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Town Council Ordinance No 03 2014TOWN OF SNOWMASS VILLAGE TOWN COUNCIL ORDINANCE NO. 3 SERIES OF 2014 AN ORDINANCE AMENDING THE BASE VILLAGE PLANNED UNIT DEVELOPMENT BY AMENDING THE BASE VILLAGE DEVELOPMENT AGREEMENT, THE BASE VILLAGE SUBDIVISION IMPROVEMENTS AGREEMENT AND THE BASE VILLAGE FUNDING AGREEMENT TO GRANT EXTENSION OF VESTED PROPERTY RIGHTS BASED ON MILESTONES AND TIMEFRAMES FOR THE COMPLETION OF CERTAIN PUBLIC AND PRIVATE IMPROVEMENTS. WHEREAS, the Base Village Planned Unit Development ( "BV PUD ") was approved by Town Council Ordinance No. 21, Series of 2004 ( "Ordinance 21"), which has been amended and modified by Ordinance No. 03, Series of 2007 and numerous Administrative Modifications; and WHEREAS, Snowmass Acquisition Company ( "Applicant" and "Owner"), a Delaware limited liability company, submitted a Minor PUD Amendment application (the "Application ") on June 30, 2014, proposing amendments to the BV PUD Development Agreement, Funding Agreement and Subdivision Improvements Agreement which request a five —year extension to November 3, 2019 of the initial vested property rights for the BV PUD granted by the Development Agreement while maintaining the final vesting expiration date of November 3, 2024 subject to certain revisions in the Agreements for the completion of the roundabout and other public improvements pursuant to a schedule of milestones to be met in order to continue the extension of vested property rights; and WHEREAS, at meetings on July 23, 2014 and August 6, 2014, the Planning Commission reviewed the Application and adopted Planning Commission Resolution No. 7, Series of 2014, providing recommendations on the application to the Town Council; and WHEREAS, a public notice was published in. the Snowmass Sun on July 30, 2014 noticing a public hearing on the application commencing at the Town Council meeting on August 18, 2014. The Applicant submitted executed affidavits evidencing compliance with Municipal Code Section 16A- 5 -60(b) for the mailing and posting of the public hearing notice; and WHEREAS, pursuant to the procedures outlined in Section 16A -5 -390 of the Land Use and Development Code ( "Municipal Code "), the Town Council considered the Application at the Public Hearing that was opened at the Town Council meeting on August 18, 2014, which Public Hearing was continued to the September 8, 2014 Town Council meeting where first reading of an Ordinance approving the application was adopted and the Public Hearing was continued to the September 22, 2014 Town Council meeting, whereupon the Public Hearing was further continued to the October 6, 2014 Town Council meeting where second reading was taken. NOW, THEREFORE, BE IT ORDAINED, by the Town Council of the Town of Snowmass Village, Colorado: Section One: General Findings. The Town Council finds that: 1. The Applicant has submitted sufficient information pursuant to Section 16A -5- 390 of the Municipal Code to permit the Town Staff., Planning Commission and Town Council an adequate review of the proposed Minor PUD Amendment. 2. The Applicant sufficiently met the public hearing notice requirements pursuant to Section 16A -5 -60, `Notice of public hearings.' 3. The application is consistent with the applicable review standards specified within Section 16A -5- 390(3) of the Municipal Code. Pursuant to Municipal Code Section 16A- 5- 90(d), Term of Vested Right, Town Council has complete discretion on the vested rights matter or extension thereof. 4. The Planning Director determined that the Base Village PUD should be treated as a Minor PUD Amendment in accordance with Municipal Code Section 16A- 5- 390(1). 5. On August 29, 2014, September 4, 2014, and on September 16, 2014, and September 22, 2014 the Applicant submitted amendments to the Application which were accepted for further Town Council review without remand to the Planning Commission pursuant to Municipal Code Section 16A- 5- 70(3)(c). Section Two: Specific Findings. The Town Council specifically finds that: 1. Pursuant to Section 16A- 5- 390(3)a of the Municipal Code, the proposed application is consistent with, or an enhancement of, the original PUD approval as shown on Attachment "1" the Amended and Restated Base Village Development Agreement because the Agreement provides a mechanism to 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 Amended and Restated Subdivision Improvement Agreement that have yet to be completed, the inclusion of milestones in the Amended and Restated 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 should bring to an end the negative impact on the neighborhood surrounding the Base Village PUD from the delay in completing these public and private 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. It should be noted that this proposed Minor PUD Amendment does require submission of a subsequent PUD amendment by October 15, 2014 which may propose changes to the basic character of the original PUD and such submission will be reviewed by Town Council pursuant to these same review standards. 