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HomeMy WebLinkAboutcoa.lu.ca.233 W Main - Interpretation 0039.20120039.2012.ASLU 233 W. Main St CODE INTERPRETATION THE INNSBRUCK fl Sy' C 0 0 0 THE CITY OF ASPEN City of Aspen Community Development Department CASE NUMBER 0039.2012.ASLU PARCEL ID NUMBERS CODE INTERPRETATION PROJECTS ADDRESS 233 W. MAIN ST PLANNER PHILIP SUPINO CASE DESCRIPTION CODE INTERPRETATION REPRESENTATIVE CITY OF ASPEN DATE OF FINAL ACTION 7/24/12 CLOSED BY ANGELA SCOREY ON: 8.29.12 SSG AFFIDAVIT OF PUBLIC NOTICE REQUIRED BY SECTION 26.304.070 AND CHAPTER 26.306 ASPEN LAND USE CODE ADDRESS OF PROPERTY: Aspen, CO STATE OF COLORADO ) ) ss. County of Pitkin ) I, �Sl 4�A e �2A FVr� (name, please print) being or representing an Applicant to the City of Aspen, Colorado, hereby personally certify that I have complied with the public notice requirements of Section 26.304.060 (E) or Section 26.306.010 (E) of the Aspen Land Use Code in the following manner: Publication of notice: By the publication in the legal notice section of an official paper or a paper of general circulation in the City of Aspen at least fourteen (14) days after final approval of a site specific development plan. A copy of the publication is attached hereto. Publication of notice: By the publication in the legal notice section of an official Paper or a paper of general circulation in the City of Aspen no later than fifteen (15) days after an Interpretation has been rendered. A copy of the publication is attached hereto. mm The foregoing "Affidavit of Notice" was acknowledged before me this ot- day of (�uGi l , 20 I Zby DMZ" E 6/ �aI4 oriR11C N TICE a INTERPRETATION ISSUED Notice is hereby given to the general public of the approval of a code Interpretation of Section 26.590.070, Review Standards for niLand Use Lodge Development, of the City of An Land requested by Jod? Eo.iO action :ar�s. i dared on mMe CommunitydDevelopment Department. st City of As Published irTne Aspen Times Weekly on August 2, 20Q. [92179511 WITNESS MY HAND AND OFFICIAL SEAL My com 11 ission expires: Notary Public ATTACHMENTS: COPY OF THE PUBLICATION • • CITY OF ASPEN COMMUNITY DEVELOPMENT DEPARTMENT INTERPRETATION JURISDICTION: APPLICABLE CODE SECTIONS: EFFECTIVE DATE: City of Aspen Chapter 26.590, Time Share Development Section 26.104.100, Definitions 24 July, 2012 WRITTEN BY: Phillip Supino, Community Development Intern THRU: %1 �, i , , I A Jennifer Phelan, Deputy Director APPROVED BYA N VU r W Chris Bendon, Community Development Director SUMMARY This interpretation is being issued in response to an inquiry submitted by Jody Edwards of Klein, Cote & Edwards, LLC on behalf of Bluegreen Vacations Unlimited, Inc. (Bluegreen) with regard to whether the timeshare subdivision proposal for certain units of the Innsbruck, 233 West Main St., Aspen, CO, as operated by Bluegreen, complies with the timeshare requirements in City of Aspen Municipal Code Chapter 26.590, Timeshare Development. BACKGROUND The intent of the timeshare regulations Code section 26.590.010, Purpose and intent, is to "increase vitality" (26.590.010.A), "preserve and enhance lodging inventory" (26.590.010.13), "upgrade quality of accommodations" (26.590.010.C), and "maintain community character" (26.590.010.D) of the City of Aspen through the use of timeshare development in approved zone districts. Currently, the property known as the Innsbruck is an approved timeshare development. Bluegreen seeks a code interpretation to ensure that their business model complies with City timeshare regulations prior to purchasing unsold shares in the Innsbruck and applying for an amendment to the Subdivision Improvements Agreement (SIA) to further subdivide their interest in the Innsbruck into smaller fractional shares. Municipal Code section 26.590.070.J, Prohibited practices and uses, identifies "right -to - use" properties as inappropriate timeshare uses in the City of Aspen. Right -to -use properties include "vacation clubs" and "lease -holds" in which beneficiaries of the properties do not own in interest in real property. Page 1 of 2 INTERPRETATION The applicant notes in the interpretation request (Exhibit A) that the proposed use of the Innsbruck by Bluegreen is not a vacation -club or similar prohibited use, because it is "a deeded timeshare interest that does not expire." Bluegreen issues a warranty deed for a share of its property to the "owner beneficiary," which is then held in trust as a real property interest in perpetuity or until such time as the owner conveys or otherwise forfeits the share. It is staff's interpretation that the conveyance of a real property interest to owner beneficiaries as indicated in the Owner Beneficiary Agreement (Exhibit B) and the timeshare plan proposed by Bluegreen meets the requirements for a permitted timeshare uses within the City of Aspen and is not prohibited per Municipal Code section 26.590.070.J., Prohibited practices and uses. As a timeshare property within the City of Aspen, Bluegreen or its owner beneficiaries are required to remit Real Estate Transfer Taxes and Lodging and Sales Taxes as required in the City of Aspen Municipal Code Chapters 23.32, 23.48 and 23.50 and to the extent applicable. Furthermore, the City finds that the Bluegreen proposal for a time -span estate to be operated at the Innsbruck meets the State of .Colorado definition of a time -span estate pursuant to C.R.S. §38-33-110 through the granting of a deeded interest in real property. APPEAL OF DECISION As with any Interpretation by the Community Development Director, an applicant has the ability to appeal this decision to the Aspen City Council. This can be done in conjunction with a land use request before City Council or as a separate agenda item. APPEAL PROCEDURES, 26.316.030(A) Any person with a right to appeal an adverse decision or determination shall initiate an appeal by filing a notice of appeal on a form prescribed by the Community Development Director. The notice of appeal shall be filed with the Community Development Director and with the City office or department rendering the decision or determination within fourteen (14) days of the date of the decision or determination being appealed. Failure to file such notice of appeal within the prescribed time shall constitute a waiver of any rights under this Title to appeal any decision or determination. ATTACHMENTS A. Request for Interpretation dated 9 July, 2012 B. Bluegreen Vacations Unlimited, Inc. Owner Beneficiary Agreement Page 2 of 2 • i KLEIN, COTE & EDWARDS, LLC ATTORNEYS AT LAW HERBERT S. KLEIN' hsk@kcelaw.net 201 NORTH MILL STREET, STE. 203 LANCE R. COTE, PC' lrc@kcelaw.net ASPEN, COLORADO 81611 JOSEPH E. EDWARDS, III, PC' jee@kcelaw.net TELEPHONE: (970) 925-8700 KENNETH E. CITRON' kcitron@kcelaw.net FACSIMILE: (970) 925-3977 MADHU B. KRISHNAMURTI mbk@kcelaw.net www.kcelaw.net OF COUNSEL: JOSEPH E. EDWARDS, JR., PCjoe@kcelaw.net also admitted in Hawaii also admitted in California also admitted in New York and Massachusetts 'also admitted in Texas July 9, 2012 HAND DELIVERY Chris Bendon, Director Aspen Community Development Department 130 S. Galena St., 3`d Floor Aspen, CO 81611 P.ECEIVED JUL 0 9 2012 CITY OF ASPEN CoMmUNITY DEVELOPMENT Re: Request for Interpretation Pursuant to Section 26.306.010, City Code; The Innsbruck — 233 West Main Street, Aspen, CO 81611 (the "Property") Dear Chris: As I discussed with Jen and briefly with you, we represent Bluegreen Vacations Unlimited, Inc. ("Bluegreen"). Bluegreen (as buyer) entered a Purchase and Sale Option Agreement with Innsbruck Suites Investments, LLC (as seller) effective as of June 11, 2012 for the purchase and sale of the seller's remaining interests in the Property — comprised of seven whole condominium units (from which no fractions have been sold) and 39 separate 1/12`h fractional interests in eight additional condominium units (collectively, the whole units and the fractional interests are referred to herein as the "Units"). Upon the closing of the transaction contemplated by the Purchase and Sale Option Agreement, it is Bluegreen's intention to file an insubstantial PUD amendment application with the City to allow smaller fractions than the currently allowed 1/12th interests to be created and sold within the Units. We held a pre - application conference with Jen last week on that issue. On behalf of Bluegreen, we request a code interpretation pursuant to §26.306.010, City of Aspen Municipal Code, Land Use Regulations (the "LUR"). In particular, we request verification that the prohibition against certain forms of timeshare concepts contained in §26.590.070.J.I., LUR is inapplicable to the Bluegreen Vacation Club multi -site timeshare plan within which the Property and the Units are intended to be integrated and then offered and sold. { 1640075.DOC /2 ) Chris Bendon, Director Page 2 July 9, 2012 That section provides in pertinent part that it is "unlawful" for any person to knowingly engage in: 1. The creation, operation or sale of a right -to -use interest or any other timeshare concept which is not specifically allowed and approved pursuant to the requirements of this Section. Right -to -use timeshare concepts (e.g., lease -holds and vacation clubs) are considered inappropriate in Aspen and are not permitted. This prohibition appears to be intended as a consumer protection regulation. I suspect it is a hold -over in the LUR from the 70's or 80's when some "timeshare" plans were less than transparent and/or not real-estate based. As further explained below, and despite the nomenclature, the Bluegreen Vacation Club multi -site timeshare plan is not a right -to -use interest or leasehold timeshare program; rather, the Bluegreen Vacation Club is a trust -based "timeshare estate" timeshare plan. Since the prohibition specifically mentions "vacation clubs" as an example of a type of prohibited right to use program, we want to clarify and verify with you that the Bluegreen Vacation Club is not the type of "vacation club" contemplated by the prohibition and that Bluegreen is not prohibited from operating the Bluegreen Vacation Club in Aspen. The terms "right -to -use" interest and "vacation club" are not defined in the LUR. The term "right -to -use" is a term of art and has a meaning in the timeshare industry. The term "vacation club" is not a term of art and is used for many different timeshare formats in the industry. The American Resort Development Association ("ARDA") defines right -to -use as "A timeshare owner's right to occupy a unit at a resort for a specified number of years and having no real estate interest conveyed." Wikipedia defines a right -to -use interest as follows: "The purchaser has the right to use the property in accordance with the contract but at some point the contract ends and all rights revert to the property owner. In other words, the right to use contract grants a right to use the resort for a specified number of years." The key elements to a right to use program are a contractual right to a specified time period after which the right to use expires and the lack of a real estate deed. The Bluegreen Vacation Club multi -site timeshare plan was created under specific provisions of the Florida Timeshare Act and has been registered and approved as a timeshare estate plan in the state of Florida since August 1, 1994 and in Colorado as a timeshare estate subdivision since June 18, 2005. As noted herein, the Bluegreen Vacation Club involves only the offering and sale of deeded timeshare estates for which title insurance is issued. We further note that the ARDA defines Vacation Club as "a term used to describe various types of timesharing and usually involving use or access to more than one resort location and other vacation and travel services. However the term is used for many different purposes, including "clubs" which may have nothing to do with timesharing (i.e., travel clubs)." { 1640075.DOC /2 } Chris Bendon, Director Page 3 July 9, 2012 When Bluegreen sells a timeshare interest in connection with the Bluegreen Vacation Club, it does so pursuant to an "Owner Beneficiary Agreement" (i.e., the timeshare purchase contract) and, upon closing, issues a Warranty Deed conveying fee simple title to the real estate timeshare interest to Vacation Trust, Inc., a Florida corporation ("Trustee"). The Trustee holds the real estate title for the benefit of the timeshare interest buyer pursuant to the Bluegreen Vacation Club Trust Agreement, which is the timeshare instrument establishing and governing the timeshare plan. The Trust Agreement is intended to be irrevocable; however, in the event of a termination of the Trust, the Trustee is obligated under both the Trust Agreement and the Owner Beneficiary Agreement to transfer to the beneficial owner the timeshare interest in the real property that was transferred to the Trust when the purchaser became a beneficial owner in the Trust. In other words and at the end of the day, the Buyer owns the real estate. For your reference, a copy of the Trust Agreement is enclosed. Also, the timeshare interests can be, and often are, sold on a purchase -money financing basis, in which event, a mortgage is granted on the timeshare interest providing collateral for the purchaser's promissory note. The Trustee, as fee simple owner, simply executes the Mortgage on behalf of and at the request of the beneficial owner and the beneficial owner makes the payments under the promissory note. The Bluegreen Vacation Club is currently comprised of over 60 component site resorts, located in various states, Aruba and the Bahamas, which are used and accessed by its more than 166,000 members (i.e., "Owner Beneficiaries"). Any beneficial owner who buys a timeshare estate interest associated with The Innsbruck in connection with the Bluegreen Vacation Club will have a 60 day "home resort" preference for advance reservation priority at The Innsbruck. We specifically note that more than 166,000 (and counting) members of the Bluegreen Vacation Club are all potential new "trials" in the Aspen area. See §26.560.060C.5, LUR. Bluegreen is going to propose smaller fractional interests for the Units and these smaller fractions are encouraged under the Timeshare Regulations. See §26.560.060C.1, LUR. While the program is called a "vacation club," it is also a type of plan that is both "specifically allowed" and encouraged in Aspen. Whatever meaning the term "vacation club" has in the LUR, we do not run afoul of it because we have a deeded timeshare interest that does not expire. The specific language is that right -to -use concepts are inappropriate — and vacation clubs are given as one possible example of something that might be an inappropriate right to use. Bluegreen will not be operating a right to use plan for The Innsbruck. There will be warranty deeds to a real property interest, title insurance policies, mortgages in the case of a financed purchase, the real property interests will not expire, and the owners are protected by the Trust Agreement and the Owner Beneficiary Agreement. Consequently, we request confirmation that Section 26.590.070.J. L, LUR, as it applies to Bluegreen, does not prohibit the operation, offering or sale of the Bluegreen Vacation Club in (I640075.DOC /2 ) • • Chris Bendon, Director Page 4 July 9, 2012 Aspen provided that the fractional interests are deeded to the Trust and do not expire. We intend to rely on your interpretation in making our decision concerning whether to consummate the purchase of the Units within the Property. We have a due diligence deadline of July 26, 2012 under our agreement with the seller and would appreciate receiving your interpretation in advance of that date so that Bluegreen may make its decision concerning the purchase of the Units. Enclosed is a check payable to the City of Aspen for the LUR Interpretation fee in the amount $50.00. If there is anything in addition to this letter and fee that is required in order to pursue this interpretation or if you need additional information, please contact me. Sincerely, KLEIN, COTS'& EDWARDS, LLC cc: Bluegreen Vacations Unlimited, Inc. Jennifer Phelan Mitch Haas bluegreen\ltr to Bendon interpretation request.doc 1640075.DOC /2 ; File Edit Record Navigat� Form Reports Format Tab Help 7°v Jump Routing Status Fees Fee Summary Main Actions ! Attachments Routing History Valuation Archf Eng Custom Fields Sub Permits I ► Permit type aslu Aspen Land Use Permit # 0039.2012.ASLU Address 233 W MAIN ST Aptj5uite City ASPEN State CO 7ip 81611 Permit Information Master perms Routing queue aslu0l Applied 7M 012012 Project Status pending Approved Description CODE INTERPRETATION FOR THE INNSBRUCK 233 WEST MAIN STREET - AND Issued _ BLUEGREEN VACATIONS UNLIMITED ClosedJFinal Submitted IKLIEN, COTE AND EDNARDS Clock Running Days ❑0 Expires 715C?013 Submitted via Owner Last name INNSBRUCK SUITES INVEST I First name 422 E HYMAN AVE Phone (614) 236-3000 Address ASPEN CO 81611 Applicant �. Owner is applicant? Contractor is applicart? Last name IBLUEGREEN First name 1 1300 S SPRING ST 202 Phase 970) 429-7499 Cust * 5663 Address JASPEN CO 81611 Lender Last name First name Phone ) Address Displays the permit lenders address AspenGo1d5 (server) angelas _ 1 d 1 • • BLUEGREEN OWNER BENEFICIARY AOREEMENT BLUEGREEN VACATION CLUB [THE FOUNTAINS SELLING THE FOUNTAINS INVENTORY] MULTI -SITE TIMESHARE PLAN: BLUEGREEN VACATION CLUB DEVELOPER/SELLER: BLUEGREEN VACATIONS UNLIMITED, INC, 4960 CONFERENCE WAY N, STE 100, BOCA RATON. FLORIDA 33431-3311 Contract Reference M 701108 Purchaser(s) Sodal Security No. Social Security No. Street Address Phone(Home) Phone(Bus) cityState Zip Country U. to Cates o merica Developer/Seller agrees to sell, and the Purchaser agrees to purchase a timeshare estate, being the Property described below. The Property shall be acquired and accepted by the Purchaser upon the following terms and conditions and, in connection therewith, Purchaser is to be designated as an Owner Benefidary and allocated Vacation Points as set out below. By execution of this Bluegreen Owner Beneficiary Agreement, Purchaser vWuntarity, appoints and designates the Trustee as his/her lawful agent to be delivered the deed to the Property described below. By execution hereof, Purchaser Is designated an Owner Beneficiary under the Bluegreen Vacation Club Trust Agreement, which was made and entered into as of the 18th day of May 1994, as amended and restated, by and between Developer/Seller and Vacation Trust, Inc., a Florida corporation, as Trustee (the 'Trust Agreement'). Each Owner Beneficiary is entitled to exercise Owner Beneficiary Rights. Owner Benefidary Rights Include as an appurtenance thereto an allocation of the below -described Vacation Points and the right to be conveyed, subject to the terms of the Trust Agreement the below -described Property upon termination of the Trust Agreement. The Vacation Points represent the opportunity to use and enjoy Accommodations and Facilities subject to the Trust Agreement and have been determined In relation to current occupancy demand for the below described Property. The Property Is defined as CordominiumfUnil No. or as an undivided interest in a particular phase of the Resort as may be further described in the deed for such Property: Resort Name: THE FOUNTAINS Resort Address: Accommodation(s) consisting of Condominium Unit No. f Vacation Week No. (together with'F" (Full Timeshare Interest) or'E" (Biennial Timeshare Interest/Even or Odd)): 511=420 The Vacatlon/Untl Week No., above set forth, and the Vacation Points associated therewith, are either designated as Annual (by use of the letter 'F', Indicating a full Timeshare Interest) or Biennial (by use of the letter `E' or '0', Indicating Even Numbered or Odd Numbered Years and one half of a Timeshare Interest). An Annual Vacati nil Week with Annual Vacation Points means the period of lima during which the owner thereof Is afforded the opportunity to use the Accommodations of the Plan on an annual recurring basis. A Biennial Vacation/Unit Week wrilh Biennial Vacation Points means the period of time during which the owner thereof Is afforded the opportunity to use the Accommodations of the timeshare Plan on a biennial recurring basis. A Vacation/Unit Week created initially as an Annual Vacation/Unit Week or a Biennial Vacation/Unit Week shall remain so. For purposes of this Agreement, the following definitions shall be controlling: 'Blenniaf means every other year and the same shall be detarminative on a calendar year basis, except as o.hewse provided herein. 'Odd Numbered Years" means those years ending In 1, 3, 5, 7 or 9 and the same shall be determinative on a calendar year basis. 