by Developer. a. Except as set forth below in Section 3. Lb below, Developer may not assign any of its rights or obligations under this Agreement without the prior written consent of the Town. b. Developer may assign its rights and obligations under this Agreement, or any portion thereof, without the Town's consent by a written recorded instrument expressly assigning such rights and powers to any of the following entities: (i) any Affiliate of Developer; (ii) Aspen Skiing Company, LLC, a Colorado limited liability company, or any of its Affiliates; or (iv) any entity which succeeds to substantially all of Developer's remaining development rights with respect to the Property as described in the Ordinance. For purposes hereof, "Affiliate" shall 10 DTTC DU /Z- )OOnA1 2 09 -22 -14 TC Packet 43 mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control" means (A) direct or indirect ownership or control of at least fifty (50 %) percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. C. Upon an assignment by Developer of any of its rights or obligations under this Agreement to an entity listed in Section 3. Lb(i) through (iv) above, and an assumption of those rights or obligations by such assignee, Developer shall be released of all liabilities arising under this Agreement with respect to such rights or obligations. ARTICLE IV MISCELLANEOUS 4.1 Binding Effect. ffect. This Agreement shall be binding upon the parties and shall inure to the benefit of each party's successors and assigns, as designated by a written assignment recorded in the Pitkin County Clerk and Recorder's Office. 4.2 Burden and Benefits. Each of the benefits, burdens, terms, covenants, agreements and conditions of this Agreement shall be construed as covenants running with the land benefiting and burdening the Property or any applicable portion thereof, and it is the intent of the parties that such benefits, burdens, terms, covenants, agreements and conditions touch and concern such property. 4.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 4.4 Scope of Agreement. The rights granted to Developer by this Agreement are in addition to any other right held by Developer under applicable law. 4.5 Interpretation. Unless the context of this Agreement clearly requires otherwise: (a) terms defined in the singular may be used in the plural, and terms defined in the plural may be used in the singular; (b) "including" and "such as" are not limited; (c) "or" has the inclusive meaning represented by the phrase "and /or "; (d) the words "hereof," "herein," "hereby," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) Article, Section, clause, paragraph and Exhibit references are to this Agreement unless otherwise specified; and 11 OTTO DL' /G'}007A' 2 09 -22 -14 TC Packet 44 (f) references to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof. All of the exhibits to this Agreement are hereby incorporated into this Agreement by reference. In the event of any conflict between a term, condition or provision of this Agreement and a provision of the Town's Municipal Code, the terms of this Agreement shall control. 4.6 Severability. If any provision of this Agreement shall be invalid, illegal, void or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement or any other provision hereof, and a court shall enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. If any provision of this Agreement is invalid, illegal, void or unenforceable not in its entirety but as applied to a particular act, thing or circumstance, such provision shall not affect or impair the validity, legality or enforceability of this Agreement or any provision hereof as applied to any other act, thing or circumstance, and a court shall apply such provision and enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. 4.7 Termination; Amendment; Waivers. This Agreement may not be terminated, modified or amended, nor may waivers hereunder be granted, except in writing and only with the consent and approval of Developer and the Town. 4.8 Notices. Any notice to be given to Developer or the Town under this Agreement shall be given by registered or certified mail, overnight courier, telecopy, telegram or hand delivered to the address of the party to whom notice is being given. Any notice sent by registered or certified mail will be deemed to have been received three business days following the date of mailing. Any notice sent by overnight courier will be deemed to have been received one business day following the date of delivery to the overnight courier. Either party may change its address for notice by advising the other party in writing of such change, and until the other party is so advised, it will be entitled to continue sending notices to the last address it is advised of in writing: If to the Town: Town of Snowmass Village P.O. Box 5010 130 Kearns Road Snowmass Village, Colorado 81615 Attention: Town Manager If to Developer: SNOWMASS ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 12 OTTC nci «001AI 7 09- 22 -14TC Packet 45 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4.9 Recording. Developer and the Town each shall have the right to record this Agreement in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. 4.10 motions and Titles. All captions and titles of headings of Articles and Sections in this Agreement are for the purpose of reference and convenience and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof. 4.11 Attorney Fees. Notwithstanding anything to the contrary contained in this Agreement, if either party institutes legal proceedings against the other with respect to this Agreement, the non - prevailing party shall pay to the prevailing party an amount equal to all attorneys' fees and disbursements and all other costs and expenses incurred by the prevailing party in connection therewith, including, without limitation, the fees and disbursements of any attorneys, accountants, engineers, appraisers or other professionals engaged by the prevailing party, whether incurred before or at trial, on appeal, in bankruptcy or in post judgment collection. 2 09 -22 -14 TC Packet (Remainder of Page Intentionally Left Blank) 13 M. IN WITNESS WHEREOF, the parties have caused this Amended and Restated Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] 14 2 09 -22 -14 TC Packet 47 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company i Name: Title: 15 09 -22 -14 TC Packet 48 AMENDED AND RE TATED BASE VILLAGE DEVELOPMENT AGREEMENT THIS .AME-ND- D--,A-,ND&E-STA_TE.D -BASE VILLAGE DEVELOPMENT AGREEMENT (this "Agreement ") dated as of _ , 2014. is.xna_cLe -band between � �ucs�es�or- in- inter�,st to 1N Z VEST /BR-USH CHEEK DE- VELOPMENT_C.QM CPsxe d G Cs�l �isz munic�. l corpQr�ta�szn (the "I owm "� -Thies Agr-eeznent anends-and es in�ts ent�xety the Bas�g Revelonment AgmentslatesLNovember 4 2004 Is- between INTRAWEST/BRUSH CREEK DEVELOPMENT COMPANY LLC, a Delaware limited liability company eseloperl; and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (they ). RECITALS WHEREAS Developer intends to develop that real property situated in the Town So=ass�g — QoLoid4 commonly known as Lots 1 -9, Base Village Planned Unit Development (the "Property "), as depicted on the Final Plat for Base Village P.U.D. TB—QA E�br�ta_c __29��n Plat Boo 71 tea e 0 �t Be Rtion No 5204$ of the re ct�ds of P tkin County- C,oloxa& -- W�I�REAS this A�r�ement amen restates and�u s.�des_ins t� it�e�tir�v� the I?e_ �elrnent Agreement dated�vembe 2QQ4; WHEREAS the Town Council of the Town granted approval of the development of the Property proposed in the Application by enacting Ordinance No. 21, Series of 2004 xeLDxde�as Req ounty olora was amen_& (the "Ordinance "); WHEREAS the Town Mttaieipa4-Code ( "Code") authorizes the execution of "development agreements" by the Town and the execution of this Agreement is contemplated by the Ordinance; RUN • ' p • .•• LQt3ju • :. BUS-RE/48&757-545.38 09 -22 -14 TC Packet 49 Vi.11a�e submitted to the Town on Tt�e 30.2014. as amel�des� Vie_ ",�p.l�lieatia�n'g�,�zad laa� agreed to provade_or eoratrlbute_to tl,e_pzovisioal of eertafi -aeiwlities and,sekvices��lt anll-Le_,Town of Snowma Vi e_f9r t e_b f'_t� he—lo—w --an d the awe villa e I' D a r i 1_ sleserabed below• of • 1 1 WHF,REA_S- he– Town_and tfL(�-D-e-velQperlhay-e enleced into an Amended and - Restated 51 M]2 Improve e Planned LLni Ia�velo meat dated l 4 (the "SIc�"� ansl NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I VESTED RIGHTS BUS RE/486q375 5 83 8243 2 09 -22 -14 TC Packet 50 - . - - • - • • • • •• •� -. • - : .• • •. •. • . be.ei�]WeAmfthoutxeyers oil Abe- Tbmnhash 2e • •• • •� u. •- .. . . - •�•_ .�. �- u•• atto • • BUS RE/486q375 5 83 8243 2 09 -22 -14 TC Packet 50 li��ilillill�ilill L91-�WPOW-NII Mi. F191111SIM M•i� sideration or refe W•-� IW Mmogns MOM FIN IWI A MIA! I I 11-mill-Alimlim m. tq to) I Wei a I ILqLv,$—) n "11011r.) t, "offill I KI -6 • �Ilf M-al 01 • IIIIJA•I• RMS P• I mill— mg, - or-polot lq&rwqlltq not IIRM2 it Im •fog y. • A, some BUS -RE/4S67&7&453SS243-2 09-22-14 TC Packet 51 4- 1-- _1,4_Vested Property_ Rights. (a) -The Town and Developer agree that all rights of Developer granted, recognized and confirmed in the Ordinance and this Agreement constitute "Vested Property Rights ", as such term is defined in the Code. By way of illustration, and not limitation, "Vested Property Rights" include the right to develop plan and engage in land e6er-suses on the Property in accordance with the provisions of the Ordinance for the pe iedl2erbods-of time described in Section 1.3 below. Unless e pressly._proy ided to tE�e cant ary t }1e�ein,_a1I rnoc�ificatioias and,,aiiiei drnefits to the Ordinance or =a1tl material lated_te d-0opment.of t�e_ % v t o Zroperty shall I?ecozne. part of, be Vested,P- ►_operty: Rights_.recogzt zed.hereunder acct ?tnaticalJv. ijpon approval or exec t by. the Town ant such _vesting shall fast thrrnlghout the term cif the,, �e�d_P_r_ouexty_B.i�hts. _ 0#12,The Town shall not enforce against Developer or the Property any amendment to the Code adopted after the da4e hereef Ngyg ber 3 2QQ4 or any other zoning, land use or other legal, administrative rule, regulation, ordinance, resolution or requirement that does not apply to the Property as of the date heFeef Novembe_r3._2Q04, or otherwise take any other action that would directly or indirectly have the effect of impairing, preventing, diminishing, imposing a moratorium on development, or otherwise delaying the development or use of the Property in accordance with this Agreement or the Ordinance. Except for those conditions contemplated in the Ordinance or the Code in effect as of the date hefeef November 3, 2Q44, and any other agreements related to the development or use of the Property executed between the Town and Developer eentemY ^w^„°ously with the ° tiea f this Agreement, the Town shall not subject �.,. ...�_... � v vzsc�ccrczvTr-vr- cxn�-z-r e°c-rixcrtz development or use of the Property to any exactions, payments, dedication or reservation requirements, obligations for constructing on -site or off -site public improvements or facilities, or the payment of any fees in lieu of any of the foregoing in connection with the development, construction, use or maintenance of the Property as described in the Ordinance or any other exercise of the Vested Property Rights. (e)-c- Notwithstanding the foregoing, the Vested Property Rights recognized herein shall not exempt Developer from requirements for building permits, other necessary permits or other approvals required subsequent to the approval of the development of the Property (as required by the Code in effect as of the date her- eef"�,yembex 3 2904). The establishment of the Vested Property Rights shall not preclude the application of the requirements of the building code, fire code, plumbing code, electrical code, the mechanical code or of any regulations specifically adopted to correct or mitigate natural or man -made hazards on or in the immediate vicinity of the Property, which hazards could not reasonably have been discovered at the time the Ordinance was approved, and which hazards, if uncorrected, would pose a serious threat to the public health, safety, and welfare, all as more particularly described in Section 24 -68 -105 of the Colorado Revised Statutes. 1-� 1.�Condition Subsequent to Continued Existence of Vested Property Rights. 4 BUS RE/4867575. 53SS243 2_ 09 -22 -14 TC Packet 52 {- ,a_Developer has agreed to provide or contribute to the provision of certain facilities and services within the Town for the benefit of the community pursuant to the terms of the following agreements (collectively, the "Other Agreements "): M -6),.Base Village Services Agreement, dated effective as of November 4, 2004 between Developer and the Town; 00-ka.A.mad_ed-a nd_.ResxD-ted-Subdivision Improvements Agreement for the Base Village Planned Unit Development dated effective as of November ^ 2004 2914 between Developer and the Townjth_e "St.A_'),_ 4k9- kiijJBase Village Funding Agreement dated effective as of November 4, 20042004 as a�nextd�d bathe First Aanendment�o Base Villc�i?ndng= Agreeme dated_effe-ctiy . —f 2014 between Developer and the Town; #0- iv)__Restricted Housing Agreement dated effective as of November 4, 2004 between Developer and the Town.,be Fir.�t�mendmentl28e�s & d13QUSing_ .Ag,�eemM dated effecliv_e ash ebruar 26X907 between Demme caner attdthe Town. and the-Second A111endxnent to Restrict�d�[o�asing_A r� nts��xed�ffective aS�fMay 2S??L��:�e�n�ey�lop�� and the, Town• (b)-h. The continued existence and duration of the Vested Property Rights recognized in this Agreement is subject to the condition that no Material Default by Developer shall occur. klndguny__Qflhe_Other Agreements Qr_:the_�ante. If a Material Default shall occur, then, as provided in Section 16A- 5 -90(c) of the Tewn ,, unieipal eode —o ,, the Vested Property Rights shall be €effe-itedterminated. For purposes hereof, "Material Default" shall mean a failure by Developer to perform any of its obligations under any of the Other Agreements or the Ordinance in any material respect that remains uncured after the expiration of any applicable cure period as such default is conclusively determined by a court of competent jurisdiction in a final, non - appealable judgment or order. I -4-1.3 Duration. L3_..L —First Interim Ves in FxtPn��n In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required te-ee lete_ the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights &M4—be= vested and_aUn continue to remain v .st_d for a period commencing on t-le- and expiring " » if Developef has eeffipleted "Phase 2 B" (as defined in the Ofdiaanee) of the development of the Pfopeft�, within the Initial Vesting peried, the Vested Pi-epeAy Rights shall be extended upon the T b BUS RE/A867575.4533B243-2 09 -22 -14 TC Packet 53 mo- M-.. 6:1 linsTa @I I E.7!iqm &@I U-mrfibi M It &WHILMOVIE-111 J-32 jo- Section A,3-,-5-at -a—re-r-e- miue-dAwb- -erfQrm-e q����er th-e-FirstJjit-erjm-V-eg-iDgaxt.casiDL3 Rate_, and -on-ad)-efi moinxicafly-extem&Ub" er-&- 09-22-14 TC Packet 54 • •' • • -a • •1" �' �• •. '• •11 1" • ••' / /'1 I I / • / •• •' • • "1 "11 "1 • • •1 • i � • i no In"Mom BUS RE /no�'S3S824 - 09 -22 -14 TC Packet 56 Jr MOMNIMMMINN Vol m Sm. Ill M M(W-j.-2w-z---C-omm-jwmenLof Co-u-stru �otlomof-- ne-r-Mao-d-R-aa-d- bm-M-9mlem= R L RUMOD muiojl-:Lth�w�� Garagg-Ent i - rY--- M owmber 1, 2017 � i, 1!11 phi s-date ds-th e dew d-H — Novem- &y-J.-2DLZ---S-ubstautia _y_stm at Garage try Wqww"1114X�W�qlqmw - -------------- UNICRI BUS -RE/48&7S7-S4iHS243-Z 09-22-14 TC Packet 57 ARTICLE II DEFAULT 2,1 D- efaulby Dbe eloper If Developer shall commit a defatrltMateriaLD,_efault under the terms of any of the Other Agreements or fail to perform any of its obligations under the Ordinance, which defau4h4a_terlal Default or failure to perform extends beyond the expiration of any applicable grace and cure period, Developer shall not be entitled to receive additional building permits for the construction of any of the buildings described in the Ordinance until such time as the default or failure to perform is cured or the Town otherwise agrees to issue such a building permit. In addition, (a) the Town shall be entitled to all rights and remedies set forth in such Other Agreements upon such an uncured default, and (b) as noted in Section �1-b) above, upon a Material Default, the Vested Property Rights recognized hereunder shall be for-feitedtexmiaaat� as provided in Section 16A- 5 -90(c) of the Town ���uni^i,�Pal eedeMmna pW= -osl-Q-. Default bN, t e—T gwn 10 BUS_RE /48575:45388243 2 09 -22 -14 TC Packet 58 22 IQefatlt�zy_th� T2w_n If the Town is in default in the performance of its obligations under this Agreement, the Town shall have the right to cure such default within 60 days after written notice by Developer of the default to the Town. If the Town fails to cure such default within 60 days after written notice is given from Developer to the Town specifying the nature of the default, then Developer shall have all rights available to it at law or in equity, specifically including the right to specific performance, injunctive relief and /or damages. Upon a default herein by the Town, the Vested Property Rights shall be extended for a period of time equal to the duration of such default by the Town, which extension shall specifically include any applicable cure period enjoyed by the Town under this Section 2.2. us�• •- WIN •. -• • Wa ••- • • • • • • ARTICLE III ASSIGNMENT 34- ssignment by Developer. {a)- a`Except as set forth below in Section 34( !L b4 below, Developer may not assign any of its rights or obligations under this Agreement without the prior written consent of the Town. 1 WOMB fh� Aspen , any r.f'As /l Minter• InttrawestCe .etio u of Affiliates; ..: N.^� ::, v ..y vi a�� rzrrrrizcticzj yr IM• lz Develop_e_z may_assign ats xightsz1c1, obligations.Ga�d_ex�l_�is Aree�ne�7t_ or any psi tiara there4fzw thq�ai_tl�e._Z� vza s__consent_b a w ittez x_ecorded instrL�ment expressl— Assigning, such fights and.po�tiers, to,any ;of,the follawing_entities- any Affjli te_of Deyeloper;_ ,spen Skiing loan any _Z LC.,_Colorado limited__l abdit- -p-pip ��}�: or__a�1 of its Affilzate_s_: r � iyl emit} which ��acceeds__tc� s�tbstat�tial j X11 of De- eb --er xemainzng cie d— op�lleai xights w tlaa respect to tlW, Property as,_described in,the__(?roinance For purposes hereof, "Affiliate" shall mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control" means (A) direct or indirect ownership or control of at least fifty==(50M percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. 11 Bus RE /4&67.��;-,-& 53as243-z 09 -22 -14 TC Packet 59 4 1 WOMB fh� Aspen , any r.f'As /l Minter• InttrawestCe .etio u of Affiliates; ..: N.^� ::, v ..y vi a�� rzrrrrizcticzj yr IM• lz Develop_e_z may_assign ats xightsz1c1, obligations.Ga�d_ex�l_�is Aree�ne�7t_ or any psi tiara there4fzw thq�ai_tl�e._Z� vza s__consent_b a w ittez x_ecorded instrL�ment expressl— Assigning, such fights and.po�tiers, to,any ;of,the follawing_entities- any Affjli te_of Deyeloper;_ ,spen Skiing loan any _Z LC.,_Colorado limited__l abdit- -p-pip ��}�: or__a�1 of its Affilzate_s_: r � iyl emit} which ��acceeds__tc� s�tbstat�tial j X11 of De- eb --er xemainzng cie d— op�lleai xights w tlaa respect to tlW, Property as,_described in,the__(?roinance For purposes hereof, "Affiliate" shall mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control" means (A) direct or indirect ownership or control of at least fifty==(50M percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. 11 Bus RE /4&67.��;-,-& 53as243-z 09 -22 -14 TC Packet 59 (c-c Upon an assignment by Developer of any of its rights or obligations under this Agreement to an entity listed in Section 3+. !1,b)(i) through (iv) above, and an assumption of those rights or obligations by such assignee, Developer shall be released of all liabilities arising under this Agreement with respect to such rights or obligations. ARTICLE IV MISCELLANEOUS �a 4.L Binding EffW _This Agreement shall be binding upon the parties and shall inure to the benefit of each party's successors and assigns, as designated by a written assignment recorded in the Pitkin County Clerk and Recorder's Office. Emmrn 42 Iuxdnnsl Beme`itEach of the benefits, burdens, terms, covenants, agreements and conditions of this Agreement shall be construed as covenants running with the land benefiting and burdening the Property or any applicable portion thereof, and it is the intent of the parties that such benefits, burdens, terms, covenants, agreements and conditions touch and concern such property. 4=3- CTov�rniUg_Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 4.4 Scg2e._o.£Agree�—The rights granted to Developer by this Agreement are in addition to any other right held by Developer under applicable law. 4-.54 51nterpretati on. Unless the context of this Agreement clearly requires otherwise: (a) terms defined in the singular may be used in the plural, and terms defined in the plural may be used in the singular; (b) "including" and "such as" are not limited; (c) "or" has the inclusive meaning represented by the phrase "and /or "; (d) the words "hereof," "herein," "hereby," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; 12 BUS RE/4$67375- 1-538243 2 09 -22 -14 TC Packet 60 (e) Article, Section, clause, paragraph and Exhibit references are to this Agreement unless otherwise specified; and (f) references to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof. All of the exhibits to this Agreement are hereby incorporated into this Agreement by reference. In the event of any conflict between a term, condition or provision of this Agreement and a provision of the Town's Municipal Code, the terms of this Agreement shall control. 46 Severabili,j. 4.6 Sexerabjl. *tti.. If any provision of this Agreement shall be invalid, illegal, void or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement or any other provision hereof, and a court shall enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. If any provision of this Agreement is invalid, illegal, void or unenforceable not in its entirety but as applied to a particular act, thing or circumstance, such provision shall not affect or impair the validity, legality or enforceability of this Agreement or any provision hereof as applied to any other act, thing or circumstance, and a court shall apply such provision and enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. 4-.7 47 Terminatlon,Aj- nelldjl ellt; Waivers., This Agreement may not be terminated, modified or amended, nor may waivers hereunder be granted, except in writing and only with the consent and approval of Developer and the Town. 49 4e�. 4,8 NDliggs_._Any notice to be given to Developer or the Town under this Agreement shall be given by registered or certified mail, overnight courier, telecopy, telegram or hand delivered to the address of the party to whom notice is being given. Any notice sent by registered or certified mail will be deemed to have been received three business days following the date of mailing. Any notice sent by overnight courier will be deemed to have been received one business day following the date of delivery to the overnight courier. Either party may change its address for notice by advising the other party in writing of such change, and until the other parry is so advised, it will be entitled to continue sending notices to the last address it is advised of in writing= If to the Town: Town of Snowmass Village P.O. Box 5010 404-61R Kearns Road Snowmass Village, Colorado 81615 Attention: Town Manager 13 BUS _RE/ 48Fr73a3 -1 09 -22 -14 TC Packet 61 If to Developer: r t *1R h-Gree tS w As_ AcQVisiTt COMPANY; LLC P.O. Box 6565USP�QnI 5131 Owl G fee , v a 16 Kearns Road 3rd Eioor e Ex and I TPSI Snowmass Village, E eCQ 81615 Amoon. Mike O' erAttn: Dwa_y_n -e -Rom_ ro Telephone. (970 922 0556 Faesinii1e; i970 922 nc(4 with a copy to: 5jjERmA & JiOWAm LLC -19544411 M M L4 M 4-9 B c9_zding-Developer and the Town each shall have the right to record this Agreement in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. 414 Cap ons and Titles All captions and titles of headings of Articles and Sections in this Agreement are for the purpose of reference and convenience and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof. 4-14 At4erne;,, Fees. 411 Attorne Fe�otwithstanding anything to the contrary contained in this Agreement, if either party institutes legal proceedings against the other with respect to this Agreement, the non - prevailing party shall pay to the prevailing party an amount equal to all attorneys' fees and disbursements and all other costs and expenses incurred by the prevailing party in connection therewith, including, without limitation, the fees and disbursements of any attorneys, accountants, engineers, appraisers or other professionals engaged by the prevailing party, whether incurred before or at trial, on appeal, in bankruptcy or in post judgment collection. 14 sus_RE/4867575: , .53Rg243 2 09 -22 -14 TC Packet 62 (Remainder of Page Intentionally Left Blank) 15 BUS_RE/4867575.453SS243 2 09 -22 -14 TC Packet 63 IN WITNESS WHEREOF, the parties have caused this .A.meR e"nd Restated Base Village�e�cLoent Agreement to be signed as-&f the date set forth below to be effective as of the date written above. ToAqsk TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation C P. "g elegrest, Te wz T�*ag er .ice .. reiVe Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney I sus_REi^Q,4 -�� sjasza -Z 16 09 -22 -14 TC Packet 64 AI M-VWAM WAI r... The b b 20=, by D. Miehael Seggr-est 17 BUS_RE /note 09 -22 -14 TC Packet 65 •. .•• Na 18 BUS RE /A4 53.8 -8 2 09 -22 -14 TC Packet 66 Exhibit 2 AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT THIS AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT (the "Agreement ") dated as of , 2014, is made by and between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). This Agreement amends and restates in its entirety the Subdivision Improvements Agreement for The Base Village Planned Unit Development dated November 4, 2004 between INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY LLC, a Delaware limited liability company and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation, and the First Amendment to Subdivision Improvements Agreement for The Base Village Planned Unit Development dated December 30, 2008 between BASE VILLAGE OWNER LLC, a Delaware limited liability company and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation. RECITALS A. Developer intends to develop that real property situated in the Town of Snowmass Village, Colorado commonly known as Lots 1 -9, Base Village Planned Unit Development (the "Property "), as depicted on the Plat for Base Village P.U.D., filed February 2, 2006 in Plat Book 77 at Page 30, at Reception No. 520483 of the records of Pitkin County, Colorado (the "Base Village Project "); B. The Town and Intrawest /Brush Creek Development Company LLC, a Delaware limited liability company ( "Developer ") entered into that certain Subdivision Improvements Agreement for the Base Village Planned Unit Development dated as of November 4, 2004, recorded as Reception No. 520485 in the real property records of Pitkin County, Colorado (the "Records ") as amended by the First Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development dated as of December 30, 2008 (collectively, the "SIA "); C. This Agreement amends, restates and supersedes in its entirety the SIA; D. The Town Council of the Town granted approval of the development of the Property proposed in the Application by enacting Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "); E. The Town and the Developer have entered into an Amended and Restated Base Village Development Agreement dated , 2014 (the "Development Agreement "); BUS-RE/5388245.2 09 -22 -14 TC Packet 67 F. The Town and the Developer have entered into a First Amendment to the Base Village Funding Agreement dated , 2014; G. The Developer will submit to the Town plans (collectively, the "Plans ") as and when required by the Development Agreement for the public infrastructure improvements consisting of the "Roundabout ", the "Upper Wood Road Improvements" and the "Snowmelt System at Garage Entry" as defined below (the "Public Improvements ") and the landscape improvements described in Section 4 below (the "Landscape Improvements" together with the Public Improvements sometimes referred to herein collectively as the "Improvements ")) that must be constructed in connection with the development of the Base Village Planned Unit Development approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the Records ( "Base Village "), and the Public Improvements, together with the estimated construction costs and completion schedules are all as more particularly described on Exhibit A attached hereto; H. Developer has proposed to extend the Vested Property Rights for the Property, as more particularly described in the Minor PUD Amendment application for Base Village submitted to the Town on June 30, 2014, as amended (the "Application "), and has agreed to provide or contribute to the provision of certain facilities and services within the Town of Snowmass Village for the Town's benefit as more particularly described below; and I. The Town Council of the Town granted approval of the extension of Vested Property Rights for the Property proposed in the Application by enacting Ordinance No. 3, Series of 2014 (the "Minor PUD Vesting Ordinance "), subject to certain requirements and conditions which involve the installation and construction of the Improvements. J. Pursuant to the provisions of Section 16A- 5- 360(c)(2)(e) of the Snowmass Village Municipal Code (the "Code "), Developer is obligated to construct, install and guarantee the Improvements. NOW, THEREFORE, in consideration of the premises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is acknowledged by the parties hereto, it is agreed as follows: 1. Capitalized Terms and Definitions. The following capitalized terms and phrases used herein shall have the following meanings: "Approval" means with respect to any land use or zoning action by the Town on a land use or zoning application related to the Base Village Project that the Town has granted a final approval, a administrative or court appeal, if any, has been finally decided in a final, non - appealable judgment or order, and a referendum, if any, as to the Town action has been concluded without reversal of the Town action. "Commencement of Construction" means, with respect to the construction of the Improvements, that each of the following three conditions have been performed: (i) the Town has issued a building permit for the construction (if a building permit is required) or a right -of -way permit; (ii) a binding construction contract has been executed by the 2 BUS-RE/5388245.2 09 -22 -14 TC Packet 68 contractor and the Developer (or the owner engaged in such construction), and a true and correct copy thereof has been submitted to Town (provided any confidential or proprietary information may be redacted therefrom); and (iii) the "Mobilization" of the general contractor pursuant to the construction contract as determined by the Town's Chief Building Official. "Final Completion" of a Public Improvement means: (i) the Public Improvement has achieved Substantial Completion (including landscaping); (ii) the Developer has delivered a Certification of Completion for the Public Improvement from an engineer licensed in Colorado to the Town Manager; and (iii) the Certification of Completion has been accepted by the Town Manager. "Mobilization" means transportation of the contractor's personnel, equipment, and operating supplies to the site, establishment of temporary facilities for the contractor's operations at the site, and erection of any required construction fencing for the site. " Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a Public Improvement means that the entire scope of work for that Public Improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the Public Improvement for its intended use and that a Certification of Completion for the Public Improvement has been issued by an engineer licensed in Colorado. "Upper Wood Road Improvements" means the improvements and related infrastructure which includes utilities, sidewalks, grading, bus pull -out adjacent to Lot 4 of the Property for Upper Wood Road necessary for the road overlay, curb and gutter and bus shelter near the Enclave. 2. Developer's Guarantee and Warranty. Developer hereby guarantees the installation, as hereafter provided and as necessary to serve the Property, and payment therefor, of all the Improvements. Developer hereby warrants all Improvements constructed or installed by Developer that are dedicated or to be dedicated to the Town against defects in materials and workmanship for a period of two (2) years after acceptance or until July 1St of the year during which the second (2"d) winter terminates after acceptance, whichever is later, of the Improvements by the Town or the utility companies as described in Section 16A -5- 360(c)(2)(e)(4) of the Code. Developer agrees to promptly correct any deficiencies in installation in order to meet the requirements of the Plans applicable to such installation. In the event such installation has not achieved Substantial Completion by the applicable milestone deadline as required by the Development Agreement, and according to the specific Plans therefor, the Town, subject to any Developer cure rights, shall have the right to cause such work to be done as is necessary to complete the installation of such Improvements in such manner and Developer shall be liable for the cost of such work. 3. Public Improvements. Developer shall install or construct, as applicable, all Public Improvements in accordance with the Plans for the Public Improvements by the BUS-RE/5388245.2 09 -22 -14 TC Packet 69 applicable milestone deadline as required by the Development Agreement. Developer acknowledges that, as required by the Ordinance, it is required to submit additional civil drawings to the Town for the Town's review and approval and that such civil drawings will include information relating to the Public Improvements. (a) Trails. (i) Developer agrees to construct the remaining trails described on the Pedestrian Circulation and Mobility Map attached hereto as Exhibit B (the "Mobility Map "), consisting of: (A) the trail connection west of Building 1 (Treehouse) to the south of the Lichenhearth Condominiums to connect to the Benedict Trail as shown on Exhibit B subject to establishment of any trail easements to be granted by third parties for that trail connection; (B) future trail connections required by the PUD and associated with buildings /lots that have not yet been constructed. (ii) Developer agrees to grant easements for all existing and proposed trails, or portions thereof, to be constructed on the Property for those easements that do not yet exist and as shown in the Plans and /or the Mobility Map. (iii) The Town agrees to grant easements, or to cause such easements to be granted, where necessary for Developer to satisfy its obligations under this Section 3(a). (b) Bus Shelters. Developer agrees to construct the bus shelter included within the Upper Wood Road Improvements. (c) Roadways. Developer agrees to construct the following roadway improvements in accordance with the Plans and, as applicable, the standards set forth on Exhibit C attached hereto: (i) the Upper Wood Road Improvements; (ii) the Snowmelt System at Garage Entry; and (iii) the Roundabout at the intersection of Brush Creek and Wood Road. Pursuant to the Improvements Agreement (Sewer and Water Lines Upgrade) among the Town, the Developer and Snowmass Water and Sanitation District dated August 30, 2013 (the "SWSD Improvements Agreement "), the "Substandard Waterline Section" as defined in Section 4 of the SWSD Improvements Agreement will be deemed remediated by the Developer upon posting the Performance Security for the Roundabout as required by this Agreement. Upon posting such Performance Security, the "Compliance Deadline" under Section 4(b)(1) of the SWSD Improvements Agreement will be modified to be the same date as the Final Completion milestone deadline for the Roundabout in the Development Agreement. I ' The SWSD will either sign the Joinder to this Agreement, or the Town, the Developer and SWSD will enter into an amendment of the SWSD Improvements Agreement,. at the election of the Town and SWSD. M BUS-RE/5388245.2 09 -22 -14 TC Packet 70 4. Landscape Improvements. Developer shall install all Landscape Improvements in accordance with the final landscape plans and specifications approved in connection with the final PUD and pursuant to the phased schedule set forth on Exhibit A attached hereto. Developer acknowledges that, as required by the Ordinance, it is required to submit additional landscaping drawings to the Town for the Town's review and approval and that such landscaping drawings will include information relating to the Landscape Improvements. The Landscape Improvements (including future trail connections required by the PUD that have not yet been constructed and which will be will be constructed as a condition to issuance of final certificates of occupancy for the building to which the trail connections relate). 5. Traffic Control. During the construction of any Improvements described in this Agreement, Developer shall be responsible for controlling and expediting the movement of vehicle and pedestrian traffic through and around all construction sites and activity. 6. Maintenance and Repair. The Town acknowledges that Developer's construction traffic will accelerate the normal wear and tear of the Town's roadways. The Town acknowledges that any such accelerated wear and tear to the Town's roadways caused by normal construction traffic will be repaired using Town funds, including funds generated by the Occupancy Assessment imposed by the Town under Section 18 -42 of the Code in connection with the development of the Base Village Project. The Town hereby releases Developer from any other responsibility for such accelerated wear and tear, but not extraordinary damages from construction activities. 7. Security for Improvements; Release of Security. (a) As a condition of the Approval of the Minor PUD Vesting Ordinance, and within thirty (30) days after such Approval, the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security ") for the Roundabout, the Upper Wood Road Improvements and the Snowmelt System at Garage Entry for purposes of assuring the construction of those Public Improvements, based on the preliminary cost estimates set forth in Exhibit A. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing such Public Improvements (which estimated Public Improvements costs are set forth on Exhibit A attached hereto), and (y) any amounts to be contributed by the Town as required by Section 8 below. Within 30 days after the Town Engineer approves the final cost estimates for the Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the Performance Security will be adjusted to equal the final cost estimates. Upon acceptance by the Town Manager of the Town (the "Town Manager "), or his designee, of a Certification of Completion for such Public Improvements from an engineer licensed in Colorado (hereinafter the "Acceptance "), the Performance Security shall be released and the Town will execute any such documents as are reasonably necessary to accomplish the release of the Performance Security. (b) The Performance Security: (i) if in the form of a letter of credit, shall be issued by a state or national banking institution, with offices located within the state of Colorado, in a form reasonably acceptable to the Town; or (ii) if in the form of a payment and performance bond, shall be issued by a national surety company, qualified to do business in the state of Colorado BUS-RE/5388245.2 09 -22 -14 TC Packet 71 and which carries at least an "A -" rating by AM Best, in a form reasonably acceptable to the Town. (c) The Performance Security must be valid for the time period anticipated for Substantial Completion or Final Completion of such Public Improvements in the Development Agreement. Any extension of the time period for construction and installation of such Public Improvements shall cause the Performance Security to be extended for an equal amount of time. Any such extension shall be in writing. (d) No more frequently than once every month, the Developer shall be entitled to partial releases of the Performance Security with respect to the Public Improvements as portions of the Public Improvements are constructed. In order to obtain a partial release or reduction of the Performance Security, the Developer shall submit a Certificate of Partial Completion ( "Certificate ") signed by an engineer licensed in the State of Colorado describing the portion of the Public Improvements constructed and the cost allocation associated with such Public Improvements. Such Certificate shall include a summary of the actual costs for the Public Improvements incurred to the date of the Certificate. After delivery of a Certificate, the Town Manager, or his designee, shall have a period of fifteen (15) days within which to accept the Certificate, as evidenced by a written notice to the Developer, or provide written notice to the Developer of any deficiencies in the Public Improvements. Any such notice of deficiencies shall describe the deficiency between the Public Improvements as constructed and the approved Plans. If the Town Manager, or his designee, provides the Developer written notice of acceptance of the Certificate, then the Town shall release the appropriate amount of the Performance Security as relates to such Public Improvements. If the Town Manager, or his designee, provides the Developer a letter of deficiency with respect to any portion of such Public Improvements for which the Developer has filed a Certificate, then the Town's engineer shall meet with the Developer's engineer to discuss and agree on any requirements necessary to bring such Public Improvements into conformity with the Plans. Upon compliance with any requirements delineated by the Town's engineer for compliance with the Plans, the Town shall release that portion of the Performance Security allocated for the cost of such portion of the Public Improvements. Upon the Town's initial acceptance of one or more of the Public Improvements identified in Section 3(c)(i) or Section 3(c)(ii) above that are to be dedicated to the Town, and the commencement of the two -year warranty described in Section 2 above, (i) the Town shall release that portion of the Performance Security attributable to those Public Improvements as provided above, and (ii) subject to the requirements of Section 7(b) above, the Developer shall deliver a letter of credit or payment and performance bond to the Town in an amount equal to five (5 %) percent of the cost of that Public Improvement for the purpose of securing the warranty for that Public Improvement. Such letter of credit or payment and performance bond shall be maintained by the Developer for the warranty period described in Section 2 above for that Improvement and, upon the expiration of such warranty period, the Town shall release the unexpended portion of such letter of credit or payment and performance bond. The Developer shall reimburse the Town all fees for Town's engineer to inspect such Public Improvements and approve or provide a notice of deficiency with respect to any Certificate. Subject to the amendment procedures set forth in Section 16, nothing herein shall preclude the parties from mutually establishing a different procedure for obtaining partial releases from the Performance Security. BUS_RE/5388245.2 09 -22 -14 TC Packet 72 (e) The Town may, at its sole option, permit the Developer to substitute other collateral acceptable to the Town for the collateral originally given by the Developer to secure the completion of the Public Improvements. (f) In the event all the Public Improvements secured by the applicable Performance Security will not be constructed and installed prior to the expiration of such Performance Security, the Developer shall replace or secure an extension of such Performance Security on terms acceptable to the Town, at least thirty (30) days prior to expiration of such Performance Security. Except as otherwise provided in the Development Agreement, should the Developer fail to do so, the Town may draw on such Performance Security funds necessary to complete the installation of the Public Improvements and place the funds directly into an escrow account under the control of the Town, and such funds shall be used to complete the installation of the Public Improvements required hereunder. (g) The estimated costs of the Public Improvements are an estimated amount mutually agreed at this time by the Developer and the Town as set forth on Exhibit A attached hereto. In the event the cost of the Public Improvements exceeds the estimated cost, the Developer shall be solely responsible for the actual cost. The purpose of the cost estimate is solely to determine the amount of security and shall be revised every twelve (12).months to reflect the actual costs, and the applicable Performance Security required by this Agreement shall be adjusted accordingly. No representations are made as to the accuracy of these estimates, and the the Developer agrees to pay the actual costs of all such Public Improvements. Construction of Roundabout. (a) The development of the Base Village Project requires that a traffic roundabout and bridge be constructed at the intersection of Wood Road and Brush Creek Road. As of the date hereof, the Developer has completed construction of the Wood Road bridge portion of the Brush Creek/Wood Road Roundabout and Bridge (the "Bridge ") and the Town has accepted the Bridge, but the Developer has not yet commenced construction of the roundabout portion thereof (the "Roundabout "). The design and construction costs of the Roundabout have been estimated to be Three Million Five Hundred Thousand Dollars ($3,500,000.00). (b) In accordance with the Ordinance, the Town's contribution to the design and construction of the Roundabout and Bridge was fixed at Two Million Dollars ($2,000,000.00). The Town has previously paid or credited the Developer an amount equal to One Million Two Hundred Thousand Dollars ($1,200,000.00) for the costs incurred by the Developer's predecessor in interest to design and construct the Bridge. (c) Developer will submit the plans and specifications consisting of ninety (90 %) percent complete construction drawings to the Town by the applicable milestone deadline set forth in the Development Agreement for construction of the Roundabout (the "Roundabout Work "). Developer will enter into a construction contract with a contractor for construction of the Roundabout Work, with a stipulated sum or guaranteed maximum price for all of the Roundabout Work (the "Construction Contract "). Developer will commence the Roundabout Work shown by the final Plans and specifications, as approved by the Town Engineer, as provided in the Development Agreement. 7 BUS-RE/5388245.2 09 -22 -14 TC Packet 73 (d) In addition to such other terms and conditions agreed by the Developer and the Town, each acting reasonably, agree to the following provisions: (i) The Developer shall provide to the Town a copy of the agreements between (A) the Developer and its engineers for the design of the Roundabout (the "Design Contract "), and (B) the Developer and the contractor under the Construction Contract (the "Construction Contract "); (ii) After the Developer provides the Town a copy of each of the Design Contract and the Construction Contract, the Town shall pay all costs incurred for the design and construction of the Roundabout, up to a maximum amount of Eight Hundred Thousand Dollars ($800,000.00), as and when such costs are incurred by the Developer and shall pay to the Developer such sums within thirty (30) days after receiving written request therefor from the Developer, which written request shall include copies of all applicable bills, invoices and conditional lien waivers relating to such costs, subject to the review and reasonable approval of the Town engineer; and (iii) The Roundabout shall be constructed in accordance with the standards attached as Exhibit C. (e) Prior to the date that the Developer commences any construction work on Carriage Way or Wood Road (excluding the installation of utility infrastructure in connection with the Base Village Project), the Developer shall have posted the Performance Security with the Town as required by Section 7. 9. Default. Subject to the provisions of Section 16A- 5- 360(c)(2)(e)(5) of the Code, if Developer fails to observe or perform any of its obligations set forth above in any material respect, Developer shall have the right to cure said default after written notice by the Town of the default to Developer. If Developer fails to cure such default within sixty (60) days after written notice is given from the Town to Developer (or if such default cannot be cured within the sixty (60) day period of time, if Developer shall fail to promptly commence to cure the same and thereafter diligently proceed with such cure), then the Town shall be entitled to undertake such work as may be necessary and appropriate to cure such default. The Town shall be entitled to full reimbursement for the reasonable costs of all such work. Notwithstanding the foregoing, upon an event of default by Developer as described above that remains uncured beyond the cure period described above, Developer shall not be entitled to receive a building permit for the construction of any of the buildings described in the Ordinance remaining to be constructed until such default has been cured. Any written notice required to be given to Developer shall be given by first class mail, postage prepaid, and by certified mail, return receipt requested, to the following addresses: If to the Town: Town of Snowmass Village P.O. Box 5010 130 Kearns Road Snowmass Village, Colorado 81615 Attention: Town Manager BUS-RE/5388245.2 09 -22 -14 TC Packet 74 Telephone: (970) 923 -3777 Facsimile: (970) 923 -6083 If to Developer: SNOWMASs ACQUISITION COMPANY LLC P.O. Box 6565 (LISPS Only) 16 Kearns Road, 3`d Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher Developer may notify the Town in writing of any change in address to which this notice shall be given. 10. Assignment. Developer may assign its rights and obligations under this Agreement, or any portion thereof, without the Town's consent by a written recorded instrument expressly assigning such rights and powers to any of the following entities: (i) any Affiliate of Developer; (ii) Aspen Skiing Company, LLC, or any of its Affiliates; or (iii) any entity which succeeds to substantially all of Developer's remaining development rights with respect to the Property as described in the Ordinance. Upon an assignment by Developer of any of its rights or obligations under this Agreement to an entity listed above, an assumption of those rights or obligations (including substitution of financial assurances) by such assignee, and, if the assignment is to an entity listed in (i) through (iii) above, evidence from a reputable banking institution or surety company that the Affiliate is bondable (subject to any guaranties from Developer or another third party required to be posted by such banking institution or surety company), Developer shall be released of all liabilities arising under this Agreement with respect to such rights or obligations. Notwithstanding the foregoing, if Developer assigns any of its rights or obligations under this Agreement to any entity described above which is not an Affiliate of Developer or Aspen Skiing Company, LLC, and at the time of such assignment security for the obligations so- assigned has not yet been posted with the Town, then Developer shall not be released of its liabilities arising under this Agreement with respect to such rights or obligations until the applicable security described in Section 7 above has been posted. For purposes hereof, "Affiliate" shall mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control" means (A) direct or indirect ownership or control of at least Fifty (50 %) percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. 11. Binding Effect. This Agreement shall be binding upon and inure to the benefit of Developer and its respective successors and assigns. 12. Burden and Benefits. Each of the benefits, burdens, terms, covenants, agreements and conditions of this Agreement shall be construed as covenants running with the land benefiting and burdening the Property or any applicable portion thereof, and it is the intent of the BUS-RE/5388245.2 09 -22 -14 TC Packet 75 parties that such benefits, burdens, terms, covenants, agreements and conditions touch and concern such property. 13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 14. Interpretation. Unless the context of this Agreement clearly requires otherwise: (a) terms defined in the singular may be used in the plural, and terms defined in the plural may be used in the singular; (b) "including" and "such as" are not limited; (c) "or" has the inclusive meaning represented by the phrase "and /or "; (d) the words "hereof," "herein," "hereby," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) Article, Section, clause, paragraph and Exhibit references are to this Agreement unless otherwise specified; (f) references to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (g) all of the exhibits to this Agreement are hereby incorporated into this Agreement by reference. In the event of any conflict between a term, condition or provision of this Agreement and a provision of the Code, the terms of this Agreement shall control. 15. Severability. If any provision of this Agreement shall be invalid, illegal, void or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement or any other provision hereof, and a court shall enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. If any provision of this Agreement is invalid, illegal, void or unenforceable not in its entirety but as applied to a particular act, thing or circumstance, such provision shall not affect or impair the validity, legality or enforceability of this Agreement or any provision hereof as applied to any other act, thing or circumstance, and a court shall apply such provision and enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. 16. Amendment; Waivers, Termination. This Agreement may be modified or amended, and waivers hereunder granted, only in writing and only with the consent and approval of Developer and the Town. Notwithstanding the foregoing, if Developer loses its right to develop the Base Village Project for any reason other than a failure of Developer to meet its obligations under the Ordinance or any of the Other Agreements, including this Agreement, entered into in connection therewith, then: (a) Developer shall immediately be relieved of all 10 BUS-RE/5388245.2 09 -22 -14 TC Packet 76 obligations hereunder: (b) within thirty (30) days after such action the Town shall release or return, as applicable, any Performance Security or sums paid or posted by Developer pursuant to this Agreement; and (c) the parties shall execute a written termination of this Agreement. 17. Recording. Developer and the Town each shall have the right to record this Agreement in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. 18. Captions and Titles. All captions and titles of headings of Articles and Sections in this Agreement are for the purpose of reference and convenience and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof. (Remainder of Page Intentionally Left Blank) 11 BUS-RE/5388245.2 09 -22 -14 TC Packet 77 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of 2014, by as Town Manager of the Town of Snowmass Village, Colorado. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public [SIGNATURES CONTINUE ON FOLLOWING PAGE] 12 BUS-RE/5388245.2 09 -22 -14 TC Packet 78 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development to be signed on the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company in Name: Title: STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of 2014, by Dwayne Romero as of Snowmass Acquisition Company LLC, a Delaware limited liability company. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public 13 BUS-RE/5388245.2 09 -22 -14 TC Packet 79 EXHIBIT A (Public Improvements)2 Type Plans/Description Estimated Cost Completion Schedule Roundabout To be submitted by $3,500,000 June 1, 2015 October 1, 2014 Commencement of Construction November 1, 2015 Substantial Completion July 1, 2016 Final Completion Upper Wood Road Improvements To be submitted by $1,400,000 May 1, 2017 October 1, 2015 Commencement of Construction November 1, 2017 Substantial Completion Snowmelt Improvements To be submitted $350,000 May 1, 2017 in conjunction with Commencement of Building 8 Permit Set Construction November 1, 2017 Substantial Completion ` The dates on this Exhibit A are subject to adjustment as provided in the Development Agreement/ 14 BUS-RE/5388245.2 09 -22 -14 TC Packet 80 EXHIBIT B (2004 Pedestrian Circulation and Mobility Map) 15 BUS-RE/5388245.2 09 -22 -14 TC Packet 81 .��. ■ ■! / A - E t■q |§ | | ; §. 2 SNOWMSVILLAGE ! SNOwMw L RADO 09-22-14 T( Packet 82 7 | . " � Mok "impffi�\ \� .��. ■ ■! / A - E t■q |§ | | ; §. 2 SNOWMSVILLAGE ! SNOwMw L RADO 09-22-14 T( Packet 82 7 | EXHIBIT C (Roundabout Standards) A. Design shall be in accordance with National Cooperative Highway Research Program Report 672 of the U.S. Department of Transportation Federal Highway Administration "Roundabouts: An Informational Guide ", Second Edition, 2010. B. Brush Creek Road is classified as an arterial and should be designed for a 25 mph design speed. C. Variances may be allowed for grades up to ten percent (10 %) on the Brush Creek Road approaches and up to four percent (4 %) across the Roundabout subject to the approval of the Town Engineer. The Design shall be generally consistent with the preliminary plan prepared by SGM. D. Roundabout shall be designed to operate at a level of service C or better during peak traffic conditions as determined using either ARCADY or SIDRA roundabout design software and peak traffic conditions as presented in "Snowmass Base Village and Outlying Parcels, Transportation Analysis and Parking Management Strategy ", by Felsburg, Holt and Ullevig, March 2004, as amended. E. Signage shall be approved by the Town Engineer. F. Enhancements for the Roundabout shall include, but not be limited to, lighting, irrigated landscape improvements, both in the center of the Roundabout and on roadway approaches, pedestrian movement facilities and decorative concrete and /or pavers as shown or specified in the Roundabout CD Plan Set consisting of ninety (90 %) percent complete construction drawings. The Town reserves the right to make final determination of required enhancements. G. Reconnection to Upper Kearns road shall be included in the project. The design shall be for a local road classification and a 25 mph design speed. BUS-RE/5388245.2 09 -22 -14 TC Packet 83 I'i AD FAMEND NRSTAT SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT RECITALS: A. 1 intends to develop that real property situated in the Town (4ht- - `RrePe t.'t"}of Sno)YmaS, Village. Colorado commonly known as Lots 1 -9, Base Village Planned Unit Development (the " " .Pro er "l. as denicted on the Plat fnr Race Villaffe P. 1.D. filed February 2.2006 in Plat Book 77 at Pale 30. at Reception No 520483 of the records of Pitkin County. Colorado (the "Base Village Project" 1• BUS_RE/ ",, , 5 09 -22 -14 TC Packet 84 • . _ _ __ Lei BUS_RE/ ",, , 5 09 -22 -14 TC Packet 84 f. l" :• 11'1 I •a ! _� l W93F929EM 1 -L 1 G. G. 1BG has fiifdief stibfni4edjhg==Developer will submi to the Town plans (collectively, the "Plans ") f r eei4ain (i)as and when required by the Dgve1Qp=nt Agreeme public infrastructure improvements_consistingoithe "Roundabout " = the " Tpner Wood Road I movements" and the "Snowmelt System at Cara e Fntr; " as defined below (the "Public Improvements" )3 and Oi)jbg landscape improvements_ described in Section 4 below (the "Landscape Improvements;" together with the Public Improvements sometimes referred to herein collectively as the "Improvements ") bein LtbALr_aUg=bg constructed by 1BG-in connection with the development and imprevement ft D re ✓ r• nt t the Appliefttien. The Plans, the Publie impFavements and the V Develonment an n ved pursuant to Town Ordinance No 21 Series of 004 recorded as ecention No. 520481 in the Records ( "Rase Village "1 and the P»hlic Improvements, together with the estimated construction costs and completion schedules &r the improve Ment , are all as more particularly described on Exhibit " A" attached hereto.. -, • _ !_' eTM 13M fl l" •• • •) "! I 11 - ' •• certain requirements and conditions which involve the installation and construction of the Improvements. L &-Pursuant to the provisions of Section 16A- 5- 360(c)(2)(e) of the Snowmass Village Municipal Code (the "Code "), I$G erer o is obligated to construct, install and guarantee the Improvements. NOW, THEREFORE, in consideration of the premises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is acknowledged by the parties hereto, it is agreed as follows: IMA - �' -- -!! ._! -_' - "• 11_._1.._ � -. f___!. r_�!__' -�_ ' 1 -- !' - -'. 1___� __.!' _! 1 2 BUS_RE /cz,� 0� 5 A5,2 09 -22 -14 TC Packet 85 MOM • _ !_' eTM 13M fl l" •• • •) "! I 11 - ' •• certain requirements and conditions which involve the installation and construction of the Improvements. L &-Pursuant to the provisions of Section 16A- 5- 360(c)(2)(e) of the Snowmass Village Municipal Code (the "Code "), I$G erer o is obligated to construct, install and guarantee the Improvements. NOW, THEREFORE, in consideration of the premises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is acknowledged by the parties hereto, it is agreed as follows: IMA - �' -- -!! ._! -_' - "• 11_._1.._ � -. f___!. r_�!__' -�_ ' 1 -- !' - -'. 1___� __.!' _! 1 2 BUS_RE /cz,� 0� 5 A5,2 09 -22 -14 TC Packet 85 i•/ MIN PLO !11 "1 • • •- •1! , �! 11_ 41_ 4 • 1" 1 4 • t4 III l 11 • s �.• It• • "11 -i II "41 1" 1• • "11 1 WIMP-30141114M-P oil WO DAM M 1" -- • i. � i_ 4 • 1 •1 11• • 1 "I 1 4/ • 1 "' il i "• 1 41 • •♦1 V414•- 41! 1" -• : HOT1106 /1i •1 14 —• �/ 11 11 11'41 �• •1 • 1" • •' !_• 'Ir 41! •1 _- 1'�!_�_�:_.�� M 1" -- • i. � i_ 4 • 1_'. ._'__1_!1'1 -- —• I�1 . 111 � -- 11 s � I r 11-41 1" /•. 1' "11 4 I -/ 41 - cmulclQ landscaping) - 1 • ! 1 1 ! so that t' oublip, Qan occupy `i' Public ImproymQ131 u . and _ p 14 4 �_ _,!J • ll i•. •/ • 1 t 1.!.• 1 mQaDS tbQ I� lull "1411 I 1 / i_ I -t by " 11/1 R1 1 I11 1 I1 bus sbQltQr ! k_._grading, L ttQr ani 1 " -4_ 1 !H:G2. Develo emir's Guarantee and Warranty. TBGDsxsj= hereby guarantees the installation, as hereafter provided and as necessary to serve the Property, and payment therefor, of all the Improvements. hereby warrants all Improvements constructed or installed by JDeveloner that are dedicated or to be dedicated to the Town against defects in materials and workmanship for a period of two (2) years after acceptance or until July 1St of the year during which the second (2nd) winter terminates after acceptance, whichever is later, of the Improvements by the Town or the utility companies as described in Section 16A- 5- 360(c)(2)(e)(4) of the Code. fl3-GDUgj= agrees to promptly correct any deficiencies in installation in order to meet the requirements of the Plans applicable to such installation. In the event such installation is not eampleted substantially within the appheable sehedules (as set Bus_RE /CQ4� 27 �t�' ,5 ^RR 45 09 -22 -14 TC Packet 86 feFth — Exhih'+ "^" attaehe her -eta) i has not achieved Substan ial ompletion by the vrirrvir t,�ii � . cm � -� crcccrcrr�szzcry c applicable milestone deadline as required by the D8vel0 m nt rPPmPnt and according to the specific Plans therefor, the Town, subject to any Developer cure rim shall have the right to cause such work to be done as is necessary to complete the installation of such te Im r ovements in such manner and 1B4QD xax1= shall be liable for the cost of such work. 2- I,Public Improvements. shall install or construct, as applicable, all Public Improvements in accordance with the r-efereneed on Exhibit "X5 and pursuant to the phasing sehedule set fei4h en Exhibit "A". Plans for the Public Improvements by the applicable m;lacmnP rjPar�t;,,a ac raQL,irP� t,, +hA Development Agreement. Developer acknowledges that, as required by the Ordinance, it is required to submit additional civil drawings to the Town for the Town's review and approval and that such civil drawings will include information relating to the Public Improvements. (a) Walef Lines and v Sewer Etft" 3ria — Telephone ziid Cable T- F cc'n 1-'rto' cs • _ • #v 1BG shall entef inte eh g" fits o with G, s+ ^ i.. v BUS_RE /"'� Q85P —r UQ4,5 Z,, 09 -22 -14 TC Packet 87 -- - - Wa {--Trails. #0 14ckw o agrees to grant easements for all existing and proposed trails, or portions thereof, to be constructed on the Property for those easements that do not yet exist and as shown in the Plans and /or the Mobility Map. {ice} iii The Town agrees to grant easements, or to cause such easements to be granted, where necessary for fl3GDQy _Ql= to satisfy its obligations under this Section (P-Roadways. 14G agrees to construct the following roadway improvements in accordance with the Plans and_ as applicable able the standards set forth on Exhibit —`C —' attached hereto: TAI VV{Al1Vli Read, i sn` wmelting system on emir th f• Jl1V YY lllii1 L11I � • •• ••! .• 11• ) • 11 • __ IT4 611707.9 11 11•_ all • • BUS_RE/°- 445 11 „r_r7 i7 09 -22 -14 TC Packet 88 . I PAMM -M! . ......... . .. �A Wr.q 0 VRJ I.Crr.W I R TO AIMMO pr %wr P -MV. .11MMIL I W—M pup Mmmerr.m" ........... . . .......... R 17-TSKyar- MrRr-TF.ImHbT�1 . ........... RIT" M "MCM111111111 a 1111IMM W41 PORN N Pi IMW.Wmpm ......... . ... ...... . . ...... . ......... NOW M. 'M 'tn- LLLL-AXM fur-wrmil" 2 C = 0 WTT MWIM �.I!Pb . . ......... . .. �A Wr.q 0 VRJ I.Crr.W I R TO pr %wr P -MV. .11MMIL I W—M ........... R . . ......... . .. . . . ............ pr %wr P -MV. .11MMIL I W—M R . ........... RIT" M "MCM111111111 a 1111IMM W41 PORN N Pi IMW.Wmpm ......... . ... ...... . 3 T WNW= NOW M. . . ......... . .. . . . ............ pr %wr P -MV. .11MMIL I W—M R RIT" M "MCM111111111 a 1111IMM W41 PORN N Pi IMW.Wmpm ffs M-MY&I PTAIMPEM I a p-r-IrM "MMIRWITMI11 BUS—RE/&-4&5-7245388 09-22-14 TC Packet 89 • " 1 ►• 11e•• s 1" l •1 i . Lt 1 ••� MR, 3- 4--Landscape Improvements. 1BQayd= shall install all Landscape Improvements in accordance with the final landscape plans and specifications approved in connection with the final PUD and pursuant to the phased schedule set forth on Exhibit " AL attached hereto. TBGDgygJ= acknowledges that, as required by the Ordinance, it is required to submit additional landscaping drawings to the Town for the Town's review and approval and that such landscaping drawings will include information relating to the Landscape Improvements. Landscam Improvements (including future trail connections req sir d by the PUD that have not vet be l certifi of occunanev for the building_to which the trail connecti ns rel el. 4-1-1raffic Control. During the construction of any Improvements described in this Agreement, I4EPevelo� shall be responsible for controlling and expediting the movement of vehicle and pedestrian traffic through and around all construction sites and activity. Maintenance and Repair. The Town acknowledges that JBGDsYd=1 s construction traffic will accelerate the normal wear and tear of the Town's roadways. The Town acknowledges that any such accelerated wear and tear to the Town's roadways caused by normal construction traffic will be repaired using Town funds, including funds generated by the Occupancy Assessment imposed by the Town under Section 18 -42 of the Code in connection with the development of the Base Village Project. The Town hereby releases 4BG y from any other responsibility for such accelerated wear and tear, but not extraordinary damages from construction activities. b- Z�Security for Improvements: Release of SecuritX. Mrallral 7 BUS_RE /53185 P i53R_ 82452 09 -22 -14 TC Packet 90 Guafanty for the Landseape impr-evements may be obtained in phases e0ffeSpOndiRg with the LG " Guaranty &f eaeh phase of the handseape improvements shall not be due until seeh time as jBG applies for- an initial building pefm;t in sueh .,hale of" "t", t' of the Pfajeetg-omsin 1 loi of those Public Improvements. based on the nreliminary cost estimate.¢ s l forth JD Exhibit A . The amount of the Performance fly ecurity shall be_the difference between (xl one hundred percent (100 %) of the cost of constructing thesuch Public Improvements; kwhich estimated Public Improvements costs are set forth on Exhibit _GA" attached hereto), and (v) any amounts to be contributed by the Town as required by Section 8 bet_ w Within 30 days after the Town ineer approves the final cost estimates for the Public Improvements, and to the extent that the final cost estimates differ from the nreliminary cost estimates the PerfnrmanrP ScQurity will he adjusted to equal the final cost estimates. Upon acceptance by the Town Manager of the Town (the "Town Manager "), or his designee, of a Certification of Completion for t4eauch Public Improvements from an engineer licensed in Colorado (hereinafter the "Acceptance "), the Performance v shall be released and the Town will execute any such documents as are reasonably necessary to accomplish the release of the Performance reS lri v {b} The Performance Guar-afft�,-&O (i) if in the form of a letter of credit, shall be issued by a state or national banking institution, with offices located within the state of Colorado, in a form reasonably acceptable to the Town;- or (ii) if in the form of a payment and performance bond, shall be issued by a national surety company, qualified to do business in the state of Colorado and which carries at least an "A -" rating by AM Best, in a form reasonably acceptable to the Town. (-cfQLThe Performance Guar-anty5igujily must be valid for the time period anticipated for eampletien -ef the impfevements as set fei4h en > hiW! A" at aehed- hefeteSubstantial Completion or Final Completion of such Public Improvements in the Development A reemen . Any extension of the time period for eemPletion ef4hegmgmaign and installation of su h Improvements shall cause the Performance Guar-ant-y&QudL to be extended for an equal amount of time. Any such extension shall be in writing. (4) Pr-ier- to eemmeneement of eenstfuetien en either Carriage Read, 1BG shall plaee in eser-ew with a feptitable finaneial institutien or title eempany an amount 0 I.m.-.feye.v e ts eserew ..t th f " shall be approved by the T t' � b feasenably and subjeet to the pfevisions of this Seetien 6(d), and provide fliat 1BG fRay draw (a'TLgt » IBC—,4he- ified in the Request. Notwithstanding anything te the eentfar-y set fefth e b are net reasonable for the wor-k peffermed, the Town may, within five (5) d- the Request, objeet to payment by the eserew agent by delivering te the esefew agent and 1BG a To"% ebjeets. Within the ten (10) day tifne period deseribed above, the esefe", agent sha4tay- BUS_RE4 i 9572 ii 5'1R� 8245 2 09 -22 -14 TC Packet 91 _ _ ... ._ ... _. - - -.. -. . .. (e W) =No more frequently than once every month, Il the Developer shall be entitled to partial releases of the Performance Guafant- ySaQuriLy. with respect to the Public Improvements as portions of the Public Improvements are eempletedconstructed. In order to obtain a partial release or reduction of the Performance T Securi v. the Develo er shall submit a Certificate of Partial Completion (the- "Certificate ") signed by an engineer licensed in the State of Colorado describing the portion of the Public Improvements eeffipletedgDnjtLu SleA and the cost allocation associated with such eempleted Public Improvements. Such Certificate shall include a summary of the actual costs for the Public Improvements incurred to the date of the Certificate. After delivery of a Certificate, the Town Manager, or his designee, shall have a period of fifteen (15) days within which to accept the Certificate, as evidenced by a written notice to IBGthe Developer, or provide written notice to fl3Qhg=DpysJp= of any deficiencies in the Public Improvements. Any such notice of deficiencies shall describe the deficiency between the Public Improvements as constructed and the approved Plans. If the Town Manager, or his designee, provides Ithe Develo er written notice of acceptance of the Certificate, then the Town shall release the appropriate amount of the Performance Gear-a4y5sg1WLv= as relates to such- eempleted Public Improvements. If the Town Manager, or his designee, provides fl3Q r , a letter of deficiency with respect to any portion of t4eMIQh Public Improvements for which the Developer has filed a Certificate, then the Town's engineer shall meet with I1Gthe Developer's engineer to discuss and agree on any requirements necessary to bring such Public Improvements into conformity with the Plans. Upon compliance with any requirements delineated by the Town's engineer for compliance with the Plans, the Town shall release that portion of the Performance Guam. allocated for the cost of such portion of the Public Improvements. Upon the Town's initial acceptance of an Improvements identified in Section 3(cl(il or Section 3(c)(ii) above that are to be dedica ed to and the commencement of the two -year warranty described in paragraph 1-lion above, (i) the Town shall release that portion of the Performance Guafanty&QuriLy attributable to that as provided above, and (ii) subject to the requirements of paragraph h§ (b) above, �RGthe Developer shall deliver a letter of credit or payment and performance bond to the Town in an amount equal to 51/o of the cost of that Improvement for the purpose of securing the warranty for that Improvement. Such letter of credit or payment and performance bond shall be maintained by T4Ethe Developer for the warranty period described in paragraph - 1, above for that Improvement and, upon the expiration of such warranty period, the Town shall release the 9 sus_xEi«,5,_ ,, J5z 09 -22 -14 TC Packet 92 unexpended portion of such letter of credit or payment and performance bond. shall reimburse the Town all fees for Town's engineer to inspect theauh Public Improvements and approve or provide a notice of deficiency with respect to any Certificate. Subject to the amendment procedures set forth in paragraph ' ^� ew,-Section l 6. nothing herein shall preclude the parties from mutually establishing a different procedure for obtaining partial releases from the Performance C- ruaranty (-,*f.gLThe Town may, at its sole option, permit 14Gthe Developer to substitute other collateral acceptable to the Town for the collateral originally given by I1G1he Develop to secure the completion of the improvements. (h) -fin the event all the Public Improvements secured by the applicable Performance will not be prior to the expiration of such Performance Guar-anty , 1B;✓5 Sri v. the Developer shall replace or secure an extension of such Performance Gtiar-an1 -y. on terms acceptable to the Town, at least thirty (30) days prior to expiration of such Performance Guafanty. Should curity xcent as otherwise provided in The Development A r eement._should the Developer fail to do so, the Town may draw on such Performance •Ay funds necessary to complete the installation of the Public Improvements and place the funds directly into an escrow account under the control of the Town, and such funds shall be used to complete the installation of the Public Improvements required hereunder. (iYkgJThe estimated costs of the Improvements are an estimated amount mutually agreed at this time by the Develo=er and the Town as set forth on Exhibit _`A" attached hereto. In the event the cost of the Improvements exceeds the estimated cost, 14GIhL shall be solely responsible for the actual cost. The purpose of the cost estimate is solely to determine the amount of security and shall be revised every twelve (12) months to reflect the actual costs, and the applicable Performance Guaranty y required by this Agreement shall be adjusted accordingly. No representations are made as to the accuracy of these estimates, and the the Develo er agrees to pay the actual costs of all such Improvements. - .. - OWATATAMPETM _ - - ... .. (-,*f.gLThe Town may, at its sole option, permit 14Gthe Developer to substitute other collateral acceptable to the Town for the collateral originally given by I1G1he Develop to secure the completion of the improvements. (h) -fin the event all the Public Improvements secured by the applicable Performance will not be prior to the expiration of such Performance Guar-anty , 1B;✓5 Sri v. the Developer shall replace or secure an extension of such Performance Gtiar-an1 -y. on terms acceptable to the Town, at least thirty (30) days prior to expiration of such Performance Guafanty. Should curity xcent as otherwise provided in The Development A r eement._should the Developer fail to do so, the Town may draw on such Performance •Ay funds necessary to complete the installation of the Public Improvements and place the funds directly into an escrow account under the control of the Town, and such funds shall be used to complete the installation of the Public Improvements required hereunder. (iYkgJThe estimated costs of the Improvements are an estimated amount mutually agreed at this time by the Develo=er and the Town as set forth on Exhibit _`A" attached hereto. In the event the cost of the Improvements exceeds the estimated cost, 14GIhL shall be solely responsible for the actual cost. The purpose of the cost estimate is solely to determine the amount of security and shall be revised every twelve (12) months to reflect the actual costs, and the applicable Performance Guaranty y required by this Agreement shall be adjusted accordingly. No representations are made as to the accuracy of these estimates, and the the Develo er agrees to pay the actual costs of all such Improvements. 10 BUS_RE4 857 45388 2 09 -22 -14 TC Packet 93 - .. - OWATATAMPETM _ 10 BUS_RE4 857 45388 2 09 -22 -14 TC Packet 93 _ IV, _■ MIRM ■ i • i • �ITUTIMMIM 11 BUS_RE/ - " &P2 S3RR2" 09 -22 -14 TC Packet 94 - - - -- - - - - .. .._ .._. ■ ,,. ■ ■- i • i • �ITUTIMMIM 11 BUS_RE/ - " &P2 S3RR2" 09 -22 -14 TC Packet 94 1 �' •) 1. • ! • 1 •� • '1 t n-I-M Ago V-1- 11 fiat MA 11 11 FIRMOSTIF 5 -- MUM 1 1" i !' • -- -t--W- - ••_ MOINIMM 1. .-M •�1" �_ it It 11VIO 05A efault. Subject to the provisions of Section 16A- 5- 360(c)(2)(e)(5) of the Code, if fails to observe or perform any of its obligations set forth above in any material respect, 1BGDsagJ= shall have the right to cure said default after written notice by the Town of the default to . If 14GD=LygJ= fails to cure such default within sixty (60) days after written notice is given from the Town to IBG (or if such default cannot be cured within the sixty (60) day period of time, if shall fail to promptly commence to cure the same and thereafter diligently proceed with such cure), then the Town shall be entitled to undertake such work as may be necessary and appropriate to cure such default. The Town shall be entitled to full reimbursement for the reasonable costs of all such work. Notwithstanding the foregoing, upon an event of default by 1BGD-gyrJ= as described above that remains uncured beyond the cure period described above, �RG shall not be entitled to receive a building permit for the construction of any of the buildings described in the Ordinance remaining to be constructed until such default has been cured. Any written notice required to be given to TBGD.Qyei = shall be given by first class mail, postage prepaid, and by certified mail, return receipt requested, to the following addresses: 12 BUS �6-,2 _RE53. 09 -22 -14 TC Packet 95 If to the Town: Town of Snowmass Village P.O. Box 5010 00,130 Kearns Road Snowmass Village, Colorado 81615 Attention: Town Manager Telephone: (970) 923 -3777 Facsimile: (970) 923 -6083 If to 11W-- Intra tg t Y sh rY ek e el +peve w Y�VJU L ACOTTTSTTTON COMPANY LLC 14GD=g el= may notify the Town in writing of any change in address to which this notice shall be given. 8— .1Q.._Assignment. fl3-GD=Ly-gLQ= may assign its rights and obligations under this Agreement, or any portion thereof, without the Town's consent by a written recorded instrument expressly assigning such rights and powers to any of the following entities: (i) any Affiliate of 14GD.QY,gJ ; (ii) Aspen Skiing Company, LLC, or any of its Affiliates; 2L(iii) intrawest Affiliates; (�ar-peratien or any et"its any entity which succeeds to substantially all of 1 's remaining development rights with respect to the Property as described in the Ordinance. Upon an assignment by 1 of any of its rights or obligations under this Agreement to an entity listed above, an assumption of those rights or obligations (including substitution of financial assurances) by such assignee, and, if the assignment is to an entity listed in (i) through (iii) above, evidence from a reputable banking institution or surety company that the Affiliate is bondable (subject to any guaranties from 1BGD. or another third party required to be posted by such banking institution or surety company),1 GD —evelo = shall be released of all liabilities arising under this Agreement with respect to such rights or obligations. Notwithstanding the foregoing, if 14GD&ygJ= assigns any of its rights or obligations under this Agreement to any entity described above which is not an Affiliate of MG, lntra or Aspen Skiing Company, LLC, and at the time of such assignment 13 09 -22 -14 TC Packet 96 security for the obligations so- assigned has not yet been posted with the Town, then 19GDgygj= shall not be released of its liabilities arising under this Agreement with respect to such rights or obligations until the applicable security described in paragraph oSection 7 above has been posted. For purposes hereof, "Affiliate" shall mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control' means (A) direct or indirect ownership or control of at least L50SI percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. 9- 11zBindin Effect. This Agreement shall be binding upon and inure to the benefit of 14GDev and its respective successors and assigns. 4- 0- 12,Burden and Benefits. Each of the benefits, burdens, terms, covenants, agreements and conditions of this Agreement shall be construed as covenants running with the land benefiting and burdening the Property or any applicable portion thereof, and it is the intent of the parties that such benefits, burdens, terms, covenants, agreements and conditions touch and concern such property. 44- ] 3. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 1-14. Interpretation. Unless the context of this Agreement clearly requires otherwise: (a)- terms defined in the singular may be used in the plural, and terms defined in the plural may be used in the singular; (-b "including" and "such as" are not limited; (c+ "or" has the inclusive meaning represented by the phrase "and /or "; (4)-WLthe words "hereof," "herein," "hereby," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (e)- Article, Section, clause, paragraph and Exhibit references are to this Agreement unless otherwise specified; 4Mjeferences to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (g)-f.-Lall of the exhibits to this Agreement are hereby incorporated into this Agreement by reference. In the event of any conflict between a term, condition or provision of this Agreement and a provision of the Code, the terms of this Agreement shall control. �3- 1�Severabilitti. If any provision of this Agreement shall be invalid, illegal, void or unenforceable, it shall not affect or impair the validity, legality or enforceability of this 14 ��ic�:»►�sscz�7.sczeb����►� 09 -22 -14 TC Packet 97 Agreement or any other provision hereof, and a court shall enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and 14GD=gy&k= as expressed in this Agreement. If any provision of this Agreement is invalid, illegal, void or unenforceable not in its entirety but as applied to a particular act, thing or circumstance, such provision shall not affect or impair the validity, legality or enforceability of this Agreement or any provision hereof as applied to any other act, thing or circumstance, and a court shall apply such provision and enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and fl34Q evelo as expressed in this Agreement. 