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 text 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 and such submission will be reviewed by Town Council pursuant to these same review standards. 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 "1" Amended and Restated 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. 13. Pursuant to Section 16A -5- 310(9), the Town Council finds that this Section on construction interruptions has been adequately addressed in Attachment 461" Amended and Restated Base Village Development Agreement as the Applicant agrees to provide surety consistent with the restoration and /or remediation contingency plan to mitigate impacts resulting from any potential interruption of construction affecting the community as a whole. 14. Pursuant to Section 16A -5 -90, to grant the applicant the desired vesting extension, Town Council finds that it has adequately weighed the interest of the Town along with the interests of the property owner. Section Three: Action. The Town Council hereby approves the following proposal subject to the conditions in Section Four below: 1. The Applicant's vested rights for the Base Village PUD is hereby extended for four years to November 3, 2018. 2. The Minor PUD Amendment for the vested rights extension to Base Village and the completion of public improvements and other private improvements shall be in compliance with Attachment "1" Amended and Restated Base Village Development Agreement; Attachment "2" Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development; and Attachment "3" First Amendment to Base Village Funding Agreement incorporated herein. Section Four: Conditions. The applicant shall comply with the following conditions: 1. Provided the milestones as set forth in Attachment "1" Amended and Restated Base Village Development Agreement are achieved, the Applicant will be awarded a second automatic extension of vested rights to November 3, 2019, and a subsequent third automatic extension to November 3, 2024, which is consistent with the original PUD or an enhancement of the PUD. 2. The Applicant shall meet the milestones as described in Attachment "1" Amended and Restated Base Village Development Agreement, in order to facilitate more timely public improvements and private investment that will result in no adverse impact 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. 3. The Applicant shall deliver proposed cost estimates reflective of the expected costs upon completion of construction drawings for both the roundabout and Upper Wood Road, and shall post the required financial surety prior to the security deadline. The Town Engineer shall determine the acceptable amount of security. 4. The Applicant shall provide the Town with the financial security, 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 security 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, unless the subsequent PUD Amendment is delayed as stipulated in the Attachment "1" Amended and Restated Base Village Development Agreement. 5. The Applicant shall provide a letter agreement expressing their agreement to maintain the Garage Entry in a safe and ice -free manner until the new Snowmelt System is completed. 6. The Applicant shall provide a graphic tool, to the satisfaction of the Community Development Director, in the form of a timeline, flowchart and /or matrix that addresses 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 the 8t" day of September, 2014. READ, APPROVED AND ADOPTED, as amended, on second 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 6th day of October, 2014. TOWN OF SNOWMASS VILLAGE Bill Boineau, Mayor ATTEST: Rhonda B. Coxon, own Clerk APPROVED AS TO FORM: Incorporated Attachments: Attachment "1" Amended and Restated Base Village Development Agreement. Attachment "2" Amended and Restated Subdivision Improvements Agreement for the Base Village Planned Unit Development. Attachment "3" First Amendment to Base Village Funding Agreement Attachment 1 AMENDED AND RESTATED BASE VILLAGE DEVELOPMENT AGREEMENT THIS AMENDED AND RESTATED B SE VIL AGE 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 by Ordinance No. 3, Series of 2007 recorded as Reception No. 594713 in the records of Pitkin County, Colorado (collectively, 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; Attachment 1 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 Subdivisi n Improvements Agreement for the Base Village Planned Unit Development dated 2014 (the "SIA "); and WHEREAS The Town and the D veloper h e into a First Amendment to the Base Village Funding Agreement dated T e , 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, 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 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 (for Public Improvements); (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. Attachment I "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. "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 Developer has delivered a Certification of Completion for the Public Improvement from an engineer licensed in Colorado to the Town Manager; and (ii) 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 together with the visible commencement of actual operations on the ground for the erection of the building