'Even Numbered Years' means those years ending In 2, 4, 6, 8 or 0 and the same shall be determinative on a calendar year basis. The number of Vacation Points allocated to the Property and the Owner Beneficiary Rights and the designation as'F,"E' or "O' as described below is: 6000 O. Allocated Vacation Points are used to determine occupancy of Accommodations and Facilities during an Owners Use Year, although no additional consideration Is paid for occupancy allowed by Vacation Points allocated to a respective Owner Beneficiary. The Owners Use Year commences the first day of the month following execution of this Agreement by Purchaser and DeveloperlSelWr, terminates upon expiration of hvelve (12) rrnonths following such commencement, and recurs for each succeeding twelve (12) months thereafter. Biennial Vacation Points allow occupancy and use of accommodations only during alternate Owner Use Years. beginning with the initial Owner Use Year following the purchase of the Property, except as otherwise provided herein. Such uses are also subject to provisions for saving and borrowing of Vacation Points, as explained elsewhere herein. Purchaser shall be obligated to pay Common Assessment Fees and Club Dues in accordance with Part E of the Trust Fund Budget as set forth in Paragraph 4 hereof. PURCHASETERMS 1. Purchase Price of Property payable by Purchaser. $7,500.00 2. Down Payment (100.00% of Line 1). $ 7,500.00 3. Closing Costs. Inducing Recording Fees, State Documentary Stamps, Intangible Tax, Title $ 350.00 Search/insurance, Documents Processing Fee and Fees Related to Transfer of Property to Trustee. 4. StatelLocal Sales Tax (0.0023726 of Line 1). $ 17.79 5. Total Purchase Price (U.S. Funds) (Add lines 1, 3, and 4). $ 7.887.79 8. Total Down Payment (Add lines 2, 3, and 4). S 7,867.79 7. Initial Deposit Received $ 7,867.79 (CK, MO, MCNISA, AMEX, DISC). $ 7,867.79 B. Balance of Down Payment Required on or before WA. $ 0.00 9. Amount Financed NIA for NIA months at NIA (Line 1 minus line 2). 10. Monthly Payments of: NIA beginning on NIA. 14]10=� FN04N1R012 Regular Contract i • Purchaser agrees to have Resort Title Agency, Inc. issue lender's title insurance policy. Pre -Authorized Check Plan Accepted (Initial if'Yesj: THIS AGREEMENT 1S SUBJECT TO ALL TERMS AND CONDITIONS HEREAFTER SET FORTH, OR ATTACHED HERETO, WHICH ARE INCORPORATED HEREIN BY REFERENCE. BY SIGNING BELOW, PURCHASER ACKNOWLEDGES HAVING READ AND AGREED TO ALL SUCH TERMS AND CONDITIONS AND FURTHER ACKNOWLEDGES RECEIPT OF THE BLUEGREEN VACATION CLUB MULTI -SITE PUBLIC OFFERING STATEMENT AND ANY APPLICABLE EXCHANGE COMPANY DISCLOSURE STATEMENT. NO PURCHASER SHOULD RELY UPON REPRESENTATIONS OTHER THAN THOSE INCLUDED IN THIS AGREEMENT AND IN THE DOCUMENTS REFERRED TO HEREIN. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR OBLIGATION WITHIN TEN (10) CALENDAR DAYS AFTER THE DATE YOU SIGN THIS CONTRACT OR THE DATE ON WHICH YOU RECEIVE THE LAST OF ALL DOCUMENTS REQUIRED TO BE GIVEN TO YOU PURSUANT TO SECTION 721.07(6), FLA STATUTES, WHICHEVER IS LATER. IF YOU DECIDE TO CANCEL THIS CONTRACT, YOU MUST NOTIFY THE SELLER IN WRITING OF YOUR INTENT TO CANCEL. YOUR NOTICE OF CANCELLATION SHALL BE EFFECTIVE UPON THE DATE SENT AND SHALL BE SENT TO: BLUEGREEN VACATIONS UNLIMITED, INC., ATTN: CORPORATE SALES ACCOUNTING DEPARTMENT, 4960 CONFERENCE WAY N STE 100, BOCA RATON FL 33431.3311. ANY ATTEMPT TO OBTAIN A WAIVER OF YOUR CANCELLATION RIGHTS IS VOID AND OF NO EFFECT. WHILE YOU MAY EXECUTE ALL CLOSING DOCUMENTS IN ADVANCE, THE CLOSING, AS EVIDENCED BY DELIVERY OF THE DEED OR OTHER DOCUMENT BEFORE EXPIRATION OF YOUR TEN (10) DAY CANCELLATION PERIOD, IS PROHIBITED. PURCHASER(S): DEVELOPERISELLER: BLUEGREEN VACATIONS UNLIMITED, INC. 04101n012 By: (Date) 04101/201 (Date) Authorized Agent 04101/2012 (Date) 'Notify shall mean that a written notice of cancellation is delivered by any means, which may include certified mail, return receipt requested, to Bluegreen Vacations Unlimited, Inc. It is a violation of F.S. Ch. 721 for any person to Interfere vrith the delivery of a notice of cancel!aMn by a purchaser. FNGMU2012 Regular Contract TERMS AND CONDITIONS 1. TRUST AGREEMENT, The Bluegreen Vacation Club multi -sole timeshare plan has been established pursuant to the Trust Agreement (timeshare Instrument) and related documents. Vacation Trust, Inc., a Florida corporation, currently ads as the Trustee of the Trust Agreement The address of Vacation Trust Inc. is 4950 Communication Avenue, Suite 900, Bop Raton, FL 33431. Each Purchaser pursuant to an Owner Beneficiary Agreement is designated as an Owner Beneficiary pursuant to the terms of Uha Trust Agreement. The interest of each Comer Beneficiary under the Trust Agreement consists of and Is identified as the right to performance by the Trustee of its obligations as set forth in the Trust Agreement Each Owner Benefidarys right to pedormance by the Trustee includes the Trustee holding Otte or Occupancy Rights relating to the Accommodations and FacTitios within the Bluegreen Vacation Club Trust Estate as agent for each Owner Beneficiary and for the beneficial use and enjoyment of each Owner Beneficiary and the right, subject to the terns of the Trust Agreement, to have the Properly conveyed to the Owner Beneficiary named herein upon termination of the Trust Agreement. The Comer Beneficiaries are entitled to use. occupy and enjoy the Property (including Occupancy Rights related to the Property) within The Bluegreen Vacation Club Trust Estate, subject to avaitabeity and to the terms of the Trust Agreement and related Instruments. (a) The timeshare interest being sold and acquired hereunder consists of Ure Property described above, being a fee simple real estate timeshare estate and, in connection therewith, Purchaser is designated as Owner Beneficiary enUUed to the Owner Beneficiary Rights and appurtenant Vacaton Points referred to above. Owner Beneficiary Rights include the right to use, occupy and enjoy the Accommodations and Facilities within the Bfuegreen Vacation Club Trust Estate coupled with the freehold estate conveyed to the Trustee by Developer/Seller or its affiliate on behalf of the Purchaser upon Purchaser becoming an Owner Beneficiary under the Trust Agreement. Owner Beneficiary Rights are an Interest in the Bluegreen Vacation Club Trust, vrhich interest is defined as a timeshare estate' under F.S. Ch. 721. The duration of this timeshare Interest Is intended to be perpetual, so bug as the trust Agreement continues. The term of the Vacation Plan is Intended to be perpetual; provided, however, that the Resort Interests at each Component Site Included within the Vacation Plan are fee simple property interests and either (1) continue unU) such time as indicated in the Component Site Underlying Declaration al which lime the timeshare plans may be extended for one or more additional peniods; or (2) are intended to be perpetual pursuant to the Component Site Underlying Declaration. The Trust Agreement is irrevocable, so long as any Owner Beneficiary has a right to occupy any portion of the Trust Estate. Upon termination of the Trust, the Trustee Is obligated under the Trust Agreement and as part of the Owner Beneficiary Rights to convey the Property to Purchaser by quitclaim deed it We to tiw Property is held by the Trustee, so king as Purchaser Is not in default of ills or her O,vnei Beneficiary Obligations. Such transfer shall be subject to the rights of a holder of any outstanding loan of mortgage related to the Property created by the Purchaser and related to the Properly to request conveyance of time PrupeAty to It (b) The Property and other Accommodations and Facilities comprising the Trust Estate (and subject to the Trust Agreement) are mvned in fee simple (or leasehold title, if whhln the Club Pono Kai Component Site Resort) by Developer/Seller at the time of Purchaser's execution hereof and are to be or have been conveyed to the Trustee by deed from DeveloperBetlar or Its atflate. The Trustees obligation, pursuant to the Trust Agreement, Is to make such Property and other Accommodations and Facilities vh"n the Bluegreen Vacation Club Trust Estate available for the use, occupancy and enjoyment of the timer Beneficiaries. Purchaser, by the acquisition hereunder, shall be an Owner Beneficiary pursuant to the Trust Agreement The interest of Developer/Seller In the Accommodations and Facilities is that Developer/Seller presently Owns such. DeveloperlSeller is entitled to designate Owner Beneficiary Rights with appurtenant Vacation Points to Purchasers pursuant to the terms of the Trust Agreement After conveyance to the Trustee as set forth herein, Developer/Seller has no other actual interest, including Interest to control, the Accommodations or Facilities conveyed to the Trustee Prior to Developer/Seller issuing a deed of the Property to the Trustee as agent for Purchaser, the Property (timeshare Interest) shall be released from any lien as may exist encumbering the Property by payment of release fees to the tender thereof or by full satisfac ou of said mortgage or lien instrument Upon such conveyance of Ow Property, Purchaser directs and authorizes Trustee, if the balance of the purchase price above referred to is not paid in full in cash of certified check, to establish a mortgage against ilia Property In favor of Developer/Seller or Lender or their designee pursuant to the terms herein to secure the Purchasers payment therefor. 2. DEPOSITS. The initial deposit or subsequent payments made pursuant to this Bluegreen Owner Agreement by Purchaser to Developer/Seller shall, prior to closing, be held in escrow pursuant to the provisions of Section 721.08, Florida Statutes, with Did Republic National Title Insurance Company,8433 West Lake Mead Blvd.,Las Vegas, NV 89128-7638 CEscrow Agent'). The Escrow Agent shall furnish Purchaser with a written receipt for the initial deposit and subsequent payments. Escrow Funds held by the Escrow Agent may be invested in securities of the United States Government, or any agency thereof, or In savings or time deposits in institutions insured by an agency of the United Stales Govemment Developer/Seller shall retain the interest generated by any such Investment. All monetary amounts recited in this Agreement shall be paid in U.S. Funds. 3. THE PROPERTY. The Property shall be the Property, as identified above, which has been allotted a number of Vacation Points determinative of occupancy rights and equivalent to the Vacation Points set out hereinabove provided to Purchaser hereunder. The Property is a Resort Interest under the Trust Agreement By execution hereof, Purchaser directs and authorizes conveyance of the Property to the Trustee. For each Purchaser provided the Owner Beneficiary Rights and appurtenant Vacation Points from Developer/Seller, DeveloperlSeller shall convey to Trustee a Resort Interest or cause its affiliate to convey to Trustee a Resort Interest, which has been established as requiring for occupancy Vacation Points equivalent to file Vacation Points appurtenant to the Owner Beneficiary Rights of the respective purchaser. The Property and an other property conveyed to the Trustee pursuant to this Agreement and any other Bluegreen Owner Beneficiary Agreement is considered the Trust Estate and property available for occupancy, by all purchasers of Omer Beneficiary Rights, subject to the Trust Agreement and established reservation procedures. The Property conveyed to the Trustee pursuant to this Agreement is in fee simple (or leasehold, if within the Club Pono Kai Component Site Resod) and is intended to remain in title to the Trustee perpetually, subject to deletion rights as set forth hereinafter and as otherwise provided for In the Trust Agreement. The Property is subject to the applicable Underlying Declaration Identified in Exhibit 9 of the Bluegreen Vacation Club Public Offering SlatemenL 4. COMMON ASSESSMENT FEES AND CLUB DUES. Purchaser, as an Owner Beneficiary, agrees to pay Common Assessment Fees and Club Dues as set forth in the Bluegreen Vacation Club Public Offering Statement, Trust Agreement, the related documents, including the Club By -Laws, and this paragraph. Purchaser, as an Owner Beneficiary, agrees to pay common expense assessments, as set forth in the Underlying Declaration related to the Property, to the extent they are not included In the Common Assessment Fees. Such obligation to pay the foregoing amounts shall oonUnue regardless of the conveyance of the Property to the Trustee. Purchaser shall pay to the Vacation Club Managing Entity (as hereafter defined) such foregoing amounts related to the Property at the fine that the same are due and payable. Such obligation shall include the obligation to pay any special assessments related to the Property, as well as any real estate taxes attributable to the Property that am not otherwise included in the Common Assessment Fees. The annual Common Assessment Fees, inclusive of ad valorem real estate taxes, currently payable by Purchaser acquiring Annual Vacation Pants and a Full Timeshare Interest hereunder shell equal a base amount of Three Hundred Twenty Dollars ($320.00) plus an added amount equal to $0.045 times the number of Vacation Points appurtenant to the Owner Beneficiary Rights herein allocated to the Purchaser, provided, however. the Annual Common Assessment Fees, Inclusive of taxes, currengy payable by a Purchaser acquiring Biennial Vacation Points and a Biennial Timeshare Interest shall equal a base amount of Three Hundred Twenty Dollars ($320.00) plus an added amount equal to $0.0225 Umes the number of Vacation Points appurtenant to the Owner Beneficiary Rights herein allocated to the Purchaser. Each Purchaser/Owner Beneficiary shall only be assessed one base amount (currently $320.00) annually without regard to the number of Vacation Points allocated to such PurchasedOvmei Beneficiary. The calculation of Common Assessment Fees is set forth in Part E to the Trust Fund Budget attached in Exhibit 8 of the Public Offering Statement and Is calculated by comparison of the number of Vacation Points appurtenant to the Owner Beneficiary Rights allocated Purchaser as forth harem compared to the total number of Vacation Points allocated to all Owner Beneficiaries jU1rt FN041010012 Regular Contract within Purchasers respective Common Assessment Fee method group. This allocation may alter 9 additional or less Common Assessment Fees are needed because, for example, Component Site fees or taxes Increase of decrease. Bluegreen Vacation Club, inc, has the right, pursuant to the Club By -Laves, to Increase of decrease such Common Assessment Fees from time to time. In the event Purchaser is already an Owner Beneficiary at the time of execution of this Agreement, Purchaser agrees to have the Annual Common Assessment Fees determined In thle same manner as to all of the Vacation Points allocated to Purchaser, whether allocated previously or hereunder. The Annual Common Assessment Fees due annually on the first day of the respective Purchaser's Owner Use Year. Purchaser will be billed a few days after dosing for the Annual Common Assessment Fees for the current year, and the month prior to the start of the Purchaser's Owner Use Year each year thereafter. If the foregoing Annual Common Assessment Fees are not paid when due, default interest plus a late fee may be charged by the Trustee, which default interest Is 1.5 % of the unpaid balance per month and winch late fee shall be In an amount of 6% of line amount due or $25.00. whichever is greater. Purchaser understands and agrees that Purchaser shall be responsible for the payment of Club Dues, in addition to common expenses and Common Assessment Fees. Club Dues are assessments resulting from the implementation of the Bluegreen Vacation Club plan and are representative of a common expense attributable to such Implementation. Club Dues are established pursuant to the Estimated Operating Budget and Una Item Analysis attached in Exhibit 8 of the Public Offering Statement, which describes the various revenues and expenses associated with the operation of Bluegreen Vacation Chub. Chub Dues for the fast year of participation within the Bluegreen Vacation Club will be billed to Purchaser a few days after dosing. Thereafter, Club Dues for an Amer Beneficiaries, including Biennial Owner Beneficiaries, are due annually on the first day of the respective Purchaser's Owner Use Year. Each Purchaser/Owner Beneficiary shall only be assessed one Club Dues amount annually without regard to the number of Vacation Points allocated to such Purchaser/Owner Benefidary. Club Dues are payable without a late fee, within 15 days after the due date. If Club Dues are not paid within 16 days after the due date, default interest in the amount of 1.5% of the unpaid balance per month and a tale fee in the amount of 5% of the amount due or $25.00, whichever Is greater, may be charged by the Trustee. Club Dues are currently $129.00 per year (plus tax, 9 applicab!e) and automatically include Purchaser's membership in the external exchange program then affiliated with Bluegreen Vacation Club (which includes the exchange program's annual renewal fee). Unless otherwise permitted by the Florida Vacation Club Ad, as may be amended from time to time, In no event shall Club Dues in a given year exceed one hundred twenty five percent (125%) of the Club Dues for the previous year. Purchasers will only be assessed a special assessment In accordance with the Club By -taws. Failure to pay Common Assessment Fees or Club Dues when due shall cause a lien to be filed against the Property pursuant to the Trust Agreement and Club Bylaws. 5. PURCHASER'S ACKNOWLEDGMENTS. Purchaser acknowledges by execution of this Agreement that, prior to the execution of this Agreement, Purchaser has received and had an opportunity to read a copy of the Bluegreen Vacation Club Mufti -Site Public Offering Statement and the Exhibits attached thereto relating to the Bluegreen Vacation Club, as well as a copy of any applicable exchange program documents. Purchaser further acknowledges that Purchaser's use of the Accommodations and Facilities are subject to the Trust Agreement and the reservation procedures and that each Owner Benefidary shall have rights to reserve use of She Accommodations and Facilities on a first -come - first -serve basis, subject to the hone resort priority reservation right held by Purchaser and certain other (Owner Beneficiaries. Purchaser further acknowledges and represents that the Property and the rights and appurtenances described herein are being purchased for Purchasers personal use, and not for any investment potential or any possible rent returns, tax advantages, depredation, guaranteed buy-back, or as Purchasers principal residence, all of which Purchaser agrees are not pad of the subject transact on. Purchaser acknowledges that the Property as hereinabove designated, and other real property has been or will be submitted to a timeshare regime in accordance with the applicable Undertying Declaration. The Property shall be allocated voting rights, assessments and other obligations as set forth within the applicable Underlying Declaration and related legal documentation. Transfer to the Trustee of the Property as specified herein by Purchaser Constitutes Trustee's membership In the owners association "sling in respect to the Property. G. MODIFICATIONS AND CHANGES. Purchaser hereby authorizes the Developer/Seher and/or Its affiliates, as the Developer/Seller may deem necessary, to record among the public records of the counties in which the Accommodations and Facilities contained within the Trust Estate may be located, such documents, Instruments and exhibits as are required to be filed under the laws of the State of Florida, or other applicable stale, In order to create and maintain the Accommodations and Facilities pursuant to Florida raw, or other appEcable state law, including but not limited to the Florida Timeshare Act. Developer/Seller reserves the right to make changes itself, of through any of its designees, to any such documents, Instruments and exhibits as aforesaid, or as OeveloperlSeller, governmental authorities having jurisdiction over any of the Accommodations and Facilities, or the title insurance company may require or deem necessary, provided the changes do not materially and adversely after Purchasers rights as an Owner Beneficiary. 