44—. L6. Amendment: Waivers: Termination. This Agreement may be modified or amended, and waivers hereunder granted, only in writing and only with the consent and approval of 44GD&xe and the Town. Notwithstanding the foregoing, if 44GDSXSJ= loses its right to develop the Base Village Project for any reason other than a failure of 1$E v = to meet its obligations under the Ordinance or any agree nezts the Other A ,reemen s, including this Agreement, entered into in connection therewith, then; (a) 1BGD=u&jQ= shall immediately be relieved of all obligations hereunder;. (b) within thirty (3Q days after such action the Town shall release or return, as applicable, any Performanga.Sggcurity or sums paid or posted by I-BGDevelol2er pursuant to this Agreement,; and (c) the parties shall execute a written termination of this Agreement. 4 -5-17. Recording. JBG and the Town each shall have the right to record this Agreement in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. 4- b-- . All captions and titles of headings of Articles and Sections in this Agreement are for the purpose of reference and convenience and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof. (Remainder of Page Intentionally Left Blank) 15 Bus_xE /&-; � , - 09 -22 -14 TC Packet 98 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Subdivision Improvements Agreement for the Base Vill u Planned 1 Tnit Develop n�mt to be signed on the date set forth below to be effective as of the date written above. TOWN TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation I: ♦ ) f M APPROVED AS TO FORM; John C. Dresser, Jr., Town Attorney 16 BUS-RE/5318572.1 ?4 ? 09 -22 -14 TC Packet 99 STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of 2OW, by P. Mie ael Segfest. as Town Manager of the Town of Snowmass Village, Colorado. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public 17 BUS 4jUaL45,Z 09 -22 -14 TC Packet 100 •/ /1• • 11 "/ :• _ 1"i • 1" s' RMILTA119mur, 11-! / NIT-110.10 • 1.1 •. i ! K#) IL /! 18 BUS —RE 4344&72-453 09 -22 -14 TC Packet 101 19 BUS_RE /P4,2'., IU 45 09 -22 -14 TC Packet 102 PTO] BUS-RE/53 , Q�� X72 ,-j3$A4LLZ 09 -22 -14 TC Packet 103 •1 It 1 e I• !el ' • 1 \ •It ••• ■ '1 t MOMWIN 1 • I I • • . • e l �.. L • 1 l_ po \ Imst ai • Iit le !" •1• ! •1 I i -- — /�11 Its 1 IUMMUMMIS • i ► I S i I t 1 1 I• • II • • I I • • . • e l �.. L • 1 l_ 1_ I •_ ow /�11 Its / ' z� • i I� •1 l' • / LL i• • 1 _� I� •III _ _ L '1 / U _.._ _. _ � 11 � • • t. a •It •/ / .__. �- II 1 � 1! i' a ► � � � �� • 1•_ _�' • W14"M MM • Ve i III ell" ! � 1 IUMMUMMIS • i ► I S i I t 1 1 I• • II • • I I • • . • e l �.. L • 1 l_ 1_ I •_ ow __. _ _._� ___ I' "! 1 i ►•.11eI• � � t1 / LL i• • 1 _� I� •III _ ®�I�1 '1 11 • 4 • t • _= a •�.f_I 11I1 �" .! ,/ •— 21 BUS_RE/521 PsrT1 09 -22 -14 TC Packet 104 Exh i knit 3 FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT THIS FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT (the "First Amendment ") is entered into to be effective as of , 2014, between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC (the "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). RECITALS WHEREAS the Town and Intrawest /Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Funding Agreement dated as of November 4, 2004, recorded as Reception No. 520496 in the real property records of Pitkin County, Colorado (the "Funding Agreement "); WHEREAS the Funding Agreement sets forth certain public improvements and contributions that must be completed in connection with the development of the Base Village Planned Unit Development (the "Base Village Project ") approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the of Pitkin County, Colorado, as amended (the "Ordinance "); WHEREAS Developer has proposed to extend the Vested Property Rights for the Property, as more particularly described in the Minor PUD Amendment application for Base Village submitted to the Town on June 30, 2014, as amended (the "Application "), and has agreed to provide or contribute to the provision of certain facilities and services within the Town of Snowmass Village for the Town's benefit as more particularly described below; WHEREAS the Town Council of the Town granted approval of the extension of Vested Property Rights for the Property proposed in the Application by enacting Ordinance No. 3, Series of 2014 (the "Minor PUD Vesting Ordinance "); WHEREAS the Town and the Developer have entered into an Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development dated , 2014 (the "SIA "); WHEREAS the Town and the Developer have entered into an Amended and Restated Base Village Development Agreement dated , 2014 (the "Development Agreement "); and WHEREAS the Town and the Developer now desire to amend the Funding Agreement as more particularly set forth herein. BUS-RE/5373658.2 09 -22 -14 TC Packet 105 AMENDMENT NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: 1. Capitalized Terms. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the Funding Agreement. 2. Developer Contributions Completed. Subject to the obligations of the Developer in the SIA and the Development Agreement, the obligations of the Developer under the Funding Agreement have been satisfied. 3. Notices. Section 5.6 of the Funding Agreement is hereby amended to change the addresses for notices to the the Developer as follows: If to the Developer: SNOW ASs ACQUISITION COMPANY LLC P.O. Box 6565 (LISPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same First Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. 5. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] 2 BUS-RE/5373658.2 09 -22 -14 TC Packet 106 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Funding Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] BUS-RE/5373658.2 09 -22 -14 TC Packet 107 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Funding Agreement to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company BUS_RE/5373658.2 Name: Title: 4 09 -22 -14 TC Packet 108 t SNOWMASS VILLAGE TO: JULIE ANN WOODS, DIRECTOR OF COMMUNITY DEVELOPMENT FROM: ANNE MARTENS, DIRECTOR OF PUBLIC WORKS SUBJECT: BASE VILLAGE MINOR PUD APPLICATION -JULY 2014 (SEPTEMBER 8, 2014 COUNCIL MTG) DATE: SEPTEMBER 17, 2014 CC: CLINT KINNEY, TOWN MANAGER DEAN GORDON, TOWN ENGINEER In reference to the Snowmass Acquisition Company LLC application for minor PUD Amendment of the Base Village PUD — Amended agreements submitted on September 16, 2014 the following comments are being submitted: Due to the revised documents being submitted on September 16, 2014, a complete review cannot be provided by both the Town Engineer and myself. However, the following observations are being provided relative to the amended and restated agreements which are intended to replace the original agreements. Amended and Restated Base Village Development Agreement (September 16, 2014 ver.) 1. The definitions of "Commencement of Construction" differs between the Development Agreement and the Subdivision Improvements Agreement. 2. Section 1.3.5 c, to my knowledge current cost estimates for public improvements have not been provided to the Town Engineer for review. This section needs to be further reviewed. First Amendment to Base Village Funding Agreement (September 16, 2014 ver.) 1. No Comment Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development (September 16, 2014 ver.) 1. Exhibit A from the original SIA has been deleted and should be amended or addressed in the amended agreement. 2. Exhibit B — Mobility Map is out of date and does not address current plans in progress. The revised agreements have addressed the concerns with the Wood Road Improvements; however the exhibit B does not correlate to the intentions of the agreement. This exhibit is a concern relative to trails and transit elements. 3. Exhibit C — Does not address the transit elements. 3745 OWL CREEK ROAD, P O BOX 5010, SNOWMASS VILLAGE, COLORADO 81615 (970) 923 -5110 (fax) (970) 923 -3794 worksatosv.com www.tosv.com 09 -22 -14 TC Packet 109 4. The definition of Upper Wood Road Improvements is acceptable however clarification on how the Fanny Hill public infrastructure needs to be addressed. 5. Section 3b does not address the bus stops associated with the roundabout. 6. Section 3c paragraph relative to the sewer and water line improvements be linked to the posting performance security for the roundabout causing the work to be deemed completed needs to be further reviewed. 7. Exhibit A has not been reviewed by the Town Engineer and recent cost estimates have not been provided to be reviewed. 8. The Final Completion date of the Upper Wood Road Improvements needs to be included in Exhibit A. 3745 OWL CREEK ROAD, P O BOX 5010, SNOWMASS VILLAGE, COLORADO 81615 (970) 923 -5110 (fax) (970) 923 -3794 worksp_tosv.com www.tosv.com 09 -22 -14 TC Packet 110 TRANSPORTATION DEPARTMENT MEMO To: Julie Ann Woods, Community Development Director From: David Peckler, Transportation Director CC: Jim Wahlstrom, Senior Planner Date: September 18, 2014 Re: Latest Base Village P.U.D Minor Amendments to Agreements There has been very little time allowed for review of these documents. The following are my observations related to transportation issues. I. Amendment and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development 1. Page 3 - "Upper Wood Road Improvements ": The list of necessary improvements now includes the bus pullout that was located at the entrance to the Lot 4 Aquatic Center. The sidewalk that connected the Fanny Hill Town Homes to the entrance between Building 7 & 8 is not addressed, or it is assumed that it is part of the Fanny Hill townhomes? 2. Page 4 "Public Improvements, (iii) Roundabout:" The scope of work for the roundabout as noted in Exhibit C does not include the historic bus stops that served the properties to the north of Brush Creek Rd. It was my assumption that the historic bus stops at the Conoco gas station on both sides of Brush Creek Rd were included in the proposed roundabout design. Removal of the bus stops is not covered in the original P.U.D. and would be an impact to another property. We will need to come to some agreement prior to approval. 3. Page 7 "Construction of Roundabout' Again, we should be in agreement on the scope of work for the Roundabout. 4. Exhibit B — The map key has created a lot of confusion noting the proposed 'Bus Shelters" as "Bus Stops." 5. Exhibit C — Roundabout Standards does not included the bus stops that served the properties north of Brush Creek Rd. • Page 1 09 -22 -14 TC Packet 111 John Dresser From: John Dresser Sent: Monday, September 15, 2014 11:10 AM To: Krabacher, Joseph Subject: BVDA & SIA Joe- Sorry for delay the internet here has had some problems. Some general comments in BVDA: 6th Whereas - if SAC wants to state that the facilities and services are for the benefit of TOSV, the end of the clause where it says "for the Town's benefit" should say for the Town's and the Base Village PUD's benefit, the definition of mobilization might include language out of the Mechanic's lien -> the visible commencement of actual operations on the ground for the erection of the building, which everyone can readily recognize as commencement of a building, and which is done with ntention to continue the work zaritil,building is completed. 1.1c - should clearly reference CRS 24 -68 105 (2) "general application" codes. 1.3.5(b)(iii) - SAC should clarify which buildings it considers as "commenced" as of the date of the agreement. when it states "and any other building for which Commencement of Construction has then occurred" it is unclear if SAC considers certain buildings commenced at this point. this language is repeated in 1.3.6 as well. 1.3.7 SVMC sec. 16A -5- 310(9) requires a construction interruption PLAN and contemplates security. The paragraph seems to post security without a plan. In BVSIA- I am not able here to cross reference the exhibits to the SWSD agreement. also the exhibits. the mobility map isn't included and it seems a strange way to link to the words regarding completion and estimates in the revisions in the original exhibit with the elimination of the original exhibit. I am back Wednesday. JD -FWY 09 -22 -14 TC Packet 112 E >ch i Fait 5 Woods Julie Ann From: Greg Rulon <greg@joshuaco.com> Sent: Wednesday, September 03, 2014 10 :02 AM To: Julie Ann Woods Subject: FW: Snowmass Village Julie, See below my letter. I had sent it to Bill Boineau. Greg Rulon Joshua & Co. V!~r ist;e I . t Nj a' 'v i n. '-Real al ...sd ate I 1 % 'x.1r..r ��,If ll�•- Rat... S: ..13 . c.t'.. rF, '(«! o 970.923.4700 1 c 970.948.2406 greg@.ioshu,,tco.com Joshua & Co. Property Collection From: Greg Rulon Sent: Wednesday, August 20, 2014 4:19 PM To: 'bboineau @tosv.com' Cc: 'RCarroll @aspentimes.com'; 'sack @aspendailynews.com'; 'jbeathard @sonowmasssun.com' Subject: Snowmass Village Aspen Skiing Company announced a deal between it and Snowmass Acquisition Company (Related) to go forward with building a Limelight Hotel Snowmass at Snowmass Town Council's meeting on August 18, 2014. According to my understanding after attending this meeting, the Limelight Snowmass cannot go forward unless: • Aspen Skiing Company can build Fanny Hill Townhomes to offset some of the construction costs of the Limelight, and • Snowmass Village Town Council approves the extension of the vesting rights for Base Village for Related for the remaining infrastructure. The meeting focused on the previous 5 years of turmoil that the Snowmass Village has endured and Related's newest presentation of a plan. Related proposed 21 milestones that would have negative impacts against the developer if not met was a great start, but there were no milestones that had finish dates. Town Council and some members of the public were not impressed with the plan and wanted more specific details. In my 40+ year tenure as a Snowmass resident, I can honestly say change has never been easy to come in Snowmass Village. But change is necessary to keep my home town a vital, thriving community and to make sure it stays a world - class resort destination. Members of Council, Mayors (past, present, and future), my friends and neighbors have asked my opinion of who's right, or which way is best. I can answer in only one way. If having a new roundabout is necessary to get going in the right direction, then let's get it done. If we are spending hundreds of thousands of marketing dollars every year for visitors to come but have nothing new to offer them, then let's start and finish true one -of -a -kind experiences to have visitors come to Snowmass, and come back again for generations. Half -way completed buildings and unfinished plans are not the way to move forward. We need to stop pointing the finger, work together, and make Snowmass, my home, even better tomorrow than it was yesterday. My name is Greg Rulon, and I am Pro - Snowmass. 09 -22 -14 TC Packet 113 GEORGE HART AND SARAH HART August 22, 2014 TO: Town of Snowmass Village Town Council RE: Town Planning As the planning continues we would like to add our thoughts on several Snowmass Village icons, 1 -3 and other thoughts, 4 and 5. #1 The Rodeo has been operating for more than 40 years. It brings numerous visitors to the village, We believe more than 10,000 tickets were sold this year. It is a symbol of the western heritage of Snowmass Village. We believe it should be a prominent feature in the proposed Entryway to Snowmass village. #2 The hockey rink has proven to be an attractive after hour's amenity for our visitors as well as many residents. It has become more popular each year. It is probably possible to house it within the footprint of the rodeo arena. #3 Krabloonik Restaurant and Dog sled operation: These long time amenities have spent too much unnecessary time in our focus. While there may be an occasional sick dog most of the dogs are healthy and well cared for. The usual scene for the dogs at sledding time finds the dogs excited to be harnessed and anxious to start pulling. We should do all we can to have this popular tourist and local attraction remain and thrive. #4 USA PRO CHALLENGE bike race: While it is an inconvenience it is an amazing way for Snowmass Village to obtain publicity that is not winter related. While we try and grow our business with paid advertising this is an opportunity for wide spread advertising that only causes a short period of inconvenience. #5 Base Village: There is a saying about one cannot be half pregnant and it is too late for those who voted "No" to say, "I told you so ", consequently the town must move on. There will be many personal opinions which need to be separated from the facts. You have the facts, you will be the judges and it is up to you to do what is best for the long term future of Snowmass Village. Sincerely, Sarah and George art 09 -22 -14 TG Packet 114 Dear Snowmass Town Council, I'm writing after attending the Public council meeting this past Monday, September 8th in order to provide feedback and my opinion on a project that by choice, required all my energies and emotion for over 5 years. I moved herell years ago to oversee and secure the entitlements for Snowmass Base Village. I still feel as strongly about this area and specifically Snowmass as I did when I arrived here in September of 2003. I chose to come to Snowmass because I believed in the program that Intrawest and Skico put together over several years of communication, negotiation, compromise and understanding. We achieved this because there was a mutual goal to develop Snowmass and have it become one of the premier ski resorts in not only Colorado, but the entirety of North America and the world. And whether people accept this or not, that is what Snowmass is, a mountain resort town and community that has in front of it another opportunity to make that goal a reality. The only way to create a vibrant resort is through a real partnership and an understanding between the Town and the developer as to what the goal is and working together to achieve that. What I saw the other evening was a developer willing to go much further than I ever would have had I been sitting in that chair and yet there was still the atmosphere of "we want more ", be those guarantees, assumption of risk and /or commitments that are just impossible to provide in todays world of market and global uncertainty. Development is a risky business not just for the developer but also for the town or city that embrace it, but those municipalities that embrace and manage this risk together that are the ones that continually succeed. It is astounding to me that with what is being presented on the table today, this council, or members of it are trying to get every last ounce of skin they can out of Related in the name of "security and protecting the Town ". Snowmass is not a town reviewing this for the first time, this argument was voiced very, very strongly 10 years ago and the town voted to move this project forward. You now have giant concrete structures that sit unfinished in the middle of your resort and town, which needs to be completed. Snowmass is an amazing place and it can continue to be so well into the future and that is what this Council needs to focus on. Snowmass and every other ski resort need to start thinking long term and what we need to do to sustain our livelihood for decades to come. People will always come to the mountains because it is what makes them feel closer to nature and their beliefs, where you can sit around a campfire at night with your jacket on and be with family and friends. Mountain biking, hiking, cycling, fishing, horseback riding, all the things that make Snowmass great will continue to be here even when the winters perhaps are not. As the elected community leaders it is your responsibility to work with developers to give Snowmass a future providing world class accommodations and infrastructure for their guests and visitors that will be sustainable well into the future. 09 -22 -14 TC Packet 115 Again I'm writing this as a resident and not a developer. I have no ties with Related, Sunrise or the Aspen Skiing Company nor do I have any agreements to go to work for any of these entities down the road if something does move forward. By moving forward and allowing Related to extend their vesting you will benefit not only those locals who are the fabric of this community and wish to see continued opportunity for them and their families, you are also boosting the local economy with construction jobs, hospitality jobs, retail and restaurant jobs not to mention sale and lodging tax revenues down the road. You as Council have a rare opportunity in front of you with Related and other interested parties to complete Base Village. Now is the time, there are not developers lined up outside the door to take this on. I've had discussions with a group who wanted to build a Woodward like facility (year round freestyle training facility in Copper Mountain) who backed away because they felt there was no chance to get approval to develop a facility like this at the Rodeo Grounds because of the anti development climate that surrounds your town. I will speak like a developer here for a second, but any facility that generates revenue and family activity 365 days a year vs. one that generates revenue 8 nights a year deserves some consideration. Please know I appreciate what each and everyone of you do for your community. But you can never satisfy everyone and anything worth doing is worth fighting for and taking some lumps along the way to get there. I sincerely appreciate your time and consideration and hope that the Town of Snowmass Village continues to move forward in a positive and sustainable direction. Sincerely, Michael H. O'Connor 09 -22 -14 TC Packet 116 [Exhibit 6 AGENDA ITEM SUMMARY Meeting Date: September 8, 2014 Agenda Item: CONTINUATION OF PUBLIC HEARING AND FIRST READING OF ORDINANCE NO. 3. SERIES OF Item No. 6: 2014 - APPLICATION BY SNOWMASS ACQUISITION COMPANY, LLC, FOR A MINOR PUD AMENDMENT TO THE BASE VILLAGE PUD IN ORDER TO MODIFY VESTED PROPERTY RIGHTS AND THE TERMS OF THE VESTED PROPERTY RIGHTS, INCLUDING CHANGES TO THE DEVELOPMENT AGREEMENT, FUNDING AGREEMENT AND SUBDIVISION IMPROVEMENTS AGREEMENT 6 Presented By: Julie Ann Woods, Director and Jim Wahlstrom, Senior P nner Community Development Department Core Issues: PLEASE NOTE: THE APPLICANT SUBMITTED ANOTHER REVISION TO THE PROPOSED DEVELOPMENT AGREEMENT ON SEPTEMBER 4, 2014. THIS HAS NOT BEEN THOROUGHLY REVIEWED BY STAFF, BUT IS INCLUDED AS EXHIBIT 2. THIS REVISION WAS RECEIVED AFTER THIS STAFF REPORT WAS DRAFTED. The Public Hearing was opened on August 18, 2014 and was continued to September 8, 2014. On August 28, 2014, the Applicant, Snowmass Acquisition Company, LLC, (SAC), submitted revised versions of the agreements in connection with the pending application for the Minor PUD Amendment to the Base Village P.U.D., pursuant to Land Use Code Section 16A -5- 70(3). SAC is requesting that Town Council review the attached revised agreements (Exhibits 1 and 2) instead of the previously submitted agreements. According to the applicant, the changes to the milestones are consistent with the Planning Commission's Resolution No. 8 Series of 2014. Upon the re- opening of the Public Hearing, Town Council should consider the amendment request pursuant to 16A -5- 70(3). The Town Council shall consider and make a determination as to whether the changes alter the nature of the project from that described in the original submission to such an extent that: a. The amendment should not be allowed; b. The amendment should be allowed, but the Planning 09 -22 -14 TC Packet 117 Commission should have an opportunity to review the amendment and make a recommendation thereon; or c. The amendment should be allowed, and the application should proceed without additional hearings or consideration thereof. The Applicant has stated in their cover letter dated August 28, 2014 that the "revised agreements reflect changes that the Applicant is proposing in light of the public and other comments received during the processing of the application to date. Among other items, these revisions propose additional and /or revised milestone deadlines, consistent with the Planning Commission's recommendations, and now include all exhibits." The Applicant is requesting that the application be deemed amended consistent with the terms of the revised versions. Included with this Staff Report are a series of letters that have been submitted following the first hearing, regarding the proposed amendment; these are included as Exhibit 3. The letters are from: Sally Kauffman, Owner of a Viceroy unit Dr. Jack Schaeffer, Owner of a Viceroy unit Greg Didier, Employed in Snowmass Village Scott Calliham, Business Owner and Resident Bob Sirkus, Resident and Planning Commission Chair For reference, Staff has attached the previous packet from the August 18th Council meeting which includes the Staff Memo; Planning Commission Resolution No. 7, Series of 2014; proposed Town Council Ordinance No. 3, Series of 2014; previous letters from neighbors; and referral comments. This packet is noted as Exhibit 6. Staff has included feedback from the direction provided from Council at the last meeting along with comments and concerns related to the new proposed language included in the Agreements, as presented by the Applicant, in the next section of this staff report. To summarize, should Council agree to accept the amendments of the Applicant and continue with the public hearing, then an appropriate action at the end of the testimony and discussion would be to consider REVISED Ordinance No. 3, Series of 2014 on first reading, continuing the public hearing and setting second reading for September 22, 2014. Comments /Responses to Council Direction In response to the questions and issues brought up by Town Council at the August 18th hearing, Staff, with input from the Town Attorney, offers the following comments /responses: 09 -22 -14 TC Packet 118 1. Continue public hearing; provide legal review of documents for council's consideration. The public hearing was continued by Town Council. The amended Agreements arrived late in the day on Thursday, August 28th. Legal counsel has reviewed the Amended Agreements and has provided written comments to both Staff and Town Council which are attached as Exhibit 4. However, the Town Engineer is unavailable to review the Agreements until after September 15, 2014. 2. What are the implications if the property is "flipped "? Does vesting go away? According to the Development Agreement (recorded 2/6/2006) and the Funding Agreement (recorded 2/6/2006) currently in place, the Developer is limited to who he can assign his rights and obligations to. These include any affiliate of the developer; the Aspen Skiing Company; Intrawest Corp.; or "any entity which succeeds to substantially all of the Developers development rights with respect to the property." This is because the property was "master planned" as a whole. Vesting does not "go away" if the property is conveyed. The vesting runs with the land, so as long as the milestones continue to be met by a subsequent purchaser, the protection enjoyed by the vested development will continue in full force and effect. It should be clear that the "entitlements" remain in place. In other words, the developer or a subsequent purchaser is still entitled to build what was proposed. If vesting is lost or terminated, then the developer would be subject to new regulations approved by the town since the 2004 approvals, including an increase in employee housing mitigation. 3. Force Majeure clause: is there an alternative to having this in the agreements? The Applicant has provided a definition of the term "Event of Force Majeure" to the Development Agreement, Article 1., Item 1. Capitalized Terms and Definitions. If such an event were to happen, the developer could submit a request to the Town (it is recommended that this be a Town Council decision) for confirmation. If the Town determines that such an "event" did not occur, then milestone deadlines would not be extended. Council should decide if they are comfortable with this proposed alternative language. NOTE: In the revised Amendment dated September 4th, this Force Majeure clause has been changed. 4. Liquidated damages /security if the applicant defaults. It 09 -22 -14 TC Packet 119 was suggested that a clause include charges or a penalty for each day the developer is in default be put into place, along with the opportunity for the developer to "buy back" their vesting through curing and penalties paid. If this approach is the pleasure of the Council as a whole, then this should be discussed with the developer to determine if they are amenable to this suggestion. 5. One Council person stated that the proposal and staff's analysis was vague, and the Planning Commission and staff did not do their work by not addressing the future proposed development. Both the Staff and Planning Commission can only consider the application before them, and not a plan that is proposed to be submitted in the future. The analysis was done based on the amendment submitted (to the Agreements), and the Planning Commission spent two three -hour sessions evaluating the proposal and its merits, putting forward a final recommendation to Town Council in the form of their draft Resolution No. 7, Series of 2014. The recommendations of the Planning Commission have been incorporated into draft Ordinance No. 3, Series of 2014 for Council's consideration. A letter from Planning Commission Chairman Bob Sirkus is included with the letters from the neighbors, attached as Exhibit 3. 6. Need more specific definitions on words such as "substantial completion ", etc. to be clear from a legal perspective what each term means. The applicant has provided more clearly defined terms as part of their amended Development Agreement. Council should decide if this language is acceptable. 7. Why do we need a mediation clause in the agreements? According to legal counsel, a mediation clause isn't required. The amended Development Agreement (Article 1., Item 1. Capitalized Terms and Definitions) has provided a definition of "Cure Period" that includes using the services of a neutral mediator to negotiate a settlement. Council should decide if this language is acceptable. 8. Address the issue of "piecemeal" review; isn't this application a piecemeal approach? Staff does not view this as a "piecemeal" approach because it is consistent with the (albeit non - binding) direction that was given to the applicant during the pre- sketch meetings. Secondly, the Applicant only proposes amendments to the Agreements that affected the project as a whole. The applicant is "entitled" to build what was approved in 2004, and could 09 -22 -14 TC Packet 120 proceed with this plan no matter if the vesting is extended or not. The applicant has indicated that the plan can't be supported in the current marketplace, and has been very upfront about the likely change in types of units. This subsequent plan will be referred out and reviewed when it is submitted, just like any other plan. Again, Staff can only respond to an application that has been submitted, and that is what we have done, finding the application consistent with the review standards. Town Council will need to decide whether they are comfortable with the milestones set forth under the vesting extension amendment to approve the vesting without having an overall PUD Amendment with a revised master plan submitted. Staff understands that some Council members would prefer to see an overall master plan submitted as a PUD amendment before agreeing to extend the vesting. This would be a policy decision by Town Council. 9. Revised draft Agreements reflecting the current position, as negotiated and agreed to by the developer, need to be presented in the packet. Town Attorney, John Dresser, informed the applicant's Attorney last week that Town Council wished to see revised agreements with the attachments included. The revisions were submitted on Thursday, August 28th and have been reviewed by Staff as an amendment to the application which is attached as Exhibit 1. Staff has provided some general review comments about the revised Agreements in the next section of this report. 10. A request was made from one Council person that he wanted to hear from other staff members about the proposal. As with all land use applications, a Staff meeting was held to discuss the proposal and to identify issues that should be brought before the Planning Commission and /or Council. The Staff position, with recommendations for modifications where necessary, represents a consolidated Staff position on the project. At the previous meeting, Town Engineer, Dean Gordon, was in attendance to answer questions. At this meeting, Anne Martens, David Peckler and Attorney John Dresser will be in attendance to answer any questions of Town Council members. If there are other Department Heads that Council thinks should be in attendance at the meeting, members should advise Interim Manager Gary Suiter accordingly. 11. Have other communities instituted a security for private development? To find out if other resort and neighboring 09 -22 -14 TC Packet 121 communities have ever instituted security for private developments, Staff contacted Community Development Directors in Vail, Glenwood Springs, Breckenridge and Mountain Village. None of these communities have ever required security for a private development. Further, the same inquiry was sent to all of Colorado's APA membership, but no responses were received. Comments to Revised Agreement Language Staff has reviewed the proposed amended language in the Agreements and offers the following general comments: First Amendment to Base Village Development Agreement (dated August 28, 2014) Definitions: "Commencement of Construction" should also include "and issuance of a valid building permit." "Cure Period" does not specify a period of days (Staff had previously suggested 15 days), and includes language related to mediation. It wasn't clear if Council wished to include mediation or not as part of this Agreement. "Event of Force Majeure" remains a sticking point for Staff as there are too many "outs" implied in this definition. Staff again recommends that this definition /clause be eliminated. Such clause was not in the original Development Agreement. NOTE: In the revised Amendment dated September 4t ", this Force Majeure clause has been changed. "Roundabout, Upper Wood Road and Community Purpose Facility CD Plan Set" are not defined, and should, as a minimum, be specified as 90% Construction Drawings. "Snowmelt System at Garage Entry" should also include the driveway, parking and walkway areas in front of Building 7. "Upper Wood Road Improvements" should include "and related infrastructure, including utilities, sidewalks, grading, bus pull -outs adjacent to Lot 4, and similar improvements." 1.3.2 Effect of Expiration of Vesting. There should be a definition of "buildings for which no construction has commenced" because technically, it could be construed that the parking garage base under Lots 2 and 3 (for the foundations of Buildings 4AB, 5, and 9A/B /C) is considered construction. 09 -22 -14 TC Packet 122 First Amendment to Base Village Funding Agreement (dated August 28, 2014) 2.1 (c) "Plans and Specifications" should be defined, consistent with the Development Agreement. 2.1 (d) (ii) This section includes a new footnote that implies that the maximum amount to the Town for Roundabout improvements may need to be adjusted if the Roundabout has an increased scope of work. The Applicant has been balking at the Town Staff's position that the Roundabout plans need to include improvements to the two bus stops that are integrated into the plans. Staff's position is that the maximum contribution by the Town is $800,000 and all required improvements beyond that are the responsibility of the Applicant. 2.1 (d) (iii) This section needs to include additional language beyond "the standards set forth in Exhibit A ", to include by reference the specifications and construction drawings in the CD set. Exhibit A, Item F. Similar to the concerns raised in 2.1 (d) (ii) above, the enhancements should be determined as part of the CD plan set and should include the two bus stops. Exhibit A should also be dated. Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development (SIA) (dated August 28, 2014) 1. Definitions should be modified and consistent with the Development Agreement. 3. Public Improvements and Landscape Improvement Completed should not include any exceptions, as these are stated in Item 4. This makes it very confusing. An alternative would be to provide a chart that specifies which items have been completed, what needs to be completed, and reference those improvements to a map to clarify the locations of the remaining improvements to be completed. 4. Public Improvements Not Completed. See Item 3 above. Also, future trail connections need to include the segment located just west of the Base Village Phase 1 which is not associated with buildings /lots that have not yet been completed. Item (a) related to Upper Wood Road Improvements should include "and related infrastructure. . ." to be consistent with the Definition in the Development Agreement. 6. Security for Improvements (e) references the "two -year warranty described in Paragraph 2 above ", but that paragraph does not state a two -year period. Further, the paragraph references ".. . 09 -22 -14 TC Packet 123 the letter of credit or payment and performance bond shall be maintained by the Developer for the warranty period described in paragraph 1 above..." should cite paragraph 2. 6.(f) refers to in the event of weather or other factors which is similar language to the Force Majeure which Staff is recommending be eliminated. Exhibit 1 (Public Improvements) should include a date as this may change. As mentioned previously, Staff is also recommending that specific language be added to the Agreements that ensures that any "construction interruptions" (per Sec. 16A -5 -310 (9)) that occur as happened during the recession, would be properly mitigated. This was not specifically addressed in the proposed agreements. Other Comments Included as Exhibit 5 is an updated referral report from Anne Martens, Public Works Director. Attachments: Exhibit 1 Cover letter and Amended Agreements from SAC dated August 28, 2014 Exhibit 2 Cover Letter dated September 4, 2014 requesting a Revision to the Amended Agreement (Exhibit 1), including revised First Amendment to Base Village Development Agreement (and redline version) Exhibit 3 Letters from public Exhibit 4 Comments from Town Attorney Exhibit 5 Referral comments from Public Works Director Exhibit 6 Council Packet from August 18, 2014, including Planning Commission resolution, draft ordinance, previous letters, and referral comments Financial Impact: There are no additional revenues proposed in the 2015 Budget as a result of this application. It should be noted, however, that if the footnote in the First Amendment to Base Village Funding Agreement (dated August 28, 2014) at 2.1 (d) (ii), is allowed to go forward, there will be additional contribution on the part of the Town related to the Roundabout bus stop improvements. An estimate of this additional cost would need to be developed by the Town Engineer. From an economic standpoint, the financial impact to the Town is speculative at best. One could argue that denying the vesting 09 -22 -14 TC Packet 124 09 -22 -14 TC Packet 125 extension could curtail any development in the Base Village for some time, which could further impact land values within the Village. On the flip side, approving the vesting extension could stimulate new development in Base Village and throughout the Village, due to pent up demand and increased confidence in the local economy. Again, this is speculative and is best left to the Town Council to evaluate. Council Options: Town Council may approve, approve with conditions or deny the request for the vesting extension, pursuant to attached Ordinance No. 3, Series of 2014. Staff Recommendation: The proposed language in the Agreements should be modified to address Staff and Legal Counsel concerns pointed out to Town Council. Staff continues to support the extension of the vested rights, provided the milestones can be achieved and language in the Agreements satisfy Town Council. Although Staff continues to recommend a more conservative initial three (3) year vesting to 2017 with an automatic extension to November 3, 2019, the Planning Commission's recommendation of a four (4) year extension to November 3, 2018 has been put forward in the attached ordinance for Council's consideration. Staff recommends Town Council approve Ordinance No. 03, Series of 2014, on first reading and continue the public hearing to September 22, 2014 at 4:00 PM. 09 -22 -14 TC Packet 125 1 TOWN OF SNOWMASS VILLAGE 2 TOWN COUNCIL 3 4 ORDINANCE NO.3 5 SERIES OF 2014 • Wrezi 0 , • . • • • - • 10 WHEREAS, the Base Village Final Planned Unit Development ( "BV PUD") was 11 approved by Town Council Ordinance No. 21, Series of 2004 ( "Ordinance 21 "), which 12 was amended and updated by Ordinance No. 03, Series of 2007; and 13 14 WHEREAS, Snowmass Acquisition Company ( "Applicant" and "Owner"), a 15 Delaware limited liability company, submitted a Minor PUD Amendment application on 16 June 30, 2014 as updated for completeness July 7, 2014, requesting a five —year 17 extension to November 3, 2019 of the deadline under the Development Agreement for 18 the initial vesting for Base Village while maintaining the overall vesting deadline of 19 November 3, 2024; and proposing certain amendments to the Development 20 Agreement, the Funding Agreement and the Subdivision Improvements Agreement that 21 include provisions for securing the completion of the roundabout and other public 22 improvements in relation to the milestones proposed for the vesting extension; and 23 24 WHEREAS, a meeting was held before the Planning Commission on July 23, 25 2014 and continued to at a meeting on August 6, 2014, whereby the Planning 26 Commission received a presentation by the Applicant, and heard the recommendations 27 of the Town Staff, reviewed the application and acted upon Resolution No. 7, Series of 28 2014, providing recommended conditions to the Town Council; and 29 30 WHEREAS, a public hearing notice was printed in the Snowmass Sun on July 31 30, 2014 for the Town Council meeting on August 18, 2014. The applicant submitted 32 executed affidavits for the mailing and posting of the public hearing notice; and 33 34 WHEREAS, the Town Council conducted a public hearing and reviewed the 35 application for the Minor PUD Amendment on Base Village vesting, on August 18, 2014, 36 for first reading, with the second reading scheduled for September 8, 2014; and 37 38 WHEREAS, the Minor PUD Amendment was processed pursuant to the 39 procedures outlined in Section 16A -5 -390 of the Land Use and Development Code 40 ( "Municipal Code "). 