or construction of a Public Improvement, which is readily recognizable as commencement of a building or construction of a Public Improvement, and which is done with the intention to continue the work until the building is completed. " 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 (by way of example, other than final 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 Attachment 1 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 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 in any subsequent approval, modification or amendment, 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; Attachment 1 (ii) Amended and Restated Subdivision Improvements Agreem nt for the Base Village Planned Unit Development dated effective as of , 2014 between Developer and the Town (the "SIA "); (iii) Base Village Funding Agreement dated effective as of November 4, 2004, as ame ed by the Fi st Amendment to Base Village Funding Agreement dated effective as , 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 the 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 but will automatically terminate if the Developer is subject to an Event of Attachment 1 Nonperformance as to any of such tasks or work described are not performed on or before the applicable deadline(s), or any event of Default, and in such event the termination of the Vested Property Rights granted under At I of this Agreement is not a compensable takings but rather an agreed upon consequence of non - performance by the applicable deadline(s). 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 — 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.o), Substantial Completion of Lot 3 (Section 1.3.5.p), and Substantial Completion of Lot 2 (Section 1.3.5.q)), will be extended as follows: (A) the milestone deadlines for Commencement of Construction of the Roundabout (Section 1.3.5.d) and Commencement of Construction of Building 13B (Section 1.3.5.e) will each be automatically extended to the start of the next construction season on May 31 of the next calendar year; and (B) the milestone deadlines for Substantial Completion and Final Completion Construction of the Roundabout (Sections 1.3.5.g and Section 1.3.5h) and Substantial Completion of Building 13B (Section 1.3.5.j) will each be automatically extended for one year. Attachment I If the Approval of the PUD Amendment Application is not achieved by September 30, 2015, the milestone deadlines for Commencement of Construction and Final Completion of Construction of the Upper Wood Road Improvements (Sections 1.3.5 k. and Section 1.3.5 m.) and Commencement of Construction and Substantial Completion of the Snowmelt System at Garage Entry (Sections 1.3.5 1. and 1.3.5 n.) will each be automatically extended for one 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, 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. 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. 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. Attachment 1 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 of Building 13B: This date is the deadline for Substantial Completion of construction of Building 13B. k. Mav 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 -Final Completion of Upper Wood Road Improvements: This date is the deadline to achieve Final Completion of construction of the Upper Wood Road Improvements. n. November 1, 2017 - Substantial Completion of Snowmelt System at Gary eeEEntrx: 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. Attachment I 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; 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. 1.3.7 Construction Interruptions. Prior to issuance of a building permit for each building, the Developer shall deliver: (i) a reasonable restoration and remediation contingency plan as required by Section 16A -5- 310(9) of the Town Municipal Code (ii) a letter of credit; or (iii) a payment and performance bond; or (iv) other security which is reasonably acceptable to the Town (the "Construction Interruption Security "), in the amount of One Hundred and 20 percent (120 %) of the amount, based on the scope of the restoration and remediation contingency plan, as reasonably determined by the Town. 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 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 Attachment 1 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 Any Event of Nonperformance shall be a Default. 2.3 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 2.3. 