7. FINANCED PURCHASE. If Purchaser desires purchase money financing in connection with the transaction contemplated hereunder, a loan application will be completed and submitted by Purchaser as part of this Agreement. In such event, thls Agreement shall be contingent upon Purchaser obtaining a loan equivalent to a commitment for the amount specified In the face of this Agreement. If the Purchaser fails to quality for purchase money financing, this Agreement Is null and void and all moneys paid by Purchaser vrill be refunded. Purchaser acknowledges any such loan shall requko Trustee to execute, grant, and deliver a mortgage or an equivalent Instrument encumbering the Property (the'Mortgage") to Developer/Seller or Lender orl it designee on behalf of Purchaser, which Mortgage shall provide the Properly as collateral for such loan, and to the extent that the Trustee Is required by Developer/Seger or Lender to execute such Mortgage, Purchaser hereby directs and authorizes the Trustee to execute, grant and deliver such Mortgage. Purchaser shall deliver to Developer/Seller of Lender a Promissory Note (the'Nots') (together with the Mortgage executed by Trustee and such security instruments requested by Developerlseller or Lender) for the balance of the Purchase Price 6 such is not paid for fully, at dosing, in cash or certified funds. Purchaser agrees to provide a security instrument, Inducing a UCC financing statement, to Developer/Seller, Lender, or their designee and their respective assignees, respecting Purchasers Owner Beneficiary Rights, Including appurtenant Vacation Points, if requested to do so In connection with any such purchase money financing. Trustee shall not be liable or responsible for payment of any Mortgage executed by Trustee on behalf of Purchaser nor shall Trustee assume any such Mortgage upon its acceptance of We to the Property. DevelopertSeller and Lender reserve the right to charge Purchaser a reasonable fee for services performed by or on behalf of Developer/Seller or Lender in connection with this loan. Including but not limited to services such as proving a payment history or copies of statements to Purchaser, etc. Upon repayment in fun of such purchase money loan, Purchaser shall pay to Developer/Seller or Lender the stipulated cost of $25 for a ban payoff processing fee. In no event shall the Interest rate charged In connection with the purchase money financing exceed the maximum interest rate permitted by applicable haw. 8. CLOSING AND TITLE. Purchaser shall execute any necessary documents in the form supplied by DevetopedSelter as relates to the Property and this transaction prior to closing and pay all dosing costs set forth above. Trustee shall be delivered at closing on behalf of Purchaser a Deed conveying to it fee simple title (or leasehold titre, 4 within the Club Pono Kai Component Site Resod) In the Property free and clear of all encumbrances except conditions, limitations, zoning and easements of record at the time of dosing, the tems and conditions of the Underlying Declaration and taxes for the then current and all subsequent years. Purchaser agrees that he/she shall be obligated to keep current such purchase money financing as is owed in respect to its acquisition of fine Property and Purchaser acknowledges that any failure by Purchaser to do so may result In the deletion, cancellation or suspension of Purchaser from the Bluegreen Vacation Club. At dosing, Developer/Seller may deliver to Purchaser a certificate or other evidence of the transactions set out herein as relates to the Property, Owner Beneficiary Rights and appurtenant Vacation Points. Closing will be on such date and at such place as is specified by Developer/Seller or it may be by mail, If authorized by Developer/Setter, estimated to be no later than ninety (90) days from the date of this Agreement, or the completion of the Property, whichever occurs last All representations, duties, obligations and agreements of the Purchaser under the terms and conditions of this Agreement shall survive the Closing. Trustee may deriver a Mortgage to Developer/Seller, Lender, or their designee in respect to the Property at dosing, provided such Mortgage is limited to the Purchasers loan and such creates no liability to the Trustee other ohroe>:z� ra. av 70110� FN04/ot2012 Regular Contract than recourse to the Property. As used herein, dosing shall mean delivery of deed and transfer to the Trustee. Pursuant to the terms of the Trust Agreement, the conveyance of the Property to the Trustee wrill be subject to the foregoing Mortgage granted by Trustee on behalf of Purchaser, provided that Trustee shall not assume any liability therefor. It shall be Purchaser's obligation to maintain all payments on the Note and to assuro performance of the Mortgage, Including as terms, conditions and covenants (hereof. Please refer to Section 111.9.0 of the Text of the Mufti -She Public Offering Statement for a full description of the status of We of the Accommodations and Facilities In the Bluegreen Vacation Club. 9. REFUND PRIVILEGES. In the event Purchaser cancels this Agreement during the applicable cancellation period, Developer/Seller (or Lender acting in lieu thereoq will refund to the Purchaser the total amount of all payments made by the Purchaser under this Agreement, reduced by the proportion of any Contract Benefits the Purchaser has actually received prior to the effective date of the cancellation. Such Contract Benefits shall Include, but not be limited to, (a) the value of the materials delivered to Purchaser -hereby stipulated to be no more than seventy-five dollars ($75.00)-excluslve of the Multi -Site Public Offering Statement and other documents required to be provided to Purchaser under applicable Florida law, and not returned by the Purchaser to the Developer/Seller in satisfactory corrddion, reasonable wear and tear excepted and (b) If IN Purchaser has used or occupied any Bluegreen Vacation Club Component Site resort for more than 12 hours prior to delivering a notice of cancellation In accordance with the provisions hereof, a reasonable occupancy charge equal to the fair market nightly rental rate -hereby stipulated to be not less than one hundred fifty dollars ($150.00) per night plus the cost for damages, If any, to the applicable Component Site resort directly attributable to the Purchaser's use or occupancy thereof. The refund shag be made within twenty (20) days after Bluegreen's receipt and acceptance of the notice of cancellation, or within five (6) days of receipt of funds from the Purchaser's cleared check, whichever Is later. 10. PURCHASER'S BREACH/DEFAULT. Time Is of the essence of this Agreement, except where otherwise specifically provided for herein. After expiration of the applicable cancellation period, failure to close after demand or to make payments vvithin the time provided for herein, or failure to comply with any of the provisions of Ihls Agreement, shall be considered a breach of this Agreement and all sums paid by Purchaser hereunder shall be retained by the Developer/Seller (of Lender) as liquidated and agreed damages and not as a penalty. In addition, any termination of this Agreement as a result of Purchaser's breachidefault of any provisions herein shall not relieve Purchaser of any obligations as may be owed to Developer/Seller (or Lender) or Bluegreen Vacation Club, Inc. hereby, Including without limitation, obligations relating to payment of the remaining balance of the purchase price and outstanding Club Dues and Common Assessment Fees. Purchaser shall be liable for Developer/Seller's reasonable attorneys fees and costs Incurred by d by virtue of any litigation as to the parties' rights hereunder if the Developer/Seller is the prevailing party. Purchaser acknowledges and agrees that in the event Bluegreen Vacation Club, Inc. (or the Vacation Club Managing Entity), refers Pumhaser's outstanding Club Dues and/or Common Assessment Fees accounl(s) for collection, Purchaser shall also be obligated to pay, In addition to the principal amount owed by Purchaser hereunder in respect thereto, costs and c0eectfon fees in the maximum amount permitted by law. Purchaser agrees to defend and indemnify Developer/Sacker (and Lender) against all claims of real estate brokers or sales personnel due to acts of Purchaser or Purchaser's representatives, other than brokers or sales personnel employed by the Developer/Seller (and Lender). i1. RADON GAS. Radon Is naturally occurring radioactive gas that, when B has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to It over a period of time. Levels of radon that exceed federal and state guidelines have been found in buildings In Florida and other states. Additional Information regarding radon and radon testing may be obtained from your County Public Health Unit. The foregoing notice Is provided in order to comply with state law and is for informational purposes only. Developer/Sel!er does not conduct radon testing with respect to any Accommodations in any Component She resort and specifically disclaims any and all representations or warranties as to the absence of radon gas or radon producing conditions In connection with any Component Site resort. 12. BLUEGREEN VACATION CLUB MEMBERSHIP. Purchaser acknowledges that as an Owner Beneficiary, he/she will be a Class A Member of the Bluegreen Vacation Club, Inc., a Florida non-profit corporation. Purchaser agrees to be bound by the Articles of Incorporation and By -Lawns, together with ail rules and regulations as may be adopted from time to time by Bluegreen Vacation Club. Class A Membership and the voting rights related thereto are not separable from Owner Beneficiary Rights. 13. INCORPORATION OF TRUST AGREEMENT. The parties hereto agree that the terms of the Trust Agreement are incorporated herein by this reference. The parties hereto further agree that the Trost Agreement may be amended, from time to time, pursuant to the terms of paragraph 10.4 of such Trust Agreement. 14. ADDITIONS TO, DELETIONS FROM, AND SUBSTITUTIONS OF TRUST ESTATE. DeveloperlSeller is authorized and empavered to add to the Trust Estate additional Accommodations and Facirities, as it may, in its vote discretion, determine from time to time. Any such additions shall be made pursuant to the terms of the Trust Agreement Deletions of Accommodations and Facilities comprising the Trust Estate may occur as a result of deletion by casualty, deletion by eminent domain, or automatic deletion, all as further set forth in the Trust Agreement, Deletions of Component Sites may occur as a result of automatic deletion as further set forth In the Trust Agreement. In the event all or any potion of the Trust Estate Is deleted from the Trust, a sufficient number of Owner Bane ficlaries of the Trust will also be deleted so as to maintain no greater than a One -to -One Owner Beneficiary to Accommodation Ratio. Deletions shall comply with the terms of the Trust Agreement Upon an Owner Beneficiary defauhing on his or her Owner Beneficiary Obligations, the Trustee may delete and cancel such Omer Beneficiary as a Beneficiary under the Trust Agreement subject to the terms of the Trust Agreement and compliance with the lockout rules of F.S. §721.13(8). Upon such deletion, the Trustee shall perform pursuant to the terms of the Trust Agreement Neither the Trustee nor any Beneficiary shall be authorized to make any substitutions to any of the Trust Estate, except for replacements as provided above or except as may otherwise be permitted pursuant to F.S. Ch. 721. 15. DELETION, CANCELLATION OR SUSPENSION OF PURCHASER. If Purchaser defaults in his or her Owner Beneficiary Obligations, the Purchaser may be deleted, suspended or cancelled as a Beneficiary under the Trust Agreement pursuant to the terms of the Trust Agreement, the By -Laves of the Club and subject to compharloe with the locit-out rules of F.S. §721.13(6); provided, however, before any such deletion, cancellation or suspension, Purchaser shall be entitled to the rights as set forth in the lockout rules of F.S. §721.13(6) and In the Trust Agreement and By -Laws of the Club, Including the right to cure such default. 16. VACATION POINTS. The number of Vacation Points authorizing use of Accommodations and Facilities within the Bluegreen Vacation Club Trust outstanding and allocated to individual purchasers who are members of Me Club shall at all Ernes correspond equally to (or an amount less than) the actual Vacation Point value of Accommodations and Facilities owneclbeld by the Trustee. Each time an Owner Beneficiary Is added (through issuance of Owner Beneficiary Rights and appurtenant Vacation Points pursuant to a Bluegraen Owner Beneficiary Agreement entered into by Developer/Seller), n Developer/Seller of its affiliate shall convey to the Trustee an additional Resort Interest equivalent in Vacation Points value as has been provided to the incoming Purchaser or () the Incoming Purchaser shag convey to the Trustee his or her Resort Interest equivalent In Vacation Points as has been provided to the incoming Purchaser. Vacation Points and Class A Membership in the Club are not separable from Owner Beneficiary Rights. 17. ESTABLISHMENT OF VACATION POINT VALUE. Occupancy of Accommodations within Bluegreen Vacation Club Trust is based upon Vacation Points. The minimum number of Vacation Points presently required to be allocated to any one Purchaser is 3,000. The allotted use allocation of each Vacation Point was initially established at a $1.00 use valuation per Vacation Point, which allocation relates to a balancing of demand for requested occupancy with a determined number of Vacation Points equating to a daily use. Such valuation is for demonstrative use purposes only and Vacation Points have no Independent cash or other monetary value. Developer/Seller reserves the right to increase or a:. whir 7011� FN041010012 Regular Contract decrease such use allocation, from time to time, as determined by Developer/Seller in its sole discretion. Each Resort Interest made a part of the Bluegreen Vacation Club WI be assigned a Vacation Point use value. The number of Vacation Points allocated to a Purchaser will determine which Accommodations or Facilities, and at which times of the year, such may be reserved and occupied by Purchaser or any other Owner Beneficiary. in establishing the Vacation Point value of each Accommodation, Developer/Seller will lake into account the location and anticipated relative use demand at each Component Site that the Developer/Seller intends to offer to the Trustee as a part of the Bluegreen Vacation Club Trust, and DeveloperlSeller shall use its best efforts, in good faith and based upon all reasonably available evidence under the circumstances, to further the best Interests of all Purchasers of the Bluegreen Vacation Club as a whole with respect to the opportunity to use and enjoy the Accormmodations and Facilities of the Bluegreen Vacation Club Trust The Vacation Point value may be periodically adjusted from time to time in order to respond to actual Purchaser use pattern and changes in Purchaser use demands for the Accommodations existing at that time within the Bluegreen Vacation Club Trust. 18. SAVING AND BORROWING OF VACATION POINTS. Purchasers vnll be allowed to save Vacation Points from thei• current Owner Use Year for use in the next succeeding Owner Use Year and borrow Vacation Points from the next succeeding Owner Use Year for use in the current Owner Use Year in accordance with the Club rules on saving and borrowing, as such may exist from time to time, including the following: it required by the Vacation Club Managing Entity, Purchasers must pay all Club Dues and Common Assessment Fees attributable to all saved or borrowed Vacation Points. The rules on saving and borrowing may require that Purchasers notify the Vacation Club Managing Entity in writing prior to the termination of the Owner Use Year for which Purchaser desires to save Vacation Points. If Purchaser fails to provide any such required notice all unused Vacation Points for that Owner Use Year shag expire upon expiration of such Owner Use Year. Vacation Points that are property borrowed but not used in the current Owner Use Year may be saved 9 permitted by the Vacation Club Managing Entity. The rules on saving and borrowing may also require that Purchasers notify the Vacation Club Managing Entity in writing prior to he commencement of the Owner Use Year for which Purchaser desires to borrow Vacation Points. Vacation Points that are property borrowed but not used in the current Owner Use Year shall expire upon expiration of the current Owner Use Year and cannot be re -borrowed or saved. Saving and borrowing may be limited, on an annual basis, to a percentage determined, from time to time, by the Vacation Club Managing Entity, whose decision to authorize saving and borrowing will be based upon anticipated relative use demand of each Component Site. The rules regarding saving and borrowing will be exercised by the Vacation Club Managing Entity in good faith and based upon all reasonably available evidence under the circumstances with the objective to further the best Interest of the Purchasers of the Bluegreen Vacation Club Tuust as a whole with respect to their opportunity to use and enjoy the Accommodations and Facilities of the Plan. The rules may provide that any saving and borrowing may be subject to a charge. 19. NON -TRANSFERABILITY OF VACATION POINTS. Vacation Points are not separable from Owner Beneficiary Rights and will not be transferable from one Owner Beneficiary to another so as to authorize increased year to year usage. All Owner Benefidades are subject to the By -Laws of the Club. In addition, as further set forth in the text of the Multi -site Public Offering Statement and the Club By -taws, certain benefits and facilities of the Plan including, without limitation, memberslilp In the Bluegreen VIP Program, whether Basic or Enhanced/iraveler Phis Membership, are personal to each Owner Beneficiary and are not assignable or transferable, unless such transfer is facilitated by the Developer/Seller or its authricized agents. 20, RESERVAT10N GUIDELINES. The Vacation Club Managing Entity shag establish, from time to time, reservation guidelines and rules and regulations which shall be binding upon the Purchaser and all other Owner Beneficiaries. Such reservation guidelines and rules and regulations may establish the nightly minimum basis for use of Accommodations and Facifrries, weekend and holiday use of Accommodations and Facilities, spit -week reservations regarcting Accommodations and Facilities, and bonus time use of Accommodations and Facilities. 21. CONVERTING MEMBER RIGHTS. Purchaser acknowledges that the Club includes Converting Owner Beneficiaries (Converting Members) who are those who held title to a Resort Interest prior to their converting into membership within the Bhregreen Vacation Club. Rights of Converting Members are set forth in the Bylaws of the Club. 22. PRE -AUTHORIZED CHECK PLAN. Purchasers who enroll in the Pre -Authorized Check Plan ('PAC Plan) (a) authorize the withdrawal, by debit entry of otherwise, from a depository account specified by Purchaser (the 'Account), amounts on the recurring dates each month 6ul8cienl to make payments required under this Agreement andtor the Note contemplated hereunder and (b) acknowledge and agree that the terms and conditions respecting the PAC Plan as set forth in the Note and the PAC Plan Agreement are incorporated therein by this reference. 23, CONSTRUCTION OF SUBJECT PROPERTY AND AMENITIES. If the subject Property is not complete, It Is anticipated that it will be complete by the dale estimated for initial possible occupancy, provided, however, in any event Developer/Seller shall complete the subject Property within two (2) years of the dale this Agreement is signed by Purchaser, subject only to delays caused by Ads of God, strikes, material shortages or other conditions beyond the Developer/Sellers control which constitute impossibility of Devefoper/Sellees performance under the law of the state In which the Property is located. As of the dale of this Agreement, certain amenities to be completed by the Developer/Seller may not have been completed. To the extent such amenities are identified in the current Bluegreen Vacation Club MukiSite Public Offering Statement as being not yet completed, the Developer/Seller estimates that such amenities rill be completed within two (2) years of the date this Agreement is signed by Purchaser, suh;ect to delays caused by ads of God or other conditions or circumstances beyond the reasonable control of DevelopedSeller. Otherwise, the recreational facilities and amenities located in the Bluegreen Vacation Club Component Site Resorts are complete and available for use. 24. NO ORAL OR WRITTEN REPRESENTATIONS, WARRANTIES. The paNes hereto agree that this Agreement, along with the documents referred to herein, are the only agreements and disclosures between them. Purchaser should not rely upon any representations, oral or written, which are not herein set forth. This Agreement will become effective and binding upon the parties hereto when signed by Purchaser in the space provided herein and received and accepted by Developer/Seller. Except as otherwise provided by law, Developer/Setlw makes no warranties, express or Implied, whatsoever, regarding the Property, Units, Common Elements or Common Furnishings including but not limited to warranties of merchantability or fitness for a particular purpose. the Multi -sole Public Offering Statement which should be reviewed by each Purchaser, provides addrdonal specificity and explanations regarding the information set out herein and shall provide guidance in the interpretation of any provisions hereof. 