41 42 NOW, THEREFORE, BE IT ORDAINED, by the Town Council of the Town of 43 Snowmass Village, Colorado: 44 09 -22 -14 TC Packet 126 TC Ord. 3, Series of 2014 Page 2 of 7 45 Section One: General Findings. The Town Council finds that: 46 47 1. The Applicant has submitted sufficient information pursuant to Section 16A -5- 48 390 of the Municipal Code to permit the Town Staff, Planning Commission and 49 Town Council an adequate review of the proposed Minor PUD Amendment. 50 51 2. The Applicant sufficiently met the public hearing notice requirements pursuant 52 to Section 16A -5 -60, `Notice of public hearings.' 53 54 3. The application is consistent with the applicable review standards specified 55 within Section 16A -5- 390(3) of the Municipal Code. 56 57 4. In accordance with Municipal Code Section 16A- 5- 90(d), `Vested property 58 rights / Term of Vested Right,' it states: "Rights which have been vested as 59 provided herein shall remain so vested for a period of three (3) years, unless 60 extended by the Town Council in its complete discretion on a case -by -case 61 basis. The Town Council shall consider both the needs of the Town and the 62 property owner in determining to extend a vested property right beyond three 63 (3) years. Any such extension shall be in the form of a development 64 agreement duly authorized and executed by the landowner or landowners 65 involved and approved by ordinance. The Town Council may impose 66 reasonable conditions upon any such extension. 67 68 Town Council has complete discretion on the vested rights matter or extension 69 thereof. However, inasmuch as the Planning Commission is authorized to 70 review and recommend on proposed PUD Amendments, and the vesting 71 extension is part of the application, the Planning Commission did offer specific 72 findings and recommendations as set forth in Resolution No. 7, Series of 2014 73 for the Town Council's consideration. 74 75 5. As the initial Minor PUD Amendment submission dated June 30, 2014 76 proposed only text revisions to the affected companion agreements, the 77 Planning Director has determined that the Base Village PUD should be treated 78 as a Minor PUD Amendment versus a Major PUD Amendment in accordance 79 with Municipal Code Section 16A -5- 390(1). 80 81 6. As further noted within Section Two below for the specific findings, the 82 application, with proposed modifications recommended by Staff and the 83 Planning Commission, is consistent with all of 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 that: 87 88 1. Pursuant to Section 16A- 5- 390(3)a of the Municipal Code, the proposed 89 application is consistent with, or an enhancement of, the original PUD 90 approval because it provides a series of milestones to be met that will 09 -22 -14 TC Packet 127 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 TC Ord. 3, Series of 2014 Page 3 of 7 ensure certain public and private improvements will be completed as part of the Base Village project. 2. Pursuant to Section 16A- 5- 390(3)b of the Municipal Code, the proposed amendment should 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. The Town Council finds that the neighborhood has been, and continues to be, adversely impacted due to the delay in construction of both the public and private improvements initially caused by the recession, but notes that many of the improvements identified in the previous agreements have been completed. With respect to the remaining required public improvement items described in the Funding Agreement and the Subdivision Improvement Agreement that have yet to be completed, the inclusion of milestones in the Development Agreement for completion of these items, together with the provision of financial security for completion of some of these items will help to keep these improvements on a schedule that will bring to an end the negative impact on the neighborhood surrounding the Base Village PUD from the delay in completing these public improvements. 3. Pursuant to Section 16A- 5- 390(3)c of the Municipal Code, the proposed amendment does not describe any change in the basic character of the PUD or surrounding areas although it should be noted that the proposed amendment does require submission of another proposed amendment to the PUD by October 15, 2014 which may make changes to the basic character of the PUD. 4. Pursuant to Section 16A- 5- 390(3)d of the Municipal Code, the proposed amendment complies with the other applicable standards of Division 3, PUD, including but not limited to Section 16A- 5- 300(c), General Restrictions, and Section 16A -5 -310, Review Standards, because the amendment proposes tent amendments to written agreements without describing any design changes, although as noted above the proposed amendment does require submission of another amendment to the PUD by October 15, 2014. 5. Pursuant to Section 16A -5- 310(1), the Town Council finds that the completion of outstanding public improvements would assist in fulfilling the Comprehensive Plan objectives and policies. 6. Pursuant to Section 16A -5- 310(2), the Town Council finds that this Section on Community Character is not applicable because the proposed amendment describes no design changes to the PUD. 09 -22 -14 TC Packet 128 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 TC Ord. 3, Series of 2014 Page 4 of 7 7. Pursuant to Section 16A -5- 310(3), the Town Council finds that this Section is not applicable because the applicant has described no design changes to the PUD that would modify the creative approach to the project. 8. Pursuant to Section 16A -5- 310(4), the Town Council finds that the installation of the outstanding landscaping would benefit the town and surrounding properties, and that the milestones established for completion of these improvements linked to the extension of vesting will more likely ensure compliance by the applicant. 9. Pursuant to Section 16A -5- 310(5), the Town Council finds that this Section on development evaluation standards is not applicable because the application describes no design changes to the PUD. 10. Pursuant to Section 16A -5- 310(6), the Town Council finds that this Section on suitability for development is not applicable because the application describes no design changes to the PUD. 11. Pursuant to Section 16A -5- 310(7), the Town Council finds that this Section on spatial pattern is not applicable because the application describes no proposed design changes to the PUD. 12. Pursuant to Section 16A -5- 310(8), the Town Council finds that this Section on phasing is only partially applicable because the application describes no proposed phasing changes to the PUD. However, the delayed pace and phasing of construction has and could continue to harm the community as a whole. Further delays of public improvements do not meet the code standard of `as early in the project as reasonable.' Contrarily, the applicant's proposal including milestones that could limit vesting and the provision of financial security for completion increases the likelihood that the installation of public improvements will in fact be reasonably implemented or fulfilled in the project as previously required. 13. Pursuant to Section 16A -5- 310(9), the Town Council finds that this Section on construction interruptions has not been addressed in the proposed agreements, and it would be in the Town's best interest to have specific language, to be approved by the Town attorney, that the developer provide a reasonable restoration and /or remediation contingency plan to mitigate impacts resulting from any potential extended interruption of construction affecting the community as a whole. Surety or security may be necessary to ensure implementation of the plan. 14. Pursuant to Section 16A -5 -90, to grant the applicant the desired vesting extension, Town Council finds that it has adequately weighed the 09 -22 -14 TC Packet 129 TC Ord. 3, Series of 2014 Page 5 of 7 183 interest of the Town along with the interests of the property owner based 184 upon a site specific site plan, which has been referenced in the proposed 185 Development Agreement amendment. 186 187 Section Three: Action. The Town Council hereby approves the following proposal 188 subject to the conditions in Section Four below: 189 190 1. The Minor PUD Amendment to Base Village vested rights extension and the 191 completion of public improvements and other private improvements as 192 summarized in Tables 1, 2 and 3 attached as Exhibit "A" incorporated herein, and 193 that serve as the basis for the revised Development Agreement, Funding 194 Agreement and Subdivision Improvements Agreements, to be reviewed and 195 approved by the Town Attorney. 196 197 Section Four: Conditions. The applicant shall comply with the following conditions: 198 199 1. The Applicant's vested rights for the Base Village PUD is hereby extended for 200 four years to November 3, 2018. Provided the milestones set forth in the 201 Development Agreement are achieved, as set forth in Exhibit A, Table 1, the 202 Applicant will be awarded a second automatic extension of vested rights to 203 November 3, 2019. If all proposed milestones for the project are achieved, then 204 vested rights shall be extended automatically to November 3, 2024, which is 205 consistent with the original PUD or an enhancement of the PUD. 206 207 2. The Applicant shall meet the milestones as described in revised Table 1 dated 208 7/23/2014, revised 8/6/2014 (attached as Exhibit A) in order to facilitate more 209 timely public improvements and private investment that will result in no adverse 210 impact on the neighborhood surrounding the land where the amendment is 211 proposed, or have a substantially adverse impact on the enjoyment of land 212 abutting upon or across the street from the subject property. 213 214 3. The Applicant shall eliminate the Force Majeure Events language in the 215 Agreements, and the final language proposed by the applicant in the 216 Development Agreement, Funding Agreement and Subdivision Improvements 217 Agreements must be reviewed and approved as to form by the Town Attorney. 218 219 4. The Applicant shall provide specific language to the Agreements that ensures 220 that any "construction interruptions" (per Sec. 16A -5 -310 (9)) that occur as 221 happened during the recession, will be properly mitigated. 222 223 5. The Applicant shall deliver proposed cost estimates reflective of the expected 224 costs upon completion of construction drawings for both the roundabout and 225 Upper Wood Road prior to the posted security deadline. What is considered 226 acceptable shall be approved by the Town Engineer. 227 09 -22 -14 TC Packet 130 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 TC Ord. 3, Series of 2014 Page 6 of 7 6. The Applicant shall provide the Town with the financial surety, in form and substance satisfactory to the Town Attorney, for the proposed public improvements (based on preliminary cost estimates approved by the Town Engineer) within- 30 days of approval of this Minor PUD Amendment. The surety will be updated within 30 days after the Town Engineer approves final cost estimates for each public improvement, but no later than January 1, 2015 for the roundabout and January 1, 2016 for the Upper Wood Road improvements. 7. The Applicant shall complete the permanent Buildings 7 and 8, including the emergency clinic, on Lot 3 by December 31, 2018. 8. The Applicant shall file by October 15, 2014 a comprehensive PUD Amendment that addresses the entire Base Village PUD to avoid a piecemeal approach that will not serve the purpose of considering the entire development and appropriate mitigation for the PUD as a whole. 9. The Applicant shall amend the "cure period" for any default by the applicant to be a 15 day cure period in the Agreements. Section Five. Severability. If any provision of this Ordinance or application hereof to any person or circumstance is held invalid, the invalidity shall not affect any other provision or application of this Ordinance which can be given effect without the invalid provision or application, and, to this end, the provisions of this Ordinance are severable. INTRODUCED, READ, AND APPROVED on first reading by the motion of Town Council Member and the second of Town Council Member _ by a vote of in favor and against, on this 18th day of August, 2014. READ, APPROVED AND ADOPTED on second reading by the motion of Town Council Member and the second of Town Council Member by a vote of in favor and against, on this 8th day of September, 2014. ATTEST: Rhonda B. Coxon, Town Clerk 09 -22 -14 TC Packet 131 TOWN OF SNOWMASS VILLAGE Bill Boineau, Mayor TC Ord. 3, Series of 2014 Page 7 of 7 274 APPROVED AS TO FORM: 275 276 277 278 279 John C. Dresser, Jr., Town Attorney 280 281 Incorporated Attachments: 282 Exhibit "1" Includes: Attachment "A" First Amendment to Base Village Development Agreement Attachment "B" Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development Attachment "C" First Amendment to Base Village Funding Agreement 09 -22 -14 TC Packet 132 SNOWMASs ACQUISITION COMPANY LLC 16 Kearns Road, 3rd Floor PO Box 6565 Snowmass Village CO 81615 August 28, 2014 Town of Snowmass Village Planning Department 130 Kearns Road Snowmass Village CO 81615 Attn: Julie Ann Woods Dear Julie Ann: On behalf of the SNOWMASs ACQUISITION COMPANY LLC, a Delaware limited liability company (the "Applicant ") we are submitting revised versions of the following agreements in connection with the pending application for Minor PUD Amendment to the Base Village P.U.D., pursuant to Land Use Code Section 16A -5- 70(3). 1. First Amendment to Base Village Development agreement. 2. Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development. 3. First Amendment to Based Village Funding Agreement. These revised agreements reflect changes that the Applicant is proposing in light. of the public and other comments received during the processing of the application to date. Among other items, these revisions propose additional and /or revised milestone deadlines, consistent with the Planning Commissions recommendations, and now include all exhibits. We request that these revised agreements be considered by the Town Council at the public hearing on September 8, 2014, We recognize that these versions of the proposed agreements are different than the agreements with the original Application, and we would ask that the application be deemed to be amended consistent with the terms of the enclosed versions. Please contact me if you have any questions. Thank you. SN ©WMA 4CQUISPi'ION COMPANY LLC A Delaw e 1 mited liayi company BUS-RE/5373320.1 09 -22 -14 TC Packet 133 09 -22 -14 TC Packet 134 FIRST AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT (this "First Amendment ") dated as of , 2014 between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). RECITALS A. The Town and Intrawest/Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Development Agreement dated as of November 4, 2004, recorded as Reception No. 520495 in the real property records of Pitkin County, Colorado (the "Development Agreement "). B. The Development Agreement describes the "Vested Property Rights ", as such term is defined in the Town Municipal Code (the "Code ") associated with the Base Village Planned Unit Development (the "Base Village Project ") approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "). C. The Town and Developer now desire to amend the Development Agreement as more particularly set forth herein. NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: ARTICLE I VESTED RIGHTS 1. Capitalized Terms and Definitions. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the Development Agreement. "Commencement of Construction" means the execution of a binding construction contract and mobilization by the general contractor pursuant to the construction contract. "Cure Period" means - (__) days after the the failure of the Developer to observe or perform any of its obligations under any of the milestone dates under Section 1.3.1 in any material respect. During the Cure Period, Developer and the Town shall seek diligently and in good faith to negotiate a settlement, using the services of a neutral mediator if either party so requests. The conduct of such negotiations, or the failure of such negotiations to achieve a settlement, shall not affect the other rights and remedies of the parties under this Agreement. "Event of Force Majeure" means the Developer's performance of work is unreasonably delayed, disrupted or interfered with due to fire or an unavoidable casualty loss, unusual delay in delivery, court injunction stopping work, public referendum or other court challenge, the applicable milestone deadlines affected by the Event of Force Majeure will be extended for a period of time equal to the duration of the Event of Force Majeure. Event of Force Majeure also includes any other causes reasonably beyond the Developer's control; provided however, that if BUS-RE/5373656.1 09 -22 -14 TC Packet 135 the Developer claims that an Event of Force Majeure has occurred arising from any other causes reasonably beyond the Developer's control, the Developer will submit a request to the Town including an explanation and relevant facts and circumstances giving rise to the claim for a determination of Force Majeure by the [Community Development Director] as to whether or not such facts or circumstances constitute causes reasonably beyond the Developer's control and therefore an Event of Force Majeure, and if so the duration of the Event of Force Majeure. If the Town determines in exercise of its good faith judgment that such facts or circumstances constitute causes reasonably beyond the Developer's control and therefore an Event of Force Majeure has occurred, the milestone deadlines affected by that Event of Force Majeure will be extended for a period of time equal to the duration of the Event of Force Majeure. If the Town determines in exercise of its good faith judgment that an Event of Force Majeure has not occurred, the milestone deadlines affected by that Event of Force Majeure will not be extended. "Event of Nonperformance" means the failure of the Developer to perform any of the tasks or work set forth in Section 1.3.1 below by the applicable milestone date(s) in any material respect, and the continuance of such failure to perform beyond the expiration of the Cure Period. "Final Completion" of a public improvement means the public improvement has achieved Substantial Completion (including landscaping) and the Developer has delivered a Certification of Completion for the public improvement from an engineer licensed in Colorado to the Town Manager of the Town for acceptance. "Minor PUD Amendment for Vesting" means Ordinance No. , Series of 2014 dated , 2014, approving the Developer's Minor PUD Amendment application to modify the Vested Property Rights of the Base Village PUD. "Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a public improvement means that the entire scope of work for that public improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the public improvement for its intended use and that a Certification of Completion for the public improvement has been issued by an engineer licensed in Colorado. "Substantial Completion" of a private improvement means that an improvement is sufficiently complete so that the public (or the owner with respect to the private improvements) can occupy or utilize the improvement for its intended use and a temporary certificate of occupancy has been issued by the Town for the improvement. "Upper Wood Road Improvements" means the improvements necessary to complete the road overlay, curb and gutter and bus shelter near the Enclave for Upper Wood Road. 2. Duration. Section 1.3 of the Development Agreement is amended and restated to read in its entirety as follows: "13.1 Duration. In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required to complete the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights are vested and shall continue to remain vested for a period commencing on November 4, 2004 and expiring on November 3, 2018 (the "First Interim Vesting Extension Date "). 2 BUS-RE/5373656.1 09 -22 -14 TC Packet 136 If the Developer has caused the tasks or work described in the each of the milestone deadlines set forth below to be completed in Section 1.3. La through Section 1.3. Lp on or before the First Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another one (1) year period expiring on November 3, 2019 (the "Second Interim Vesting Extension Date "). If the Developer has caused the tasks or work described in the milestone deadline set forth below in Section 1.3. Lq to be completed on or before the Second Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another five (5) year period expiring on November 3, 2024. Unless expressly provided to the contrary therein, all modifications and amendments to the Ordinance or any other material related to the development of the Property shall become part of the Vested Property Rights recognized hereunder automatically upon approval by the Town in such vesting shall last throughout the term of the vested rights. Notwithstanding the foregoing, the Vested Property Rights granted under Article I of this Agreement will not be automatically extended and are subject to early expiration if the Developer is subject to an Event of Nonperformance as to any of the tasks or work described below on or before the applicable deadline(s), subject to the Cure Period and any Event of Force Majeure: a. October 1, 2014 — Submit Construction Documents Plans for the Roundabout: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Roundabout (the "Roundabout CD Plan Set'). The Roundabout CD Plan Set shall set forth in detail the requirements for construction of the Roundabout and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Roundabout. b. October 15, 2014 — Submit Applications) for PUD Amendment: This date is the deadline for Developer to submit an application to amend the PUD for Lots 2, 3, & 4 and a comprehensive update of all approval and PUD documents affected by such application (the "PUD Amendment Application "). At the option of the Developer, the PUD Amendment Application may include Lot 8 (Building 13B), if the Developer determines that changes are necessary to the current approved plans for such lot(s) or building(s). The Developer anticipates that the date of final Town approval of the PUD Amendment Application will be May 31, 2015 (the "PUD Amendment Action Date "). The submission date for the PUD Amendment Application shall be subject to Section 1.3.2. Insofar as the Developer does not control the approval process, the PUD Amendment Action Date is not subject to the provisions of Section 1.3.2. If the approval of the PUD Amendment Application (including the expiration of all appeals or any public referendum) is not achieved by the PUD Amendment Action Date, the milestone deadlines below (other than Substantial Completion of Community Facility (Section 1.3.1.0), Substantial Completion of Lot 3 (Section 1.3. Lp), and Substantial Completion of Lot 3 (Section 1.3.1.q)), would each be automatically extended for one year. C. Submit and Provide Financial Guarantees for Roundabout Upper Wood Road Improvements and Snowmelt System at Garage Entry: The Developer has delivered to the Town Engineer preliminary cost estimates for the expected costs for the Roundabout, Upper Wood Road Improvements and Snowmelt System at Garage Entry ( "Public Improvements ") for approval by the Town Engineer. Within thirty (30) days BUS-RE/5373656.1 09 -22 -14 TC Packet 137 after Town approval of the Minor PUD Amendment for Vesting, the Developer the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security "), based on such preliminary cost estimates. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing the Public Improvements, and (y) any amounts to be contributed by the Town under the Funding Agreement (as amended). Within 30 days after the Town Engineer approves the final cost estimates for these Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the financial security will be adjusted to equal the final cost estimates. d. June 1, 2015 — Commencement of Construction of Roundabout: This date is the deadline for Commencement of Construction of the Roundabout. e. July 1, 2015 - Commencement of Construction of Building 13B: This date is the deadline for Commencement of Construction of Building 13B. f. October 1, 2015 — Submit Construction Documents Plans for the Upper Wood Road Improvements: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Upper Wood Road Improvements (the "Upper Wood Road CD Plan Set "). The Upper Wood Road CD Plan Set shall set forth in detail the requirements for construction of the Upper Wood Road Improvements and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Upper Wood Road Improvements. g. November 1, 2015— Substantial Completion of Roundabout: This date is the deadline for Substantial Completion of construction of the Roundabout. h. July 1, 2016 —Final Completion of Roundabout: This date is the deadline for Final Completion of construction of the Roundabout. i. October 1, 2016— Submit Construction Documents Plans for the Community Purpose Facility: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Community Purpose Facility (the "Community Purpose Facility CD Plan Set "). The Community Purpose Facility CD Plan Set shall set forth in detail the requirements for construction of the Community Purpose Facility and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Community Purpose Facility. j. December 31, 2016 - Substantial Completion ofBuilding 13B: This date is the deadline for Substantial Completion of construction of Building 13B. k. May 1, 2017 — Commencement of Construction of Upper Wood Road Improvements: This date is the deadline for Commencement of Construction of the Upper Wood Road Improvements. 1. May 1, 2017 — Commencement of Construction ofSnowmelt System at Garage Entry: This date is the deadline for Commencement of Construction of the Snowmelt System at Garage Entry. S BUS-RE/5373656.1 09 -22 -14 TC Packet 138 m. November 1, 2017 - Substantial Completion of Upper Wood Road Improvements: This date is the deadline to achieve Substantial Completion of construction of the Upper Wood Road Improvements. n. November 1, 2017 - Substantial Completion ofSnowmelt System at Garage Entry: This date is the deadline to achieve Substantial Completion of construction of the Snowmelt System at Garage Entry. o. November 1, 2018 - Substantial Completion of Community Facility: This date is the deadline to achieve Substantial Completion of construction of the Community Facility. P. November 1, 2018 - Substantial Completion ofLot 3: This date is the deadline for Substantial Completion of construction of Lot 3, including Building 7 and Building 8 with the medical clinic space. q. November 1, 2019 - Substantial Completion of Lot 2: This date is the deadline for Substantial Completion of construction of Lot 2. 1.3.2 Effect of Expiration of Vesting. Subject to Sections 1.3.3 to 1.3.5 below, the tasks or work to be performed as described in the each of the milestone deadlines in Section 1.3.1 above must be performed in order to obtain the automatic extensions of Vested Property Rights under Section 1.3.1. The occurrence of any Event of Nonperformance will result in the expiration of the Vested Property Rights created under this Agreement, as amended with respect to any buildings for which no construction has commenced as of the date of such Event of Nonperformance. 3. Notices. Section 4.8 of the Development Agreement is hereby amended to change the addresses for notices to the Developer as follows: If to Developer: SNOWMASS ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same First Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. 5. Ratification. Except as expressly set forth in this First Amendment, all other terms and conditions of the Development Agreement shall remain unmodified, the same being ratified, confirmed and republished hereby. BUS-RE/5373656.1 09 -22 -14 TC Packet 139 6. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] BUS-RE/5373656.1 09 -22 -14 TC Packet 140 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] 7 BUS-RE/5373656.1 09 -22 -14 TC Packet 141 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Development Agreement to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company Az BUS_RE /5373656.1 Name: Title: 09 -22 -14 TC Packet 142 09 -22 -14 TC Packet 143 FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT THIS FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT (the "First Amendment ") is entered into to be effective as of 12014, between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC (the "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town'). RECITALS A. The Town and Intrawest /Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Funding Agreement dated as of November 4, 2004, recorded as Reception No. 520496 in the real property records of Pitkin County, Colorado (the "Funding Agreement'). B. The Funding Agreement sets forth certain public improvements and contributions that must be completed in connection with the development of the Base Village Planned Unit Development (the "Base Village Project') approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the of Pitkin County, Colorado, as amended (the "Ordinance "). C. The Town and the Developer now desire to amend the Funding Agreement as more particularly set forth herein. AMENDMENT NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: 1. Capitalized Terms. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the Funding Agreement. 2. Developer Contributions Completed. Except as set forth in Section 3 below, the following Developer Contributions under the Funding Agreement have been made and accepted, and the obligations of the Developer under the Funding Agreement have been satisfied: (a) Construction of Wood Road Bridge under Section 2.1 of the Funding Agreement; (b) Lower Brush Creek Road Improvements under Section 2.2 of the Funding Agreement; (c) Highway 82 Improvements under Section 2.3 of the Funding Agreement; (d) Town Recreation Facility Contribution under Section 2.4 of the Funding Agreement; (e) Brush Creek Restoration Section 2.5 of the Funding Agreement; (f) Purchase of Fire Truck under Section 2.6 of the Funding Agreement; BUS-PE/5373658-1 09 -22 -14 TC Packet 144 and (g) Contribution to Holy Cross Energy under Section 2.7 of the Funding Agreement; (h) General Improvement District under Section 2.8 of the Funding Agreement. Construction of Roundabout. Section 2.1 of the Funding Agreement is amended to read in its entirety as follows: "2.1 Construction of Roundabout. (a) The development of the Base Village Project requires that a traffic roundabout and bridge be constructed at the intersection of Wood Road and Brush Creek Road. As of the date hereof, the Developer has completed construction of the Wood Road bridge portion of the Brush Creek/Wood Road Roundabout and Bridge (the "Bridge ") and the Town has accepted the Bridge, but the Developer has not yet commenced construction of the roundabout portion thereof (the "Roundabout "). The design and construction costs of the Roundabout have been estimated to be Three Million Five Hundred Thousand Dollars ($3,500,000.00). (b) In accordance with the Ordinance, the Town's contribution to the design and construction of the Roundabout and Bridge was fixed at $2,000,000.00. The Town has previously paid or credited the Developer an amount equal to $1,200,000.00 for the costs incurred by the the Developer's predecessor in interest to design and construct the Bridge. (c) Developer will submit plans and specifications to the Town by October 1, 2014 (collectively, the "Plans and Specifications ") for construction of the Roundabout (the "Roundabout Work "). Developer will enter into a construction contract with a contractor for construction of the Roundabout Work, with a stipulated sum or guaranteed maximum price for all of the Roundabout Work (the "Construction Contract "). Developer will commence the Roundabout Work shown by the final Plans and Specifications, as approved by the Town Engineer, on or before June 1, 2015. (d) In addition to such other terms and conditions agreed by the Developer and the Town, each acting reasonably, agree to the following provisions: (i) The Developer shall provide to the Town a copy of the agreements between (A) the Developer and its engineers for the design of the Roundabout (the "Design Contract "), and (B) the Developer and contractor under the Construction Contract (the "Construction Contract "); (ii) After the Developer provides the Town a copy of each of the Design Contract and the Construction Contract, the Town shall pay all costs incurred for the design and construction of the Roundabout, up to a maximum amount of $800,000.00,' as and when such costs are incurred by the Developer and shall pay to the Developer such sums within 30 days after receiving written request therefor from the Developer, which written request shall include copies of all applicable bills, invoices and conditional lien The exact amount is subject to adjustment in the event the Roundabout Work has an increased scope requested or required by the Town that would not otherwise be required by the existing approvals or are beyond the building code requirements/ requirements of the Roaring Fork Transit Authority currently in effect. 2 BUS_RE /5373658. I 09 -22 -14 TC Packet 145 waivers relating to such costs, subject to the review and reasonable approval of the Town Engineer; and (iii) The Roundabout shall be constructed in accordance with the standards attached as Exhibit A. (e) Prior to the date that the Developer commences any construction work on Carriage Way or Wood Road (excluding the installation of utility infrastructure in connection with the Base Village Project), the Developer shall have posted the "Performance Security" with the Town as required by the the Second Amendment to the Base Village Subdivision Improvements Agreement for the Roundabout." 4. Notices. Section 5.6 of the Funding Agreement is hereby amended to change the addresses for notices to the the Developer as follows: If to the Developer: SNOWMASs ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 5. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same First Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. 6. Ratification. Except as expressly set forth in this First Amendment, all other terms and conditions of the Funding Agreement shall remain unmodified, the same being ratified, confirmed and republished hereby. 7. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] 3 BUS-RE/5373658.1 09 -22 -14 TC Packet 146 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Funding Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] 4 BUS-RE/5373658.1 09 -22 -14 TC Packet 147 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Funding Agreement to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company IC BUS-RE/5373658.1 Name: Title: 09 -22 -14 TC Packet 148 EXHIBIT A (Roundabout Standards) A. Design shall be in accordance with National Cooperative Highway Research Program Report 672 of the U.S. Department of Transportation Federal Highway Administration "Roundabouts: An Informational Guide ", Second Edition, 2010. B. Brush Creek Road is classified as an arterial and should be designed for a 25 mph design speed. C. Variances may be allowed for grades up to ten percent (10 %) on the Brush Creek Road approaches and up to four percent (4 %) across the Roundabout subject to the approval of the Town Engineer. The Design shall be generally consistent with the preliminary plan prepared by SGM. D. Roundabout shall be designed to operate at a level of service C or better during peak traffic conditions as determined using either ARCADY or SIDRA roundabout design software and peak traffic conditions as presented in "Snowmass Base Village and Outlying Parcels, Transportation Analysis and Parking Management Strategy ", by Felsburg, Holt and Ullevig, March 2004, as amended. E. Signage shall be approved by the Town Engineer. F. Enhancements for the roundabout shall include, but not be limited to, lighting, irrigated landscape improvements, both in the center of the roundabout and on roadway approaches, pedestrian movement facilities and decorative concrete and /or pavers. The Town reserves the right to make final determination of required enhancements. The intent of the enhancements will be to use reasonable efforts to present a roundabout that is generally equal to or better than the quality and appearance of the roundabout on the south side of the West Vail exit adjacent to Gore Creek. G. Reconnection to Upper Kearns road shall be included in the project. The design shall be for a local road classification, 25 mph design speed, and the lane width coordinated with the Snowmass Center redevelopment plan. BUS-RE/5373658.1 09 -22 -14 TC Packet 149 09 -22 -14 TC Packet 150 SECOND AMENDMENT TO SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT THIS SECOND AMENDMENT TO SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT (this "Second Amendment ") is entered into to be effective as of , 201.4, between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC (the "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal. corporation (the "Town "). RECITALS A. The Town and Intrawest /Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Subdivision Improvements Agreement for the Base Village Planned Unit Development dated as of November 4, 2004, recorded as Reception No. 520485 in the real property records of Pitkin County, Colorado (the "Records ") as amended by the First Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development dated as of December 30, 2008 (collectively, the "SIA "). B. The SIA sets forth certain public infrastructure improvements and landscape improvements (the "Public Improvements ") that must be completed in connection with the development of the Base Village Planned Unit Development approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the Records ( "Base Village "). C. The Town and Developer now desire to amend the SIA as more particularly set forth herein. AMENDMENT NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: 1. Capitalized Terms and Definitions. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the SIA. "Commencement of Construction" means the execution of a binding construction contract and mobilization by a general contractor. "Final Completion" of a public improvement means the public improvement has achieved Substantial Completion (including landscaping) and the Developer has delivered a Certification of Completion for the public improvement from an engineer licensed in Colorado to the Town Manager of the Town for acceptance. "Minor PUD Amendment for Vesting" means Ordinance No. , Series of 2014 dated , 2014, approving the Developer's Minor PUD Amendment application to modify the Vested Property Rights of the Base Village PUD. "Substantial Completion" of a public improvement means that the entire scope of work for that public improvement (other than any required landscaping) is sufficiently complete so that the BUS-RE/5373659.1 09 -22 -14 TC Packet 151 public can occupy or utilize the public improvement for its intended use and that a Certification of Completion for the public improvement has been issued by an engineer licensed in Colorado. 2. Guarantee and Warranty. The SIA is amended to provide that the Developer is substituted for INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY LLC and all references to "IBC" in the SIA, as amended hereby, shall mean and refer to the Developer. Section 1 is hereby amended to substitute Exhibit 1 (Public Improvements) attached hereto and incorporated herein, for and in replacement of Exhibit "A" (Improvements) to the original SIA in its entirety. 3. Public Improvements and Landscape Improvements Completed. Except as identified in Section 4 below, the following Public Improvements under the SIA have been installed, completed and accepted, and as to the items completed as described below, the obligations of the Developer under the SIA (including the guarantee and warranty under Section 1 of the SIA) have been satisfied: (a) Water Lines and Sanitary Sewer Collection Lines under Section 2(a) of the SIA; (b) Electric, Gas, Telephone and Cable TV Facilities under Section 2(b) of the SIA; (c) Storm Drainage Improvements under Section 2(c) of the SIA; (d) Trails under Section 2(d) of the SIA with the exception of future trail connections required by the PUD that have not yet been completed; (e) Bus Shelters under Section 2(e) of the SIA with the exception of the bus shelter near the Enclave on Upper Wood Road; (f) Roadways under Section 2(f) of the SIA with the exception of the Upper Wood Road improvements necessary to complete the road overlay, curb and gutter for Upper Wood Road and with the exception of the snowmelt systems at Building 7 and Building 8 at the entrance /exit to the parking garage off Wood Road; (g) Pulse Gondola. under Section 2(g) of the SIA; (h) Transit Center Construction under Section 2(h) of the SIA; (i) Landing Site Construction under Section 2(i) of the SIA; (j) Landscape Improvements under Section 3 of the SIA with the exception of the landscaping for buildings not yet constructed; and (k) The water lines and sanitary sewer collection lines constructed as described in Record of Decision No. 38 dated August 8, 2013 and as described in the exhibits to the Improvements Agreement among the Town, the Applicant and the Snowmass Water and Sanitation District dated August 30, 2013 (the "SWSD /Town Improvements Agreement'); including, but not limited to, the "Substandard Waterline Section" as defined in the SWSD /Town Improvements Agreement, which will be satisfied by the Developer by posting the Performance Security for the Roundabout simultaneously with the execution of this Second Amendment. 