2.4 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 (iii) 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 Attachment 1 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 Attachment 1 (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, Waivers. Except as hereinabove provided, 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 Attachment 1 With a copy to: SHERMAN & HOWARD LLC 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 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. (Remainder of Page Intentionally Left Blank) Attachment I 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. STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 41-day of D&-VMLV-, 2014, by as Mayor of the Town of Snowmass Village, Colorado. WITNESS MY HAND AND OFFICIAL SEAL. Notary Public [SIGNATURES CONTINUE ON FOLLOWING PAGE] Attachment 1 IN WITNESS WHEREOF, the patties 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: Title: �/P STATE OF COLORADO Attachment 2 AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE BASE VILLAGE PLANNED UNIT DEVELOPMENT THIS AMENDED AND RESTATED SUBDIVISION IMPROVEMENTS AGREEMENT FOR THE ASE 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 by Ordinance No. 3, Series of 2007 recorded as Reception No. 594713 in the records of Pitkin County, Colorado (collectively, the "Ordinance "); E. The Town and the Devel per have entered into an Amended and Restated Base Village Development Agreement dated Ue-.. , 2014 (the "Development Agreement'); Attachment 2 F. The Town and the D veloper 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 1. 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 Public Improvements and Landscape 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 Public Improvements, and agrees to the same for the Landscape 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, 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 without reversal of the Town action. "Commencement of Construction" means, with respect to the construction of the Public 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 Attachment 2 required) or a right -of -way permit (for Public Improvements); (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. "Final Completion" of a Public Improvement means: (i) the Developer has delivered a Certification of Completion for the Public Improvement from an engineer licensed in Colorado to the Town Manager; and (ii) 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 together with the visible commencement of actual operations on the ground for the erection of the building or construction of a Public Improvement, which is readily recognizable as commencement of a building or construction of a Public Improvement, and which is done with the intention to continue the work until the building is completed. "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 (by way of example, other than final 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 Public Improvements. Developer hereby warrants all Public 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 1" of the year during which the second (2"d) winter terminates after acceptance, whichever is later, of the Public 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 Attachment 2 to be done as is necessary to complete the installation of such Public 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 applicable milestone deadline as required by the Development Agreement and as set forth on Exhibit A hereto. 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) between the Stonebridge Condominiums and 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 shelters included within the Upper Wood Road Improvements and the Roundabout. (c) Roadways. Developer agrees to construct the following roadway improvements in accordance with the Plans and, as applicable, the standards set forth in the CD Plan Set consisting of ninety (90 %) percent complete construction drawings to be submitted in accordance with Exhibit A 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 including an up- valley transit stop and a down - valley transit stop with a bus shelter. (d) Landing Site Construction. The Town is considering constructing an aerial connector between the Property and the "Snowmass Center" (the "Aerial Connector "). The Developer has constructed the footings and foundation for the Aerial Connector on Lot 3 of the Property to provide the structural integrity for a terminal of the Aerial Connector but is not required to construct the landing platform for the Aerial Connector (the "Landing Site "). The Attachment 2 Developer shall convey to the Town an interest in the Landing Site sufficient to give the Town, or its assigns, the right to construct, operate, maintain, repair and replace a terminal for the Aerial Connector upon the Landing Site. Such conveyance will be in the form of a fee interest or a perpetual easement reasonably acceptable to the Town in the Landing Site and an easement that grants the Town, or its assigns, the right to so construct, operate, maintain, repair and replace the Aerial Connector terminal and the Aerial Connector itself thereon. (e) Pre - Qualification for Public Improvements. The prime contractor and specialty subcontractors, including superintendents and foremen, shall be pre - qualified by the Town Public Works Dir. or Town Engineer prior to any work being commenced. 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 upon submission of building permits for approval and that such landscaping drawings will include information relating to the Landscape Improvements. The Landscape Improvements, as required by the PUD, that have not yet been constructed, will be constructed and installed as a condition to issuance of final certificates of occupancy for the building to which the Landscape Improvements are installed. Prior to issuance of a building permit, developer will post security for the amount of the Landscape Improvements per Exhibit A or current cost estimates for said Landscaping Improvements. 