25. FURNISHINGS. Although all model units are for display purposes only, the Property described herein shall have fumhure, appliances, equipment and all accent furnishings substantially similar to or of equal quality to those shown or used in the model. Such furnishings shall be provided by Bluegreen Interiors, LLC, a wholly -awned subsidiary of the Developer/Sefler. The stipulated retail value of the furnishings will vary between resorts, but Is between approximately 2% and 4% of the purchase price of the Property, and is subject to any applicable sales tax. The owners association at the respective component site resort shall oth such furnishings or such shall be part of the common elements of the condominium, and In each case the owners association shall be responsible for maintaining and replacing such furnishings within the Property. 26. INSULATION. Pursuant to the FTC Regulations, notice is hereby given that each Unit will have blown, rigid or halt insulation installed In all exterior walls to a minimum thickness of one and one-half (1 12) inches, which, according to the manufacturer, will yield an average Insulation value of at least R-5. Further, each Unit with a roofed ceiling will have blown, rigid or batt Insulation installed In the ceiling to a minimum thickness of two (2) inches, which, according to the manufacturer, will yield an average insulation value of at least R-7. Purchaser understands and acknowledges that insulation thickness may be greater and may vary, depending upon local conditions and construction factors, including, but not limited to, such items as wall openings and plumbing or other structures or obstructions within the walls or ceiling which displace the Insulation. Purchaser understands and agrees that the foregoing Information regarding the R-Value of the Insulation Is based upon information supplied by the Insulation Installer, and Developer/Seller makes no representations or warranty regarding same. 27. MISCELLANEOUS. The terms and provisions hereof shag be deemed independent and severable, and the inva@dity of anyone provision or portion thereof shag not affect the validity or enforceability of any other provision hereof. r„ nu Zqup� FN04101/2012 Regular Contract (a) BINDING EFFECT. This Agreement Is binding upon the parties hereto and their heirs, legal representatives, successors and asslgns. This Agreement represents the entire agreement between the parties hereto and may only be amended or modified by an instrument in writing between the parties. This Agreement shall be construed In accordance with the taws of the State of Florida or elsewhere and shall not be recorded. The recording of this Agreement by the Purchaser shall be considered a breach of this Agreement and, it Pruchaser records this Agreement, h may terminate at Developer/Seller's option. (b) DEFINITIONS. The capitalized terms used herein shall be given the meanings as prescribed to them within the Bluegreen Vacation Club Public Offering Statement and the Trust Agreement and, if not defined therein, shall be given the meanings as provided for in F.S. Chapter 721. If a term used herein is not defined as aforesaid, then the tens shall be given its normal and customary meaning. (c) NOTICES. Any notice to be given under this Agreement shall be duty given to the last known address of the Purchaser by regular certified mail, return receipt requested, and will be effective three (3) days after placing the same in the U.S. Mail, postage prepaid. Any notice to be given under this Agreement to the Developef/Seller shall be given by certified mad, return receipt requested, at the address set forth hereinabove, unless the Purchaser is notified in writing of an alternative address. By execution of this Agreement, Purchaser agrees to receive future solicitations at the address/phone numbers) given above from Developer/Seder and its affiliates (including, without limitation, Encore Rewards, Inc. and Great Vacation Destinations, Inc.) for their products and services, including without limhation, solicitation by mail, email, fax, and telephone (including by automatic dialing equipment and/or prerecorded messages). (d) FURTHER DESCRIPTION OF PROPERTY, The pares hereto acknowledge and agree that the Property to be conveyed hereunder is more specifically set forth in the warranty deed conveying the Property to the Trustee as agent for Purchaser, a copy of which will be provided to the Purchaser and terms of vthlch are Incorporated herein by this reference. (a) OFAC COMPLIANCE. Purchaser warrants and represents to Developer/Seller that Purchaser is not, and shall not become, a person or entity with whom Developer/Sener m restricted from do" business with under regulations of the Department of rreasury Office of Foreign Asset Control ("OFAC). Such representation shad inciude, but not be limited to persons or entities named on OFAC's Specialty Designated fist and/or Blocked Persons fist, or under any statute, executive order (including, but not limited to, the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions Witt Persons Who Commit, Threaten to Commit, or Support Terrorism); or, other governmental action. Purchaser further warrants and represents that it Is not and shall not engage many dealings or transaction or be otherwise associated with such persons or entities prohibited by OFAC regulations. (Q Americans with DisabliMes Act Certain Accommodations located within the Component Site resorts will be designed for and equipped with handicapped facifhles, as set forth and depicted more particularly in the Underlying Declaration and the exhibits thereto. Developer/Selier has advised Purchaser whether the Property that Purchaser Is acquiring hereunder Is or will be equipped wilh such facilities. (g) Mold Dlaclairms Mold Is found both indoors and outdoors. The presence of mold may cause property damage or health problems. Additional information regarding mold and a mold Inspection may be obtained from your county public health unit or a professional trained In that field. The foregoing notice Is provided in order to comply with stale law and is for infarmatbnal purposes only. Developer/Seller does not conduct mold inspection with respect to any Accommodations In any Component She resort, and specifically disclaims any and all representations or warranties as to the absentee of mold In connection therewith. (h) Florida Construction Disclosure, CHAPTER 668, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR UNIT, CONDOMINIUM, OR INTEREST THEREIN. SIXTY DAYS BEFORE YOU BRiNG ANY LEGAL ACTION, YOU MUST DELIVER TO THE DEVELOPERISELLER, A WRITTEN NOTICE REFERRING TO CHAPTER 558 OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS. 28. MANAGEMENT AGREEMENT. Bluegreen Vacation Club, Inc. has entered into a Management Agreement with Bluegreen Resorts Management, Inc. (the `Vacation Club Managing Entity") for to management of the Bluegreen Vacation Club Mulh-She timeshare pfan. The inrtal term of the Club Management Agreement was Wee (3) years commencing May 18, 1994. The Club Management Agreement, pursuant to Section 4 thereof, was automatically renewed for successive three (3) year periods, the most recent of which will expire on May 15, M. The Club Management Agreement wilt continue to be automatically renewed fo successive three (3) year terms unless terminated by either party pursuant tolls terms. Purchaser understands that the Vacation Club Managing 6htily is an affiliate of the Developer/Seher and that management fees are paid to the Vacation Club Managing Entity for management of the Plan pursuant to the Club Management Agreement. 29. For the purpose of Ad Valorem Assessment, Taxation and Special Assessments, the Vacation Club Managing Entity will be considered the taxpayer as your agent pursuant to F.S. §192.037. 30. Accommodations and Facilities may be added to this Multi -Site Vacation Plan without the consent of the Purchasers. The addition of Accommodations and Facilities to this Plan may result In the addition of new Purchasers who will compete with existing Purchasers in making reservations for the use of available Accommodations and Facilities within the Plan, and may also result in an increase in the Annual Assessment against Purchasers for Common Expenses. For more complete details, please refer to Section III.A.6 of the Text of the Multi -Site Public Offering Statement 31. The Developer is required to provide the Vacation Club Managing Entity with a copy of the approved Multi -Site Public Offering Statement Text and Exhibits filed with the Division and any approved amendments (hereto, and any other Component Site documents as described in F.S. §§721.07 or 721.55, that are not required to be filed with the Division, to ber maintained by the Vacation Club Managing Entity for Inspection as part of the books and records of the Sluegreen Vacation Club Multi -site Vacation Plan. 32. Any resale of this Timeshare Interest must be accompanied by certain disclosures in accordance with F.S. 5721.065, Fr:ry7N1R011 Regular Contract v cV `l i2a C �, 2� 5 __ �IA S�,1 Search - 1013 Results - No te* specified Page 1 of 2 C.R.S. 38-33-110 COLORADO REVISED STATUTES *** THIS DOCUMENT REFLECTS CHANGES CURRENT THROUGH ALL LAWS PASSED AT THE FIRST REGULAR SESSION OF THE 68TH GENERAL ASSEMBLY OF THE STATE OF COLORADO *** TITLE 38. PROPERTY - REAL AND PERSONAL REAL PROPERTY ARTICLE 33. CONDOMINIUM OWNERSHIP ACT C.R.S. 38-33-110 (2011) 38-33-110. Time-sharing - definitions As used in this section and section 38-33-111, unless the context otherwise requires: (1) (a) "Interval estate" means a combination of: (I) An estate for years terminating on a date certain, during which years title to a time share evi unit circulates among the interval owners in accordance -with a fixedschedute, vesting in each ' such interval owner in turn for a period of time established by the said schedule, with the series thus established recurring annually until the arrival of the date certain; and (II) A vested future interest in the same unit, consisting of an undivided interest in the remainder in fee simple, the magnitude of the future interest having been established by the time of the creation of the interval estate either by the project instruments or by the deed conveying the interval estate. The estate for years shall not be deemed to merge with the future interest, but neither the estate for years nor the future interest shall be conveyed or encumbered separately from the other. (b) "Interval estate" also means an estate for years as described in subparagraph (I) of paragraph (a) of this subsection (1) where the remainder estate, as defined either by the project instruments or by the deed conveying the interval estate, is retained by the developer or his successors in interest. t (2) "Interval owner" means a person vested with legal title to an interval estate. (3) "Interval unit" means a unit the title to which is or is to be divided into interval estates. (4) "Project instruments" means the declaration, the bylaws, and any other set of restrictions or restrictive covenants, by whatever name denominated, which limit or restrict the use or occupancy of condominium units. "Project instruments" includes any lawful amendments to such instruments. "Project instruments" does not include any ordinance or other public regulation governing subdivisions, zoning, or other land use matters. (5) "Time share estate" means either an interval estate or a time -span estate. (6) "Time share owner" means a person vested with legal title to a time share estate. (7) "Time share unit" means a unit the title to which is or is to be divided either into interval estates or time -span estates. -- (8) "Time -span estate" means a combination of: http://web.lexisnexis.com/research/retrieve?_m=eac278285 cf873 963 846f68bOf857e29&_b... 7/ 18/2012 Search - 1013 Results - No terrepecifed • Page 2 of 2 (a) An undivided interest in a present estate in fee simple in a unit, the magnitude of the interest having been established by the time of the creation of the time -span estate either by the project instruments or by the deed conveying the time -span estate; and (b) An exclusive right to possession and occupancy of the unit during an annually recurring period of time defined and established -by a recorded schedule set forth or referred to in the deed conveying the time -span estate. (9) "Time -span owner" means a person vested with legal title to a time -span estate. (10) "Time -span unit" means a unit the title to which is or is to be divided into time -span estates. (11) "Unit owner" means a person vested with legal title to a unit, and, in the case of a time share unit, "unit owner" means all of the time 's re owners of that unit. When an estate is subject to a deed of trust or a trust deed, "unit owner" means the person entitled to beneficial enjoyment of the estate and not to any trustee or trustees holding title merely as security for an obligation. HISTORY: Source: L. 77: Entire section added, p. 1716, § 1, effective July 1. ANNOTATION Law reviews. For article, "Representing a Purchaser of a Time Share", see 11 Colo. Law. 1543 (1982). For symposium on condominium law and practice, see 11 Colo. Law. 2734 (1982). For comment, "State and Local Regulation of Timesharing in Colorado", see 56 U. Colo. L. Rev. 289 (1985). Enactment of section not change of use of land. The enactment of this section and § 38-33-111 is not tantamount to a change of the use of the land nor is it a new regulation increasing the use of the land. Bd. of County Comm'rs v. Colo. Bd. of Assmt. Appeals, 628 P.2d 156 (Colo. App. 1981). "Membership interests," which do not entitle purchasers to exclusive use of any particular unit, for any particular annual period, do not transfer any interest in real property, and are not "time share estates" under this section. Bernhardt v. Hemphill, 878 P.2d 107 (Colo. App. 1994). In About LexisNexis IPrivacy Policy (Terms & Conditions (Contact Us Copyright © 2012 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. http://web.lexisnexis.com/research/retrieve?_m=eac278285cf873 963 846f68bOf857e29&_b... 7/ 18/2012 KLEIN, COTE & EDWARDS, LLC ATTORNEYS AT LAW HERBERT S. KLEIN' hsk@kcelaw.net LANCE R. COTt, PC' lrc@kkcelaw.net JOSEPH E. EDWARDS, III, PC' jee@kcelaw.net KENNETH E. CITRON' kcitron©kcelaw.net MADHU B. KRISHNAMURTI mbk@kcelaw.net OF COUNSEL: JOSEPH E. EDWARDS, JR-, PC joe@kcelaw.net also admitted in Hawaii = also admitted in California also admitted in New York and Massachusetts 'also admitted in Texas July 9, 2012 HAND DELIVERY Chris Bendon, Director Aspen Community Development Department 130 S. Galena St., 3rd Floor Aspen, CO 81611 201 NORTH MILL STREET, STE. 203 ASPEN, COLORADO 81611 TELEPHONE: (970) 925-8700 FACSIMILE: (970) 925-3977 www.kr.elaw.net RECEIVED -JL 0 9 2012 '0ITY OF ASPEN rOWUNITY DEVELORMEhT Re: Request for Interpretation Pursuant to Section 26.306.010, City Code; The Innsbruck — 233 West Main Street, Aspen, CO 81611 (the "Property") Dear Chris: As I discussed with Jen and briefly with you, we represent Bluegreen Vacations Unlimited, Inc. (`Bluegreen"). Bluegreen (as buyer) entered a Purchase and Sale Option Agreement with Innsbruck Suites Investments, LLC (as seller) effective as of June 11, 2012 for the purchase and sale of the seller's remaining interests in the Property — comprised of seven whole condominium units (from which no fractions have been sold) and 39 separate 1/12th fractional interests in eight additional condominium units (collectively, the whole units and the fractional interests are referred to herein as the "Units"). Upon the closing of the transaction contemplated by the Purchase and Sale Option Agreement, it is Bluegreen's intention to file an insubstantial PUD amendment application with the City to allow smaller fractions than the currently allowed 1/12th interests to be created and sold within the Units. We held a pre - application conference with Jen last week on that issue. On behalf of Bluegreen, we request a code interpretation pursuant to §26.306.010, City of Aspen Municipal Code, Land Use Regulations (the "LUR" ). In particular, we request verification that the prohibition against certain forms of timeshare concepts contained in §26.590.070.J.1., LUR is inapplicable to the Bluegreen Vacation Club multi -site timeshare plan within which the Property and the Units are intended to be integrated and then offered and sold. { 1640075.DOC /2 } Chris Bendon, Director Page 2 July 9, 2012 That section provides in pertinent part that it is "unlawful" for any person to knowingly engage in: 1. The creation, operation or sale of a right -to -use interest or any other timeshare concept which is not specifically allowed and approved pursuant -to the requirements of this Section. `Right -to -use timeshare concepts (e.g., leas` e holds and vacation clubs) are considered inappropriate in Aspen and are not permitted. This prohibition appears to be intended as a consumer protection regulation. I suspect it is a hold -over in the LUR from the 70's or 80's when some "timeshare" plans were less than transparent and/or not real-estate based. As further explained below, and despite the nomenclature, the Bluegreen Vacation Club multi -site timeshare plan is not a right -to -use interest or leasehold timeshare program; rather, the Bluegreen Vacation Club is a trust -based "timeshare estate" timeshare plan. Since the prohibition specifically mentions "vacation clubs" as an example of a type of prohibited right to use program, we want to clarify and verify with you that the Bluegreen Vacation Club is not the type of "vacation club" contemplated by the prohibition and that Bluegreen is not prohibited from operating the Bluegreen Vacation Club in Aspen. The terms "right -to -use" interest and "vacation club" are not defined in the LUR. The term "right -to -use" is a term of art and has a meaning in the timeshare industry. The term "vacation club" is not a term of art and is used for many different timeshare formats in the industry. The American Resort Development Association ("ARDA") defines right -to -use as "A timeshare owner's ri2ht to occupy a unit at a resort for a specified number of years and having no re es to interest conveyed." Wikipedaa a es a n - o-use t�res�as%Iiowse - ��i%��' p nght to use the property in accordance with the contract but at some point the contract ends and all rights revert to the property owner. In other words, the right to use contract grants a right to use the resort for a specified number of years." The key elements to a right to use program are a contractual right to a specified time period after which the right to use expires and the lack of a real estate deed. The Bluegreen Vacation Club multi -site timeshare plan was created under specific ,� n\iUA provisions of the Florida Timeshare Act and has been registered and approved as a timeshare f>{�- estate plan in the state of Florida since August 1, 1994 and in Colorado as a timeshare estate 1�` subdivisio_ n s_ ilJune 118_2005. As noted herein, the Bluegreen Vacation Club involves only p� the offering and sale of deeded timeshare estates for which title insurance is issued. We further note that the ARDA defines Vacation Club as "a term used to describe various types of timesharing and usually involving use or access to more than one resort location and other vacation and travel services. However the term is used for many different purposes, including "clubs" which may have nothing to do with timesharing (i.e., travel clubs)." { 1640075.130C /2 } Chris Bendon, Director Page 3 July 9, 2012 When Bluegreen sells a timeshare interest in connection with the Bluegreen Vacation Club, it does so pursuant to an "Owner Beneficiary Agreement" (i.e., the timeshare purchase contract) and, upon closing, issues a Warranty Deed conveying fee simple title to the real estate timeshare interest to Vacation Trust, Inc., a Flo'?i'd Corporation ("Trustee"). The Trustee holds the real estate title for the benefit of the timeshare interest buyer pursuant to the Bluegreen Vacation Club Trust Agreement, which is the timeshare instrument establishing and governing the timeshare plan. The Trust Agreement is intended to be irrevocable; however, in the event of a termination of the Trust, the Trustee is obligated under both the Trust Agreement and the Owner Beneficiary Agreement to transfer to the beneficial owner the timeshare interest in the real property that was transferred to the Trust when the purchaser became a beneficial owner in the Trust. In other ;rust ords and at the end of the day, the Buyer owns the real estate. For your reference, a copy of the Agreement is enclosed. Also, the timeshare interests can be, and often are, sold on a purchase -money financing basis, in which event, a mortgage is granted on the timeshare interest providing collateral for the purchaser's promissory note. The Trustee, as fee simple owner, simply executes the Mortgage on behalf of and at the request of the beneficial owner and the beneficial owner makes the payments under the promissory note. The Bluegreen Vacation Club is currently comprised of over 60 component site resorts, located in various states, Aruba and the Bahamas, which are used and accessed by its more than 166,000 members (i.e., "Owner Beneficiaries"). Any beneficial owner who buys a timeshare e ' ck in connection with the Bluegreen Vacation Club will ha e a 60 day "home resort" preference for vance reservation priority at The Innsbruck. We so c y n (and counting) members of the Bluegreen Vacation Club are all potential new "trials" in the Aspen area. See §26.560.060C.5, LUR. Bluegreen is going to propose smaller fractional interests for the Units and these smaller fractions are encouraged under the Timeshare Regulations. See §26.560.060C.1, LUR. While the program is called a "vacation club," it is also a type of plan that is both "specifically allowed" and encouragedin Aspen. Whatever meaning the term "vacation club" has in the LUR, we do not run afoul of it because we haveFa�de�e_dedimeshare interest that does not etre eThe specific language is that right -to -use concappropnate — an —that c u sgiven as one possible example of something that might be an inappropriate right to use. Bluegreen will not be operating a right to use plan for The Innsbruck. There will be warranty deeds to a real property interest, title insurance policies, mortgages in the case of a financed purchase, the real property interests will not expire, and the owners are protected by the Trust Agreement and the Owner Beneficiary Agreement. Consequently, we request confirmation that Section 26.590.070.J. L, LUR, as it applies to Bluegreen, does not prohibit the operation, offering or sale of the Bluegreen Vacation Club in (I 640075.DOC /2 } Des tl.c dce� n Chris Bendon, Director Page 4 July 9, 2012 Aspen provided that the fractional interests are deeded to the Trust and do not expire. We intend to rely on your interpretation in making our decision concerning whether to consummate the purchase of the Units within the Property. We have a due diligence deadline of July 26, 2012 under our agreement with the seller and would appreciate receiving your interpretation in advance of that date so that Bluegreen may make its decision concerning the purchase of the Units. Enclosed is a check payable to the City of Aspen for the LUR Interpretation fee in the amount $50.00. If there is anything in addition to this letter and fee that is required in order to pursue this interpretation or if you need additional information, please contact me. Sincerely, KLEIN, COTT & EDWARDS, LLC Edwards III cc: Bluegreen Vacations Unlimited, Inc. Jennifer Phelan Mitch Haas bluegreen\ltr to Bendon interpretation request.doc { 1640075.DOC /2 } Now 1t1A-. - `L,r� .. i /t. OPAAA V 4r.,:VNIJ4-k- Gl - — (tA:zsuk- -4 s � �Jlct� � JC- 1� OfVAWL WhO C o►^ � Y ate. cL Lsr e� � • • �� boo l' `�" �--r,,,.s�- � G..r, mr..