2 BUS-RE/5373659.1 09 -22 -14 TC Packet 152 4. Public Improvements Not Completed. The following Public Improvements under the SIA have not been completed and the obligations of the Developer under the SIA have not been satisfied: (a) The Upper Wood Road improvements, consisting of the road overlay, curb and gutter and bus shelter near the Enclave; (b) The Snowmelt systems at Building 7 and Building 8 at the entrance /exit to the parking garage off Wood Road; (c) Future trail connections required by the PUD and associated with buildings /lots that have not yet been completed; and (d) Landscape Improvements associated with buildings not yet completed. 5. Roundabout. In addition to the items in Sections 4(a) and (b), the Developer agrees to include the completion of the Brush Creek/Wood Road Roundabout (the "Roundabout ") in the required Public Improvements under the this Agreement and provide a Performance Security for completion of the Roundabout. The foregoing items in Sections 4(a) and 4(b) and the Roundabout are collectively referred to herein as the "Public Improvements ". The items in Sections 4(c) and 4(d) will be bonded as a condition to issuance of building permits for the building /lot to which the trail connections and landscaping relate. 6. Security for Improvements; Release of Security. Section 6 of the SIA is hereby amended to read in its entirety and follows: "(a) As a condition of the Minor PUD Amendment for Vesting, and within thirty (30) days after such approval, the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security ") for purposes of assuring the final completion of the Public Improvements, based on the preliminary cost estimates set forth in Exhibit 1. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing the Public Improvements (which estimated Public Improvements costs are set forth on Exhibit 1 attached hereto), and (y) any amounts to be contributed by the Town under the Funding Agreement (as amended). Within 30 days after the Town Engineer approves the final cost estimates for the Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the Performance Security will be adjusted to equal the final cost estimates. Upon acceptance by the Town Manager of the Town (the "Town Manager "), or his designee, of a Certification of Completion for the Public Improvements from an engineer licensed in Colorado (hereinafter the "Acceptance "), the Performance Security shall be released and the Town will execute any such documents as are reasonably necessary to accomplish the release of the Performance Security. (b) The Performance Security, (i) if in the form of a letter of credit, shall be issued by a state or national banking institution, with offices located within the state of Colorado, in a form reasonably acceptable to the Town, or (ii) if in the form of a payment and performance bond, shall be issued by a national surety company, qualified to do business in the state of Colorado and which carries at least an "A -" rating by AM Best, in a form reasonably acceptable to the Town. (c) The Performance Security must be valid for the time period anticipated for completion of the Public Improvements as set forth on Exhibit 1 attached hereto. Any extension BUS-RE/5373659.1 09 -22 -14 TC Packet 153 of the time period for completion of the Public Improvements shall cause the Performance Security to be extended for an equal amount of time. Any such extension shall be in writing. (d) Intentionally omitted as the Carriage Way Improvements have been completed. (e) No more frequently than once every month, the Developer shall be entitled to partial releases of the Performance Security with respect to the Public Improvements as portions of the Public Improvements are completed. In order to obtain a partial release or reduction of the Performance Security, the Developer shall submit a Certificate of Partial Completion (the "Certificate ") signed by an engineer licensed in the State of Colorado describing the portion of the Public Improvements completed and the cost allocation associated with such completed Public Improvements. Such Certificate shall include a summary of the actual costs for the Public Improvements incurred to the date of the Certificate. After delivery of a Certificate, the Town Manager, or his designee, shall have a period of fifteen (15) days within which to accept the Certificate, as evidenced by a written notice to the Developer, or provide written notice to the Developer of any deficiencies in the Public Improvements. Any such notice of deficiencies shall describe the deficiency between the Public Improvements as constructed and the approved Plans. If the Town Manager, or his designee, provides the Developer written notice of acceptance of the Certificate, then the Town shall release the appropriate amount of the Performance Security as relates to such completed Public Improvements. If the Town Manager, or his designee, provides the Developer a letter of deficiency with respect to any portion of the Public Improvements for which the Developer has filed a Certificate, then the Town's engineer shall meet with the Developer's engineer to discuss and agree on any requirements necessary to bring such Public Improvements into conformity with the Plans. Upon compliance with any requirements delineated by the Town's engineer for compliance with the Plans, the Town shall release that portion of the Performance Security allocated for the cost of such portion of the Public Improvements. Upon the Town's initial acceptance of one or more of the Public Improvements identified in Sections 4(a) and (b) hereunder, and the commencement of the two -year warranty described in Paragraph 2 above, (i) the Town shall release that portion of the Performance Security attributable to that Improvement as provided above, and (ii) subject to the requirements of paragraph 6(b) above, the Developer shall deliver a letter of credit or payment and performance bond to the Town in an amount equal to 5% of the cost of that Improvement for the purpose of securing the warranty for that Improvement. Such letter of credit or payment and performance bond shall be maintained by the Developer for the warranty period described in paragraph 1 above for that Improvement and, upon the expiration of such warranty period, the Town shall release the unexpended portion of such letter of credit or payment and performance bond. the Developer shall reimburse the Town all fees for Town's engineer to inspect the Public Improvements and approve or provide a notice of deficiency with respect to any Certificate. Subject to the amendment procedures set forth in Paragraph 14, nothing herein shall preclude the parties from mutually establishing a different procedure for obtaining partial releases from the Performance Security. (f) The Acceptance shall not be unreasonably withheld or delayed, provided that, in the event weather or other factors beyond the reasonable control of the Developer delay the installation of those Public Improvements sensitive to weather or such other factors, the applicable Performance Security shall remain in full force and effect. (g) The Town may, at its sole option, permit the Developer to substitute other collateral acceptable to the Town for the collateral originally given by the Developer to secure the completion of the Public Improvements. 4 BUS-RE/5373659.1 09 -22 -14 TC Packet 154 (h) In the event all the Public Improvements secured by the applicable Performance Security will not be completed prior to the expiration of such Performance Security, the Developer shall replace or secure an extension of such Performance Security on terms acceptable to the Town, at least thirty (30) days prior to expiration of such Performance Security. Should the Developer fail to do so, the Town may draw on such Performance Security funds necessary to complete the Public Improvements and place the funds directly into an escrow account under the control of the Town, and such funds shall be used to complete the Public Improvements required hereunder. (i) The estimated costs of the Public Improvements are an estimated amount mutually agreed at this time by the Developer and the Town as set forth on Exhibit 1 attached hereto. In the event the cost of the Public Improvements exceeds the estimated cost, the Developer shall be solely responsible for the actual cost. The purpose of the cost estimate is solely to determine the amount of security and shall be revised every twelve (12) months to reflect the actual costs, and the applicable Performance Security required by this Agreement shall be adjusted accordingly. No representations are made as to the accuracy of these estimates, and the the Developer agrees to pay the actual costs of all such Public Improvements. 0) Intentionally omitted as Pulse Gondola has been completed. (k) Intentionally omitted as Subterranean Condominium and the Transit Center have been completed. (1) Intentionally omitted as the Storm Drainage Improvements, the Trails (with the exception of future trail connections required by the PUD that have not yet been completed and which will be will be completed as a condition to issuance of final certificates of occupancy for the building to which the trail connections relate), the Landing Site, and the Transit Center have been completed, agreements with the Metro District have been entered into by the Town, the Metro District and the Developer. 7. Notices. Section 7 of the SIA is hereby amended to change the addresses for notices to the Developer as follows: If to Developer: SNOWMASS ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher S. Counterparts. This Second Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same Second Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. BUS-RE/5373659.1 09 -22 -14 TC Packet 155 9. Ratification. Except as expressly set forth in this Second Amendment, all other terms and conditions of the SIA shall remain unmodified, the same being ratified, confirmed and republished hereby. 10. Governing Law. This Second Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] 0 BUS-RE,/5373659.1 09 -22 -14 TC Packet 156 IN WITNESS WHEREOF, the parties have caused this Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] BUS-RE/5373659.1 09 -22 -14 TC Packet 157 IN WITNESS WHEREOF, the parties have caused this Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company LOSM Name: Title: BUS-RE/5373659.1 09 -22 -14 TC Packet 158 EXHIBIT 1 (Public Improvements) Type Plans /Description Estimated Cost Roundabout To be submitted by $3,500,000 October 1, 2014 Upper Wood Road Improvements To be submitted by $1,400,000 October 1, 2015 Snowmelt Improvements To be submitted $350,000 in conjunction with Building 8 Permit Set D BUS-RE/5373659.1 09 -22 -14 TC Packet 159 Completion Schedule June 1, 2015 Commencement of Construction November 1, 2015 Substantial Completion July 1, 2016 Final Completion May 1, 2017 Commencement of Construction November 1, 2017 Substantial Completion May 1, 2017 Commencement of Construction November 1, 2017 Substantial Completion SNOWMASs ACQUIs1TION COMPANY LLC 16 Kearns Road, 3`d Floor PO Box 6565 Snowmass Village CO 81615 September 4, 2014 Town of Snowmass Village Planning Department 130 Kearns Road Snowmass Village CO 81615 Attn: Julie Ann Woods Dear Julie Ann: On behalf of the SNOWMAss ACQUISITION COMPANY LLC, a Delaware limited liability company (the "Applicant ") we are submitting a revision to the First Amendment to Base Village Development agreement. The revision reflect these two changes: 1. We propose to amend the language regarding the major PUD application to clarify that the application will be to amend and/or affirm the PUD for Lots 2, 3, 4, 5, 6, 7 and 8, and a comprehensive update of all approval and PUD documents. 2. We propose to amend the force majeure language to provide that the only event of force majeure will be an Act of God as reasonably determined by the Town, for a duration of time as so determined by the Town. Accordingly we enclose a clean and a redline version showing the changes, and would ask that the application be deemed to be amended consistent with the terms of the enclosed revisions. Please contact me if you have any questions. Thank you. SNOW s ACQuisITION COMPANY LLC A D aw e limited H bility company By: li' . Dw ne R rnero President cc: John Dresser BUS l2E #5373324? 09 -22 -14 TC Packet 160 FIRST AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT (this "First Amendment ") dated as of , 2014 between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST/BRUS.H CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). RECITALS A. The Town and Intrawest/Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Development Agreement dated as of November 4, 2004, recorded as Reception No. 520495 in the real property records of Pitkin County, Colorado (the "Development Agreement "). B. The Development Agreement describes the "Vested Property Rights ", as such term is defined in the Town Municipal Code (the "Code ") associated with the Base Village Planned Unit Development (the "Base Village Project ") approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "). C. The Town and Developer now desire to amend the Development Agreement as more particularly set forth herein. NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: ARTICLE I VESTED RIGHTS 1. Capitalized Terms and Definitions. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the Development Agreement. "Commencement of Construction" means the execution of a binding construction contract and mobilization by the general contractor pursuant to the construction contract. "Cure Period" means (__) days after the the failure of the Developer to observe or perform any of its obligations under any of the milestone dates under Section 1.3.1 in any material respect. During the Cure Period, Developer and the Town shall seek diligently and in good faith to negotiate a settlement, using the services of a neutral mediator if either party so requests. The conduct of such negotiations, or the failure of such negotiations to achieve a settlement, shall not affect the other rights and remedies of the parties under this Agreement. "Event of Force Majeure" means the Developer's performance of work is unreasonably BUS_RE/ PJ &564 U 09 -22 -14 TC Packet 161 "Event of Nonperformance" means the failure of the Developer to perform any of the tasks or work set forth in Section 1.3.1 below by the applicable milestone date(s) in any material respect, and the continuance of such failure to perform beyond the expiration of the Cure Period. "Final Completion" of a public improvement means the public improvement has achieved Substantial Completion (including landscaping) and the Developer has delivered a Certification of Completion for the public improvement from an engineer licensed in Colorado to the Town Manager of the Town for acceptance. "Minor PUD Amendment for Vesting" means Ordinance No. , Series of 2014 dated , 2014, approving the Developer's Minor PUD Amendment application to modify the Vested Property Rights of the Base Village PUD. " Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a public improvement means that the entire scope of work for that public improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the public improvement for its intended use and that a Certification of Completion for the public improvement has been issued by an engineer licensed in Colorado. "Substantial Completion" of a private improvement means that an improvement is sufficiently complete so that the public (or the owner with respect to the private improvements) can occupy or utilize the improvement for its intended use and a temporary certificate of occupancy has been issued by the Town for the improvement. "Upper Wood Road Improvements" means the improvements necessary to complete the road overlay, curb and gutter and bus shelter near the Enclave for Upper Wood Road. 2. Duration. Section 1.3 of the Development Agreement is amended and restated to read in its entirety as follows: "13.1 Duration. In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required to complete the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights are vested and 2 sus_xEi-., 09 -22 -14 TC Packet 162 -Irr PT .. "Event of Nonperformance" means the failure of the Developer to perform any of the tasks or work set forth in Section 1.3.1 below by the applicable milestone date(s) in any material respect, and the continuance of such failure to perform beyond the expiration of the Cure Period. "Final Completion" of a public improvement means the public improvement has achieved Substantial Completion (including landscaping) and the Developer has delivered a Certification of Completion for the public improvement from an engineer licensed in Colorado to the Town Manager of the Town for acceptance. "Minor PUD Amendment for Vesting" means Ordinance No. , Series of 2014 dated , 2014, approving the Developer's Minor PUD Amendment application to modify the Vested Property Rights of the Base Village PUD. " Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a public improvement means that the entire scope of work for that public improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the public improvement for its intended use and that a Certification of Completion for the public improvement has been issued by an engineer licensed in Colorado. "Substantial Completion" of a private improvement means that an improvement is sufficiently complete so that the public (or the owner with respect to the private improvements) can occupy or utilize the improvement for its intended use and a temporary certificate of occupancy has been issued by the Town for the improvement. "Upper Wood Road Improvements" means the improvements necessary to complete the road overlay, curb and gutter and bus shelter near the Enclave for Upper Wood Road. 2. Duration. Section 1.3 of the Development Agreement is amended and restated to read in its entirety as follows: "13.1 Duration. In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required to complete the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights are vested and 2 sus_xEi-., 09 -22 -14 TC Packet 162 shall continue to remain vested for a period commencing on November 4, 2004 and expiring on November 3, 2018 (the "First Interim Vesting Extension Date "). If the Developer has caused the tasks or work described in the each of the milestone deadlines set forth below to be completed in Section 1.3. La through Section 1.3.1.p on or before the First Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another one (1) year period expiring on November 3, 2019 (the "Second Interim Vesting Extension Date "). If the Developer has caused the tasks or work described in the milestone deadline set forth below in Section 1.3. Lq to be completed on or before the Second Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another five (5) year period expiring on November 3, 2024. Unless expressly provided to the contrary therein, all modifications and amendments to the Ordinance or any other material related to the development of the Property shall become part of the Vested Property Rights recognized hereunder automatically upon approval by the Town in such vesting shall last throughout the term of the vested rights. Notwithstanding the foregoing, the Vested Property Rights granted under Article I of this Agreement will not be automatically extended and are subject to early expiration if the Developer is subject to an Event of Nonperformance as to any of the tasks or work described below on or before the applicable deadline(s), subject to the Cure Period and any Event of Force Majeure: a. October 1 2014 — Submit Construction Documents Plans for the Roundabout: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Roundabout (the "Roundabout CD Plan Set "). The Roundabout CD Plan Set shall set forth in detail the requirements for construction of the Roundabout and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Roundabout. b. October 15, 2014 — Submit A-pplication(s) for PUD Amendment: This date is the deadline for Developer to submit an application to amend and/or affirm the PUD for Lots 2, 3, & 411 and a comprehensive update of all approval and PUD documents affected by such application (the "PUD Amendment Application "). At the option of the Developer, the PUD Amendment Application may include Lot 8 (Building 13B), if the Developer determines that changes are necessary to the current approved plans for such lot(s) or building(s). The Developer anticipates that the date of final Town approval of the PUD Amendment Application will be May 31, 2015 (the "PUD Amendment Action Date "). The submission date for the PUD Amendment Application shall be subject to Section 1.3.2. Insofar as the Developer does not control the approval process, the PUD Amendment Action Date is not subject to the provisions of Section 1.3.2. If the approval of the PUD Amendment Application (including the expiration of all appeals or any public referendum) is not achieved by the PUD Amendment Action Date, the milestone deadlines below (other than Substantial Completion of Community Facility (Section 1.3.1.0), Substantial Completion of Lot 3 (Section 1.3. Lp), and Substantial Completion of Lot 3 (Section 1.3. Lq)), would each be automatically extended for one year. C. Submit and Provide Financial Guarantees for Roundabout Upper Wood Road Improvements and Snowmelt Svstem at Garage Enter: The Developer has delivered to BUS_RE/33�36�61 5 09 -22 -14 TC Packet 163 the Town Engineer preliminary cost estimates for the expected costs for the Roundabout, Upper Wood Road Improvements and Snowmelt System at Garage Entry ( "Public Improvements ") for approval by the Town Engineer. Within thirty (30) days after Town approval of the Minor PUD Amendment for Vesting, the Developer the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security "), based on such preliminary cost estimates. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing the Public Improvements, and (y) any amounts to be contributed by the Town under the Funding Agreement (as amended). Within 30 days after the Town Engineer approves the final cost estimates for these Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the financial security will be adjusted to equal the final cost estimates. d. June 1. 2015 — Commencement of Construction of Roundabout: This date is the deadline for Commencement of Construction of the Roundabout. e. July 1. 2015 - Commencement of Construction ofBuilding 13B: This date is the deadline for Commencement of Construction of Building 13B. f. October 1. 2015 — Submit Construction Documents Plans for the Upper Wood Road Improvements: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Upper Wood Road Improvements (the "Upper Wood Road CD Plan Set "). The Upper Wood Road CD Plan Set shall set forth in detail the requirements for construction of the Upper Wood Road Improvements and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Upper Wood Road Improvements. g. November 1, 2015— Substantial Co�letion of Roundabout: This date is the deadline for Substantial Completion of construction of the Roundabout. h. July 1, 2016 —Final Completion ofRoundabout: This date is the deadline for Final Completion of construction of the Roundabout. i. October 1. 2016 — Submit Construction Documents Plans for the Community Purpose Facility: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Community Purpose Facility (the "Community Purpose Facility CD Plan Set "). The Community Purpose Facility CD Plan Set shall set forth in detail the requirements for construction of the Community Purpose Facility and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Community Purpose Facility. j. December 31. 2016 - Substantial Completion of Building 13B: This date is the deadline for Substantial Completion of construction of Building 13B. k. May 1. 2017 — Commencement of Construction of Upper Wood Road Improvements: This date is the deadline for Commencement of Construction of the Upper Wood Road Improvements. El BUS RE /r'T '6>64i 73 3 dEZ 09 -22 -14 TC Packet 164 1. May 1. 2017— Commencement of Construction ofSnowmelt System at Garage Entry: This date is the deadline for Commencement of Construction of the Snowmelt System at Garage Entry. m. November 1. 2017 - Substantial Completion of URper Wood Road Improvements: This date is the deadline to achieve Substantial Completion of construction of the Upper Wood Road Improvements. n. November 1. 2017 - Substantial Completion of Snowmelt System at Garage Entry: This date is the deadline to achieve Substantial Completion of construction of the Snowmelt System at Garage Entry. o. November 1. 2018 - Substantial CoinRletion of Community Facility: This date is the deadline to achieve Substantial Completion of construction of the Community Facility. p. November 1. 2018 - Substantial ComFletion of Lot 3: This date is the deadline for Substantial Completion of construction of Lot 3, including Building 7 and Building 8 with the medical clinic space. q. November 1. 2019 - Substantial ComRletion of Lot 2: This date is the deadline for Substantial Completion of construction of Lot 2. 1.3.2 Effect of Expiration of Vesting. Subject to Sections 1.3.3 to 1.3.5 below, the tasks or work to be performed as described in the each of the milestone deadlines in Section 1.3.1 above must be performed in order to obtain the automatic extensions of Vested Property Rights under Section 1.3.1. The occurrence of any Event of Nonperformance will result in the expiration of the Vested Property Rights created under this Agreement, as amended with respect to any buildings for which no construction has commenced as of the date of such Event of Nonperformance. 3. Notices. Section 4.8 of the Development Agreement is hereby amended to change the addresses for notices to the Developer as follows: If to Developer: SNOWMASS ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SBERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same First Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. 5 BUS_RB/" -3- ,_ 321 (5f 09 -22 -14 TC Packet 165 5. Ratification. Except as expressly set forth in this First Amendment, all other terms and conditions of the Development Agreement shall remain unmodified, the same being ratified, confirmed and republished hereby. 6. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] B US-RE/5 3 73656 41 % 09 -22 -14 TC Packet 166 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] 7 BUS _RE/5373 &&c., S 09 -22 -14 TC Packet 167 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Development Agreement to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company I;A Bus_xE437365& ,222k�61 Name: Title: 09 -22 -14 TC Packet 168 FIRST AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT THIS FIRST AMENDMENT TO BASE VILLAGE DEVELOPMENT AGREEMENT (this "First Amendment ") dated as of , 2014 between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal. corporation (the "Town "). RECITALS A. The Town and Intrawest/Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Development Agreement dated as of November 4, 2004, recorded as Reception No. 520495 in the real property records of Pitkin County, Colorado (the "Development Agreement "). B. The Development Agreement describes the "Vested Property Rights ", as such term is defined in the Town Municipal Code (the "Code ") associated with the Base Village Planned Unit Development (the "Base Village Project ") approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "). C. The Town and Developer now desire to amend the Development Agreement as more particularly set forth herein. NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: ARTICLE I VESTED RIGHTS 1. Capitalized Terms and Definitions. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the Development Agreement. "Commencement of Construction" means the execution of a binding construction contract and mobilization by the general contractor pursuant to the construction contract. "Cure Period" means (_) days after the the failure of the Developer to observe or perform any of its obligations under any of the milestone dates under Section 1.3.1 in any material respect. During the Cure Period, Developer and the Town shall seek diligently and in good faith to negotiate a settlement, using the services of a neutral mediator if either party so requests. The conduct of such negotiations, or the failure of such negotiations to achieve a settlement, shall not affect the other rights and remedies of the parties under this Agreement. "Event of Force Majeure" means the Developer's performance of work is unreasonably delayed, disrupted or interfered with as a result of an Act of God, as reasonably determined by the Town. In the event the Town so determines that there was an Event of Force Majeure, the applicable milestone deadlines affected by the Event of Force Majeure will be extended for such period of time as so determined by the Town. 09 -22 -14 TC Packet 169 "Event of Nonperformance" means the failure of the Developer to perform any of the tasks or work set forth in Section 1.3.1 below by the applicable milestone date(s) in any material respect, and the continuance of such failure to perform beyond the expiration of the Cure Period. "Final Completion" of a public improvement means the public improvement has achieved Substantial Completion (including landscaping) and the Developer has delivered a Certification of Completion for the public improvement from an engineer licensed in Colorado to the Town Manager of the Town for acceptance. "Minor PUD Amendment for Vesting" means Ordinance No. , Series of 2014 dated , 2014, approving the Developer's Minor PUD Amendment application to modify the Vested Property Rights of the Base Village PUD. " Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a public improvement means that the entire scope of work for that public improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the public improvement for its intended use and that a Certification of Completion for the public improvement has been issued by an engineer licensed in Colorado. "Substantial Completion" of a private improvement means that an improvement is sufficiently complete so that the public (or the owner with respect to the private improvements) can occupy or utilize the improvement for its intended use and a temporary certificate of occupancy has been issued by the Town for the improvement. "Upper Wood Road Improvements" means the improvements necessary to complete the road overlay, curb and gutter and bus shelter near the Enclave for Upper Wood Road. 2. Duration. Section 1.3 of the Development Agreement is amended and restated to read in its entirety as follows: "1.3.1 Duration. In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required to complete the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights are vested and shall continue to remain vested for a period commencing on November 4, 2004 and expiring on November 3, 2018 (the "First Interim Vesting Extension Date "). If the Developer has caused the tasks or work described in the each of the milestone deadlines set forth below to be completed in Section 1.3. La through Section 1.3.1.p on or before the First Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another one (1) year period expiring on November 3, 2019 (the "Second Interim Vesting Extension Date "). If the Developer has caused the tasks or work described in the milestone deadline set forth below in Section 1.3.1.q to be completed on or before the Second Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another five (5) year period expiring on November 3, 2024. I 09 -22 -14 TC Packet 170 Unless expressly provided to the contrary therein, all modifications and amendments to the Ordinance or any other material related to the development of the Property shall become part of the Vested Property Rights recognized hereunder automatically upon approval by the Town in such vesting shall last throughout the term of the vested rights. Notwithstanding the foregoing, the Vested Property Rights granted under Article I of this Agreement will not be automatically extended and are subject to early expiration if the Developer is subject to an Event of Nonperformance as to any of the tasks or work described below on or before the applicable deadline(s), subject to the Cure Period and any Event of Force Majeure: .56.2 09 -22 -14 TC Packet a. October 1, 2014 — Submit Construction Documents Plans for the Roundabout: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Roundabout (the "Roundabout CD Plan Set "). The Roundabout CD Plan Set shall set forth in detail the requirements for construction of the Roundabout and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Roundabout. b. October IS, 2014 — SubmitApplication(s) for PUD Amendment: This date is the deadline for Developer to submit an application to amend and/or affirm the PUD for Lots 2, 3, 4, 5, 6, 7 & 8 and a comprehensive update of all approval and PUD documents affected by such application (the "PUD Amendment Application "). At the option of the Developer, the PUD Amendment Application may include Lot 8 (Building 13B), if the Developer determines that changes are necessary to the current approved plans for such lot(s) or building(s). The Developer anticipates that the date of final Town approval of the PUD Amendment Application will be May 31, 2015 (the "PUD Amendment Action Date "). The submission date for the PUD Amendment Application shall be subject to Section 1.3.2. Insofar as the Developer does not control the approval process, the PUD Amendment Action Date is not subject to the provisions of Section 1.3.2. If the approval of the PUD Amendment Application (including the expiration of all appeals or any public referendum) is not achieved by the PUD Amendment Action Date, the milestone deadlines below (other than Substantial Completion of Community Facility (Section 1.3. Lo), Substantial Completion of Lot 3 (Section 1.3. Lp), and Substantial Completion of Lot 3 (Section 1.3.1.q)), would each be automatically extended for one year. C. Submit and Provide Financial Guarantees for Roundabout Upper Wood Road Improvements and Snownelt System at Garage Entry: The Developer has delivered to the Town Engineer preliminary cost estimates for the expected costs for the Roundabout, Upper Wood Road Improvements and Snowmelt System at Garage Entry ( "Public Improvements ") for approval by the Town Engineer. Within thirty (30) days after Town approval of the Minor PUD Amendment for Vesting, the Developer the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security "), based on such preliminary cost estimates. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing the Public Improvements, and (y) any amounts to be contributed by the Town under the Funding Agreement (as amended). Within 30 days after the Town Engineer approves the final cost estimates for these Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the financial security will be adjusted to equal the final cost estimates. 171 d. June 1, 2015 — Commencement of Construction of Roundabout: This date is the deadline for Commencement of Construction of the Roundabout. e. July 1, 2015 - Commencement of Construction of Building 13B: This date is the deadline for Commencement of Construction of Building 13B. f. October 1, 2015 — Submit Construction Documents Plans for th_ e Upper Wood Road Improvements: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Upper Wood Road Improvements (the "Upper Wood Road CD Plan Set "). The Upper Wood Road CD Plan Set shall set forth in detail the requirements for construction of the Upper Wood Road Improvements and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Upper Wood Road Improvements. g. November 1, 2015— Substantial Completion of Roundabout: This date is the deadline for Substantial Completion of construction of the Roundabout. h. July 1, 2016 — Final Completion of Roundabout: This date is the deadline for Final Completion of construction of the Roundabout. i. October 1, 2016 — Submit Construction Documents Plans for the Community Purpose Facility: This date is the deadline for Developer to submit "Construction Documents" level drawings and specifications for the Community Purpose Facility (the "Community Purpose Facility CD Plan Set "). The Community Purpose Facility CD Plan Set shall set forth in detail the requirements for construction of the Community Purpose Facility and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Community Purpose Facility. j. December 31, 2016 - Substantial Completion of Building 13B: This date is the deadline for Substantial Completion of construction of Building 13B. k. May 1, 2017 — Commencement of Construction of Upper Wood Road Improvements: This date is the deadline for Commencement of Construction of the Upper Wood Road Improvements. 1. May 1, 2017 — Commencement of Construction of .Snowmelt System at Garage Entry: This date is the deadline for Commencement of Construction of the Snowmelt System at Garage Entry. M. November 1, 2017 - Substantial Completion of Upper Wood Road Improvements: This date is the deadline to achieve Substantial Completion of construction of the Upper Wood Road Improvements. n. November 1, 2017 - Substantial Completion of Snowmelt System at Garage Entry: This date is the deadline to achieve Substantial Completion of construction of the Snowmelt System at Garage Entry. 4 nTT( naicy- `6.2 09 -22 -14 TC Packet 172 o. November 1, 2018 - Substantial Completion of Community Facility: This date is the deadline to achieve Substantial Completion of construction of the Community Facility. P. November 1, 2018 - Substantial Completion of Lot 3: This date is the deadline for Substantial Completion of construction of Lot 3, including Building 7 and Building 8 with the medical clinic space. q. November 1, 2019 - Substantial Completion of Lot 2: This date is the deadline for Substantial Completion of construction of Lot 2. 1.3.2 Effect of Expiration of Vestin. Subject to Sections 1.3.3 to 1.3.5 below, the tasks or work to be performed as described in the each of the milestone deadlines in Section 1.3.1 above must be performed in order to obtain the automatic extensions of Vested Property Rights under Section 1.3.1. The occurrence of any Event of Nonperformance will result in the expiration of the Vested Property Rights created under this Agreement, as amended with respect to any buildings for which no construction has commenced as of the date of such Event of Nonperformance. 3. Notices. Section 4.8 of the Development Agreement is hereby amended to change the addresses for notices to the Developer as follows: If to Developer: SNOWMASS ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3`d Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same First Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. 5. Ratification. Except as expressly set forth in this First Amendment, all other terms and conditions of the Development Agreement shall remain unmodified, the same being ratified, confirmed and republished hereby. 6. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] 5 `- --`56.2 09 -22 -14 TC Packet 173 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney i6.2 09 -22 -14 TC Packet TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: [SIGNATURES CONTINUE ON FOLLOWING PAGE] rte' E IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Development Agreement to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company In Name: Title: 7 nrro nnic��zcc6.2 09 -22 -14 TC Packet 175 Document comparison by Workshare Compare on Thursday, September 04, 2014 12:37:10 PM Document 1 ID interwoven Site://IDENVERDMS /B US_RE/5373656/1 5373656v1 <BUS_RE> - First Amendment to Description Development Agreement August 28 2014 (Submission to Town) Document 2 ID intenNovenSite://IDENVERDMS /BUS RE/5373656/2 Description 5373656v2 <BUS —RE> - First Amendment to Development Agreement Sept 4 2014 Rendering set standard Style change format chance Inserted cell z Deleted cell' ` Moved cell Split/Merged cell m Padding cell St�t�st�c. Count Insertions 7 Deletions 5 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 12 09 -22 -14 TC Packet 176 Julie Ann Woods Dear Mayor Boineau: As an owner of a unit at the Viceroy Snowmass, and as a long time visitor to Snowmass for annual summer and winter vacations, I'm writing to share my perspective of the current and future development in the Base Village. I have been following the events as best as possible, and my understanding is that Snowmass Acquisition Company (Related Colorado) and the Town of Snowmass Village Council met last week to discuss the future of Base Village and the upcoming expiration of the current vested rights held by Related. The amendment for the application is due October 15th. I understand the Aspen Skiing Company (ASC), who withdrew its application to build a Limelight Lodge, has re- signed an agreement with Related to construct the lodge and the Fanny Hill townhomes, which were also a part of the previous application. I believe it is critical that Related, the Town and ASC to all work together to resolve and move forward on the existing Base Village Development. I was surprised that the application and discussion seemed to meet opposition from the Town. Again, I think it is critical to work together to get this piece in the heart of Snowmass Village moving forward again. A Limelight Lodge would bring additional people and business to the town. While it may compete with the occupancy of my own unit, I welcome the competition and an influx of new visitors to Snowmass Village. It makes us all stronger in the long run. I would like to see Related complete the Viceroy Hotel's second building and also complete the existing buildings that are half finished. The impression of the half- finished development is a very damaging appearance for Snowmass Village. I see this personally as a visitor each time we arrive; I hear it from other visitors wondering why the construction continues to be incomplete. The appearance is not appealing and the long delay gives a sense of local problems. I strongly believe a comprehensive and well planned resolution will create a very positive energy and be good for all involved in Snowmass Village. Best regards, Sally Kauffman Executive Vice President, Global Solutions Center ZeroChaos 420 S. Orange Ave, Suite 600 Orlando, FL 32801 Phone: 407 - 770 -6127 Cell: 407 - 484 -8779 L 09 -22 -14 TC Packet 177 Julie Ann Woods From: Dr. Jack L. Schaeffer <drschaeffer @schaeffereyecenter.com> Sent: Saturday, August 30, 2014 2:20 PM To: Julie Ann Woods To whom it may concern I am an owner of a residence at the Viceroy Hotel and I have been coming to Snowmass for over 25 years. I an also invloved with a regional eye care meeting that brings 75 doctors from all over the country. The Viceroy ha; added a special feeling to the village and to the entire snowmass community. My decision to buy was based on the growth of the Viceroy concept. There are many regular visitors that enjoy the areas amenities and I encourage you to consider allowing the continuation of the expansion plans. New first class hotels bring life to city and encourage long term stability. Thanks Dr Jack Schaeffer Birmingham, Alabama NOTICE: This message is intended only for the individual to whom it is addressed and may contain information that is confidential or privileged. If you are not the intended recipient, or the employee or person responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use is strictly prohibited. If you have received this communication in error, please notify the sender and destroy or delete this communication immediately. 