5. Traffic Control. During the construction of any Public 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 Public 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 Attachment 2 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 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 Final Completion of the Snowmelt System at Garage Entry and or Final Completion of Roundabout and Upper Wood Road 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 completed. 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 Attachment 2 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. (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 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). Attachment 2 (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. (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: (A) provides the Town a copy of each of the Design Contract and the Construction Contract; and (B) has paid at least fifty (50 %) percent of the cost of the work under 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), 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 CD Plan Set consisting of ninety (90 %) percent complete construction drawings to be submitted in accordance with Exhibit A attached hereto. 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 fifteen (15) days after written notice is given from the Town to Developer (or if such default cannot be cured within the fifteen (15) 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 Attachment 2 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 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`a 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. Assi ng ment. 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 Attachment 2 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. ffect. 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 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 Attachment 2 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, Termination. Except as herinabove provided, 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. 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) Attachment 2 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. Date: •;u C. Dresser, Jr., Town A My commission expires: h( - \7 -1 SK BARBARA PECKLER`��" NOTARY PUBLIC Notary Public STATE OF COLORADO NOTARY ID #20064014938 My Commission Expires April 17, 2018 URES CONTINUE ON FOLLOWING PAGE] Attachment 2 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: SNOWM ACQUISITION COMPANY LLC, A Delaw re lii ited liability company By: -� Name:f Title: STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this day of Novem 2014, by Dwayne Romero as of Snowmass Acquisition Company LLC, a Delaware limited liability company. EXHIBIT A (Public Imp oveme ts)1 Dated: W , 2014 Type Plans/Description Preliminary 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 LANDSCAPE IMPROVEMENTS Type Plans/Description Est. Cost Phase 1 B L2 -2 Phase 1 planting plan $2,100,000 Phase 2B L2 -2 Phase 1 planting plan $2,100,000 Phase 3 L3 -2 Phases 2,3,4 & 5 $1,100,000 Planting plan Attachment 2 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 Final Completion May 1, 2017 Commencement of Construction November 1, 2017 Substantial Completion ' The dates on this Exhibit A are subject to adjustment as provided in the Amended and Restated Development Agreement. Attachment 2 LANDSCAPE IMPROVEMENTS (Continued) Type Plans/Description Est. Cost Phase 4 1,3 -2 Phases 2,3,4 & 5 $1,000,000 Planting plan Phase 5 L3 -2 Phases 2,3,4 & 5 $1,000,000 Planting plan Attachment 2 EXHIBIT B (2004 Pedestrian Circulation and Mobility Map) 4 SNOWMASS VILLAGE SNOWMASS, COLORADO ME x � » _ E �� #goo 4 SNOWMASS VILLAGE SNOWMASS, COLORADO ME Attachment 3 FIRST AMENDMENT TO BASE VILLAGE FUNDING AGREEMENT THIS FIRST AMENDMENT TO BASE VILLA E FUND G 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 INTRAWESTBRUSH CREEK DEVELOPMENT COMPANY, LLC (the "Developer ") and the TOWN OF SNOWMASS VILLAGE, COLORADO, a Colorado municipal corporation (the "Town "). RECITALS WHEREAS the Town and IntrawestBrush 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 Subdivisiory Improvements Agreement for the Base Village Planned Unit Development dated 3�,e c , 2014 (the "SIA "); WHEREAS the Town and the Develo� h�aJve en)ered 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. Attachment 3 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, Yd 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] Attachment 3 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. TO FORM: Dresser, Jr., Town [SIGNATURES CONTINUE ON FOLLOWING PAGE] 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: SNOWM ACQUISITION COMPANY LLC, A Delaw e hipited liab y company C Nam :� �? Title. STATE OF COLORADO ) ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this 1 day of �j QV'ZM N , 2014, by Dwayne Romero as �1 fit` of Snowmass Acquisition Company LLC, a Delaware limited liability company. BUS-RE/5373658.2 n