�-a.�� ccx^tn*, t 7p1 t P 4� v r ocSr 1 �mot C.D - w . t l (o �� � �� -t-� x � gel 4,�f � •� a��s a���� trG 1'f-f�Jl -f-t � - o*- -c um— vim- fe4-, r\ 0 0 Page 1 of 1 Phillip Supino From: Phillip Supino Sent: Wednesday, July 18, 2012 11:25 AM To: 'jee@kcelaw.net' Cc: Jennifer Phelan; Debbie Quinn Dear Jody: Upon review of your letter with our assistant attorney and the city's timeshare regulations as well as C.R.S. 38-33- 110, we would like some additional information with regard to Bluegreen, LLC and the timeshare estate plan. First, as a timeshare estate, how does the "60 day home resort preference" noted in your letter comply with a Time -Span Estate as defined in C.R.S. 38-33-111? Second, we would like to review the Owner Beneficiary Agreement identified in your letter to determine whether the ownership and usage rights conveyed to owners meet the intent and definitions included in the C.R.S. and Municipal Code section 26-590. We would be happy to meet with you to discuss these issues and answer any additional questions you have. Sincerely, Phillip Supino (970) 429-2797 Cc: Debbie Quinn Jen Phelan o .w ZsSc� wr kAN iw�or 4AC_� 9 6 - S-10,�— 'AV �J '� 41-�cl� 7/20/2012 0 1 Phillip Supino From: Jody Edwards Dee@kcelaw.net] Sent: Friday, July 20, 2012 2:15 PM To: Jim True; Jennifer Phelan; Phillip Supino Cc: Chris Bendon; Mitch Haas; 'Virginia Polinski'; joe.scalo@bluegreencorp.com; Anthony Polvino Subject: Code Interpretation - The Innsbruck Jim, Jen & Phillip - This email is to provide my response to Phillip's question concerning "time -span estate" and the 60-day preference given to purchasers of interests in the Bluegreen Vacation Club. Broadly speaking, I have two responses to the question - first, I don't believe that Code requires that the timeshare interest be a "time -span estate," and, second, we satisfy the statutory requirements for a time -span estate in any case. The City's Timeshare Development Regulations, §26.590, contain only one reference to § 38-33-110, CRS. That reference is in §26.590.030.B., Minimum Requirements to Obtain Exemption. In order to qualify for a small (6-unit) timeshare development exemption, the development must be comprised of only "time -span estates." This makes sense because those developments are not subjected to the same level of scrutiny and review as are non-exempt timeshare projects such as the Innsbruck. Non-exempt projects are subjected to a more thorough review - and as a consequence are not limited to development of "time -span estates." Non-exempt projects can be comprised of any timeshare interest not prohibited by §26.590.070.J. That section does not require that projects be comprised of time -span estates; instead, it prohibits the operation or sale of a "right -to -use" interest. Thus, the relevant question is not whether the Bluegreen Vacation Club includes the operation or sale of a time -span estate, but whether it is the operation or use of a right -to -use interest. That was addressed in detail in my request for an interpretation, and Bluegreen does not sell right to use interests. Even though the time -span estate analysis is not applicable in this context, the Bluegreen product satisfies the statutory criteria. First, for ease of reference, the statute states: (8) "Time -span estate" means a combination of: (a) An undivided interest in a present estate in fee simple in a unit, the magnitude of the interest having been established by the time of the creation of the time -span estate either by the project instruments or by the deed conveying the time -span estate; and (b) An exclusive right to possession and occupancy of the unit during an annually recurring period of time defined and established by a recorded schedule set forth or referred to in the deed conveying the time -span estate." As described in the request for interpretation, on purchase and sale of an interest, Bluegreen delivers a Warranty Deed to the Trust for the benefit of the purchaser. Many owners of real property in the City hold their property in Trust, in LLCs, and in other entities for their benefit. Nothing about using a Trust as a holder of the title for a beneficiary diminishes the fact that there is an "undivided interest in a present estate in fee simple in a unit" that is conveyed. And the magnitude of the interest is set forth in both the deed and the timeshare documents. A purchaser of a Bluegreen interest at the Innsbruck will have a 60-day home -resort preference for reserving a unit at the Innsbruck. That preference is provided for in §4.9 of the Bylaws of the Bluegreen Vacation Club. On exercise of this 60-day preference, an interest holder will have an exclusive right to possession and occupancy of a unit at the Innsbruck. The Condominium Declaration for the Innsbruck, like almost every other timeshare development in the City, provides that "each Fractional Owner shall have the recurring exclusive right every Use Year set forth in such Fractional Owner's Purchase Agreement and Warranty Deed, to use and occupy an Assigned Unit of such Fractional Owner's Unit Type (though not necessarily the specific Condominium Unit identified in such Purchase Agreement and Warranty Deed)." See Declaration of Condominium for The Innsbruck, a Condominium , recorded at Reception No. 542331, Section 6.2. While the exclusive right to possession and occupancy is not specific to a particular unit it is an exclusive right to possession and occupancy of an assigned unit within the same unit type. As we discussed with Jen, Bluegreen intends to amend the timeshare plan to allow for smaller fractions - for example 1/48th instead of 1/12th interests. While smaller time periods will be sold and while the purchaser is given some flexibility as to the exact dates on which the purchaser will stay in the unit, the time periods are on an "annual recurring period of time." Therefore, by virtue of the 60-day priority any owner can, if he or she so choses, have an exclusive right to possession and occupancy of a unit at the Innsbruck on an annually recurring basis. Therefore, even if it is deemed applicable, we satisfy the requirements of a "time -span estate." I want to emphasize that we are not creating any new timeshare interests here (other than the smaller fractions). We are just selling the same type of timeshare interest that has always existed at Innsbruck, albeit in smaller slices by way of amending the declaration. The fact that these timeshare interests are being sold as part of the Bluegreen Vacation Club does not change the nature or character of what those interests are at the Innsbruck level. We look forward to discussing this with you Monday at 11:00. Best, Jody Joseph E. Edwards, III Klein, Cote & Edwards, LLC 201 North Mill Street, Ste. 203 Aspen, CO 81611 Tele: (970) 925-8700 Fax: (970) 925-3977 jee@kcelaw.net www.kcelaw.net IRS CIRCULAR 230 NOTICE: This document was not intended or written to be used, and it cannot be used, for the purpose of avoiding tax penalties that may be imposed. In addition, this information cannot be used in promoting, marketing or recommending to another party any transaction or matter addressed herein. CONFIDENTIALITY NOTICE: This email transmission and any attachment(s) may contain confidential information which is legally privileged. This information is only for the use of the intended recipient. If you have received this email transmission in error, please notify us by email at the address above and delete this email. Thank you. 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' -9:10' 1�! c6bi 4mlinn»f TrsittP'. ..... .............................:•..:r........ •....., ............. 1!' ......................t........................................... r BLUEGRM-VACAnON CLUB AMM1~6 An RESTATED TRUST AGRF. TENT" This BLUtOREE.N VACAMON CLUB.AMENDW AND RESTATED TRUST AGREEMENT ijjjW . A*tr went"? is made to ennead and,restate that certam Trust Agrecmeait made as of the 13th da o •Ma 1994 by and between•Bluegreen Vacations Uulitruted, Inc., a Florida coiporadoft (°Bluegreen') filr/ Resources Inc. - with its prhtrival bushtess address at 49b4 Confercna Way North, Suite 104, Boca RatO:t, Flori& 33431. and Vacation Trust, Inc.; a Florida ,corporation, as Traastee ("Trustee) with Its principal business address at 4950 Comrnuaieation Avenue, straw 400; Boca Raton, Honda 33431. . WITJyECS.FZ"K; 1. Bluegretn has equired fee title, rights of use (including Occupancy Rights). or leasehold interests . in certain Arcomrnodztiorrs an4 Facalidcs and intends to.coadmie to acapdre additiorW dries, rights or interests in Accon=dattons nd Facilities; . 2. Sluegresn in -ends to convcv andtransfer such "title, rigbu or Interests .to -the Ttusice for the Trustee ro hold for the benefit of the Benefiofarim hcrcmder, 3. Bluegreen desires, to -pmyide to the Owwrier Bewficiaries "Abe right to ocaa - y -and' us+: Accairuraodstiotu and Pacilitics brad by ttse Trustee pu scant to the.W= of this Trust Agreerr erg; Blnegre-,.a, the -Trent -read Bach Berufiriary hetcuntiei. have agreed that T`cttstec shall ticld such' tines,. rjoLs And/or interests in the A¢cornmodadors and Facilities So tratssferrcd by Bluegrean, pursuant to ;he terms of this Trust Agreement, and the Beneficiaries hereunder shall, for tie time that the aides, rights or interests are hdri by the T u %4,-haye.the rights herein established.. and 5. 'tile T=tee &bAI hold the Accommodations and Ficiliik.s as provided to the Trust: by Btuegreest for she benefit of. the Bcneficia n so as to protect the interests of. thc. Beaenciaries hereunder, for w long as ruch imciesrs ;shall ex,K; and preserve teat Accommodations and Facilities for the Beneficiaries as herein provided. Ntik' THFRUORE,- Bltzegreea and -the TYustct enior into'this Tnist, Agreenurttt for the uses and purposes set forth.bereinabove and as provided further herein, with the, latent of this 'Trust Agreement to be for the protection of die interests of the Beneficiaries.. it biing the direuian snd agreement of the pardet hereto that the Trustee shall hold arty title, lights or iterests ctravcyed to it by Hiaregreert or otherwise, which may be conveyed or traatsferred as bf the date of this Trust A�rerment or which may be conveyed or transferred frors time to time hereafter to it for inclusion under the turns of this 'bust Agreement, purscam to the tennis of, this rust Agreement, specifically as follows. - AR1CFi : As used heren ,- tfic following terms shall be given the meanings set forth below: Words otharuise used herein sha3l be given tliaxutaning asctibed to such wbrds by Florida Statue Secaion 721.0i eLseq., Parts I and II artd those rtoditr and.eustgaisaay arteastirtgs othcTq*. 1.0? jrrazmada aw shall mean any apartment, condoraini= or cooperative unit, cabin, lodge, hotel or u}3tt1 room, or other -private or cordr%xicial'stnxtazre which is situated on real or personal property and designed for odcupancy or use by out or more lhdividuah and fuck shall also include resort. interests and t)cetipancjj Rights : in respect to any of the fgr.evci . LGI Bima _Ati- shall mean 0:%k; r Benef earns,, Btuegreoa," Club Beneficiary, vacation -Clu>? Maaagiag Entity flatleficiary And huemt-Holder BepefieWies, =h of whose interest under this Trot Agreement consist of the right, to perfbn iaace by the Trustee of its oblig;kns v herein se: forth. I.02A Xtirnntor Elm. nr t3M1[f{c46rV shall. mean 6n (Owner Btrteriicia:ry for whole a biennial Resort_ . Interest or 4c.-up3ncy Rights related. to a Biennial Resort Interest, have . been transferred us the Ta�stee in . conjvncdan-with the adrriittance'to the Club of such'respective Biennial Owner Bendciary, 1,02B ajerinw Roos= Tn� s"han r earl a Resort Inlerimt arable in tither Odd. Num't4•red Years or Eve:a Numbered Years and shall detea is ultiye on a calendar• yea: buls..Odd Numbered Years art those years - eading in 1,3,5,7, or 9 (designated' by u "U'). Even.Numbered Years. are those- years ending in 0,2,4'41. oK B gnated by an X"): j.QZ - Tiir7 ni a1 Vnrs�ftnn PQ ats' Shall S�1 Yaca[iAA Points which "allow OCCttpancy and, use of ficcommodations only during add Numbered Years (desi&rated by.au.'0") or only during Eyep Nambdred Years (dcsignatedby an 'E'): 1.03 t;lilh or Ch b RrnQs;s� shill mean tho Bluegteen Vacation Club,. inc., aFlorida lion -profit corpora*aan We RD] vacation Club, Inc. I.04� shall be -the dues, which are established from tame to Larne by the Board -of Directors of ttie Clttb;,Bcne#iciary, and are assessed: t{nainst the Owr= Beneficiaries. Club .Dues shall be established lei. pay. . expenses of the Club -to include by way of example and .not lirtlltation,. annual -renewal fees for Owtier BeriaOaiaries 'aff►liated with the RC:I exchangc.pragram, lt$eri+atidnisi fern; fee :Tlecessary for day-to-day opCrdtiiSltS of lhe' Club, . earnputrr.system, +office space rent, tnd fees duo and payable to the Vacadoh-Club Managing Bntity Beneficiary by the Club. " Q'$ f nmrnnm 4 .,4mrAnt 9?� shall mean the agg;eg;ate .arum of eosx-non expenses .due snd. payable to the Component Site Managing Enrity together with . all .a.ssessarent.s levied by nr.. in relation to all rGtnponeB Site Managing Faitiry and Corrtponcnt Sites a;airist awtls thexeaf. '. Ccrnslan Assess:n not Fees snail. iriGltidt_ by way of exAiaple 'and not lirutatian, tax payments itr respect to the Trust Estam, inciud4ng a13 Resor interests,. Accarnmoec = and Facilities. - Cosmnlon Assessment Fees tray be re:erred io as Mairitensnce Ftts. I.t16 Cair� n z Foralshin . shill mean ail f mres, furniture, applitin;es, carpeting, sYattdud . egaiplilent and furnishings located in the A=rrirtioditions for use try. Owner Beneficiaries during their t'espw.tive occupancy lad use of Aecornrnc&tlons. : 1.07 nhR¢ri} eirp shall reran a speccific geograp* site where a pordati of tba Aecattrnedatians and Fadities of the Blue,gre= vacation Club are located: 1.08 f,nnnnnn tz a�gis�ltx Shall mean the a lii:y. "w�aich operate 5 or maintains a specific Component Sitc. 1.f1 nn ling Awi,,,r Ttrnaarl rm. shall rnesn Owae'i Bctleftt:iarios . who, prior to, - or simuitaneat sy with, the time of being designated an- Owner. Beneficiary, held tidy to a Resort laterest and who covey stieh Resort interest to the- Trustee or who -granc Oceiipaney Rights to the Trustee in respect to such Resort . Interests. .. '. 1.10 llwmonri itaicr+rina Sian' a . shall rr= the rules and regulations adopted by the Trustee for operndort of a rue�rvatioa sys'tern �n respect to use of the Trust Estate by Owner Benefnoiar�,es, which isles ]rid : regtrlatiotts. shall,tah into account the location and adticipated relative use demand of each Cornnoncsst Site; and Vihich In good,ua.based upon rrasoi>+tblp svaihble evidence,undcr stir cucurtLs�rise1, Anthers the best'integsr of - Qte Owner Beneficiaries as 'i- "whole with aspect to their.oppartunity to, use and enjoy. thr: Aeconm:odatrnns and Padluies; which Ntnand Bxlancing Standard and rules and regulations may be periodically adjusted or amended froth time to tuns in order to respond to actual Owner Beneficiary use paulw and changes in Owner Beneficiary... . Use dttnard for *he Atcommodadans and Facil4d:s, T'hc Demand Balzncing Standard may reflect he oppoimnity to rise and enjoy Accommodatiow and Facilities baud upon placation Points.. 1;11 illusion shl, meu the Division of Florida Land Sales, Cmdominiuzns, and Mobile .riorries of the Deparunent.of Business.& Professional Rzguladon. 1.12. B 44Mfies shall mean any amenity, including any -structure, Common Furnishings, service, improveatcrit; ar rest or personal prCperry, insproved er unimproved, other than the Ace =w;iadons which arc : etude a raiiabla:to the C v6-ncx Benefdaries; provided that this tenet shtit not,include an incidental beceftt as defaneti ; in`Florida Statutes §721.6, - 1.13. tnter&u 4fintriare 14ened grim shall mein any third pasty, inelud:rg but not linvzed W insdruiional . fuian^zaial. !renders or: a: quinces or Bluegrrrn who may be the beneficiary, rnongagce or grantee of a Lien Debt. including a Purchase..Mcmry l.i,.en Debt, together with such bemefrriary's, 7.0nJagae's or g=tee's.successors and ass"Ps in interest, . 1.14. Lire TIF ht small meah a mortgage, dyed of trust, deed to iecure debt 1pr mist deed encumbering or' conveying. as eoliitasat fox a deist, a. Resort. Interest or -umber portion bf- the ;Trust .Estate end may aiso ilicitide a UnifOM.Conllrnercia!`t:o4e security interest held against OwncrBeneficiary Rights, including Vacation poi=. I.Li .. ' IIrrnnan__a__ i_4hd shall mean the exclusive rlAt by convac;, assign: iem or easement agreement, esliblisiiin&.cxclusive occupancy and use of a Resort Interest,grarod to ft Trustee: ' l.lf tit4i i RfM As'shalf mean the records of a local jurisdiction; L 1c ding county, whereat real . . property records or instrumeius arc tc bb recorded, including whereat the ilndcrlyin DectaraaOsts-tray tie recorded. .; L17 on n:r]na 0.1mrr $_At.�11$�3i rtLtrntrmmla1Np_ AtSn shall rxtca.i the ratio of tb: astrrtbtr of 0w'£ter::.Btwfiiciarics'i6gible to. uso' the. Accornmodations on a given day as cOmpared to tine number of A=mmodatioas arvailibie for use within W Trust Estate an that day, so that the total number of Owner Bepeiiciarles eligible ro use the Aecomrmdations daring a given calendar year never exceeds the 'tote] number cif Mitt mmcidatloas availibit for use within the Trust Estate daring that year. For purposes of the calet'Iation under thik`deftnition, each Owner Beneficiary must be council at least once. and no individual Aoaotmtod¢aen or Resort Interest may be omted more than 365'tinws per calendar year for more than. 366 demos per leap year). An Oyvner Beneficiary who is delinquent in .die payment of dues and assessments hereunder or under the Club. Beneficiary .Bylaws or his Bluegreen Owner Agroernlent'shall continue to be wxidrred eligible to use hz Actt mmodations for purposes of this definition, notwitnstandfiag any application of Florida Statute V21,1.3(6); provided, however, that in Owner Benenciary7who is deleted as an Goiter Beneficiary from ill, Agreement shall no kingts be considezed eligible to use Accotarno&dons fot purposes of this definition: LIS' 0PdaI=a,, E=A shall =2.ri tht aggregate paymem by all Owner Beneficiaries of Club Dues.. 1.19 - f�lMdr RenirrgiW4 shall mean the purchaser or parchas= der Lhe Bluerrecar Eiwncr.. . Agreer•tent(s) who Acquire Owner Beneficiary. Rights, including vacatioc Points as an appurtenance thereto. Oivger. : Beneficiary shall 214 include the grar_tor of Occapuiey Right to the Trustee, if such grantor is a Converting Owner Beneficiary. " Entitlemtitt to Vacation Points,. is reflected in the books and. records of the T ustae, shall. be a •'.