09 -22 -14 TC Packet 178 Julie Ann Woods From: Greg Didier <gdidier @cire.com> Sent: Friday, August 22, 2014 12:52 PM To: Julie Ann Woods Subject: I Support Base Village To the Town Council and the Town of Snowmass Village, I read the article in today's Aspen Times, along with the all the past articles as well and felt compelled to offer my support to move Base Village forward now as I believe not doing so will kill our economy in Snowmass. I do not live here in Snowmass but I work here and have since I moved out to Colorado in 1996. 1 have no voting rights, so the only thing I can do to express my opinion is to write to the town council. Yes, I am a real estate broker with Sotheby's and I am sure the stereotype placed on my opinion will be that I only want Base Village to move forward so that I can sell more property and there is obviously a part of that which is true, it is hoti I make my living. But I also have friends that are in the restaurant, retail and service business and we are all experiencing the same thing. When word gets out that Base Village may be moving forward, there is an excitement that follows with our guests who visit and there is a bump in business. When news comes out that it maybe delayed again, or may not happen at all, that spark of excitement is diminished and business goes down. I am betting that those that have written who are opposed to the Base Village- moving forward are not trying to make a living here. I would find it hard to believe that the owners of the restaurants, retails shops, and those in the service industry want to keep Base Village the way it is, or wait for an undetermined amount of time for anew developer to come in and save the day. Any new developer will have to go through the same process as the one we have and may look at the challenges the current developer is having and fee it is not worth the effort. Being in real estate and rentals, I interact with many of the guests and current home owners who own but don't live here and I can tell you that the overwhelming sentiment is that they are all tired of looking at unfinished buildings and foundations. This also seemed to be the sentiment during all the public meetings that have taken place this past spring and summer and for awhile it seemed that everyone was on the same page and ready to get things moving again. Now it seems that we are back where we started, that the Ski Co. and Related would like to begin again, finish what they started, and the town is once again getting in the way of that progress. I understand that the town is trying to protect the communities interest and they don't want to give the other parties everything and anything they ask for, and they should not, but doing nothing or putting up parameters that are detrimental to the progress is not the right course of action either. It is too late to not do anything, Base Village was already approved and we can't change that fact. The foundations have been built, half finished buildings are standing at our front door and letting it sit in the state it is now, without any promise of future progress is going to kill this town, this town that I work in, play in and love. We are already losing market share to other resorts, not only because it is less expensive to visit those resorts but because the overall experience in those resorts are better. Yes, we have the best skiing in the West, but if you are going to pay the extra money and take the extra time to get here, we as a resort, which is what we are, a resort town, must offer those guests more than great skiing. We have to offer them the total package, and half finished buildings and ugly L 09 -22 -14 TC Packet 179 foundations are not part of that equation. I don't care how many Christmas lights you put up, it is still ugly, unlike the experience when you pull into Beavercreek, Telluride, Vail, and Park City. So I urge the town council, as well as Related and Ski Co. to work together now and get something done to move this town forward because staying where we are is only going to make us fall back further and further. Sincerely, Greg Didier 09 -22 -14 TC Packet 180 The Way I Saw It.... The last Snowmass Council meeting again gave us understanding why we are not keeping pace with the economic recovery seen elsewhere. The two Councilmen who were on the right side of the Suiter issue have now taken the wrong side of the vesting issue seemingly for the sake of being obstinate. As always, there are multiple paths available to achieve the same ends. At its essence, the path offered by the developer moves us toward our desired outcome of a LimeLight Hotel and an animated Village core. Yes it needs some language modified to keep our Town interests protected, but why the need for the public spectacle? Curtail the drama, change some wording, define a few terms, and the current proposal keeps the Town's interest as priority while enabling forward progress. Base Village needs to find a path to some kind of substantial completion for our guest experience and our own. Get on with it. Scott Calliham Snowmass Village 09 -22 -14 TC Packet 181 8/20/2014 At the recent Snowmass Town Council meeting on Monday Aug 18, a Council person stated that the Planning Commission had not done its job preparing a resolution to the Council on the minor PUD application filed by the Related subsidiary, SAC. As Chairman of that commission I suspect the Council person involved may have read the resolution but not clearly understood the complexity and interactions of the various parts. For example, the Town Council spent significant time discussing the reduction of the proposed four year plus one year vesting extension to an extension only until May 31,2015 because the Town hasn't yet seen SAC's plans for the remainder of Base Village. However the Resolution requires SAC to file another PUD amendment with their plans by Oct 15 and for the Council to approve the amendment by May 31 (not May 1 as was reported) or the vesting for the project will terminate. So what is the difference? Both proposals will expire if the either milestone isn't met. However providing a longer vesting period allows the developer to have confidence to spend the money necessary to prepare for the various reviews, engineering and construction drawings at no loss to the Town. The Planning Commission spent over 6 hours discussing and debating the PUD application with SAC. There have been numerous modifications to the application including the timing for various buildings and public improvements included in the application. The recommendations in our resolution were clear and concise. We covered security for public improvements and raised the issue of security for private improvements for Council to discuss with SAC. In fact that discussion took place and a proposal was made to create a liquidated damages clause in the Development Agreement. We specifically identified issues such as the clinic and the Aqua Center /Community Purpose Facility which have been raised in previous meetings 09 -22 -14 TC Packet 182 and amendments. We expressed a desire for vesting extension to be considered in a timely manner. We recommended shortening the "cure period" for missing a milestone as well as stating certain language proposed by SAC was unacceptable. To say that our resolution lacks detail is just plain wrong. So what are the Town's options? How do we move ahead to remove the eyesore of concrete and rebar that is now a large part of Base Village? The Planning Commission unanimously agreed the way forward is to modify SAC's proposal to modify the length of the vesting extension to conform to construction timelines, put security in place within 30 days after the Town Council has approved a resolution, modify some of the milestones, recommend certain language be appropriately defined and include security options for the private buildings. Is this perfect? No but we don't live in a perfect world. The Planning Commission believes their resolution reasonably protects the Town while getting Base Village construction started again. Bob Sirkus Chair TOSV Planning Commission 09 -22 -14 TC Packet 183 SNOW'MASS VILLAGE TO: TOWN COUNCIL FROM: JOHN DRESSER SUBJ: BASE VILLAGE MINOR PUD APPLICATION DATE: SEPTEMBER 4, 2014 The following preliminary general observations with regard to the revised proposed amendments to the revised Base Village Subdivision Improvements Agreement ( "rBVSIA "), the revised Base Village Funding Agreement ( "rBVFA ") and the revised Base Village Development Agreement ( "rBVDA ") contained in the above application are not complete. Given the short time line, I was not able to review all the referenced documents, past amendments and agreements. A. The revised First Amendment to Base Village Development Agreement: Article I of the revised First Amendment to Base Village Development Agreement ( "rBVDA ") contains 10 new definitions. The cumulative effect of these definitions provides a methodology to preclude resolution of non - performance to the applicant. Most of the definitions contain nebulous words such as "in any material respect" "diligently" "good faith" "good faith judgment" "neutral mediator ". These terms are what I refer to as fodder for litigation, others call them "wiggle" words because they distract from the true object of dispute, the non - performance, and give rise to disputes as to whether TOSV was diligent ?, used good faith ?, is it material ?, or was it mediated? Commencement of Construction is interesting in that all elements of the definition are in the purview of the applicant and there is no reference to a building permit which would seem to be an important element of commencement of construction. The Cure Period is full of the nebulous words that give rise to issues that are not non- performance. It requires negotiations and mediation as well as diligently. It includes "material respect" and I must ask: if TOSV has given notice to cure doesn't that in and of itself make it of "material respect "? Does TOSV want to have to negotiate, mediate and potentially litigate whether the required negotiations for a settlement were conducted diligently? Isn't the purpose of a cure period to identify a default and it is either cured or the agreement is breached? The Force Majeure is overbroad providing a path to delay. While such resolution of issues under the force majeure I son - going, which could include litigation, vesting is extended. There was no force majeure provision in the original agreement. Event of Non - Performance also includes wiggle words material respect and by reference all the Cure Period steps and pitfalls. Final completion definition should not include "including landscaping" as there may be other items required for final completion. At the end of the definition the words "and has been accepted by TOSV ". Simply submitting the eng'ineer's certification of completion does mean there is 09 -22 -14 TC Packet 184 compliance with the PUD approval. It also provides a clear date for the start of the warranty period. The Snowmelt system and Upper Wood road definitions should have an exhibit specifically identifying the location and nature of the required performance. Substantial Completion of public improvement definition that public can use the improvement without any date for final completion in Section 2 is incomplete and allows for TRS (temporary resort syndrome). By the time substantial completion of Upper Wood road is scheduled in the Agreement the temporary road installed in 2007 will be ten years old and TOSV still has no date for Final completion. There is not a definition of "Construction Documents" level drawings and this should be clarified in this Agreement. Lastly on definitions, it should be noted that there is not a definition of "early expiration" although that is a critical concept put forth by the applicant. The definition should include a provision that early expiration is not a compensable takings but rather an agreed upon consequence of non - performance. 2. The amended Section 2, Duration, of the rBVDA extends the vested rights to November 3, 2018 and contains a long list of milestones and provides for early expiration of vesting for failing to meet those milestones. Tracking and ensuring compliance with the list of milestones will be onerous for TOSV. Enforcing a non - performance to gain early expiration would proceed under this language: "the Vested Property Rights granted under Article I of this Agreement will not be automatically extended and are subject to early expiration if the Developer is subject to an Event of Nonperformance as to any of the tasks or work described below on or before the applicable deadline(s), subject to the Cure Period and any Event of Force Maieure" In order for TOSV to cause an early expiration of the vesting for any Non - Performance it would have to a) give notice of non- performance initiating the Cure Period; b) diligently negotiate a settlement with applicant; c) if unsuccessful in negotiating, mediate; OR (and possibly both) respond to a declaration of Force Majeure from Developer according to the definition. And then possibly litigate all the various steps and procedures contained in Cure Period and Force Majeure. This Section also states if the applicant completes the task there are automatic extensions of vesting. It is interesting to note that the use of the word "completion" in paragraphs 2 and 3 of proposed amended Section 1.3.1 is not capitalized and therefore not defined under the 3 different definitions of completion contained in the definitions section of the rBVDA. Another example of inconclusive wording that could end up being litigated. 3. The list of milestones seem overly, if not beyond, optimistic. First and foremost is the submission of Roundabout ( "RAB ") plans. This is to occur 22 days from the date of this meeting and is subject to a footnote in the revised Base Village Funding Agreement ( "rBVFA ") that indicates the applicant will not be responsible for differing scope costs of the RAB design requirements. It also preliminarily appears that the design may not be entirely located on land owned by TOSV or Snowmass Acquisition Company ( "SAC "). 09 -22 -14 TC Packet 185 Finalizing this design and producing "Construction Level Design Drawings" in 22 days to comply with the first milestone displays this optimism. Next is the milestone to submit a PUD amendment of October 15, 2014. First note that the application only covers Lots 2, 3 and 4 and documents affected by the application. The applicant has the option to include Building 13B. Nowhere is it specified that the application will be a Major amendment. Further, the "PUD Amendment Action Date" contained in this milestone is May 31, 2015. Subsection (b) provides that if final non - appealable or subject to referendum action is not complete by May 31, 2015 all milestones are automatically extended by one year. This Action Date might be an achievable date for a Minor amendment but in my opinion it is highly doubtful for a Major amendment. This was presented to Council by the applicant as optimistic and probably requiring extra meetings to achieve which Council seemed to generally consider favorably. It bears noting that the currently seated Council will not be the one to review that application. The subsequent Council cannot yet make such a commitment to accelerated or expeditious review and could determine accelerated or expeditious review is not in order. It is my opinion that if Council is to approve this application with the milestones deadlines as presented it should understand that adding one year to all the milestone and vesting dates other than submission of the RAB and PUD amendment application is likely. The next Subsection discusses security for the RAB, Upper Wood Road and Snowmelt at the garage. It seems difficult to understand how preliminary cost estimates can be quantified without a final design and I understand that Public Works and Transportation are not yet clear on the scope of work/ design for these projects. At a minimum the security should have a provision to be reevaluated in light of final numbers or TOSV could be left with insufficient performance security. It would be my advice to Council that provision of security be timed to coincide with a clear understanding of the current estimated costs. Section 1.3.2 refers to Section 1.3.3 to 1.3.5 but those Section appear to have been deleted in favor of definitions. B. The revised First Amendment to Base Village Funding Agreement. I cannot comment on most of Section 2's list of completed items from the original BVFA, I do have questions about the purchase of the Fire Truck. I seem to recall that it was changed to a lease. In Section 2.1 and amended Exhibit "A ", there should be updated plans that are subject to current TOSV approval. Further, to, by footnote, indicate that there will be an adjustment for an increased scope or subsequent requirements from a preliminary plan that is over ten years old is a risk the applicant assumed when it did not timely complete the RAB according to the original BVFA and TOSV should not be required to contribute. I am unaware of any Snowmass Center Redevelopment Plan as referred to in Exhibit "A" but assume it was implied in the BV approval process that a RAB at Wood and Brush Creek certainly envisioned connection to Upper Kearns. 09 -22 -14 TC Packet 186 It would be my suggestion that a single comprehensive RAB Construction Agreement be crafted that spells out design approval, construction management and timing, and security rather than break the RAB across 3 documents that require constant cross - reference and provided differing mechanisms for default, cure, etc. C. The revised Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development. The definitions of Final Completion and Substantial Completion have the same issues as the rBVDA. The substitution of Exhibit "1" for the original Exhibit "A" is unacceptable as uncompleted items have been omitted. The lists of completed and not completed need to be clarified. Certain subsections have at least 2 "except" or "excepting" to the point the language is unclear. The future trail connection require by the PUD should be identified specifically. 09 -22 -14 TC Packet 187 Town Attorney responses are in red below. Summary of Council Direction on Base Village Vesting proposal from 8/22/14 Meeting — I think the meeting was August 18, 2014. 1. Continue public hearing; provide legal review of documents for council's consideration — An Amendment to the Application was submitted in the afternoon on Thursday, August 28th proposing revisions to the proposed BV Development Agreement ( "BVDA "), BV Subdivision Improvements Agreement ( "BVSIA ") and BV Funding Agreement ( "BVFA "). This amendment has yet to be accepted by TC. Exhibits referenced in the revised Agreements have not been submitted, please reference Observation No.1 from my Preliminary Observations memo dated July 17, 2014 as it is still applicable to the revised agreements. 2. What are the implications if the property is "flipped "? The property can only be "flipped" without TOSV consent in total (all the lots and rights) except to certain affiliates of the original developer. eg: ASC. Individual lots can be conveyed to ASC without TOSV consent. Does vesting go away? Vesting runs with the land and would apply to a new owner JD 3. Force Majeur clause: is there an alternative to having this in the agreements? Yes, do not include a force majeure clause. There was not a force majeure clause in the original agreements JD 4. Liquidated damages /security if the applicant defaults. Fred K. would like to have a per day penalty clause that charges upwards of $2500 /day for each day the developer is in default. He would like to add language that would allow the developer to "buy back" their vesting through curing and penalties paid. The applicant did not include such a concept in the revised agreements. JD 5. Need Town Attorney to provide specific comments on the agreements and the amendment as currently negotiated. See attached memo with comments. JD 6. Jacobson stated that the proposal and staff's analysis was vague, and the PC and staff did not do their work by not addressing the future proposed development. JAW 7. Need more specific definitions on words such as "substantial ", "completion ", etc. to be clear from a legal perspective what each term means. New definitions are included in the revised agreements. This shall be negotiated by the attorneys. Council reviews the application and comments on the application regarding Council's understanding of the attendant Agreements and whether such proposed Agreements are to be approved, denied or approved with conditions. The applicant can then revise the application or ask for a final vote on the application as submitted. JD 8. Need to address the question of what happens if the vesting expires. What are the implications? If vesting expires the applicant is subject to all current codes and regulations required by TOSV instead of being subject to codes and regulations as enacted at the time of approval. Expiration of vesting does not terminate the PUD zoning and the applicant can build the 09 -22 -14 TC Packet 188 remainder of the entitlements pursuant to current codes and regulations. TOSV or a landowner can amend the zoning pursuant to the procedures in the SVMC. JD 9. Why do we need a mediation clause in the agreements? TOSV does not need a mediation clause. JD 10. Addressing the issue of "piecemeal" review, and isn't this application a piecemeal approach? JAW 11. Revised Draft agreements reflecting the current position, as negotiated and agreed to by the developer, need to be presented in packet. Applicant has requested to amend the application and the proposed amendments to the Agreements are included. JD 12. Request was made from Jacobson that he wanted to hear from other staff members. It apparently wasn't clear that the comments provided by staff and attached to the packet represents a consolidated staff position. JAW, AM, DP 13. Need to research if other communities have instituted a security for private development.JAW< 09 -22 -14 TC Packet 189 f SN0WM,A'SS VILLAGE TO: JULIE ANN WOODS, DIRECTOR OF COMMUNITY DEVELOPMENT FROM: ANNE MARTENS, DIRECTOR OF PUBLIC WORKS SUBJECT: BASE VILLAGE MINOR PUD APPLICATION - JULY 2014 (SEPTEMBER 8, 2014 COUNCIL MTG) DATE: SEPTEMBER 3, 2014 CC: GARY SUITER, INTERIM TOWN MANAGER DEAN GORDON, TOWN ENGINEER In reference to the Snowmass Acquisition Company LLC application for minor PUD Amendment of the Base Village PUD – Amended agreements submitted on August, 28, 2014 the following comments are being submitted: Due to the revised documents being submitted on August 28, 2014 a complete review cannot be provided. In addition, the Town Engineer is unable to review the submitted documents until after September 15, 2014. However, the following observations are being provided relative to the amended agreements which are intended to supplement the original agreements. First Amendment to Base Village Development Agreement (August 28, 2014 ver.) 1. Capitalized Terms and Definitions: Commencement of Construction – Should include the language "and issuance of a building permit, if necessary". 2. Capitalized Terms and Definitions: Cure Period – This needs to be reviewed by legal counsel and the Town Engineer. 3. Capitalized Terms and Definitions: Event of Force Majeure –This is still of concern. 4. Capitalized Terms and Definitions: Upper Wood Road Improvements – This definition does not include improvements such as utilities, grades, pedestrian and bus facilities. These facilities were included in the original PUD approved documents and need to be included in the final approved construction drawings. 5. Section 2a. This should include cost estimates to be reviewed by the Town Engineer. 6. Section 2b. It is of concern, that if the PUD Amendment is not approved then the public infrastructure that all are date certain would slide one year. It has been the goal to not tie the completion date of the public infrastructure to a particular development horizon. Section 3c -q. These sections need to be reviewed by the Town Engineer in conjunction with Legal Counsel. 3745 OWL CREEK ROAD, P O BOX 5010, SNOWMASS VILLAGE, COLORADO 81615 (970) 923 -5110 (fax) (970) """ —I works @tosv.com www.tosv.com 09 -22 -14 TC Packet 190 8. Section 1.3.2 Effect of Expiration of Vesting. Sections 1.3.3 to 1.3.5 are referenced from a previous version of the document and should be deleted. First Amendment to Base Village Funding Agreement (August 28, 2014 ver.) Section 2.1a needs to be further reviewed by legal counsel and the Town Engineer. It is of great concern that there is a request for additional funding from the Town for infrastructure relative to the roundabout in conjunction with a vesting extension. The existing elements such as pedestrian and bus facilities are part of the public improvements and impacts due to development need to be addressed as part of the public infrastructure. 2. Exhibit A – Needs to be reviewed by the Town Engineer Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development (August 28, 2014 ver.) 1. Capitalized Terms and Definitions: Commencement of Construction – Should include the language "and issuance of a building permit, if necessary". 2. Section 3. Exceptions should not be cited in completed infrastructure, but listed in improvements not completed. 3. Section 4. The Upper Wood Road improvements - This definition does not include the improvements such as utilities, grades, pedestrian and bus facilities. These facilities were included in the original PUD approved documents and need to be included in the final approved construction drawings. 4. Section 5. The language should not only site bonding for the improvements but refer to the acceptable Performance Security for the Town. 5. Exhibit I has not been reviewed by the Town Engineer and Recent cost estimates have not been provided to be reviewed. Note: the application submitted for review has not been amended to reflect the request changes to the First Amendment to Base Village Development Agreement, Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development, and First Amendment to Base Village Development Agreement. A complete review of work completed, included verification from entities such as Snowmass Water and Sanitation District has not been received. 3745 OWL CREEK ROAD, P O BOX 5010, SNOWMASS VILLAGE, COLORADO 81615 (970) 923 -5110 (fax) (970) —I works @tosv.com www.tosv.com 09 -22 -14 TC Packet 191 E h i bit 7 1 TOWN OF SNOWMASS VILLAGE 2 TOWN COUNCIL 3 4 DRAFT ORDINANCE NO. 3 5 SERIES OF 2014 6 AN ORDINANCE REGARDING A MINOR PUD AMENDMENT TO BASE VILLAGE 7 INVOLVING VESTED RIGHTS EXTENSION, AND COMPLETION OF CERTAIN 8 PUBLIC IMPROVEMENTS, AND TIMEFRAMES FOR COMPLETION OF CERTAIN 9 PRIVATE IMPROVEMENTS. 10 WHEREAS, the Base Village Final Planned Unit Development ( "BV PUD ") was 11 approved by Town Council Ordinance No. 21, Series of 2004 ( "Ordinance 21"), which 12 was amended and updated by Ordinance No. 03, Series of 2007; and 13 14 WHEREAS, Snowmass Acquisition 'Company ( "Applicant" and "Owner"), a 15 Delaware limited liability company, submitted a Minor PUD Amendment application on 16 June 30, 2014 as updated for completeness July 7, 2014, requesting a five —year 17 extension to November 3, 2019 of the deadline under the Development Agreement for 18 the initial vesting for Base Village while maintaining the overall vesting deadline of 19 November 3, 2024; and proposing certain amendments to the Development 20 Agreement, the Funding Agreement and the Subdivision Improvements Agreement that 21 include provisions for securing the completion of the roundabout and other public 22 improvements in relation to the milestones proposed for the vesting extension; and 23 24 WHEREAS, a meeting was held before the Planning Commission on July 23, 25 2014 and continued to at a meeting on August 6, 2014, whereby the Planning 26 Commission received a presentation by the Applicant, and heard the recommendations 27 of the Town Staff, reviewed the application and acted upon Resolution No. 7, Series of 28 2014, providing recommended conditions to the Town Council; and 29 30 WHEREAS, a public hearing notice was printed in the Snowmass Sun on July 31 30, 2014 for the Town Council meeting on August 18, 2014. The applicant submitted 32 executed affidavits for the mailing and posting of the public hearing notice; and 33 34 WHEREAS, the Town 'Council conducted a public hearing and reviewed the 35 application for the Minor PUD Amendment on Base Village vesting, on August 18, 2014. 36 They continued the hearing to September 8, 2014 where the ordinance was passed on 37 first reading, and the public hearing was continued and scheduled second reading on 38 September 22, 2014; and 39 40 WHEREAS, the Minor PUD Amendment was processed pursuant to the 41 procedures outlined in Section 16A -5 -390 of the Land Use and Development Code 42 ( "Municipal Code "). 43 09 -22 -14 TC Packet 192 TC Ord. 3, Series of 2014 Page 2 of 7 44 NOW, THEREFORE, BE IT ORDAINED, by the Town Council of the Town of 45 Snowmass Village, Colorado: 46 47 Section One: General Findings. The Town Council finds that: 48 49 1. The Applicant has submitted sufficient information pursuant to Section 16A -5- 50 390 of the Municipal Code to permit the Town Staff, Planning Commission and 51 Town Council an adequate review of the proposed Minor PUD Amendment. 52 53 2. The Applicant sufficiently met the public hearing notice requirements pursuant 54 to Section 16A -5 -60, `Notice of public hearings.' 55 56 3. The application is consistent with the applicable review standards specified 57 within Section 16A -5- 390(3) of the Municipal Code. 58 59 4. In accordance with Municipal Code Section 16A- 5- 90(d), `Vested property 60 rights / Term of Vested Right,' it states: "Rights which have been vested as 61 provided herein shall remain so vested for a period of three (3) years, unless 62 extended by the Town Council in its complete discretion on a case -by -case 63 basis. The Town Council shall consider both the needs of the Town and the 64 property owner in determining to extend a vested property right beyond three 65 (3) years. Any such extension shall be in the form of a development 66 agreement duly authorized and executed by the landowner or landowners 67 involved and approved by ordinance. The Town Council may impose 68 reasonable conditions upon any such extension. 69 70 Town Council has complete discretion on the vested rights matter or extension 71 thereof. However, inasmuch as the Planning Commission is authorized to 72 review and recommend on proposed PUD Amendments, and the vesting 73 extension is part of the application, the Planning Commission did offer specific 74 findings and recommendations as set forth in Resolution No. 7, Series of 2014 75 for the Town Council's consideration. 76 77 5. As the initial Minor PUD Amendment submission dated June 30, 2014 78 proposed only text revisions to the affected companion agreements, the 79 Planning Director has determined that the Base Village PUD should be treated 80 as a Minor PUD Amendment versus a Major PUD Amendment in accordance 81 with Municipal Code Section 16A -5- 390(1). 82 83 6. In response to comments from Town Staff and directives provided by the Town 84 Council, the amendments submitted by the applicant on August 29, 2014, 85 September 4, 2014, and on September 16, 2014 were accepted for further 86 Town Council review without remand to the Planning Commission. 87 88 7. As further noted within Section Two below for the specific findings, the 89 application, with proposed modifications recommended by Staff and the 09 -22 -14 TC Packet 193 TC Ord. 3, Series of 2014 Page 3 of 7 90 Planning Commission, is consistent with all of the applicable review standards 91 specified within Section 16A -5- 390(3) of the Municipal Code. 92 93 Section Two: Specific Findings. The Town Council specifically finds that: 94 95 1. Pursuant to Section 16A- 5- 390(3)a of the Municipal Code, the proposed 96 application is consistent with, or an enhancement of, the original PUD 97 approval because it provides a series of milestones to be met, as shown 98 on Attachment "A" First Amendment to Base Village Development 99 Agreement, that will ensure certain public and private improvements will 100 be completed as part of the Base Village project. 101 102 2. Pursuant to Section 16A- 5- 390(3)b of the Municipal Code, the proposed 103 amendment should not have a substantially adverse effect on the 104 neighborhood surrounding the land where the amendment is proposed, 105 or have a substantially adverse impact on the enjoyment of land abutting 106 upon or across the street from the subject property. The Town Council 107 finds that the neighborhood has been, and continues to be, adversely 108 impacted due to the delay in construction of both the public and private 109 improvements initially caused by the recession, but notes that many of 110 the improvements identified in the previous agreements have been 111 completed. With respect to the remaining required public improvement 112 items described in the Funding Agreement and the Subdivision 113 Improvement Agreement that have yet to be completed, the inclusion of 114 milestones in the Development Agreement for completion of these items, 115 together with the provision of financial security for completion of some of 116 these items will help to keep these improvements on a schedule that 117 should bring to an end the negative impact on the neighborhood 118 surrounding the Base Village PUD from the delay in completing these 119 public and private improvements. 120 121 3. Pursuant to Section 16A- 5- 390(3)c of the Municipal Code, the proposed 122 amendment does not describe any change in the basic character of the 123 PUD or surrounding areas although it should be noted that the proposed 124 amendment does require submission of another proposed amendment 125 to the PUD by October 15, 2014 which might make changes to the basic 126 character of the PUD. 127 128 4. Pursuant to Section 16A- 5- 390(3)d of the Municipal Code, the proposed 129 amendment complies with the other applicable standards of Division 3, 130 PUD, including but not limited to Section 16A- 5- 300(c), General 131 Restrictions, and Section 16A -5 -310, Review Standards, because the 132 amendment proposes text amendments to written agreements without 133 describing any design changes, although as noted above the proposed 134 amendment does require submission of another amendment to the PUD 135 by October 15, 2014. 09 -22 -14 TC Packet 194 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 TC Ord. 3, Series of 2014 Page 4 of 7 5. Pursuant to Section 16A -5- 310(1), the Town Council finds that the completion of outstanding public and private improvements would assist in fulfilling the Comprehensive Plan objectives and policies. 6. Pursuant to Section 16A -5- 310(2), the Town Council finds that this Section on Community Character is not applicable because the proposed amendment describes no design changes to the PUD. 7. Pursuant to Section 16A -5- 310(3), the Town Council finds that this Section is not applicable because the applicant has described no design changes to the PUD that would modify the creative approach to the project. 8. Pursuant to Section 16A -5- 310(4), the Town Council finds that the installation of the outstanding landscaping would benefit the town and surrounding properties, and that the milestones established for completion of these improvements linked to the extension of vesting will more likely ensure compliance by the applicant. 9. Pursuant to Section 16A -5- 310(5), the Town Council finds that this Section on development evaluation standards is not applicable because the application describes no design changes to the PUD. 10. Pursuant to Section 16A -5- 310(6), the Town Council finds that this Section on suitability for development is not applicable because the application describes no design changes to the PUD. 11. Pursuant to Section 16A -5- 310(7), the Town Council finds that this Section on spatial pattern is not applicable because the application describes no proposed design changes to the PUD. 12. Pursuant to Section 16A -5- 310(8), the Town Council finds that this Section on phasing is only partially applicable because the application describes no proposed phasing changes to the PUD. However, the delayed pace and phasing of construction has and could continue to harm the community as a whole. Further delays of public and private improvements do not meet the code standard of `as early in the project as reasonable.' Contrarily, the applicant's proposal including milestones that could limit vesting and the provision of financial security for the completion of public and private development per the Attachment "A" First Amendment to Base Village Development Agreement increases the likelihood that the installation of public and private improvements should be reasonably implemented or fulfilled in the project as previously required. 09 -22 -14 TC Packet 195 TC Ord. 3, Series of 2014 Page 5 of 7 iF*3 183 13. Pursuant to Section 16A -5 -90, to grant the applicant the desired vesting 184 extension, Town Council finds that it has adequately weighed the 185 interest of the Town along with the interests of the property owner. 186 187 Section Three: Action. The Town Council hereby approves the following proposal 188 subject to the conditions in Section Four below: 189 190 1. The Applicant's vested rights for the Base Village PUD is hereby extended for 191 four years to November 3, 2018. 192 193 2. The Minor PUD Amendment for the vested rights extension to Base Village and 194 the completion of public improvements and other private improvements shall be 195 in compliance with Attachment "A" First Amendment to Base Village 196 Development Agreement; Attachment "B" First Amendment to Base Village 197 Funding Agreement; and Attachment "C" Second Amendment to Subdivision 198 Improvements Agreement for the Base Village Planned Unit Development, 199 incorporated herein. 200 201 Section Four: Conditions. The applicant shall comply with the following conditions: 202 203 1. Provided the milestones as set forth in Attachment "A" First Amendment to Base 204 Village Development Agreement are achieved, the Applicant will be awarded a 205 second automatic extension of vested rights to November 3, 2019, and a 206 subsequent third automatic extension to November 3, 2014, which is consistent 207 with the original PUD or an enhancement of the PUD. 208 209 2. The Applicant shall meet the milestones as described in Attachment "A" First 210 Amendment to Base Village Development Agreement, with revisions dated 211 8/6/2014, 8/28/14, 9/4/14, and 9/16/14 in order to facilitate more timely public 212 improvements and private investment that will result in no adverse impact on the 213 neighborhood surrounding the land where the amendment is proposed, or have a 214 substantially adverse impact on the enjoyment of land abutting upon or across 215 the street from the subject property. 216 217 3. The Applicant shall deliver proposed cost estimates reflective of the expected 218 costs upon completion of construction drawings for both the roundabout and 219 Upper Wood Road prior to the posted security deadline. The Town Engineer 220 shall determine what is an acceptable amount of surety. 221 222 4. The Applicant shall provide the Town with the financial surety, in form and 223 substance satisfactory to the Town Attorney, for the proposed public 224 improvements (based on preliminary cost estimates approved by the Town 225 Engineer) within 30 days of approval of this Minor PUD Amendment. The surety 226 will be updated within 30 days after the Town Engineer approves final cost 09 -22 -14 TC Packet 196 TC Ord. 3, Series of 2014 Page 6 of 7 227 estimates for each public improvement, but no later than January 1, 2015 for the 228 roundabout and January 1, 2016 for the Upper Wood Road improvements. 229 230 5. The Applicant shall complete the permanent Buildings 7 and 8, including the 231 emergency clinic, on Lot 3 by December 31, 2018. 232 233 6. The Applicant shall file by October 15, 2014 (pursuant to the Development 234 Agreement) a comprehensive PUD Amendment that addresses the entire Base 235 Village PUD to avoid a piecemeal approach that will not serve the purpose of 236 considering the entire development and appropriate mitigation for the PUD as a 237 whole. 238 239 7. The Applicant shall secure an easement and construct a trail, consistent with the 240 Town's Mobility Plan, for the trail proposed to be located west of Building 1 241 (Treehouse) to the south of Lichenhearth Condominiums to connect to the 242 Benedict Trail. Such easement shall be for the benefit of the town for purposes 243 of a trail. The Commencement of construction of the trail shall begin no later 244 than May 31St of the year following the dedication of the easement to the Town, 245 but no later than November 3, 2018. This requirement shall be clarified in the 246 Subdivision Improvements Agreement. 247 248 8. The Applicant shall work directly with the Snowmass Water and Sanitation 249 District (SWSD) to satisfy their concern regarding the possible substandard 250 waterline section, and any Performance Security for the roundabout shall not be 251 intended to satisfy this requirement. A letter from SWSD indicating its 252 satisfaction that their requirements have been satisfied shall be provided to the 253 Town within one year following the substantial completion of the roundabout. 