- COtIQ ft 10 *Wkwon U SA OWW •Bent ftciary k'gM=*— Owne Be> &ivy shitu lriclude 4, Bieaa' Ov ntr 1.20+eJe:R•sy hR.ABmte shall mean the obligation of the respecdve Owner Beneficiary.to pay all amounts, wh' due, for Club Dues, Corcanon Assessment Fees, or owed irt.respect to the acquisidotn.by such Osamu Benefkiar+y 9f hii or her Owner &nefuciary,Rights, including Vacation P.oi:its, including, but not iiraited to .. RAY Lien Debt or Pprctsm Money Lien Debt, together with any amounts due on any Resort Interest or Occupancy . Rights tenviyed to ihhe Trustee. by bny Converting Owner Beneficiary. �r.ta��ft5�ts.3� ibei rWan the beneficial rights provided to an Owner Beneficiary hereunder. which. rights sho spccifit a ly inctudc, byway of example, the rights of performance pro hied to Owner, Berieftt las' . by- the Trusm pursuant v .Stcaon 8.01 wblch Owner, Beneficiary Rights shall include as ari appurtenance thereto: 'Vacation, Points. -Class A Membership in the' Club shzg b: an appurtenance +� .Owner .. Beiaefic'tar,/. Rights, � •. , , =4 tamer LI!s� &a11 mm the time period, is. determined. for a respective Owner Beneficiary, et}tn merncing on the 2irst of i'ste :honth -fallowing his or. her oxecution of,bis other Bhiegreeti Owner Agreement'and t aeivnatins upon the;eapiradotl oftwdve..(12) amath;.illiiezftxr. 1.1.E . Fatretusse: icntigt 11 ► DrJ shall mea*i .:. Lien Debt giver. as collateral for the obligation Of atn Owner Beneficiary 6 pay for the acquisition of 0sner.Deaeficiary Rights. and appurtc 14m-- Vacation Paints: E.3.fi nts rranr. f i�nnr sa x►r�+ennt shall tnem the dc,nment or irstn=w by which: an Owntt ` Benrficiary'shall-have purchUed'harr. Biucgreein Owner Bcntfi:izr} 111ghts and appurtenant Vacation Feints. whkh :..docwnCA;-zr.iasrsumettt.tnay, from time to time, vary is form and contests.. : 1.i3 tate (including Dimiai Iweier's),'or license, undivided ` interes ,4rechold -estate; ..state for years; u:terrst in a condominium unit, br other ownarship or leasehold interests in real property: as achy of the fcregoirg may be defined under applicable state law. 3.25 �C <.hall mesa the tune period (a) in respect to a respective OwnerBeacficiary, until a.default by. such Owner Beneficiary of ntis or her- O`*= Beneficiary, Oblsgadow, which default causes a deletion or cantelMon of such Owner Bexnefnciar. j aad to) in.aspect 6 a respective C•ar npontnt Site, .the time period, if any, until a +Cbrnporen( Site is its entirety 1s 2utotr adeaily deleted Lot> the Trust Estate. E.27 ° nL0_t+_ttam shall-m-ean ali eke Accommodations inn} Facilities. ncluding Occupancy Rights .end Resort Interests. eoaveytd. trxn3l`errc-d,.l6sed, or-titite,i+uise ttir red, by the Tntistec as shall be described, from* : time to dine, in Exhibit "A" amached hertto, which may.bc Une-tided from tune to time, together with any :�attd iii appurtenant rights and privikgo. -The True Estate sinail.. additiotrally, irnc4ude •Cornman Furnishings or riptnts tncrein..and any and ix aepiacerisants or substitutions thereto, together with all proceeds derived from the Trust Estate excepting any portion of the Trust Estate as is deleted pursjznt to the terns of this Acreern:ds 1.28 t,sf Z:ttnd' S}natt be the segregate-payrsnent by all Owner. Beneficiaries. of C•o=non Assessment Fees.. 1.29 ng natars 6t%n shot' 1 mean that certain Declaration of .Covenzats, Conditions and Resztnt tiotns, Declaration of Ccndornirnium: or -sitnilar instrument applicable to- a specific Component Site by which such specific Component Sicc is tscuunbeied and the properly regime established thereat is created. 1J0 Y sUU.-man: Bhtegz�nResorts Maz;agerrett, Inc a Ddawate =pormion Viand successor•iD-iatetest by =?-Cr to: RN Resort Services Corp.), aed'i successors and 'aSsi0, in ititeiest:30,6e Manssetdeiat Agreeme t as.may exist frara tlttr Lq rims witb the Trustee pursuant to which eat'stirriges are provided reectbrg the administration of the Trust F.mm. 1.31 ' *b&. p^;nre shall ,•heart the valUe..p}aced. upon a .taighily or weekly occjapaacy Of. 24. Acc=nodation puts MA to the -'W= of the Bluegreen Owner Agreement, whi:b value they be set firth within the Deramd Balancing Standard. Vacation Points shall be an' appu=turce to Owner Beneficiary Rights and not separable therefrom, VacitionLPoints wFull include Biennial Vacadon Paints where cinch inchumn in the defuiition +s appropriate; rr .e earrr°rrnN t�tr c�tzGAM 7 a�rrnt�t s Trust Agreement is 'intended to mate"express, irrevoc Tinfahle trust and not s partnership or.a Joint•.." hock association. This Toast Agreement is nag intended to crsate tear does it creatd a trust tbrough establishment of - a, common law deeJaradoa of trust pur'sttant to Flt Sta. J'6D9 4I, specifically in that this Trust Agreement is not'for " the purpozc: of_organiaang as association for din trransacd3on of 'business, but nthzr is for tr,e.purpose of Inoviding a : trust for the purpose of cc=plia= with Fla. Stet: 721,53(lXc). ,dtertcT:i? to . . TV AA'CL"6'R TOT L STF.F Bluegreeea transfers to Trustee -ail .of its'f0d, titles and interests in the Accornmodataions and Facilities. "ekscribed in Exhibit 'A" attached berew and bmQTorsxed herein by this rcferaze: which, trattsf> r sIvOl include.fee - simple title or'transfftr and assignment of Resort interests or 0=*ancy.Ri¢hts, as noted: Bluegrecr, and tn;sise expnssty agree, that, Nueureen reserves unto itsel? the right to .convey or,v2zssfer additional; Accotnmadadot}s sttd i~aaiities, iarltMfirtg leasehold iute:csts, Resort Ssaterests ar Uccupancy Rights, to, the trusser and upGti the dclivcry` of a deaf, lease or assignsucat of:Occcrpaucy Rights, the Trustee agrees. {hat it snail accepi. the.agrne, ,rnursuattr to -the. temts.of this Trust Agreement, Such properties or Occupaacy•R9ghts as are.esudslisbed pursuant to Exhibit W and as xhay hereafter. from "tithe to titres; be conveyed or uwtsierred to die TrstsWe iaii be considered the ° T'rust Estate' ' Is". Refuted further vitl ar the: defidticr+s set forth in Article l'h�ertinabove,. Ai any tinic-' anti from tirr.e to tutu additional Accon mcihdons and Fac1des, including Resort ; laterests or Occupancy, Rlehu, : may be convcyPA dr leased to the Trustee under, this ;Trust, and su h Ac:ornnwdstaons ar:3 Faet�azi�c, inclutiitsg Resort. Interests or ikcitPaztc�r Rigiirr shall be head, desit w'hh.a d dispoW of nnder`tiiee terms of this TruscAgrtemant in the saint mariner as the Accorisrrs«i�'and Pacilitics.spet:ificztly describcd:as itttitially subject to this Tnut Agree r E. The foregnirng shall relate to and .hiclude the transfer to the Truster of B runail. Pcsort Interests or Occupancy fthts . refaced thereto. 1}ictinla? Resort interests or Occupatnry Rights related thrsetoshall b: desiguaied eit*r by an '(far a Bicasnial R.eson interest or Occupancy Rights related thereto usable only in Odd Numbered Fears) or by an 'E". {for a Biennial Fst3n Interest or Occupy NWrelated thereca usable only ire Even Numbered Years). A37Cii_LE lx. . Q.Oi awe. As of May 18, 1994, rite. e;fevs tie of the Ttvsi Agrretraetu as or3gity adopted, there is established a trust to be 1ciown as tee "Bluegreen Vacadort Club 7Wst," v:hich T4eist is esrabiish:d.for"the - puiposes set forth herein and exists. as. of such date. 4.t1Z ire. ' The purpose of the Trust. is to provide for a trust pursua,-u to Fla; StaL § 721,53{Ij{c} expressly to include the purpose of holding and secw* ihto Trust Estate for a'te, bmefu of the £er.eficiacies is respect to site rigltta iced interests of such Reaoiieia.*Its as set forth in dais •Trust Agreement and in each Bluegreea ' Omer Agreen=. . 4,03 VdN-- ire Mtn of nt n. Tyra Bluegreen Vacation Club Trust shall be effective as of the date in year, set forth hareinabove,. T'hc Hltiegrwn Vscapon Club 'Trust shall be Irrevocable, to tomb as any Owner Heneficbary has a rights to occupy any.pordon of the. Trust estate. iIR�',tg" A"t't{'�1V nF'•`�t,Sti14'i'FF. 3.01.. Ai r i. 'Me trustee shall be an bid.ividual or a -business enesy authwiacd and qualified to conduct trust. business its the, Stair, of Florida. Any, wrporstion authorized to do business in Florlda My act as a Trditte in connection with the Bhxireeu Vacation T %;v. The "Tn stee shalt be independer:t from Muegr—ten.or the_ Vkation CSub-Managing Entity of the Blucgreen Vucatioa T sr or any lnmrrest ;Molder in respect to the Tntst Estate as- xeguixed -by Florida Statute 721,53(2),' The initial Trustee as sort forth hmin shall be Vacation Trust, Inc„ a Plarida wrporadon.; Those may be Co -Trustees, S.taZ lyD3zaianariftn of TnIs ee F--tcegt I hudpr Cactah, Conri9tians. The Tntstee slWl not resign upon less then thirty;(3Q)-d2ys` prior writwn nonce to the .Vocation Club Managing Entity and the Division. No . resignation of the Trustee shall becorne eI emwe until a puaiiited successooi trustee is appointed by the Vacation Ciub Managing. Ent.1w uel such soecctsor trcutae accepts the appoin==. S 03 .' Sit&O"nr 'r„fg::.,4ti . sitecessor t:vsuc �a!1 succeed as -Trustee with the 11-e effect ai thqusi, "orighWIY zmed as st)ch herein, and all authority and powers conferred ttpon the original Trustee hereurdcr shot! pass W.• Wy. stzzcessor.UIztee.. A successor i4-4tee shall not btJiable for ace or oanissions of a predecessor .Trustee. : Evli �y- successor trusses .or trustees`.appginted herawAer shall tic= 4e fully vested witty all rite Trust Estate, - " prop.erUcs;-(kcupanry Rights, rights, powers, trusts, dudes and obligations_ of its, his or iht:ir predecessor.. ; 5;t " :A1dh6zberi,rim yiv_ n� Tn'Saeem T=WL IM ft event 'of a TnNICe'S-rMi$1S ioz,'r=oYtl or ;. t Crwise t TMIntttion of Its capacity of Trustee hawr:d'c�r; and t s'uecessor trustee is appointed pursuant to the foretb}ng, ihp'u Bluegf eth sha be authorized Co act PuAuant Ga the power of attorney setforth in this Paragraph to cunvcy the Trust Fsmre to such successor uu:te-, in trust, if rush be dcsirablc.or necessary, in"the.sole apt of Bltsrgreen. if no successor in trust is nimed within one hundred eighty OSO) days afar rhos" resignation, .icrawy or ' termination of the Txusto in its capacity as Itirstce hereunder: slier: Biuegrcen; pursuant to the pouei of.ttotrtey set " forth herein and sub* 'to tiny,- Lien 'Dept as held. by. interestliolder Beneficiaries, may : convey , the Acconunoda ans,. laciudirti; Resort Interests: of the 7rtrA Estate to rile r�7Cs.[ivC t�wtter Beneficiaries for witor� such Acow=odatiw-inch:*Wg Rewrt Interests,. -were conveyed to the Trustee upon admittance of the respective Owner Beneficiary (as;reflected -on the book:. Z-A records of Bluegieen) or Bluegrecn may, pursuant to the; power. of atrwrney erwated herein; at its opdM file go action for appropriate relief of iocintrnt nt of i .successor trustee!in any court of. ctmpetbitt jurWictlon within Palm Beach Co mty, Florida. Upon resignation of,a Trustee, unless a " successor- trustee is appointed within such 180 drys: then the Trustee ti: n serving shalt be authorized W proceed in the sarat manlier as Biuegrccr,,.as-set: forth hereinabove, By execution of 4vis Agreement, the"Ttusiea does hemby constirute and appoint Bluegreen as its 'true and lawfut attorney in fact 'to .act pursuant to the lerus of this paragraph," which power of auomey is deerned "to be coupled. with an interest acid irrevocable. b,OI 1d n� giaz Of Ren.i ac,fs. 'pile Beneficiaries of the Trust are. the Owner Beneflcizries,.th6 A - ::`Ytatuie,:i,Quii ? giag Entity tefletaty, Bhiegreea, the Club Ben,efidary and the latcrestRoidevite6didaikk. {,Q� `Rstafin,i�ln .Pir ee And ": cDdeiarrwc The Trustee shall act as -cf�iticiaty - • tto Iasi ; . . j3tACf7C18IICS ffi th�" 7tUSi.. .. .. .. 6.03 .: latrt: s OF.Rms�idiK.. The interest of eacli Beneficiary artder this T1vst-AgteemenC.shalI eonsist'of and bol identified as the: right to perfdmunce ,by the Tnuao of its obligations to +each rcgpectiig Beieficiary," as:hc 4nafter inthis Tivst Agreement set forth: - Other than the'rights of an Owner B=ftciaty or . inteeesx Holder Be>scficiary tender paragraph 5.04 hereinabove. ' no Beneficiary: shall have any right of partition tG any of the 7Y6st' Nwe, iashrding at�r Accontrnodations and.Fuilides or real or pcisoW gropeTty comained therein, . or itttmest held in:tbe Trust, including any Remit interests or Occupancy Rights, unless the Trust is' temmnated or The affected portion of the Trust Estate' is deleted as set. ford herein. The death, iitsolvericy or'bic_� of a Beireirciary or 6a: Valtsfer of rbe bcrieitcial interest zs •might be allowed pursuant. to the te= hereof, shalt trot terminate the Trust or entide, ftl jigat representazive of any: such Beneficiary, or ft transferee: to iay accouatiag or ,.to my..legat action -against the 'i5ntst Estate or. the Tmstee. Xgon•.ft death, brsolveacy or it,) bmpetency of a. Beitefreiuy, his legal, representative shall-suaued `t -a •Bentficiv and sheet -be bound by -the provision of this, Trust - . 'Agreement. Men Trustee's poweA'mtct rights,tutdcr this Trust Agreemeni shall got ierntinate or otherwise.be.altered .. or modMed as .the reitilt of death; i isohirncy or incompetency .of a Detteficiary or the transfer or assignrent of the'. . brneftciai interest, tit a .Beneficiary.. 6:04 nt 'Glee Ilriheftri4 . " No Beaeffciaty sleets .have the authority `.to birut- the Trustee: or otherwise contract for or In the party of the Tiusxe or any ether Beneficiary or otherwise titnd any Beaeftciiry other`. than as may be individually ngreed upon between 4d among any reowilve Becefichry. . 6:05 . S++u tie "LJrstrs 1Tu "Trtistec. and the 6eaef'tci-Acs shall. constinrie the sole persans'itt irtiritst tmder,this-Trust Agreeraerit. enormiat Trnteiist r 6.Q6' � ,_.rsignaarntrit' � No, assigrtmetst of any interest of.dt} Beaeficfary, " - .: • - - shall be. binding upon"ate Trustee unril the Trustee has received 'an ar�d notarized assignmwt auto Assumpow of Owner:Bentficiaq Rim, irnluding Vicution Points and aU rights tinder the respective,Bhtegreen. Owner Agre6new and this Trust Agrrerheut executed by the holder thereof or by.a duly iuthoeized attorrey in fact 'had by ore assignee. UatsT the receipt by the"Trustee of sUcit executed and notarized assigtrMM ind issuinptioa the Trustee shalt be wthotizefl to deal with t'he preexisting Beneficiary 0 a Beneficiary continuing under ttu terms of this Trust Agreertwn, and the Trustee shalt not be liable or resporuible.fvr any dealings with respect to such -interest or other actions which would -have been -proper prior W such assisnrnerit or pOr =mfor, or other event hnMQNG't' W. DZI MCINS E AN SMST17't SS_nF iM'rRitSi�,_ _ST� �Tir 7.01 i*�tlirtnne t" T�,►<t �'d�r. " (a) Bluegreen. is authorized and empowered to add. eo . the Trssf. •Estate additiranal Atxoaunodations end Fw lities,:'as it tray, in its sole discretian,-detettrtir a ►'iota dM to time., The Trustee deli ttci'ept additions to the "Torsi Enate.upon deiiYery al' a:deed; tease, assignment or other appropriate coaveyattcing or " tru d'er document to -the Trustee evideneing the addition to. the Trust Estate, wbich deed,-Wse, assignment or other .. -Iti u nens shalt be acceptable to Bluegreen and -which'deed,. lose, assigner** or other. irsstrurnent may-ba trcor&d . In .thr approprim Official Records of the courtly. and state in which tech Accornmodatiotu or F:cititirs at, well be. additions ao die Trust Estate are located. #be 1mmee - shall also . a=*e . as ' designated by Btuegreett those Beruficiaries, -inciuditig Owner Beneflidaries, as from tim- to.timme ate added by Bluegreen tt Beneficiaries to the ;. 7 ; 1` = Agsamea;-which Goner Btaefdai ei &all be established by the ronveymce of OAva - &aeficiary Righu, : . And appur=w Vxctdon Pants by Biutiicn to such fawner Beneficiaries. The Trustee shall ahead Exhibit "A.". w tells Tnsat Agrouagnt to endears the addition of such additional Trust Estate property or Beneficiaries as from time tto .rims trtsy be dcterznined by she Trustee'. Any addition of Ownet Beneficiaries shall require compliance with the . One -to -One Owner Bateftciary to. Accairirnodation. Ratio. `Any addition of an Owner Uneftciary shall aequue oonvkyance to the TrusteC of zi Accommodation Jett rmined by Eluegree.-i, pursuant to the DeaLL-ld Balarcmg Standard, having a Vacation Point allo:adon equal to or greater than the Vacation Points. acquired by the incoming Ow= Beneficiary unless at such tirm the Trust Estate has a total number of .Accomunodations whose collective Vacation Point fow.exceeds the total number of V-acation Points of all Owner Beueficiarks' , in the incoming • Ow= :Beneficiary, The foiegomg shell relate to and include the addition to the.Trust Estate 4f. Hien nial Resort. Interests or Occupancy Rights related tl eto and the Owner BenePWiary Rights and aapurienuit.$i»-nniat ,V.-acation 'Points transferred to the respective Biennial Owner Beneficiary.. (b}. its .tae i vent of any addition to the Trust Estate, Bluegreen shall, on a periodic basis, amend any filirg'With the Division w rdflect such addition to the Trust Estate.. In mailing any addition to the Trust Estate. Bluegrftn shall act as a fiduciary in such capacity in the best interests of the Owner Beneficiaries as a whole and sW caraply. with the Demand Balancing Standard.. -Additions may be trade only so long as a One -to -One Owner Benefnciary io Accor4ntnodation Ratio is traintained at zll times. Additions shall be at tba. sole discretion of ' Bluagreen'uhich fs authorized and empowered to make such additions without the cozscrt of any other Beneficiary. Accommodations and F2�ties rruy' be added to the Trust Enate- (comprising therefor Accommodations and. Facilities available for the a neficiaries) without the torrent of the Uneficiuies, to include the Owner Beneficiaries, The addition of �AaOmnodadotss sad Facilities, to the ':= Estate may result in the addition of new Owner Beneficiaries who wH! compete uitii exist!ng Owner Beneficiaries in making resetvatigrts. for the use of-zvai7abl4: Atcormnodatioiis and Faclides wittin the Trust Estate and -rnay also result in :an increase or: derscase in felt Oornma Asscsn=- t Fees and Club Dues against Owner Betnefieisries. . bus. Deletions byEss,mity. In the event there is a casualty 10 any of the Aecommo&46ns or = Faeilines comprisinng a-ie Trust Estate end such becomes unavailable far use by the t?,uiier Benefciarks, the Vacation Club. Managing Entity. Re.•icficiary iaall notify all Owner Beneficiaries of such unavailability of use vrithiti . . thirty (30) days afar tli: everu:of casualty. The-Trussee sl".ail apply any i isarastce proceeds arising from a casualty, - as such proceeds are sYailable to find actually received by the Trustee, for'either rtplacetntnt or acquisition Of idditianal . sirnilar 4t corrtn oodaiiobs or Pacilidei or: in the ever•, such replacemc ni or acquisition u not cornrne iced :whin. ninety.(90 days aiier actual. receipt of insurance proceeds my the Trustee,, then the Ttvsee shall :rruige for . removal and deletion of Owner. Beneficiaries from the Trust so that the Owner B=flciaries will not lib coavting for available Amonumilatioas or. a greater than fine -to -Otte O'wner'Beneficiary to rn ccommodadon patio, In the _ event of. any such rcoval, insure proceeds shrill be disbursed as provided for in paragraph 7,03(d)(i)i below. L the event property bisuranee acquired by an Componera Site Maxiagirng E tity is provided in.respect,to the Acccimmodations and FaciUticss, the Trustee or, if so desigmted by the Trustee, -the Vacation Club Managing Entity Beneficiary shall administer relations with such Component Site Managing Entity to seek reconstruction as. promptly : as possible urider the circurnsuncts, -it being intended friar the foregoing time schedules shall only apply from the time of acnral receipt of m' sararce proceeds by the Trustee: During any such period of reconstruction, Owner Beriaficiades shall temporarily compete for available Accommodations and facilities on a greater that, Onto -One Owner •Beftfxiary to Acton moda ka Ratio. The 7rt)5-me tray, in the exercise of its business discretion, acquire. at the expense of the Owner �eneficiarirs, through Club Dies agaim t such Owner Besneliciarics, business interruption insurance, wkere itvaiiable, for securing replacemelit . Aecommodadons or Facilities during any reconstruction,. replacemetnr or ggiiisiticn period. :Proceeds of aiiy such business interruption insurance shall be made available Srsi to pay for securing suitable temporary replacment Accommodations and F2clities with any e.Kcess being deposited in the R :.. 0ptratint. Fund,', kale even buss es 5t wgtion h ume is not'obtained of-t ore &,casuiity It decisidn not to ..rccotasu= is Mau and no decio tt to wore replacement Accommodatipos of Facilities in -lieu of Vecatuttuct *Qh is :r`mhde. each.OwaC;lieneflcisty 1W tcmportity riitppm for available a �ccorniaodatiobs sAd FacAities on a granter 'than One-vj-Onr $ ne eizry 0wnss Gs Accaaosaadadaa Rana :Any dccisioa whethar or not to -reconstruct shill be ;snide as promptly ar possible under. the applicable circumstances, subject to the cotnmesuement of raconstnutioit obligations is setkith above. (b) boidan..hy pntnwf nomAtn.'. in the cveat of the taking tsttdeF iminent domain. proceedings of any of 6e Trost Estate, saes& taking shalt be. subject to any applicable Underfy4 Declaradon and. s�sbjed to the terms theme the.pttuesds arising #iom the t under eminent domain proceedings.shalt be applied to --either tits replant or acquisition of similar A=mmodadons or Facilities by 'tht Trustee -or the.Trnstta shall :acraage for the deledon and-ttmqval of. Owner Beneficiaries from being Betufsciaries so that Owner Beneficiaries will not ba competing foi available Accommodationsthan within the Tniii Estare on a greater One-to-OW.Owner Beveficiary�to-Accommodation halts In the event of removal pursuant to this paragraph, procttds.from such eminent domain proceeding sbali be distributed as provided for is•paragraph 7d32(d)(i), below. tc) �i�tomji•tlp motto,;, 'A respective '�portifla Of the Trust Es ate, including a Resort latereat, may `be ustorazmallp deleted from the Trust Estate upon the-expiradoni of the Term. of the Owner Be fkiary for whom the respective portion of the Trust •Estate his been conveyed, trusferred or assigned to the. - Tmtx. The deurniination of for v?hom tau:reslsccdve portion of the Tim Buate has boes Waveyed, tranderred or 3tso;W _to cite -Trustee shall _bo based upon the books ad records- of the Trt stce -and the, Blua�rera Otvner . Agreements. Any poetical. of dtt"Trust Fttate,-iincluding- Resort Inuress; may also be deleted pursuant to, Section 1.02, heidnbelow.. : A Componeot Site may be autoraaticatly deleted upon the expiration of its Teaiu provided, however, the ` : Trustee shall arrange #or the daladon and removal of Owner Beneficiaries such that Owsm.Beru£tckzlk s.shsll aot ba competing for available Accorntaodidoas i+iihi i the Trust Estate on &greater than Oae-to-.tine Owner Beneficiary to A=n=odatkn Ratio. : '(dy �Zalyt trttate "The Trustee shall delete Taut Bshie propwy ftosa the Trust by executing and recording's deed or other appropriau conveyance, transfer or docnuRmsi and by attsending Exitsbit "A" elf this Tturt Agreementas from time to time determined by Me. trustee to "evidence. &each iddedda. !upon deletion of, Trust Estate property as a result of a breach by'a respectve . Owner Braeftciary of his or her'Owaer Beneficiary .Obligation{:), any .such deed of other appropriate tonveyattee, trarufer or termination docunztt &hail be to -tau bcaefu of the respet:tiv6-In crest i1older Bestcfxiary wha holds a . . ". .. � .. -Elea Debt is respect< act 9ae tietttcd portion of.dte Tntst Estate upon rrgtiest of such fistrerast iidlder Beneficiary.-. If -. no such Lien Debt ckm in respect to such Trust Bsrats property geieted as a result of breach by a respective Owner - Beheficiiry Of Ali Oi.wzer, Denuefic ay -obtigatiotu, ' then, the deleted Trust Bstate property 'ss has been conveyed, :'assigned or transferred to rise T'wme-upon adminance'of ibe. tespeetive Owner Beneficiary shall be cosiveyed, .. ' tnwferred. or assigned to such. Owner. Beneficiary, We ss. such Owiiea .Beneficiary is In default of -his qr her •obligation to pay Coiiimm Assesz='Foes or Club Dues. In such-ent, studs Oiurler Serteiisniaay may be deli red . -'arid the Tsust,ee retails title. to such -respective Trott' Fstate property so tong as the Vacation Club Mariagiag Etstlty aptes. to satisfy its Him respecting such.tmpaid Maintenance Fees or Club Dues 3s provided for in Section 9.11(e) -'below. ' Any dektion of Trust Estate property shall be' subject'to the loans of that Atiicle and the- following : coa4itioas .. : in the event all or any portion 6f the Trust Estate -isdelded from the Taut, a sufficient riurnber of Owner Beneficiaries of the Trust will Also be deleted sfl astie mairainzo greater than a One -to- - Oae Owner Bcateficia ro Accgtamodation Ratio, in the event of any such deletion, BitsegreEa "sha]I aincdd its filing on a ptriodic basis v & der Aivislon..In the evens of remodel' and deletion of., a portion of the Trust Estate and Owner Bea,efsckries pursuant to the terms heroof and axle "receipt by the. Trutee of proededt from rsualty insura:ri:e : Pr die hiking vndet csxriaeat• domin proceedings, such proaeeds'shall be equitably distiributed.by the T'tttsfR btt3ls+een : -.'and.araoug, ss dieir hutresis May wear: tat :0,vi w Benc;ficiuiet deleted •and removed,Ind the. intent lfoldtr.•- Benefti iiq b6Iding Lien Debts in -respect to shoe; deleted Acc:om sodations and Facilivat; provided, ad•Owncr ' Beneficiary shall receive sny amount greater than the initial purchase price paid for 4m Vacadop-''oinzs acquired by sitch•Owner Hcneficimy as set -forth in such Owner Beneficiary's Blueguen Owner Ag:eetarot If `the Trust Estate exceeds that which is necessary to establish a one-to-one* Owner Beneficiary to Accommodation Ratio and such portion of ifie Tract Estate which is in excess of such ratio is deleted, then tjwue; Beneficiaries need not be deleted, it being the stated Inient that the only regtairemenr in respect to.daktion is io maintain no less than a 4uo-to-sae Owner Beneficiary to Mcortusiodation kaatio at all times. . (ill). Any iateresi Holder -Beneficiary entitled to receive Rust -Estate property which may be. deleted nay direct the Trustee to continue to hold chic v mull portion elf the Trust, Estate property and. replace any deleted Ownei Beneficiary. ito had previously been admitted to .the 'ihist at Jae time of conveyaitce'of : such portion ofchc Trust Estate` w theae . Trus. t D¢YPicl�r(-g=rtWon rir Sessp ewn' d n imer Banpjuiar::s' upon U"©wnef " :Beneficiary defaulting on hisor ben Owner Stwf ciary'Pb4ations,'the Trustee may delete: cancel or suspend such Owner.Betteficiary as a 13meficiasy hm under. upon any'deletion, the Accommodation within the Trtist'Esiatc. as has been cgnt;eyed' transferred • or udgned,;tto the Trance upon a¢mittancr of We. respective. deleted:Qwact Bea Oct. 7 iui hiding nay Reurt Interest, if deleud. shall(1) be convt yed, truufined of assigned to the respective Interest Helder Beneficiary who holds a Lied Debt in 'respect to such Accommodation five and clear of -this Tr+isi Aee:tttrai if .requesxd 5y such Interest Holder i3enY:frGiBry or (n) interest Holder to receive any : - Trust Estaw Property which.,g%j be- deleted may direct the .Trusue' to continue l&.hold title to such poitioa•.of. the - Trust Fscare Prgperry and replace any deleted moaner Beneficiary who had previously beeu sdraitteed tti; the Trnst.ai. the'titae of ctiriveyanre of such portion of the Trust Eirate fct rite Tnutee. -If no sbch Lien Debt:ilt irspta ici sth: Accosnmodatibat.and Owner Beneficiary +Obligations of tali: defaulting Owner Beneficiary exists; d= upon deletion . ofsuch'Ownei:.Beueficiary,. the following.sMI apply. zfic"Accornmodadon within the Trust Estate as has-been; cotivoyed._aasigted of ttan;feited to the Trustee upon zdmatrarice of the tespeetive Owner Bencfnctary, shali be convoyed: transferred or assigned to such Owner Beneficiary unless such Owner Beneficiary is in default of Ms or her obligation to :pay Corruiion Assessment Fees or Club Ducs. lit suet went, such Owner.Be'nefrsiary may be deleted .and the Trustee rennin title :w such A¢comtnodation so Gong as the Va4dcm -club Managing •Entity. i . Beneficiary agr;c4 to satisfy its ran'respecting sut:h unpaid Consiavn Assessment Fees or Club Dues as Qrovid� for is Section 4.11(e) below. I)espitc the foregoing, deletion or cancellation. of an Owner Berrrfnaary shall be subject to • - comptiancc with Florida, Satute 721.13(b). (i} - in -addition to tl� foregoing, an OWn;at Bgnefialary rimy. be cusp dud from the privileges and - rights of exercising Owl er Beneficiary Rights by the Vacation Club Managing En�tty. Benefuiary upon such Ow.= Meneficiary. ('jr ; breaching 4is .or her Eiuegteen Owner Agreement;' (d) faWAS to comply with the . -tubs and regulations of the Vacation'Club Managing Entity- Beneficiary; (ifi) fafling.to comply with. any obligations under this Trust Agreement; gr (iv) breaching his or her Owatt Beneficiary Obligation:. provided any siisptxsion of rights to use and exijoy Acxommdatiors sdbject to Florida Stittne•Section 721.13(6) shall cornpIy therti<ith Despite the foregoing,. no Out= Beneficiary shall-I)e Aispended pitrstiant to this. subparagraph until he or. she it provided at least burry (30) days notice to cure such defuilt: {B . f:.ma.Yatng f1wn.� Ranprcierp_BighitiIjttia:Ikletlaa..L%pon-delt:tioa of nay resq�tii+e - Accommodaticm from the Trost Estate which has been convoyed to the 'Trustee (dr in respect'thereto occuparuy Rights have.been granted die, - by. a"Corvrz,ing Ow n Beneficiary, the.Trusiee, subject to 7,M(d),her9iaabove� .. shalt by quficWun deed relaso eit: interest (and title if so obtained) in respect to tech to•. tht Converting Owner Beneficiary who assigned or conveyed sack Accoromodation to the Trustee and. shall take such athtr action -as lazy be required fn ®rder to vest su:h hccarrAodatipk subject to any Lien Debt or Purchase Marty Lien Debt in the 10. , • Converting Owner Beaefwctuy who assigned or conveyed Ouch to the Trustee lawless such Caaverdmg Owner Bendcla y .h. in default of his or her obligation to pay Conmica Asscsimet t.Fesr or Club Does, in wbkt event, turh. Cohvering Owng,, Beneficiary may be deleted and the Trustee. retain title to. such Accamzrtodadon so long as the Vacation Chub Mwtiging Entity Beneficiary agrees to sacs, its lien respecting such.unpaid Common Assesst'nent Fees -or. Club Ducs as provided .for is Sccdcq 9.11(e) below. Upon such reassignment or. reconvevsnce 10 a Converting owner Btrseftciary or release of lien by tineacatlon pub Manasing •1:ntiry Beneficiary,. such. Coafening Owner Beneficiary shall be dekted as a Beneficiary here4.tzidcr, The Trustee shall then timtnd any and :ill eakttNu, on a routaie basis, wbicb •see s gait hereof, reflecting aril such deletion of sveh Accommodation from stie Esau and such deledonof the Converting Owner Beneficiary. 'l7te Converting Owner Beneficiary shall ., receive title upon such •transfer, if such is.to.occt••r, in such condition u it.aisted at the brae of conveyance to tho' . .::. 7.93 s±,heiti,Warts. .Neither the . Trustee nor •any. $enefineiary .atoll -be" authorized to .make any subidmdoas to my of the T art Estate, czceept for replacements, as provided for in Section ?.M. above: or as MAY . five¢ time to tune be mihotized by the Florida Vacation Club.Act. M seedon shall slot be read to restrict subsxinitioas. of Owner Deaefl4w ies for denoted Owner Beneficiiries. • - ' . b rt77f'T R ltm - .. .101 . -tr>, wl e m Us eudsAm The Trustee shall be obli m.6d -to -provW -the' following 'itdu with xeopect. m :the- Owadc lkMfi'c arie3 add Ckb Beneficiary; which; dudes shall• be without litaftiitg tits obusuions . . matted �'aay etba.gravmsions ttftfmis•Trusr,#gree:ueeat:. - _ The Trustee" shall bold title to the- Tnist E=te., now oi•hereaftei creattd,' fey the beneficial use, occupancy iAd enjoyment, of"cub Owner Bnfefciary, in,accordance:_with :the temwy;of ;each such Owner Beimefineiary'r Bltugreen Owner Agrccrornt and Timeshare iostrurwmeats, subject, howtrverF. to ixch Oamer '-: B;WAciary eying with his or- her Owner]Beneiicwary:Obligations.: throe: terms hereofi the Club'Beaef'iciary Bylaws, ttu Demand Balancing Standard, and rha reserv26ca rules and regitiations. -(b) The Tnutee shall helve recorded in the Official Rccoids of the county is which any pordoti of dw Trust Elute may be lomed a deed or other instrument or documents evidencing the Tnatee's holding of tide or Occupancy fthis to or. interests in die [nut Estate. (c) The pasted sbalLaccept transfers, assignmcati. leases and conveyarxes.as are acceptable to Bhuegrren of tide, karet or Occupancy Rights to or for interests In Accor=Ddations and Facilities property to be included -itch the ht:st Estau provided, however, groat any such transfer. assignment or conveyance of any such Tighe, rides or bierests is or to such Accolninodations or Facilities shall be free and ,vicar of any =utarf lists or encumbrances against riich AccommDdadons or Fuliires subject to a.transfer. assignment,' kale or conveyance by y. . Converting Owner Bepeitciasy. In the event a. transfer; assignratu, lease or conveyance -of -any right, title or interests in or- b -ily Accomraadadons. cr Facilities,: includiz g Occupancy Rights or Resort' Interests -k by. a ning ConveOwner Beneficiary then, such transfer, assigurmt or conveyance shall be frees sad clear of -any' manewy lien or other encumbrance agaiasc such.Accdmmodation or. Facility, including Occupancy Rights or Rosori- lnter2sts; subject, kowevet, to such Accommodation. or Facility, :or' the rights or lttterests dweln,-. inchiding OcxispancY .itigh,s ar. Bernet Interests, fmc rug subjax toa Lkn Debt or. Purchase Money Edon Debi, granted by the Goavetririg Owner $enefwcui iy, , which tam Debt '.or Purchase Monty Ilea" Debt• only e=dmbers the Atcoinrri &don, including Rzsort lnte csts or O=pmcfRights,•.provided'to rho Trtiste= by tht Converting Owner.. - Beneficiary. (d} .Other than €s to the fosogoing.mpective Converting Owner Beneficiaries as set -forth in :: tr. tuatgraplt (c) i =uly about, prior �a any craasfei to dot Trust F.stzte of any righu, sides. or hmstt is or to . AtromtsSeBacfons or- facitides, say mouiKary lien or eaGurnbrattce, agt+inst ACcossmodztiotu aract�i conveyed art Trustee, if aay,:c# 4 be free sad clau.of sttch or such shall be made -subject, to a sttbotdinatke and notice to cm&tors instrument pursuant to Fla. Stet. Anna f 721 M. (a) or (b). (r).' During tha tam" f this ?Must Agte�trteat, eaeb Owner Beneficiary sh.l; be entitled to use, octnpy and enjoy, on • a space -available basis, the Accotmnodations and .Facilities of the 'Bust Estate durini such. respRdve Owner `s Use Year based upon the Vacation points appurtenant to the OwW Beneficiary Rights acquired by -suds Ow= Beneficiary and compliance , with the Demand Balancing Standard and subject • to, payrtttat of Coniinori Anesstnent Fees and Club Dues. Votwithstandlag any other provisions contained in this Trust Agreancat to the contrary, to the extent that the vesting of Owner Beneficiary.Riots set forth under, title Trust Agreement niay be deemed to Violate any provision of zppticable FlorWa taw regulating Pr governing the vesting of any O' n= - Benefsciatj+ Rights contemplaud iiereuader. then, to such gxrcnt; .tbe term of slits Taut Agrcetnetit shatl:b$ ltittiied to ninety (M years..at Wb'tclt tote if any yes* of Owner Beneficlary Riglus hatimder is.deemed to: iobtc any.=b . prolsioit 3of, applicable Fldiida lice+, tM Owner Eca9hciary-Rights' whId are deeured to viblatc. such,ptovision of ' applicable Florida law'shail be deemed'vested ad the Trustee, shalt proitrptly iai a all reasonabk'ndt ns necessary" tQ" comutamh the vesting of such Owner Bena&dary Rights. in such affected Owner Beneficiary or Owagi Betaftciaries, subject. hover, to such Lien Debts or othei Owner Beneficiary Obligations as may exist in r4spect to such eeslmwie Owner Bcsveticiary. or Qtvner Betuficiariea. . (f) 'Owner Bestefscis m shalt have the right lo.htse. and occupy the Accommo4dW and Facilities•. as 'art , available. pursuant'. ,to the terins of •the' Trust Agr"at so long as xhey retain dieir owner. ' Berteftctary Rights -.pursuant to their respective Biuegreen -Owner Agreernaats.. Use of any Accommodations Izsid Facilida:s};a2i be subject, to the rules, regulations and conditions of dW Trust Agreement. arA the Demand Balancing Standard and tined ivies. regulations and covenants xs .otherwise may be established at --a pinicitiv'Co2ngoaent Site, h4.u&S but not limited to - piovisioas'm slay be set forth in an, Underlying Dcelaratkm. to- which tt particular ' {:oi7aP4rtenr Sm =y. bt suNect. Use'of an Accoftnodation. and FacIhry shall require an 0wrter ]Pc.V ciaryta. pay st;h 4} w os associated whit the site thereof.' ineiudin&,but not Waited to nulls, long distaiicc telephone calls and sale; t?a za Arztsh=dxkns; Wapplicablc, which payments $hail.bt paid ptotisptly when a bill is mndertd to sucb', kTy ' () - The T usL e shall establish acid collect of direct hour to be collected Club Dues and C=nttm'Aasessamcttt Fees ,payable by Owner Beneficiaries suffident enough to meet the obligations of tau Trust as. to the Trust Esiate, . (h) - The Trustee shall maiutaiu on•i•routine bisk'a record of the names arid addresses of Ow-wr Senefttsimia atul the cumulative number of Vacation Points reputed by }Bluegreen Owner Agreements hi;li Have not expired or otheerwise taralaated.. The Trustee shall be eadtied tb rely upon copies of such -$iuegretxi Owner Agreem nm.as are .supplied to it by Biuegreen or the Vacadoit Club Mana&g Endty BenuS6m or based .. . stpoa suzh other writtm evidence as might be supplied from time to time .and is, satisfactory to the Trustee, The Trustee shalt routinely .provide. for amet>dittand m the Teats Agreement to evidence -ell c, =sqs of, the identity of Owner Beneficiaries apaa receipt of written notice thereof as set forth hereinaboyt: (i) In the event of. teuninarion of the: Trust, the Trustee shall convey to the ownrr Be:tieftciaries who are not then it detains of d1eir Ownu Beneficiary Obligations. and whose Blue' green. 'Agreements are theta in effect; without default, the Trust Estate on the basis of euh stick Ownef Betteficiaiyneitig : eoayeyed that Resort Intuest or those being quitclaimed. Occupancy.Rights as, may be iefiectcd iti his or her Ea octet Owner Agreement as has been conveyed to trie.Trdstx upon the admittance of such Owtlft ercficiary.w - 4he ieirns of the Trust is'a Bene3'eciary; provided, :however, such conveyance may be subject is LJen Debts or .-. Purchase Money' Lien Debts as are created' pursuant to, paragraph 6.02, below. -its lieu;o( such,convtyance,- the. Trufte shall convey =h Resort Interests or. Ocenparicy R.iglics subjeu tea. Lien Debts or. Purchase Money Lien Ohba' to the. L#erog Raider BtaneAt:iary ho. is the benef"zcioy of such Lint Debts,or Purchase Money Lien Titbts upon. request of rach Interest HoWr Beneficiary. with such CCpveyusce being. in satisfaction of the abllgsrioa of the. tlaater Beaeficiar; to pay the pttmbase prize under his Bluegreen- Owner Agreemment, provided such Owner BeiieWW. A not zzezeznain liable for any u ipiid Ccinisnoa Assessment Pecs or Club Dues as respects such Aacotnmor odn which became due end payable before termination of the Trust. In the event'ofdainage, destruction or eonderartation of any of the Trost estate or joss of Occupancy Rights as might be provided to . dhe .Trust Estate which results in , too deletion -of a, respective .,asc;orwriodatioa from the Trust:Estste; the Trustee shall distribute proceeds as may be received in respect therew.�_t accardaace'tuith.Set~.ion 7.02(1}(i} hereinabov:. (k} the Trustee shall engage, at the ezpcwe of ti:e Operating Fund of die Trust, independent aecottnting fu 1i to `verify,.from.6me to tinw(l) the inventory of.the Trust E:iate and the ctumaladve numbei of Vacation Points reprrkzed by'such Tryst Estate, (2) the cumubdve numbcr of Vacation Foinis .tpressented .by Bl iegftn Owner Agreements which kave not expired, cancelled or terminated; (3)the reiadve. : :mount of Lien- Debt exisotig In respect to Accornmodations or Facilities or the occupancy Rights relating thereto ar+d der direct correlation. of such Lien Debt to slug coarmuation of the rights of the relevant Owrler.Berte5ciary by. •'. . whore such Lien Debt was created or for • whose bentfit aLh Lien Debt eras created; and (4) all .financial' t a isecdorss. if any, of slue -Trustee. Such independent accounting fm shall prepare a report in respect to Uir.. ' . - Zorei ping, wMcb report. shall be made available to the. Beneficiaries hcreunder.(aad upon request;. the DivisionY and. $thetwisc snake such rtInn availablt to any .other iruerested patties; as dctxrfnitied from dine: to tine. in the - twisorehon of the-Trustee,'upon request. Q} Etch Owner Beneficiaryagrees io pay to :the rotates .{or -as directed by *the Ttvstee} Common Assessment Fees and Club Rues deterrnineri pursuant to the Trust Fundacid iJperstirig iPand BiiclFeu. (m} In -the event that else -Vacation Point v0jadoa-and reservation systern is terminated or otherwise becomes unAvailable. for any rcaso"Ibec termisizdon of this Trust Agxeement, Then each ((3wriei : Beriefcc%ai7 shalt be able to cor<tinut to use, die Accom Lions. and Faciticaes of the Cornoot>Z t Site referred to is Isis or her Bluegreen Owner Agr'etTcnt .