254 255 9. The Applicant shall provide an easement to the Town for purposes of locating a 256 future Aerial Connector (tram) across to the Snowmass Center, as well as an 257 interest in the Landing Site in Base Village sufficient to give the Town the right to 258 construct, operate, maintain, repair and replace a terminal for the Aerial 259 Connector upon the Landing Site. Language to this effect, including a date for 260 completion and submission of a plat amendment shall be included in the SIA. 261 262 10. The Applicant shall amend Exhibit A to the SIA to indicate when final completion, 263 including landscaping, irrigation and restoration of disturbed areas, will be 264 completed for Upper Wood Road. 265 266 11.The Applicant shall amend the SIA, paragraph 7. (c) Security for Improvements: 267 Release of Security to indicate that the Performance Security will be valid for the 268 time period anticipated for Final Completion of such Public Improvements. 269 270 12.The Applicant shall provide a tool, to the satisfaction of the Community 271 Development Department, in the form of a timeline and /or matrix that addresses 09 -22 -14 TC Packet 197 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 TC Ord. 3, Series of 2014 Page 7 of 7 all work, noticing requirements and deadlines agreed to be completed to assist in monitoring and ensuring conformance with all aspects of these agreements. Section Five. Severability. If any provision of this Ordinance or application hereof to any person or circumstance is held invalid, the invalidity shall not affect any other provision or application of this Ordinance which can be given effect without the invalid provision or application, and, to this end, the provisions of this Ordinance are severable. INTRODUCED, READ, AND APPROVED, as amended, on first reading by the motion of Town Council Member Kucker and the second of Town Council Member Butler by a vote of three (3) in favor and two (2) against, on this 8th day of September, 2014. READ, APPROVED AND ADOPTED on second reading by the motion of Town Council Member and the second of Town Council Member by a vote of in favor and against, on this 22nd day of September, 2014. TOWN OF SNOWMASS VILLAGE Bill Boineau, Mayor ATTEST: Rhonda B. Coxon, Town Clerk APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney Incorporated Attachments: Attachment "1" First Amendment to Base Village Development Agreement Attachment "2" Second Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development Attachment "3" First Amendment to Base Village Funding Agreement 09 -22 -14 TC Packet 198 Attach mE3nt 1 AMENDED AND RESTATED BASE VILLAGE DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED BASE VILLAGE DEVELOPMENT AGREEMENT (this "Agreement ") dated as of , 2014, is made by and between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). This Agreement amends and restates in its entirety the Base Village Development Agreement dated November 4, 2004 between INTRAWESTBRUSH CREEK DEVELOPMENT COMPANY LLC, a Delaware limited liability company and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation. RECITALS WHEREAS Developer intends to develop that real property situated in the Town of Snowmass Village, Colorado commonly known as Lots 1 -9, Base Village Planned Unit Development (the "Property "), as depicted on the Plat for Base Village P.U.D., filed February 2, 2006 in Plat Book 77 at Page 30, at Reception No. 520483 of the records of Pitkin County, Colorado; WHEREAS the Town and IntrawestBrush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Development Agreement dated as of November 4, 2004, recorded as Reception No. 520495 in the real property records of Pitkin County, Colorado (the "Development Agreement "). The Development Agreement describes the "Vested Property Rights ", as such term is defined in the Town Municipal Code (the "Code ") associated with the Base Village Planned Unit Development (the "Base Village Project'); WHEREAS this Agreement amends, restates and supersedes in its entirety, the Development Agreement dated November 4, 2004; WHEREAS the Town Council of the Town granted approval of the development of the Property proposed in the Application by enacting Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "); WHEREAS the Code authorizes the execution of "development agreements" by the Town and the execution of this Agreement is contemplated by the Ordinance; WHEREAS Developer has proposed to extend the Vested Property Rights for the Property, as more particularly described in the Minor PUD Amendment application for Base Village submitted to the Town on June 30, 2014, as amended (the "Application "), and has agreed to provide or contribute to the provision of certain facilities and services within the Town of Snowmass Village for the benefit of the Town and the Base Village PUD as more particularly described below; BUS-RE/5388243.2 09 -22 -14 TC Packet 199 WHEREAS the Town Council of the Town granted approval of the extension of Vested Property Rights for the Property proposed in the Application by enacting Ordinance No. 3, Series of 2014 (the "Minor PUD Vesting Ordinance "); WHEREAS The Town and the Developer have entered into an Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development dated , 2014 (the "SIA "); and WHEREAS The Town and the Developer have entered into a First Amendment to the Base Village Funding Agreement dated , 2014. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties agree as follows: ARTICLE I VESTED RIGHTS 1. Capitalized Terms and Definitions. The following capitalized terms and phrases used herein shall have the following meanings: "Approval" means with respect to any land use or zoning action by the Town on a land use or zoning application related to the Base Village Project that the Town has granted a final approval, a administrative or court appeal, if any, has been finally decided in a final, non - appealable judgment or order, and a referendum, if any, as to the Town action has been concluded without reversal of the Town action. "Commencement of Construction" means that, with respect to the each of the milestone deadlines in Section 1.3.5 below that include construction of public or private improvements, that each of the following three conditions have been performed: (i) the Town has issued a building permit for the construction (if a building permit is required) or a right -of -way permit; (ii) a binding construction contract has been executed by the contractor and the Developer (or the owner engaged in such construction), and a true and correct copy thereof has been submitted to Town (provided any confidential or proprietary information may be redacted therefrom); and (iii) the "Mobilization" of the general contractor pursuant to the construction contract as determined by the Town's Chief Building Official. "Cure Period" means fifteen (15) days after the failure of the Developer to observe or perform any of its obligations under any of the milestone dates under Section 1.3.5. "Denial" means with respect to any land use or zoning action by the Town on a land use or zoning application related to the Base Village Project that the Town has denied a final approval, an administrative or court appeal, if any, has been finally decided in a final, non - appealable judgment or order, and a referendum, if any, as to the Town action has been concluded. A Denial also includes Town action that is subsequently reversed by court order, reconsideration or referendum. 2 BUS_RE/5388243.2 09 -22 -14 TC Packet 200 "Event of Force Majeure" means the Developer's performance of work is unreasonably delayed, disrupted or interfered with as a result of an Act of God, as reasonably determined by the Town. In the event the Town Council so determines that there was an Event of Force Majeure, the applicable milestone deadlines affected by the Event of Force Majeure will be extended for such period of time as so determined by the Town Council. "Event of Nonperformance" means the failure of the Developer to perform any of the tasks or work set forth in Section 1.3.5 below by the applicable milestone date(s), and the continuance of such failure to perform beyond the expiration of the Cure Period and subject to any Event of Force Majeure. "Final Completion" of a Public Improvement means: (i) the Public Improvement has achieved Substantial Completion (including landscaping); (ii) the Developer has delivered a Certification of Completion for the Public Improvement from an engineer licensed in Colorado to the Town Manager; and (iii) the Certification of Completion has been accepted by the Town Manager. "Mobilization" means transportation of the contractor's personnel, equipment, and operating supplies to the site, establishment of temporary facilities for the contractor's operations, and erection of any required construction fencing for the site. "Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a Public Improvement means that the entire scope of work for that Public Improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the Public Improvement for its intended use and that a Certification of Completion for the Public Improvement has been issued by an engineer licensed in Colorado. "Substantial Completion" of a private improvement means that an improvement is sufficiently complete so that the public (or the owner with respect to the private improvements) can occupy or utilize the improvement for its intended use and a temporary certificate of occupancy has been issued by the Town for the improvement. "Upper Wood Road Improvements" means the improvements and related infrastructure which includes utilities, sidewalks, grading, bus pull -out adjacent to Lot 4 of the Property for Upper Wood Road necessary for the road overlay, curb and gutter and bus shelter near the Enclave. 1.1 Vested Property Rights. a. The Town and Developer agree that all rights of Developer granted, recognized and confirmed in the Ordinance and this Agreement constitute "Vested Property Rights ", as such term is defined in the Code. By way of illustration, and not limitation, "Vested Property Rights" BUS_RE/5388243.2 09 -22 -14 TC Packet 201 include the right to develop, plan and engage in land uses on the Property in accordance with the provisions of the Ordinance for the periods of time described in Section 1.3 below. Unless expressly provided to the contrary therein, all modifications and amendments to the Ordinance or any other Approval, agreements or material related to the development of the Property shall become part of the Vested Property Rights recognized hereunder automatically upon Approval or execution by the Town and such vesting shall last throughout the term of the Vested Property Rights. b. The Town shall not enforce against Developer or the Property any amendment to the Code adopted after November 3, 2004, or any other zoning, land use or other legal, administrative rule, regulation, ordinance, resolution or requirement that does not apply to the Property as of November 3, 2004, or otherwise take any other action that would directly or indirectly have the effect of impairing, preventing, diminishing, imposing a moratorium on development, or otherwise delaying the development or use of the Property in accordance with this Agreement or the Ordinance. Except for those conditions contemplated in the Ordinance or the Code in effect as of November 3, 2004, and any other agreements related to the development or use of the Property executed between the Town and Developer, the Town shall not subject development or use of the Property to any exactions, payments, dedication or reservation requirements, obligations for constructing on -site or off -site public improvements or facilities, or the payment of any fees in lieu of any of the foregoing in connection with the development, construction, use or maintenance of the Property as described in the Ordinance or any other exercise of the Vested Property Rights. C. Notwithstanding the foregoing, the Vested Property Rights recognized herein shall not exempt Developer from requirements for building permits, other necessary permits or other approvals required subsequent to the approval of the development of the Property (as required by the Code in effect as of November 3, 2004). The establishment of the Vested Property Rights shall not preclude the application of the requirements of the building code, fire code, plumbing code, electrical code, the mechanical code or of any regulations specifically adopted to correct or mitigate natural or man -made hazards on or in the immediate vicinity of the Property, which hazards could not reasonably have been discovered at the time the Ordinance was approved, and which hazards, if uncorrected, would pose a serious threat to the public health, safety, and welfare, all as more particularly described in Section 24 -68 -105 of the Colorado Revised Statutes. 1.2 Condition Subsequent to Continued Existence of Vested Property Rights. a. Developer has agreed to provide or contribute to the provision of certain facilities and services within the Town for the benefit of the community pursuant to the terms of the following agreements (collectively, the "Other Agreements "): (i) Base Village Services Agreement, dated effective as of November 4, 2004 between Developer and the Town; (ii) Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development dated effective as of , 2014 between Developer and the Town (the "SIA "); 11 BUS-RE/5388243.2 09 -22 -14 TC Packet 202 (iii) Base Village Funding Agreement dated effective as of November 4, 2004, as amended by the First Amendment to Base Village Funding Agreement dated effective as of , 2014 between Developer and the Town. (iv) Restricted Housing Agreement dated effective as of November 4, 2004 between Developer and the Town, the First Amendment to Restricted Housing Agreement dated effective as of February 26, 2007 between Developer and the Town, and the Second Amendment to Restricted Housing Agreement dated effective as of May 27, 2014 between Developer and the Town. b. The continued existence and duration of the Vested Property Rights recognized in this Agreement is subject to the condition that no Material Default by Developer shall occur under any of the Other Agreements or the Ordinance. If a Material Default shall occur, then, as provided in Section 16A- 5 -90(c) of the Code, the Vested Property Rights shall be terminated. For purposes hereof, "Material Default" shall mean a failure by Developer to perform any of its obligations under any of the Other Agreements or the Ordinance in any material respect that remains uncured after the expiration of any applicable cure period as such default is conclusively determined by a court of competent jurisdiction in a final, non - appealable judgment or order. 1.3 Duration. 1.3.1 First Interim Vesting Extension. In consideration of Developer's performance of its obligations undertaken in the Other Agreements and in recognition of the time and expense required for the development of the Property and the effect of varying economic cycles and market conditions, the Town has concluded and agrees that the Vested Property Rights are vested and shall continue to remain vested for a period commencing on November 4, 2004 and expiring on November 3, 2018 (the "First Interim Vesting Extension Date "). 1.3.2 Second Interim Vesting Extension. If the Developer has performed (or caused to be performed) the tasks or work described in the each of the applicable milestone deadlines set forth in Section 1.3.5 that are required to be performed on or before the First Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another one (1) year period expiring on November 3, 2019 (the "Second Interim Vesting Extension Date "). 1.3.3 Final Vesting Extension. If the Developer has performed (or caused to be performed) the tasks or work described in the each of the applicable milestone deadlines set forth in Section 1.3.5 that are required to be performed after the First Interim Vesting Extension Date and on or before the Second Interim Vesting Extension Date, the Vested Property Rights shall be automatically extended for another five (5) year period expiring on November 3, 2024. 1.3.4 Termination of Vested Property Rights. Notwithstanding the foregoing, the Vested Property Rights granted under Article I of this Agreement will not be automatically extended and are subject to termination if the Developer is subject to an Event of Nonperformance as to any of such tasks or work described are not performed on or before the applicable deadline(s), and in such event the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings but rather an agreed upon consequence of non - performance by the applicable deadline(s). BUS-RE/5388243.2 09 -22 -14 TC Packet 203 1.3.5 Milestone Deadlines. The following are the milestone deadlines and the tasks or work the Developer shall perform or cause to be performed on or before the applicable deadline dates, as those dates may be adjusted in accordance with the express provisions of this Agreement: a. October 1, 2014 — Submit Construction Documents Plans for the Roundabout: This date is the deadline for Developer to submit "Construction Documents" for the Roundabout (the "Roundabout CD Plan Set ") consisting of ninety (90 %) percent complete construction drawings. The Roundabout CD Plan Set shall set forth in detail the requirements for construction of the Roundabout and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Roundabout. b. October IS. 2014 — Submit Application(s) for PUD Amendment: This date is the deadline for Developer to submit an application to amend the PUD for Lots 2, 3 & 4, to amend and /or affirm the PUD for Lots 5, 6, 7 & 8, and to provide a comprehensive update of all approval and PUD documents affected by such application (the "PUD Amendment Application "). At the option of the Developer, the PUD Amendment Application may include Lot 8 (Building 13B), if the Developer determines that changes are necessary to the current approved plans for Lot 8 or Building 13B. The Developer anticipates that the date of final Town action on the PUD Amendment Application will occur on or before May 31, 2015 (the "PUD Amendment Action Date "). The submission deadline for the PUD Amendment Application shall be subject to Section 1.3.4. Insofar as the Developer does not control the review process, the PUD Amendment Action Date is not subject to the provisions of Section 1.3.4. (i) Delayed Approval of PUD Amendment Application. If the Approval of the PUD Amendment Application is not achieved by the PUD Amendment Action Date (or the PUD Amendment Application is still pending on the PUD Amendment Action Date), the milestone deadlines below (other than Substantial Completion of Community Facility (Section 1.3.5.0), Substantial Completion of Lot 3 (Section 1.3.5.p), and Substantial Completion of Lot 2 (Section 1.3.5.q)), will each be automatically extended on a day- for -day basis by the same number of days after the PUD Amendment Action Date that the Approval is achieved; provided if any extended milestone deadline date involving construction of Public Improvements or private improvements is so extended to a date after the end of the fall construction season ending September 30 of any year, such milestone deadline date will be further extended to the start of the next construction season on May 31 of the next calendar year. To the extent an Approval occurs after the PUD Amendment Action Date, the Developer and the Town will execute an amendment to this Agreement setting forth and confirming the revised milestone deadlines. (ii) Accelerated Milestone Deadlines for Building 5 Limelight Snowmass. If the Approval of the PUD Amendment Application is achieved, and the Approval includes the Aspen Skiing Company's proposed Limelight Hotel and Residences on Lot 2, then there will be a new milestone deadline under Section 1.3.5 for Commencement of Construction on Lot 2, which shall be the date that is 365 days after the date of such Approval. In addition, if the Approval of the PUD Amendment Application is achieved, BUS_RE/5388243.2 09 -22 -14 TC Packet 204 and the Approval includes the Aspen Skiing Company's proposed Limelight Hotel and Residences on Lot 2, then the milestone deadline under Section 1.3.5.q for Substantial Completion of Lot 2 subject to the Approval will be changed to November 1, 2018. (iii) Denial of PUD Amendment Application. If the action on the PUD Amendment Application is a Denial, the Vested Property Rights granted under Article I of this Agreement will be terminated except as to Buildings 7, 8 and 13B and any other building for which Commencement of Construction has occurred after the date of this Agreement. In such event the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings but rather an agreed upon consequence of Denial of the PUD Amendment Application. Notwithstanding the foregoing, the Developer will have the right to reinstate the Vested Property Rights by: (i) giving notice to the Town within fifteen (15) days after the Denial of its intent to reinstate; (ii) Commencement of Construction of the Public Improvements as soon as practicable but no later than May 31 of the calendar year next following such Denial; and (iii) achieving Substantial Completion of the Public Improvements no later than one (1) year after Commencement of Construction of the Public Improvements. Upon Final Completion of the Roundabout and Substantial Completion of the Upper Wood Road Improvements and Snowmelt System at Garage Entry, the Vested Property Rights will be reinstated retroactively as though never terminated, and each of the applicable milestone deadlines will be extended for a period of two (2) years. Upon Commencement of Construction of the Public Improvements and for so long as the Developer diligently proceeds with the work, the Developer will have the right to submit a new or revised PUD amendment application (notwithstanding the Code provisions of 16A -5 -70(5) that restricts a new application from being submitted for one year after a Denial), and based upon the Vested Property Rights previously in effect. C. Submit and Provide Financial Guarantees for Roundabout. Upper Wood Road Improvements and Snowmelt System at Garage Entry: The Developer has delivered to the Town Engineer preliminary cost estimates for the expected costs for the Roundabout, Upper Wood Road Improvements and Snowmelt System at Garage Entry ( "Public Improvements ") for approval by the Town Engineer. Within thirty (30) days after Approval of the Minor PUD Vesting Ordinance, the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security "), based on such preliminary cost estimates. The amount of the Performance Security shall be the difference between (x) one hundred percent (100 %) of the cost of constructing the Public Improvements, and (y) any amounts to be contributed by the Town as required by the SIA. Within 30 days after the Town Engineer approves the final cost estimates for these Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the financial security will be adjusted to equal the final cost estimates. d. June 1, 2015 — Commencement of Construction of Roundabout: This date is the deadline for Commencement of Construction of the Roundabout. BUS-RE/5388243.2 09 -22 -14 TC Packet 205 e. July 1, 2015 - Commencement of Construction o Building 13B: This date is the deadline for Commencement of Construction of Building 13B. f. October 1, 2015 — Submit Construction Documents Plans for the Up ep r Wood Road Improvements: This date is the deadline for Developer to submit "Construction Documents" for the Upper Wood Road Improvements (the "Upper Wood Road CD Plan Set ") consisting of ninety (90 %) percent complete construction drawings. The Upper Wood Road CD Plan Set shall set forth in detail the requirements for construction of the Upper Wood Road Improvements and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Upper Wood Road Improvements. g. November 1, 2015— Substantial Completion of Roundabout: This date is the deadline for Substantial Completion of construction of the Roundabout. h. July 1, 2016 — Final Completion of Roundabout: This date is the deadline for Final Completion of construction of the Roundabout. i. October 1, 2016— Submit Construction Documents Plans for the Community Purpose Facility: This date is the deadline for Developer to submit "Construction Documents" for the Community Purpose Facility (the "Community Purpose Facility CD Plan Set ") consisting of ninety (90 %) percent complete construction drawings. The Community Purpose Facility CD Plan Set shall set forth in detail the requirements for construction of the Community Purpose Facility and shall include drawings and specifications that establish in detail the quality levels of materials and systems required for the Community Purpose Facility. j. December 31, 2016 - Substantial Completion o Bzilding 13B: This date is the deadline for Substantial Completion of construction of Building 13B. k. May 1, 2017 — Commencement of Construction of Upper Wood Road Improvements: This date is the deadline for Commencement of Construction of the Upper Wood Road Improvements. 1. May 1, 2017 — Commencement of Construction of Snowmelt System at Game Entry: This date is the deadline for Commencement of Construction of the Snowmelt System at Garage Entry. m. November 1. 2017 - Substantial Completion of Upper Wood Road Improvements: This date is the deadline to achieve Substantial Completion of construction of the Upper Wood Road Improvements. n. November 1, 2017 - Substantial Completion of Snowmelt System at Garage Entry: This date is the deadline to achieve Substantial Completion of construction of the Snowmelt System at Garage Entry. o. November 1. 2018 - Substantial Completion of Community Facility: This date is the deadline to achieve Substantial Completion of construction of the Community Facility. BUS-RE/5388243.2 09 -22 -14 TC Packet 206 P. November 1, 2018 - Substantial Completion o Lot 3: This date is the deadline for Substantial Completion of construction of Lot 2, and this date is also the deadline for Substantial Completion of construction of Lot 3, including Building 7 and Building 8 with the medical clinic space. q. November 1, 2019 - Substantial Completion of Lot 2: This date is the deadline for Substantial Completion of construction of Lot 2; provided that this date may be accelerated as set forth in Section 1.3.5.b(ii). 1.3.6 Liquidated Damages. "Liquidated Damages" means the amount of One Thousand Five Hundred Dollars ($1,500.00) per day, commencing on the first day following termination of the milestone deadline in Section 1.3.5.j for Substantial Completion of Building 13B if an Event of Nonperformance occurs with respect to that milestone deadline. The Liquidated Damages will continue to accrue until the actual date of Substantial Completion of Building 13B, up to an aggregate maximum of One Million Dollars ($1,000,000.00). The Developer acknowledges and recognizes that the Town will sustain damages and losses as a result of any such Developer failure, the exact amount of which will be extremely difficult to ascertain. Therefore, the Town and Developer agree that if Developer fails to achieve Substantial Completion of Building 13B within the applicable milestone deadline, the Town shall be entitled to recover the Liquidated Damages from Developer, as liquidated damages and not as a penalty. Until the Developer pays such Liquidated Damages for failure to perform the milestone deadline in Section 1.3.5.j, the Vested Property Rights granted under Article I of this Agreement shall be deemed terminated, except as to Buildings 7, 8 and 13B and any other building for which Commencement of Construction has occurred after the date of this Agreement. In such event the termination of the Vested Property Rights granted under Article I of this Agreement is not a compensable takings but rather an agreed upon consequence of failure of the Developer to pay the Liquidated Damages to the Town. Notwithstanding anything to the contrary herein, if the Developer pays the Liquidated Damages, the Vested Property Rights granted under this Agreement will be reinstated retroactively as though never terminated. In addition, and for purposes of clarification, in the event the action on the PUD Amendment Application is a Denial, or in the event of any Event of Nonperformance, the milestone deadline for Substantial Completion of Building 13B shall for all purposes be twenty -four (24) months from the date of Commencement of Construction of Building 13B. 1.3.7 Construction Interruptions. Prior to issuance of a building permit for each building, the Developer shall deliver: (i) a letter of credit; (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (the "Construction Interruption Security "), in the amount of One Hundred Thousand Dollars ($100,000.00); and (iv) a reasonable restoration and /or remediation contingency plan as required by Section 16A -5- 310(9) of the Town Municipal Code. In the event construction work on such building shall cease for ninety (90) days or longer prior to a final inspection by the Town of the work authorized by the building permit ( "work stoppage ") and if after fifteen (15) days' prior written notice by the Town the work stoppage has not been cured, and such work stoppage was not a result of any Event of Force Majeure, then the Town in its discretion may draw upon the Construction Interruption Security as needed for purposes of protecting and securing the building site and BUS-RE/5388243.2 09 -22 -14 TC Packet 207 improvements from damage by the elements and /or from trespass by unauthorized persons, and for purposes of improving the building site to a safe condition such that it does not become an attractive nuisance or otherwise pose a threat to neighbors or other persons. The Construction Interruption Security shall be released when the building reaches Substantial Completion. ARTICLE II DEFAULT 2.1 Default by Developer. If Developer shall commit a Material Default under the terms of any of the Other Agreements or fail to perform any of its obligations under the Ordinance, which Material Default or failure to perform extends beyond the expiration of any applicable grace and cure period, Developer shall not be entitled to receive additional building permits for the construction of any of the buildings described in the Ordinance until such time as the default or failure to perform is cured or the Town otherwise agrees to issue such a building permit. In addition, (a) the Town shall be entitled to all rights and remedies set forth in such Other Agreements upon such an uncured default, and (b) as noted in Section 1.2.b above, upon a Material Default, the Vested Property Rights recognized hereunder shall be terminated as provided in Section 16A- 5 -90(c) of the Town Municipal Code. 2.2 Default by the Town. If the Town is in default in the performance of its obligations under this Agreement, the Town shall have the right to cure such default within 60 days after written notice by Developer of the default to the Town. If the Town fails to cure such default within 60 days after written notice is given from Developer to the Town specifying the nature of the default, then Developer shall have all rights available to it at law or in equity, specifically including the right to specific performance, injunctive relief and /or damages. Upon a default herein by the Town, the Vested Property Rights shall be extended for a period of time equal to the duration of such default by the Town, which extension shall specifically include any applicable cure period enjoyed by the Town under this Section 2.2. 2.3 Confirmation of Performance. Upon request from the Developer, the Town will execute and deliver a letter acknowledging whether or not the Developer has performed one or more of the milestone deadlines in Section 1.3.5. ARTICLE III ASSIGNMENT 3.1 Assignment by Developer. a. Except as set forth below in Section 3.l .b below, Developer may not assign any of its rights or obligations under this Agreement without the prior written consent of the Town. b. Developer may assign its rights and obligations under this Agreement, or any portion thereof, without the Town's consent by a written recorded instrument expressly assigning such rights and powers to any of the following entities: (i) any Affiliate of Developer; (ii) Aspen Skiing Company, LLC, a Colorado limited liability company, or any of its Affiliates; or (iv) any entity which succeeds to substantially all of Developer's remaining development rights with respect to the Property as described in the Ordinance. For purposes hereof, "Affiliate" shall 10 BUS-RE/5388243.2 09 -22 -14 TC Packet 208 mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control" means (A) direct or indirect ownership or control of at least fifty (50 %) percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. C. Upon an assignment by Developer of any of its rights or obligations under this Agreement to an entity listed in Section 3.1.b(i) through (iv) above, and an assumption of those rights or obligations by such assignee, Developer shall be released of all liabilities arising under this Agreement with respect to such rights or obligations. ARTICLE IV MISCELLANEOUS 4.1 Binding Effect. ffect. This Agreement shall be binding upon the parties and shall inure to the benefit of each party's successors and assigns, as designated by a written assignment recorded in the Pitkin County Clerk and Recorder's Office. 4.2 Burden and Benefits. Each of the benefits, burdens, terms, covenants, agreements and conditions of this Agreement shall be construed as covenants running with the land benefiting and burdening the Property or any applicable portion thereof, and it is the intent of the parties that such benefits, burdens, terms, covenants, agreements and conditions touch and concern such property. 4.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 4.4 Scope of Agreement. The rights granted to Developer by this Agreement are in addition to any other right held by Developer under applicable law. 4.5 Interpretation. Unless the context of this Agreement clearly requires otherwise: (a) terms defined in the singular may be used in the plural, and terms defined in the plural may be used in the singular; (b) "including" and "such as" are not limited; (c) "or" has the inclusive meaning represented by the phrase "and /or "; (d) the words "hereof," "herein," "hereby," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) Article, Section, clause, paragraph and Exhibit references are to this Agreement unless otherwise specified; and 11 BUS-RE/5388243.2 09 -22 -14 TC Packet 209 (f) references to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof. All of the exhibits to this Agreement are hereby incorporated into this Agreement by reference. In the event of any conflict between a term, condition or provision of this Agreement and a provision of the Town's Municipal Code, the terms of this Agreement shall control. 4.6 Severability. If any provision of this Agreement shall be invalid, illegal, void or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement or any other provision hereof, and a court shall enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. If any provision of this Agreement is invalid, illegal, void or unenforceable not in its entirety but as applied to a particular act, thing or circumstance, such provision shall not affect or impair the validity, legality or enforceability of this Agreement or any provision hereof as applied to any other act, thing or circumstance, and a court shall apply such provision and enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. 4.7 Termination; Amendment; Waivers. This Agreement may not be terminated, modified or amended, nor may waivers hereunder be granted, except in writing and only with the consent and approval of Developer and the Town. 4.8 Notices. Any notice to be given to Developer or the Town under this Agreement shall be given by registered or certified mail, overnight courier, telecopy, telegram or hand delivered to the address of the party to whom notice is being given. Any notice sent by registered or certified mail will be deemed to have been received three business days following the date of mailing. Any notice sent by overnight courier will be deemed to have been received one business day following the date of delivery to the overnight courier. Either party may change its address for notice by advising the other party in writing of such change, and until the other party is so advised, it will be entitled to continue sending notices to the last address it is advised of in writing: If to the Town: Town of Snowmass Village P.O. Box 5010 130 Kearns Road Snowmass Village, Colorado 81615 Attention: Town Manager If to Developer: SNOwmASS ACQUISITION COMPANY LLC P.O. Box 6565 (LISPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 12 BUS_RE/5388243.2 09 -22 -14 TC Packet 210 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4.9 Recording. Developer and the Town each shall have the right to record this Agreement in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. 4.10 Captions and Titles. All captions and titles of headings of Articles and Sections in this Agreement are for the purpose of reference and convenience and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof. 4.11 Attorney Fees. Notwithstanding anything to the contrary contained in this Agreement, if either parry institutes legal proceedings against the other with respect to this Agreement, the non - prevailing party shall pay to the prevailing party an amount equal to all attorneys' fees and disbursements and all other costs and expenses incurred by the prevailing party in connection therewith, including, without limitation, the fees and disbursements of any attorneys, accountants, engineers, appraisers or other professionals engaged by the prevailing party, whether incurred before or at trial, on appeal, in bankruptcy or in post judgment collection. (Remainder of Page Intentionally Left Blank) 13 BUS-RE/5388243.2 09 -22 -14 TC Packet 211 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] 14 BUS-RE/5388243.2 09 -22 -14 TC Packet 212 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Base Village Development Agreement to be signed on the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company C BUS_RE/5388243.2 Name: Title: 15 09 -22 -14 TC Packet 213 ,ttar,-h rnent 2 AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT THIS AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT (the "Agreement ") dated as of , 2014, is made by and between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, LLC ( "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). This Agreement amends and restates in its entirety the Subdivision Improvements Agreement for The Base Village Planned Unit Development dated November 4, 2004 between INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY LLC, a Delaware limited liability company and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation, and the First Amendment to Subdivision Improvements Agreement for The Base Village Planned Unit Development dated December 30, 2008 between BASE VILLAGE OWNER LLC, a Delaware limited liability company and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation. RECITALS A. Developer intends to develop that real property situated in the Town of Snowmass Village, Colorado commonly known as Lots 1 -9, Base Village Planned Unit Development (the "Property "), as depicted on the Plat for Base Village P.U.D., filed February 2, 2006 in Plat Book 77 at Page 30, at Reception No. 520483 of the records of Pitkin County, Colorado (the "Base Village Project "); B. The Town and Intrawest /Brush Creek Development Company LLC, a Delaware limited liability company ( "Developer ") entered into that certain Subdivision Improvements Agreement for the Base Village Planned Unit Development dated as of November 4, 2004, recorded as Reception No. 520485 in the real property records of Pitkin County, Colorado (the "Records ") as amended by the First Amendment to Subdivision Improvements Agreement for the Base Village Planned Unit Development dated as of December 30, 2008 (collectively, the "SIA"); C. This Agreement amends, restates and supersedes in its entirety the SIA; D. The Town Council of the Town granted approval of the development of the Property proposed in the Application by enacting Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the records of Pitkin County, Colorado, as amended (the "Ordinance "); E. The Town and the Developer have entered into an Amended and Restated Base Village Development Agreement dated , 2014 (the "Development Agreement'); BUS-RE/5388245.2 09 -22 -14 TC Packet 214 F. The Town and the Developer have entered into a First Amendment to the Base Village Funding Agreement dated , 2014; G. The Developer will submit to the Town plans (collectively, the "Plans ") as and when required by the Development Agreement for the public infrastructure improvements consisting of the "Roundabout ", the "Upper Wood Road Improvements" and the "Snowmelt System at Garage Entry" as defined below (the "Public Improvements ") and the landscape improvements described in Section 4 below (the "Landscape Improvements" together with the Public Improvements sometimes referred to herein collectively as the "Improvements ")) that must be constructed in connection with the development of the Base Village Planned Unit Development approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the Records ( "Base Village "), and the Public Improvements, together with the estimated construction costs and completion schedules are all as more particularly described on Exhibit A attached hereto; H. Developer has proposed to extend the Vested Property Rights for the Property, as more particularly described in the Minor PUD Amendment application for Base Village submitted to the Town on June 30, 2014, as amended (the "Application "), and has agreed to provide or contribute to the provision of certain facilities and services within the Town of Snowmass Village for the Town's benefit as more particularly described below; and I. The Town Council of the Town granted approval of the extension of Vested Property Rights for the Property proposed in the Application by enacting Ordinance No. 3, Series of 2014 (the "Minor PUD Vesting Ordinance "), subject to certain requirements and conditions which involve the installation and construction of the Improvements. J. Pursuant to the provisions of Section 16A- 5- 360(c)(2)(e) of the Snowmass Village Municipal Code (the "Code "), Developer is obligated to construct, install and guarantee the Improvements. NOW, THEREFORE, in consideration of the premises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is acknowledged by the parties hereto, it is agreed as follows: 1. Capitalized Terms and Definitions. The following capitalized terms and phrases used herein shall have the following meanings: "Approval" means with respect to any land use or zoning action by the Town on a land use or zoning application related to the Base Village Project that the Town has granted a final approval, a administrative or court appeal, if any, has been finally decided in a final, non - appealable judgment or order, and a referendum, if any, as to the Town action has been concluded without reversal of the Town action. "Commencement of Construction" means, with respect to the construction of the Improvements, that each of the following three conditions have been performed: (i) the Town has issued a building permit for the construction (if a building permit is required) or a right -of -way permit; (ii) a binding construction contract has been executed by the 2 BUS-RE/5388245.2 09 -22 -14 TC Packet 215 contractor and the Developer (or the owner engaged in such construction), and a true and correct copy thereof has been submitted to Town (provided any confidential or proprietary information may be redacted therefrom); and (iii) the "Mobilization" of the general contractor pursuant to the construction contract as determined by the Town's Chief Building Official. "Final Completion" of a Public Improvement means: (i) the Public Improvement has achieved Substantial Completion (including landscaping); (ii) the Developer has delivered a Certification of Completion for the Public Improvement from an engineer licensed in Colorado to the Town Manager; and (iii) the Certification of Completion has been accepted by the Town Manager. "Mobilization" means transportation of the contractor's personnel, equipment, and operating supplies to the site, establishment of temporary facilities for the contractor's operations at the site, and erection of any required construction fencing for the site. "Snowmelt System at Garage Entry" means the snowmelt system at the entrance /exit to the parking garage off Wood Road. "Substantial Completion" of a Public Improvement means that the entire scope of work for that Public Improvement (other than any required landscaping) is sufficiently complete so that the public can occupy or utilize the Public Improvement for its intended use and that a Certification of Completion for the Public Improvement has been issued by an engineer licensed in Colorado. "Upper Wood Road Improvements" means the improvements and related infrastructure which includes utilities, sidewalks, grading, bus pull -out adjacent to Lot 4 of the Property for Upper Wood Road necessary for the road overlay, curb and gutter and bus shelter near the Enclave. 2. Developer's Guarantee and Warranty. Developer hereby guarantees the installation, as hereafter provided and as necessary to serve the Property, and payment therefor, of all the Improvements. Developer hereby warrants all Improvements constructed or installed by Developer that are dedicated or to be dedicated to the Town against defects in materials and workmanship for a period of two (2) years after acceptance or until July 1St of the year during which the second (2"d) winter terminates after acceptance, whichever is later, of the Improvements by the Town or the utility companies as described in Section 16A -5- 360(c)(2)(e)(4) of the Code. Developer agrees to promptly correct any deficiencies in installation in order to meet the requirements of the Plans applicable to such installation. In the event such installation has not achieved Substantial Completion by the applicable milestone deadline as required by the Development Agreement, and according to the specific Plans therefor, the Town, subject to any Developer cure rights, shall have the right to cause such work to be done as is necessary to complete the installation of such Improvements in such manner and Developer shall be liable for the cost of such work. 3. Public Improvements. Developer shall install or construct, as applicable, all Public Improvements in accordance with the Plans for the Public Improvements by the BUS-RE/5388245.2 09 -22 -14 TC Packet 216 applicable milestone deadline as required by the Development Agreement. Developer acknowledges that, as required by the Ordinance, it is required to submit additional civil drawings to the Town for the Town's review and approval and that such civil drawings will include information relating to the Public Improvements. (a) Trails. (i) Developer agrees to construct the remaining trails described on the Pedestrian Circulation and Mobility Map attached hereto as Exhibit B (the "Mobility Map "), consisting of: (A) the trail connection west of Building 1 (Treehouse) to the south of the Lichenhearth Condominiums to connect to the Benedict Trail as shown on Exhibit B subject to establishment of any trail easements to be granted by third parties for that trail connection; (B) future trail connections required by the PUD and associated with buildings /lots that have not yet been constructed. (ii) Developer agrees to grant easements for all existing and proposed trails, or portions thereof, to be constructed on the Property for those easements that do not yet exist and as shown in the Plans and /or the Mobility Map. (iii) The Town agrees to grant easements, or to cause such easements to be granted, where necessary for Developer to satisfy its obligations under this Section 3(a). (b) Bus Shelters. Developer agrees to construct the bus shelter included within the Upper Wood Road Improvements. (c) Roadways. Developer agrees to construct the following roadway improvements in accordance with the Plans and, as applicable, the standards set forth on Exhibit C attached hereto: (i) the Upper Wood Road Improvements; (ii) the Snowmelt System at Garage Entry; and (iii) the Roundabout at the intersection of Brush Creek and Wood Road. Pursuant to the Improvements Agreement (Sewer and Water Lines Upgrade) among the Town, the Developer and Snowmass Water and Sanitation District dated August 30, 2013 (the "SWSD Improvements Agreement "), the "Substandard Waterline Section" as defined in Section 4 of the SWSD Improvements Agreement will be deemed remediated by the Developer upon posting the Performance Security for the Roundabout as required by this Agreement. Upon posting such Performance Security, the "Compliance Deadline" under Section 4(b)(1) of the SWSD Improvements Agreement will be modified to be the same date as the Final Completion milestone deadline for the Roundabout in the Development Agreement.I t The SWSD will either sign the Joinder to this Agreement, or the Town, the Developer and SWSD will enter into an amendment of the SWSD Improvements Agreement, at the election of the Town and SWSD. 11 BUS-RE/5388245.2 09 -22 -14 TC Packet 217 4. Landscape Improvements. Developer shall install all Landscape Improvements in accordance with the final landscape plans and specifications approved in connection with the final PUD and pursuant to the phased schedule set forth on Exhibit A attached hereto. Developer acknowledges that, as required by the Ordinance, it is required to submit additional landscaping drawings to the Town for the Town's review and approval and that such landscaping drawings will include information relating to the Landscape Improvements. The Landscape Improvements (including future trail connections required by the PUD that have not yet been constructed and which will be will be constructed as a condition to issuance of final certificates of occupancy for the building to which the trail connections relate). 5. Traffic Control. During the construction of any Improvements described in this Agreement, Developer shall be responsible for controlling and expediting the movement of vehicle and pedestrian traffic through and around all construction sites and activity. 6. Maintenance and Repair. The Town acknowledges that Developer's construction traffic will accelerate the normal wear and tear of the Town's roadways. The Town acknowledges that any such accelerated wear and tear to the Town's roadways caused by normal construction traffic will be repaired using Town funds, including funds generated by the Occupancy Assessment imposed by the Town under Section 18 -42 of the Code in connection with the development of the Base Village Project. The Town hereby releases Developer from any other responsibility for such accelerated wear and tear, but not extraordinary damages from construction activities. 7. Security for Improvements; Release of Security. (a) As a condition of the Approval of the Minor PUD Vesting Ordinance, and within thirty (30) days after such Approval, the Developer shall deliver (i) a letter of credit (ii) a payment and performance bond or (iii) other security which is reasonably acceptable to the Town (hereinafter, the "Performance Security ") for the Roundabout, the Upper Wood Road Improvements and the Snowmelt System at Garage Entry for purposes of assuring the construction of those Public Improvements, based on the preliminary cost estimates set forth in Exhibit A. The amount of the Performance Security shall be the difference between (x) one hundred percent (100°/x) of the cost of constructing such Public Improvements (which estimated Public Improvements costs are set forth on Exhibit A attached hereto), and (y) any amounts to be contributed by the Town as required by Section 8 below. Within 30 days after the Town Engineer approves the final cost estimates for the Public Improvements, and to the extent that the final cost estimates differ from the preliminary cost estimates, the Performance Security will be adjusted to equal the final cost estimates. Upon acceptance by the Town Manager of the Town (the "Town Manager "), or his designee, of a Certification of Completion for such Public Improvements from an engineer licensed in Colorado (hereinafter the "Acceptance "), the Performance Security shall be released and the Town will execute any such documents as are reasonably necessary to accomplish the release of the Performance Security. (b) The Performance Security: (i) if in the form of a letter of credit, shall be issued by a state or national banking institution, with offices located within the state of Colorado, in a form reasonably acceptable to the Town; or (ii) if in the form of a payment and performance bond, shall be issued by a national surety company, qualified to do business in the state of Colorado BUS-RE/5388245.2 09 -22 -14 TC Packet 218 and which carries at least an "A -" rating by AM Best, in a form reasonably acceptable to the Town. (c) The Performance Security must be valid for the time period anticipated for Substantial Completion or Final Completion of such Public Improvements in the Development Agreement. Any extension of the time period for construction and installation of such Public Improvements shall cause the Performance Security to be extended for an equal amount of time. Any such extension shall be in writing. (d) No more frequently than once every month, the Developer shall be entitled to partial releases of the Performance Security with respect to the Public Improvements as portions of the Public Improvements are constructed. In order to obtain a partial release or reduction of the Performance Security, the Developer shall submit a Certificate of Partial Completion ( "Certificate ") signed by an engineer licensed in the State of Colorado describing the portion of the Public Improvements constructed and the cost allocation associated with such Public Improvements. Such Certificate shall include a summary of the actual costs for the Public Improvements incurred to the date of the Certificate. After delivery of a Certificate, the Town Manager, or his designee, shall have a period of fifteen (15) days within which to accept the Certificate, as evidenced by a written notice to the Developer, or provide written notice to the Developer of any deficiencies in the Public Improvements. Any such notice of deficiencies shall describe the deficiency between the Public Improvements as constructed and the approved Plans. If the Town Manager, or his designee, provides the Developer written notice of acceptance of the Certificate, then the Town shall release the appropriate amount of the Performance Security as relates to such Public Improvements. If the Town Manager, or his designee, provides the Developer a letter of deficiency with respect to any portion of such Public Improvements for which the Developer has filed a Certificate, then the Town's engineer shall meet with the Developer's engineer to discuss and agree on any requirements necessary to bring such Public Improvements into conformity with the Plans. Upon compliance with any requirements delineated by the Town's engineer for compliance with the Plans, the Town shall release that portion of the Performance Security allocated for the cost of such portion of the Public Improvements. Upon the Town's initial acceptance of one or more of the Public Improvements identified in Section 3(c)(i) or Section 3(c)(ii) above that are to be dedicated to the Town, and the commencement of the two -year warranty described in Section 2 above, (i) the Town shall release that portion of the Performance Security attributable to those Public Improvements as provided above, and (ii) subject to the requirements of Section 7(b) above, the Developer shall deliver a letter of credit or payment and performance bond to the Town in an amount equal to five (5 %) percent of the cost of that Public Improvement for the purpose of securing the warranty for that Public Improvement. Such letter of credit or payment and performance bond shall be maintained by the Developer for the warranty period described in Section 2 above for that Improvement and, upon the expiration of such warranty period, the Town shall release the unexpended portion of such letter of credit or payment and performance bond. The Developer shall reimburse the Town all fees for Town's engineer to inspect such Public Improvements and approve or provide a notice of deficiency with respect to any Certificate. Subject to the amendment procedures set forth in Section 16, nothing herein shall preclude the parties from mutually establishing a different procedure for obtaining partial releases from the Performance Security. D BUS-RE/5388245.2 09 -22 -14 TC Packet 219 (e) The Town may, at its sole option, permit the Developer to substitute other collateral acceptable to the Town for the collateral originally given by the Developer to secure the completion of the Public Improvements. (f) In the event all the Public Improvements secured by the applicable Performance Security will not be constructed and installed prior to the expiration of such Performance Security, the Developer shall replace or secure an extension of such Performance Security on terms acceptable to the Town, at least thirty (30) days prior to expiration of such Performance Security. Except as otherwise provided in the Development Agreement, should the Developer fail to do so, the Town may draw on such Performance Security funds necessary to complete the installation of the Public Improvements and place the funds directly into an escrow account under the control of the Town, and such funds shall be used to complete the installation of the Public Improvements required hereunder. (g) The estimated costs of the Public Improvements are an estimated amount mutually agreed at this time by the Developer and the Town as set forth on Exhibit A attached hereto. In the event the cost of the Public Improvements exceeds the estimated cost, the Developer shall be solely responsible for the actual cost. The purpose of the cost estimate is solely to determine the amount of security and shall be revised every twelve (12) months to reflect the actual costs, and the applicable Performance Security required by this Agreement shall be adjusted accordingly. No representations are made as to the accuracy of these estimates, and the the Developer agrees to pay the actual costs of all such Public Improvements. 8. Construction of Roundabout. (a) The development of the Base Village Project requires that a traffic roundabout and bridge be constructed at the intersection of Wood Road and Brush Creek Road. As of the date hereof, the Developer has completed construction of the Wood Road bridge portion of the Brush Creek/Wood Road Roundabout and Bridge (the "Bridge ") and the Town has accepted the Bridge, but the Developer has not yet commenced construction of the roundabout portion thereof (the "Roundabout "). The design and construction costs of the Roundabout have been estimated to be Three Million Five Hundred Thousand Dollars ($3,500,000.00). (b) In accordance with the Ordinance, the Town's contribution to the design and construction of the Roundabout and Bridge was fixed at Two Million Dollars ($2,000,000.00). The Town has previously paid or credited the Developer an amount equal to One Million Two Hundred Thousand Dollars ($1,200,000.00) for the costs incurred by the Developer's predecessor in interest to design and construct the Bridge. (c) Developer will submit the plans and specifications consisting of ninety (90 %) percent complete construction drawings to the Town by the applicable milestone deadline set forth in the Development Agreement for construction of the Roundabout (the "Roundabout Work "). Developer will enter into a construction contract with a contractor for construction of the Roundabout Work, with a stipulated sum or guaranteed maximum price for all of the Roundabout Work (the "Construction Contract "). Developer will commence the Roundabout Work shown by the final Plans and specifications, as approved by the Town Engineer, as provided in the Development Agreement. 7 BUS_RE/5388245.2 09 -22 -14 TC Packet 220 (d) In addition to such other terms and conditions agreed by the Developer and the Town, each acting reasonably, agree to the following provisions: (i) The Developer shall provide to the Town a copy of the agreements between (A) the Developer and its engineers for the design of the Roundabout (the "Design Contract "), and (B) the Developer and the contractor under the Construction Contract (the "Construction Contract "); (ii) After the Developer provides the Town a copy of each of the Design Contract and the Construction Contract, the Town shall pay all costs incurred for the design and construction of the Roundabout, up to a maximum amount of Eight Hundred Thousand Dollars ($800,000.00), as and when such costs are incurred by the Developer and shall pay to the Developer such sums within thirty (30) days after receiving written request therefor from the Developer, which written request shall include copies of all applicable bills, invoices and conditional lien waivers relating to such costs, subject to the review and reasonable approval of the Town engineer; and (iii) The Roundabout shall be constructed in accordance with the standards attached as Exhibit C. (e) Prior to the date that the Developer commences any construction work on Carriage Way or Wood Road (excluding the installation of utility infrastructure in connection with the Base Village Project), the Developer shall have posted the Performance Security with the Town as required by Section 7. 9. Default. Subject to the provisions of Section 16A- 5- 360(c)(2)(e)(5) of the Code, if Developer fails to observe or perform any of its obligations set forth above in any material respect, Developer shall have the right to cure said default after written notice by the Town of the default to Developer. If Developer fails to cure such default within sixty (60) days after written notice is given from the Town to Developer (or if such default cannot be cured within the sixty (60) day period of time, if Developer shall fail to promptly commence to cure the same and thereafter diligently proceed with such cure), then the Town shall be entitled to undertake such work as may be necessary and appropriate to cure such default. The Town shall be entitled to full reimbursement for the reasonable costs of all such work. Notwithstanding the foregoing, upon an event of default by Developer as described above that remains uncured beyond the cure period described above, Developer shall not be entitled to receive a building permit for the construction of any of the buildings described in the Ordinance remaining to be constructed until such default has been cured. Any written notice required to be given to Developer shall be given by first class mail, postage prepaid, and by certified mail, return receipt requested, to the following addresses: If to the Town: Town of Snowmass Village P.O. Box 5010 130 Kearns Road Snowmass Village, Colorado 81615 Attention: Town Manager BUS-RE/5388245.2 09 -22 -14 TC Packet 221 Telephone: (970) 923 -3777 Facsimile: (970) 923 -6083 If to Developer: SNOwmASs ACQUISITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERMAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher Developer may notify the Town in writing of any change in address to which this notice shall be given. 10. Assignment. Developer may assign its rights and obligations under this Agreement, or any portion thereof, without the Town's consent by a written recorded instrument expressly assigning such rights and powers to any of the following entities: (i) any Affiliate of Developer; (ii) Aspen Skiing Company, LLC, or any of its Affiliates; or (iii) any entity which succeeds to substantially all of Developer's remaining development rights with respect to the Property as described in the Ordinance. Upon an assignment by Developer of any of its rights or obligations under this Agreement to an entity listed above, an assumption of those rights or obligations (including substitution of financial assurances) by such assignee, and, if the assignment is to an entity listed in (i) through (iii) above, evidence from a reputable banking institution or surety company that the Affiliate is bondable (subject to any guaranties from Developer or another third party required to be posted by such banking institution or surety company), Developer shall be released of all liabilities arising under this Agreement with respect to such rights or obligations. Notwithstanding the foregoing, if Developer assigns any of its rights or obligations under this Agreement to any entity described above which is not an Affiliate of Developer or Aspen Skiing Company, LLC, and at the time of such assignment security for the obligations so- assigned has not yet been posted with the Town, then Developer shall not be released of its liabilities arising under this Agreement with respect to such rights or obligations until the applicable security described in Section 7 above has been posted. For purposes hereof, "Affiliate" shall mean any natural person or entity that owns or controls, is owned or controlled by, or is under common ownership with an entity. "Ownership" or "control" means (A) direct or indirect ownership or control of at least Fifty (50 %) percent of all outstanding equity interests in an entity, or (B) the ability to direct or cause the direction of the management of an entity by ownership of equity interests, agreement or otherwise. 11. Bindin, Effect. This Agreement shall be binding upon and inure to the benefit of Developer and its respective successors and assigns. 12. Burden and Benefits. Each of the benefits, burdens, terms, covenants, agreements and conditions of this Agreement shall be construed as covenants running with the land benefiting and burdening the Property or any applicable portion thereof, and it is the intent of the E BUS-RE/5388245.2 09 -22 -14 TC Packet 222 parties that such benefits, burdens, terms, covenants, agreements and conditions touch and concern such property. 13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 14. Interpretation. Unless the context of this Agreement clearly requires otherwise: (a) terms defined in the singular may be used in the plural, and terms defined in the plural may be used in the singular; (b) "including" and "such as" are not limited; (c) "or" has the inclusive meaning represented by the phrase "and /or "; (d) the words "hereof," "herein," "hereby," "hereunder" and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) Article, Section, clause, paragraph and Exhibit references are to this Agreement unless otherwise specified; (f) references to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof; and (g) all of the exhibits to this Agreement are hereby incorporated into this Agreement by reference. In the event of any conflict between a term, condition or provision of this Agreement and a provision of the Code, the terms of this Agreement shall control. 15. Severability. If any provision of this Agreement shall be invalid, illegal, void or unenforceable, it shall not affect or impair the validity, legality or enforceability of this Agreement or any other provision hereof, and a court shall enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. If any provision of this Agreement is invalid, illegal, void or unenforceable not in its entirety but as applied to a particular act, thing or circumstance, such provision shall not affect or impair the validity, legality or enforceability of this Agreement or any provision hereof as applied to any other act, thing or circumstance, and a court shall apply such provision and enforce this Agreement to the maximum extent legally possible to give effect as nearly as possible to the original intent of the Town and Developer as expressed in this Agreement. 16. Amendment; Waivers; Termination. This Agreement may be modified or amended, and waivers hereunder granted, only in writing and only with the consent and approval of Developer and the Town. Notwithstanding the foregoing, if Developer loses its right to develop the Base Village Project for any reason other than a failure of Developer to meet its obligations under the Ordinance or any of the Other Agreements, including this Agreement, entered into in connection therewith, then: (a) Developer shall immediately be relieved of all 10 BUS-RE/5388245.2 09 -22 -14 TC Packet 223 obligations hereunder: (b) within thirty (30) days after such action the Town shall release or return, as applicable, any Performance Security or sums paid or posted by Developer pursuant to this Agreement; and (c) the parties shall execute a written termination of this Agreement. 17. Recording. Developer and the Town each shall have the right to record this Agreement in the records of the office of the Clerk and Recorder of Pitkin County, Colorado. 18. motions and Titles. All captions and titles of headings of Articles and Sections in this Agreement are for the purpose of reference and convenience and are not to be deemed to limit, modify or otherwise affect any of the provisions hereof or to be used in determining the intent or context thereof. (Remainder of Page Intentionally Left Blank) 11 BUS_RE/5388245.2 09 -22 -14 TC Packet 224 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: _ Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of 2014, by as Town Manager of the Town of Snowmass Village, Colorado. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public [SIGNATURES CONTINUE ON FOLLOWING PAGE] 12 BUS-RE/5388245.2 09 -22 -14 TC Packet 225 IN WITNESS WHEREOF, the parties have caused this Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development to be signed on the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company IC Name: Title: STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of 2014, by Dwayne Romero as of Snowmass Acquisition Company LLC, a Delaware limited liability company. WITNESS MY HAND AND OFFICIAL SEAL. My commission expires: Notary Public 13 BUS-RE/5388245.2 09 -22 -14 TC Packet 226 EXHIBIT A (Public Improvements)2 Type Plans/Description Estimated Cost Completion Schedule Roundabout To be submitted by $3,500,000 June 1, 2015 October 1, 2014 Commencement of Construction November 1, 2015 Substantial Completion July 1, 2016 Final Completion Upper Wood Road Improvements To be submitted by $1,400,000 May 1, 2017 October 1, 2015 Commencement of Construction November 1, 2017 Substantial Completion Snowmelt Improvements To be submitted $350,000 May 1, 2017 in conjunction with Commencement of Building 8 Permit Set Construction November 1, 2017 Substantial Completion ` The dates on this Exhibit A are subject to adjustment as provided in the Development Agreement/ 14 BUS_RE /5388245.2 09 -22 -14 TC Packet 227 EXHIBIT B (2004 Pedestrian Circulation and Mobility Map) 15 BUS-RE/5388245.2 09 -22 -14 TC Packet 228 ! ` _ 9 m EXHIBIT C (Roundabout Standards) A. Design shall be in accordance with National Cooperative Highway Research Program Report 672 of the U.S. Department of Transportation Federal Highway Administration "Roundabouts: An Informational Guide ", Second Edition, 2010. B. Brush Creek Road is classified as an arterial and should be designed for a 25 mph design speed. C. Variances may be allowed for grades up to ten percent (10 %) on the Brush Creek Road approaches and up to four percent (4 %) across the Roundabout subject to the approval of the Town Engineer. The Design shall be generally consistent with the preliminary plan prepared by SGM. D. Roundabout shall be designed to operate at a level of service C or better during peak traffic conditions as determined using either ARCADY or SIDRA roundabout design software and peak traffic conditions as presented in "Snowmass Base Village and Outlying Parcels, Transportation Analysis and Parking Management Strategy ", by Felsburg, Holt and Ullevig, March 2004, as amended. E. Signage shall be approved by the Town Engineer. F. Enhancements for the Roundabout shall include, but not be limited to, lighting, irrigated landscape improvements, both in the center of the Roundabout and on roadway approaches, pedestrian movement facilities and decorative concrete and /or pavers as shown or specified in the Roundabout CD Plan Set consisting of ninety (90 %) percent complete construction drawings. The Town reserves the right to make final determination of required enhancements. G. Reconnection to Upper Kearns road shall be included in the project. The design shall be for a local road classification and a 25 mph design speed. 16 BUS_RE/5388245.2 09 -22 -14 TC Packet 230 ►.tta c: h m e nt 3 FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT THIS FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT (the "First Amendment ") is entered into to be effective as of , 2014, between SNOWMASS ACQUISITION COMPANY LLC, a Delaware limited liability company, as successor -in- interest to INTRAWEST /BRUSH CREEK DEVELOPMENT COMPANY, .LLC (the "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). RECITALS WHEREAS the Town and Intrawest /Brush Creek Development Company LLC, a Delaware limited liability company ( "IBC ") entered into that certain Base Village Funding Agreement dated as of November 4, 2004, recorded as Reception No. 520496 in the real property records of Pitkin County, Colorado (the "Funding Agreement "); WHEREAS the Funding Agreement sets forth certain public improvements and contributions that must be completed in connection with the development of the Base Village Planned Unit Development (the "Base Village Project ") approved pursuant to Town Ordinance No. 21, Series of 2004 recorded as Reception No. 520481 in the of Pitkin County, Colorado, as amended (the "Ordinance "); WHEREAS Developer has proposed to extend the Vested Property Rights for the Property, as more particularly described in the Minor PUD Amendment application for Base Village submitted to the Town on June 30, 2014, as amended (the "Application "), and has agreed to provide or contribute to the provision of certain facilities and services within the Town of Snowmass Village for the Town's benefit as more particularly described below; WHEREAS the Town Council of the Town granted approval of the extension of Vested Property Rights for the Property proposed in the Application by enacting Ordinance No. 3, Series of 2014 (the "Minor PUD Vesting Ordinance "); WHEREAS the Town and the Developer have entered into an Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development dated , 2014 (the "SIA "); WHEREAS the Town and the Developer have entered into an Amended and Restated Base Village Development Agreement dated , 2014 (the "Development Agreement "); and WHEREAS the Town and the Developer now desire to amend the Funding Agreement as more particularly set forth herein. BUS-RE/5373658.2 09 -22 -14 TC Packet 231 AMENDMENT NOW, THEREFORE, in consideration of the promises and the terms and conditions herein stated and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by the parties hereto, it is agreed as follows: 1. Capitalized Terms. All capitalized terms and phrases used herein but not otherwise defined shall have the same meanings given to them in the Funding Agreement. 2. Developer Contributions Completed. Subject to the obligations of the Developer in the SIA and the Development Agreement, the obligations of the Developer under the Funding Agreement have been satisfied. 3. Notices. Section 5.6 of the Funding Agreement is hereby amended to change the addresses for notices to the the Developer as follows: If to the Developer: SNOWMASs AcQUisITION COMPANY LLC P.O. Box 6565 (USPS Only) 16 Kearns Road, 3rd Floor (Fed Ex and UPS) Snowmass Village, CO 81615 Attn: Dwayne Romero With a copy to: SHERmAN & HOWARD LLC 320 W. Main Street Aspen CO 81611 Attn: B. Joseph Krabacher 4. Counterparts. This First Amendment may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one and the same First Amendment. It shall not be necessary that each party execute each counterpart, or that any one counterpart be executed by more than one party, so long as each party executes at least one counterpart. 5. Governing Law. This First Amendment shall be governed by and construed in accordance with the laws of the State of Colorado. [Remainder of Page Intentionally Left Blank] 2 BUS-RE/5373658.2 09 -22 -14 TC Packet 232 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Funding Agreement to be signed on the date set forth below to be effective as of the date written above. TOWN COUNCIL OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation By: Name: Title: Date: APPROVED AS TO FORM: John C. Dresser, Jr., Town Attorney [SIGNATURES CONTINUE ON FOLLOWING PAGE] BUS-RE/5373658.2 09 -22 -14 TC Packet 233 IN WITNESS WHEREOF, the parties have caused this First Amendment to Base Village Funding Agreement to be signed as of the date set forth below to be effective as of the date written above. DEVELOPER: SNOWMASS ACQUISITION COMPANY LLC, A Delaware limited liability company MOR BUS-RE/5373658.2 Name: Title: 0 09 -22 -14 TC Packet 234 3rd Draft SNOWMASS VILLAGE TOWN COUNCIL REGULAR MEETING AGENDA OCTOBER 06, 2014 PLEASE NOTE THAT ALL TIMES ARE APPROXIMATE — ITEMS COULD START EARLIER OR LATER THAN THE STATED TIME CALL TO ORDER AT 4:00 P.M. Item No. 1: ROLL CALL Item No. 2: PUBLIC NON- AGENDA ITEMS (5- minute time limit) Item No. 3: COUNCIL UPDATES Item No. 4: ASPEN SKI COMPANY SEASONAL UPDATE (Time: 40 Minutes) ACTION REQUESTED OF COUNCIL: Listen to presentation by Ski Company and provide questions or comments. • Mike Kaplan, President/CEO — Introductory Remarks • David Perry, Senior VP, Mt. Division — Business Overview • Steve Sewell, GM Snowmass Mountain — Snowmass Ops /Summer - -Mike Kaplan ................No Packet Information Item No. 5 PUBLIC HEARING AND RESOLUTION NO. 30, SERIES OF 2014 — APPROVING THE 2015 BUDGET (Time: 10 Minutes) A RESOLUTION SUMMARIZING EXPENDITURES AND REVENUES FOR THE TOWN OF SNOWMASS VILLAGE AND ADOPTING FOR THE CALENDAR YEAR BEGINNING ON THE FIRST DAY OF JANUARY, 2014 AND ENDING ON THE LAST DAY OF DECEMBER, 2014 AND APPROPRIATING SUMS OF MONEY TO THE VARIOUS FUND FOR THE 2015 BUDGET YEAR. ACTION REQUESTED OF COUNCIL: Approve, Modify or Deny Resolution No. 30, Series of 2014 -- Marianne Rakowski ............. ...........................Page Item No. 6: FIRST READING — ORDINANCE NO. 02 SERIES OF 2014 — AMENDING THE 2014 BUDGET AN ORDINANCE AMENDING THE 2014 BUDGET FOR ALL FUNDS FOR THE TOWN OF SNOWMASS VILLAGE (Time: 10 minutes) ACTION REQUESTED OF COUNCIL: Approve, modify or deny Second Reading of Ordinance No. 02, Series of 2014. -- Marianne Rakowski ............. ...........................Page 09 -22 -14 TC Packet 235 10- 06 -14tc Agenda Page 2 of 2 Item No. 7: PUBLIC HEARING — SECOND READING OF ORDINANCE NO. 3 SERIES OF 2014 — AN ORDINANCE REGARDING A MINOR PUD AMENDMENT TO BASE VILLAGE INVOLVING REQUESTED VESTED RIGHTS EXTENSION, AND COMPLETION OF CERTAIN PUBLIC IMPROVEMENTS, AND TIMEFRAME FOR COMPLETION OF CERTAIN PRIVATE IMPROVEMENTS (Time: 120 Minutes) ACTION REQUESTED OF COUNCIL: Approve, modify or deny second reading of Ordinance No. 3, Series of 2014 - -Julie Ann Woods, Community Development Director Item No. 8: RESOLUTION NO. 30, SERIES OF 2014 - A RESOLUTION APPROVING A RECYCLE AGREEMENT WITH PITKIN COUNTY (Time: 15 Minutes) ACTION REQUESTED OF COUNCIL: Approve, modify or deny Resolution No. 30, Series of 2014. - -Anne Martens, Public Works Director Item No. 9: MANAGER'S REPORT (Time: 10 minutes) - -Clint Kinney ... ............................... .............P g Item No. 10: AGENDA FOR NEXT TOWN COUNCIL MEETING: ........ ............................... ...........................Page Item No. 11: APPROVAL OF MEETING MINUTES FOR: ......... ............................... ...........................Page Item No. 12: COUNCIL COMMENTS /COMMITTEE REPORTS /CALENDARS: ......... ............................... ...........................Page Item No. 13: ADJOURNMENT NOTE: Total time estimated for meeting: Approx hours (excludinq items 1- 3 and 10 —13) 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. 09 -22 -14 TC Packet 236 1 st Draft SNOWMASS VILLAGE TOWN COUNCIL REGULAR MEETING AGENDA OCTOBER 20, 2014 PLEASE NOTE THAT ALL TIMES ARE APPROXIMATE — ITEMS COULD START EARLIER OR LATER THAN THE STATED TIME CALL TO ORDER AT 4:00 P.M. Item No. 1: ROLL CALL Item No. 2: PUBLIC NON - AGENDA ITEMS (5- minute time limit) Item No. 3: COUNCIL UPDATES Item No. 4: AIRPORT AIR SERVICES PLANNING STUDY (Time: 45 Minutes) ACTION REQUESTED OF COUNCIL: Listen to presentation and provide feedback to Pitkin County. - -Jon Peacock, Pitkin County Manager Item No. 5: RECYCLING /GREEN EVENTS UPDATE (Time: 30 Minutes) ACTION REQUESTED OF COUNCIL: Listen to presentation and provide feedback to staff. - -Kelly Vaughn /Anne Martens /Dave Ogren Item No. 6: SECOND READING — ORDINANCE NO. 02, SERIES OF 2014 — AMENDING THE 2014 BUDGET AN ORDINANCE AMENDING THE 2014 BUDGET FOR ALL FUNDS FOR THE TOWN OF SNOWMASS VILLAGE (Time: 15 minutes) ACTION REQUESTED OF COUNCIL: Approve, modify or deny Second Reading of Ordinance No. 02, Series of 2014 -- Marianne Rakowski ........... ...........................Page Item No. 7: MANAGER'S REPORT (Time: 10 minutes) • Ice Rink Options - -Clint Kinney .......................... ...........................Page Item No. 8: AGENDA FOR NEXT TOWN COUNCIL MEETING: ......... ............................... ...........................Page 09 -22 -14 TC Packet 237 10- 20- 14 -14tc Agenda Page 2 of 2 Item No. 9: APPROVAL OF MEETING MINUTES FOR: ......... ............................... ...........................Page Item No. 10: COUNCIL COMMENTS /COMMITTEE REPORTS /CALENDARS: ......... ............................... ...........................Page Item No. 11: ADJOURNMENT (VOTE: Total time estimated for meeting: Approx hours (excluding items 1- 3 and 9 —12) 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. 09 -22 -14 TC Packet 238 1 st Draft SNOWMASS VILLAGE TOWN COUNCIL REGULAR MEETING AGENDA NOVEMBER 17, 2014 PLEASE NOTE THAT ALL TIMES ARE APPROXIMATE — ITEMS COULD START EARLIER OR LATER THAN THE STATED TIME CALL TO ORDER AT 4:00 P.M. Item No. 1: ROLL CALL Item No. 2: PUBLIC NON - AGENDA ITEMS (5- minute time limit) Item No. 3: COUNCIL UPDATES Item No. 4: JOINT MEETING WITH PITKIN COUNTY COMMISSIONERS (Time: 60 Minutes) ACTION REQUESTED OF COUNCIL: Item No. 8: MANAGER'S REPORT (Time: 10 minutes) - -Clint Kinney ..................................................... Page Item No. 9 AGENDA FOR NEXT TOWN COUNCIL MEETING: O ......... ............................... ...........................Page Item No. 10: APPROVAL OF MEETING MINUTES FOR: ......... ............................... ...........................Page Item No. 11: COUNCIL COMMENTS /COMMITTEE REPORTS /CALENDARS: ......... ............................... ...........................Page Item No. 12: ADJOURNMENT NOTE: Total time estimated for meeting: Approx hours (excluding items 1- 3 and 9 —12) ALL ITEMS AND TIMES ARE TENTATIVE AND SUBJECT TO CHANGE WITHOUT FURTHER NOTICE. PLEASE CALL THE OFFICE OF THE 09 -22 -14 TC Packet 239 04- 07 -14tc Agenda Page 2 of 2 TOWN CLERK AT 923 -3777 ON THE DAY OF THE MEETING FOR ANY AGENDA CHANGES. 09 -22 -14 TC Packet 240 AGENDA ITEM SUMMARY TOWN OF SNOWMASS VILLAGE Meeting Date: September 22, 2014 Agenda Item: MANAGER'S REPORT Presented By: CLINT KINNEY, TOWN MANAGER Core Issues: On Friday the Town Council received (what will be) a weekly update from the Town Manager updating the Council on various issues. For this first manager's report, I plan to keep the discussion specifically to the Town Council agenda format. Staff is recommending that we explore and eventually update the current process and agenda format to enhance the efficiency and effectiveness of regular Town Council meetings. A number of approaches will be investigated including the addition of a consent agenda along with other methods to improve reports and information to the Town Council. Description: Financial Impact: Minimal if any Council Options: No action required Staff No action required Recommendation: 09 -22 -14 TC Packet 241 Wed 3 10 17 Thu 4 2014 Fri 5 Sat 6 11 12 13 Rotary Wine Festival Balloons LE 19 20 09 -22 -14 TC Packet 242 Wed Thu Fri Sat 1 2 3 4 Yom Kippur 09 -22 -14 TC Packet 243 2014 Wed Thu Fri Sat 1 30 09 -22 -14 TC Packet 244