(such -being the .Component Site :ia. vibich the Resort Its==eat has beta cmveyed to the 'trustee upon admit=ce of each respective Owner Beneficiary) in the traimer describer) ia.Ow tln*lymg Deeltradon for the. remaining mrti of such Reath; ")emcees: end sty use rights in -that Corpponc;rji Site ; .Which kW previ6sty.been.made available to Owv= 8enrftxaries through the Vacation Foiai valuation and `xtservation.spstem whose Bluegreen Owner. Agreements do not refer to t.'te specific :Resort intense at that Component Site will ter -late. when site Vacation Point reservation system is terminated or oth nvlse becomes uzeaval3ab}e for auy reason, except tb the cueat that rights are available duough an .aiuhorized. cxchatige progr NotwidismAdivi ally other provision cawWal,-d-hcicin to the eontt•ary, the Trusts; is specifically authorized to cngt a -Lien Debt in reap ct w any Aecormmodadw within the Trust Estate; including individual- Resort Interests,. provided t}iat (1)`ahy such Accommodation subjected by the Trustee 0 such Lien Debt shad have a Vamion Point, valuation equal to Vacation. Points conveyed to a.respective Owner Brticficiaiy, (u) such Accornmadatiotl is teslectxd in such respective O'%T r't. Bluegrcxa O,-y r Agrewamt as conveyed to the Trustee ln:e,ottjunction witb the : azclrriittanet to the friar as a..8eueficiary of the respective Owner Bencf ciary and (iif) such Arromruodation was *=ally eoriveytd ,te th- Trustee ta'correlaie w the iedrrnttatice of such respective- Owner Bertficiary'm the 3rusi. Suck Lien D*t shay be cstablished.for tht purpose of providing security- for the pe formance of Owner 3eaeficiary Obligarx+ by,such mpecdve Owner Reneficiasy; provided, however, Chit such lien 15ebt th2l1 upon default of the Ci nor Eeneticiary t7bligatzons by such .owuC Beneficiary:. (a . btuy apply to the :Areetrttris5dOtion within die Trust Estate, iitclttding !be individual Resort lummi, fdr which .It •Lien Dcb: was created; {ly) t oi&ue the qne-1� Ow= Beneficiary to Accor=odation Ratio, iaclusive of the right of the Trustee .to delete an At CotrZttrodatiaat iituri .the lrudt Estate in comparison to deletion of aa� Owrur Beneficiaries found in breach of their. respective OwD;r Beneficiary Obligations. - 8,03. Sua*a*dam=Beneficiaries =y be. suspended from the rights and privileges of exercising Owner Beneficiary, Riehts is-pipvW for in Section 7.02{e)(i?. above. . 8.04 The Vacadan ' ,vh Mapgsing x'nthr, iirtiofiriery .'A Tnistee shall be obligated to.proiritle'dw following duties with respect to- die Vacation Cli b Managing F_utity Beneficiary, whicb duties• -shall be without timiiing the obligations created by odw'provisions of this Trust Agretmeat: (a) The Tnustec will provide :to the Vacation Club Managing Entity Beneficiary, by kritted • : proxy from time to tutu. in a form satisfactory to the- Trustee and the Vacation Club.Managing Entity Beneficiary, .. . ---,proxies and bdw..authorization as niay.be deemed neetisuy by the Trusteei to -exercise all voting privileges tctiag the Attommodadans -and Facilities. including all Resort Interests, in and to any Component -site ov► ner's association or pursuant w any Undulyins Declaration {b} The Trustee shall hold We, to all •Cornion Furnishings. unless . the same is -.herd by the ; owner's. assbciadon in rap= to a' Component Site. The Vacation Club Managing Entity Beneficiary shad, however, have the authority and the sote responsibility: and liability. to the Owmsi •Berieficiayies for the maintenance, repair, sale, replacement, and accouatabiliry for such Common Fumichings, -it, lleing understood that any title to such Common Fumishiugs reladvo to an Acoommodation within tine -Trust Estate . ihali be_ rraasferrcd "upon dcledom of such -Aewommoda ica -from the 'rust Estate in the suite mann i as the. Accommodation w3t3iirt the Trust EstatcAncludrag iL.orz Interest, is deleted- (o) The Trustee may; from dme'to-tense, and at the expense of the Trust Fund, employ ao kd*eWt#tt >ucrounting firm to audit tht accounts of the Operating Fund and .T= Fund: Such audit, if performed, jli4.beprvyided to thi; Trustee, the Board of the Club and upon request to the Division and any lute cited party t+i 4imaybe detcrrnmud to be entitled to the sand, from dine to tiih.c. by trip Ttusteo. • . .. .. 1. . (d) in, the event tha+rproputy insurance acquired by a Component Site Managing Entity in ;expect w the Accommodations and Facilities of the Trust Estate in an.amount equal to the rcplaccmcnt cost of such A6=unodatious and Facilides is :not existing, then the Vacation Club Managing Entity Beneficiary actirig at the direction of die Trustee, and in -the name of the Trustee. shall acquire, at tie catpeasc of the Trust fund property kjurA= for the Aecoinmodnions and FwUkies and Common Furnishings of the Trust Estate a all amount equal to the, replacement cost of. such Accommodations and. Facilities and Corr=ii FurnishdAgs. . 8.05 Br„aerb.; 71-egclaq. The Trustee shall be obligated to provide the following Antics w'ut}i respect to Bluegfeen, which duties shall be without limiting the obligations created by od= provisions of this Trust (a)-. TieTtusm shali'ucept'from Bluegreen-coaveyaace, trarisfet, lease ar assl tuaeiu of lay and all .rights. titles or interests in.and to Accornitodations and Fatalities; including Resort Interests or Occupancy Rlghp. as.,Nett as the,directions c+t?it:rwise set ford herein and shall also.accopt from.tluegreeu7, Owner Beneficiaries ; :who. meet the requirements is may btherwise be established for the introduction of such Owner- Beneficiaries pursuant to the Biuegrtcr Owtux.Agrecmews and the terms hereof. 8.0ti ninth t" 4 th Rrnada'the Ttastee shaA be. obligated to•provide the following duties: will! respect to the Club Beneficiary, which duties ihall be without. limiting the obligations created by o*,hrx provisions. of this Trust Agraeminv 14 {a) The Tnisrte will pro*c to ilte Board of Directors of the Club: &reficiary ibe report,. if any, ptepared by the, hstdcpWc= accounting fate set -forth in Section 1.01(0,. hercinabovo. The Trustee will - provide to the Board of Dire tom It Club the audit, if any. of the Opaatisg Ftuxi and -Trust 1'ttnct. (b) The.Trustee shalt-ettablish u Operating Aind.Budgetand Trustpund Budget from year rfs' year. aY►4 provide .a copy -thereof fo•the Board of Dii ecxnr; of du Club BewficiM. 'Ilse Club Dues nerd Common Aneumeat Pees to be assessed and ZrvW against"the Owner Benefitiluks sh411 be.daterminad from the respective �� Fund Bisdgct aW Tma irlutd Butlga, 8,07 lniw tr.,ta `t:�nrs *tK. The Trustee shall be obligated to peo" the following duties with Mpect to Interest.Holdo Beiseficiaries, whiels dutiea.shaall be, without limiting the obligations created by other ptov'ssion3 of" Trust'�.ppeTtiera- (a).: The'Trv-stsx whin provide to -der Inc 4w.Holder ? eae$csaries, the ieport, if any; prepared bY_ dm indapmdeul accounting firm net 'fos Jh In Section 8:01U), hereiazbove, and otherwise pravfde ,w die Intl t -•- NWder B=8ciarics Via'audit, U any; of fie Operating Fund and Ttvst Fund. rise Trustee iW, nO convey,. ttarAr," lease or assign any' of the Trust Estate to arty pkty other alm as cxpreuly vAwrixed purmiaut to die tams of :this Trust Agreem*. The Tvusme is -expressly w4fimcized' m convey, transfer.:kase or assign. an Accbtnnsodaticn_ of rise Ttnst Estate to an lntcsest. Holder :. S=y Pttrst22nt to lhe ternts Of Atticia •VIi. (cj ..:.. I3e Ti^astee'sbsll be oblisated w perfo?sa;. u4•:dk btnefii atid`st tie MUM of 6e httirdi -Holder Beneficiaries, "in accordmm wla Sectsioa 1.02 Weinabove. - ' Tlse Trustee shall proviiQt`-ptaoetds.to.ttie'Ictetesi Hoidez:Beaefuiarici.::as ava�bk, pcarsw�rst sa 5tction 9:o2(d)0, tureinabore: gnvtatrt .�a; ,nttrscc n� Tgrr F�1'BIT.7 aa��s€r.*rcrta.."Mn\,T •9,pf jiohtt' q r'rr=PA'- The Trusted 'shall not:be erso,6My-lWe for any -error o(judgmept or'any other loss arssb4 tm of any act or omission- to net in.the execution of any"of the powers conferred by thus " 'Agreement, so Iong as thr Truaue acts in good fault. Thy Trustee 'shalt not be liable'for the acts or omissions of any Persons sppaiamd by she Tf toe to assist lit the execution of the Trust. Art persons dealing arith tire Tnmz a shaft look only to die. Trust •Estee fur du payment of their dalms, and every instrnrnenr to .vwhich-the: Th stee shall h. a party or OR at: CUM of which my. ilabtlity may be c}iargeablL against a Trust Estatt shall in substance so provide. The Trustee is ,expressly raihotized by the a$optlon of this Tnut ,Agremtrunt 14 rely itpoa ' the advice of counsel to be 'selected and -employed by the Trustee with respect to the oonstrucdm of this- Trust Agieet= or tied sights, obligations and powers of any of ax persgtts,-including Beft&iaries, affected hereby. ` (1t) " ' The Trustee shall bt sutthariztd' ro garticipau in'other business Ventures, isicludirig real' tide - jind resort deveiopmenc5 and sales activities, indepentimt of this Trust Agreement and the Beneftcisries. The Ttnsttee shall not be liable to any Beneficiary. in respect io cuch"condmied or addidoual activity, it. being undarswod snd`•s cki awledsed that the Trustee, in ja capzc# of Tmusua, is not sxclusivt in its business deallp as a "litstce ht respect -so• this Trust. (c) . The Trusts shall st'ot be required w. verify the Yalidity of any. Bluegreen Owner Alminent in reaped to rite `heat. Estate, inrludiaS any Llen Debt affecting anyportloa of the Trust Estates` (d) 1n the evens of any dispute prising between BeaeficWies of any third person or ii'any cbrtflicwsg derrtancl�'is made upon the 7tustea,.tiie Frustee shall not bs requ`ucd to dett ratine resolution of the sane or m take, or aot bier any action as might be in respect to the same. The Trwtee shalt, however, be authorized to: await settlement of tba c,=%roversy by any fatal appropriate legal proceedings of a court of competeat jurisdiction or the Trustee :nay; in its sale discretion, decide to file an interpleader action in a court of competent j'Ur isdiction lA Palm Beach County, Florida, which iaterpleader chat! be for the purpose of seeking determination of the ' ecd9 e tights of.the Beneficiaries or other parties to whom such 'idjueaca6m may apply. In any such bterpleader action, the Trustee tiny, as it to determines, deposit wide a court of competent juiisdictioa iri Palm Beach County,. Florida, any or all of the Trust Esate held hemiitddeei' which may bt the subject matter of'such dispute. 11pon commenceriteut of any such lnu apieader action and the deposit of ail or any potiioa.of the 'rust Estate with the court, the Tbutee shall therixNet provide notice to the parties by penonaf setricr io accordance•with any order of the court, In the absence of such order, such-perscrial service pursuant -to Florida law; the Trustee shall, upon providing such notice, be fully released and discharged from uty and' all further obligations wlrh respect .to the property so deposited. Any expenses in respect to such interpleader action 'or any . expe= in rMect •to any costs, damages, JtidgzitcnU, : attorney's fees, expenses; obligations or liabilide s at any kind or. centre in connection with the iturrpretation of this, Trust Agi a merit; shall be paid from the Qpei ating -Fund: The Vacation Club Managing - Entity: BeAeficitiry, is expressly authoAzed to mike such paym=ts' from the Operating. Fund. DusioB the term of this Tntst. dte Titres st►all.riot baregtrirad. to.pioairc or maintain any insurance on any of the.Trug Estate or. to secure the payffient al' any. liras, titres, assessments or other ctia�ges against the Tivst Estate. err to coltrcc or.4is6utse uty retrtalt tbezefraat, or to or perfect attyt title Trustee may havc'theteto. or.in any other respeet We for.-Mainral and protect the Trwt Estate -or rise Ttvst agtiin$i any. icgai, aaack of whatever nature; unless and until requested co do so in wridTig by the Vacation Ciub'Man2girtg. Fntity'BiheKiaty and Club Beneficiaries except is provided in paragraph 8.,04(d).above.: Sucst request shall accoinpariie d by a direr tian to proceed executed by do, Vacation Club Managing Entity i9egeficiary"and the Gab' $enefmiaty.througb the,Board of Direuors, acid such request shall be accompaztiedby.istun,ofaiaticy collected'by . :the clue efrciary sad -Vacation Club Managing boy Beneficiary fronts the Owner Beneficiaries or, at ii•.t option of.the'T€aut , an indemt►ity of such character atxi amount as shall ;n the judgmetu of.the Tustee be adequate,and ,rifi'ieient to pay or protcet it against .ail costs, eharSes; expenses: and ,liabilities expended or' ibedrred in cmectioti '(f)- ` Tire Tnistee shill not be answerable or responsible for the, validity of. the. conveyance to k of -the . Trust • =6', for the value thereof or title theieto-.or rights or interests- .therein, or for any easenien - 'etrcumbrauces, restritctions or other clouds cr claims thereon. 'the .sole 11abiiity of the Tiustce in respect to tt e :.foiegoing shall be to com,ey to , art owner: Beneficiary, upon termination .taf rise Trust and subject to, the tennis . otlwwise contained in this Agrees at::ouch title to the pardon of the Trust Estate pmpany to which such' Owner Baief ciaty may be entitled pursuant to his our her Btuegreen Owner Agreement' and shall - actually have been corNeyed to the.Thmiee and accepted by it in trust hereunder,- 9.02 Ind=Mf ,rnfIftti of iti„e�.. The Trttstte shall be hidemnified by and receive Teimbursement from. the Thd Estate and Operating -Fiend agakW and from arty and all loss, liability, expense or damage aril qvg t of any -act or omission to -act as. a Trustee hereumdei, except to. the emit that any such loss, liability-, et pence: or . daasage'sbail rester fft.the Trustee's own wMful misconduct, Stich indemnity or rdubursm' ' Mrshall be limited to. . the-Unt Estate and Operating Fund; and no Beneficiary shall be personally liable therefor to ahy extent. 9.43 '-coat lag bliIII ttnsi' ru to nMA to he TnehiJod jj Ain?nut Fetstp 1j� TltiSt Fitate lltall '. 'ir4ude, in addition to the rishis, fines anti interests in the Accommodati6m and Facilities as rmay be conveyed.to the Trustee, the Operatic. Fund and Trust. Fund: providedsuch shalt riot- 6e distributable in whole or in part upon distribudaa to any person as i result of deletion of any portion of the Trust Estate. 9.04 r+=Mn hP t� t'+r«T^ �. A resoludon•of rite Trustee zu6oriiing s particular act sha be . conclusive evidence thAt such act is within tbt Trustee's powas. '. 9.05 = Unhiljij ni' TIOnA •arias, The Beriefuiaries shall not be personally liable for -any act or .orission of the Trustee.. All persons dialing wilt theTrustee or With any agent of the Ttvstw shall look oWy.ta the . Trust.Estate.foi-the payment of tarty sure due as a rrsuh,of their dealings. In eveiy instrtarent exacuud by the. Trustee creatiag in* obligation of say' the Ttustte shall stipulate that neizltcz the Trustee nor as;y ,Beaefimlary : shall be held to any parsottal.liability under the-insmrrtent; provided the Lack of any such stipulation shall not 'establish any liabiliry of the Trustee or unY Beneficiary. 9.Ot5 Lttpolon of R�r Each Beneficiaryor his drily rtuthorized agent shall have the right during - rezonable hours to examine, inspect and main audits of the Trust Estate and the records o, llte 'trustee In respect dwito and to examine any reports of the Trustee sbowing the ownership of the. Trust Esiate and alh.ffansfers. thereof.• - . -•... •.. - _ - - - _ .. ' 9,07fiwnnrcl,rn of 'Maid Fair., In holding the tide to or any'rigbts or ka msts in any of the, Trust Estate -the. Trustee shill have no personal liability for shy operations or exprsses artribtuable to such property, -not shall the Trustee have riy xespoast'bil ' or-dury to :irnproye,.mgdity, maintain, keep up or repair the Trust Estam in any manner,. Any responsibrfiity for the foregoing -including, by %Nay of examIc and not iiuritation, the maiattrtance Of adequate insurance and the.piytnrat of taxes, utilities sad alf.other.expenses attributabje to the.Tlust-Estate $bait be payable $inn tic, Trust Pund,.as'dewiMhw%I.by the Vacation Club Managing'Ent4ry Beneficiary.wiro'si.ail'be. : authorized. pursuant to .the terms of the. Blutgreen Owner Agrvzgznrs. to allocate costs for, the foregoing to Owner Bsnyftciaties ott a bawls as set forth rn the Eylaws of the Club Heriefsciaty.. 9.8i3 Cnntin-g ran EAa Owner Beneficiary and cite beneficial iivarest of.: each such, Owncx .8encfimian+ in and rider liar, Ttust is .coatuigtat upon the, respective 'Owner Bene&ciaries' corApHance.:widt' the Owner Beneaciaty. Obligations wind with: all.. the. terms• of char respective Bipegreen Owner Agrt.."Ia the event'of a.bretch of the t3w=,Bcnceary.8bligaiioas.by a: rrspxnvt,Owner'-Beaefuiuy or ., the breath by such Owner Bencitciatl% of Errs respective Blucgreed Owner Agreement, did Truaft shall have tre. govvtr puisuartt to, the trans. hereof to trrmura a and ddetc or suspend the'bwner.Beneficiary frt in the zernts of tbis ' 'j' wq . and -by such uxmi#tarioa and deletion,. the Owtter Beneficiary's righis shall be cancelled and the Owner - Beneficiary deleted izom this Trust. ' : 9.09 10,a 9nd rnsur ctlt .3 . The Trustee shall list bi Obl'rgatcd to provide, give or'mairaajn any-fidchty bond -6r errors and om4dons insurartme coverage other rhea such fidelity bond or errors and omissions assurance tout rage as.. be retp� by &e'Division-or any other'reguW0y'agency'with-wham the Trust is registersd, in the event arch fidelity bond or errors and omission Insurance coverage is so required, such shall bo in an ar_nount not kss Chart the minirrivar artiount required by the Division or by. such o her regulatory. agency artd shall },ie: in a form acceptable.to the Division az stitch regulatoyagency subject; however, to thrconditlon'that.any "h fidelity bond or- errors and 'omissions insurai ca Coverage is available in the gtneml assurance market. iuits p premms for the foregoing sIWl be an expei�e payable from the Operating Pond. A.10. l"eti �ianen�+� tst' The Trustee shall -be paid the artrtiuut set forth in this paragraph as compensation for Its services perfohned in connoction with the Trust.. ; (a) ;Thr sole compensation for the Trusted, trrttil,and ntrless agreed 9ther--y6v by 8luegreea and the Vacatiori Club Managing Entity, in payttent'of its &ties under this Trust Agreement shall be as follows; Orc Thousand Dollars. (S1;000.00) per month payable solely from Club Dues. (b) All fees, charges attd comperosation payable to the Trustee shall be, and are hereby -wade ° an obligation of the Trust, and the Trustoe shall -not be riquirdd to convey any of the Trust Emit out of this.Trust upon any- caadinon which may require such couve} me, and this Trust shall not cease or termimte _until ab of the . compensmon. if any, of the Trustee is fully. piad. �n si tP_'.fi Enw rc Other thin as the holder of the legal title to or rights or iriteres s in the Trust Emte, Trustee shall have no power, comrol or authority over the Trust Estate. -The Trustee shall solely have the powers and dudes to drat with and administer the Trust E`tatt in accordance with the authorities let #orth herein uud ' subject to 'the itnitatioas expressly set forth in this 'Trust Agreement' Subject io the foregoing, the Trustee shall have the following rights: (a). To receive rights: titles, and interests in arA to Accommodations 6r Facilities and' Octuparscy Rights, as provided !retain; : (b) To' employ. officers. agents, attorneys acid servants on behalf of the Trust, which . cvnipernsation shall be payable from tfae Operating Fund and +vhoun shall .ba.cstloyed as it is deti necessary by the Trustee for it so perform its duties bereunder; (t) To acx.ya" u11 respects on bth4f of tune Trust Estate in the affairs of tacfi Ctrmponetir Site owner's association add in actsordii nce widi e4.ch Underlying ,Declaration;• and {d) To tontpsomiss 'or: settle }It silts. claims or demands or waive or release all rigDu selastissg, to the Trust Estate. (e). To-coll'ea-Common Assessment Fees and .Club Does Elam the Owsier i3enefitiatits. which Comraon: Assessment Foes: and Club D%= sbail.bc established is herein and. in the Club By.taws, provided: Any such Comirran:"Asseasmenc fees :oi Club Dues not paid when dune shall be deeared delinquent. The Vacation ,.Grub Z4faaaginP. Entity Beneficiaryshill'haye a - Hi z on the .Owner Beneficiary Right; and the Reson Interest - Convey t2l i-the Trustee at die timie of. ,adniittance'of-a-resprrtive Owiur Bmeficiary..if such respective oerafr r &nefrcia ldU to pay Common Assessment Fees o-r. Club- Dices -when due, which hen shag Krse from__ the date that sueh� Cot3hatw A,ssessntent.Fees and CIAW Dues become due. -tine Vacation club'Mai;aging Endty Berieficiary triay bring an ,circa in i?s name io 16tealose a ,lieu. far. Corrurtioa' Assesirneat Pets and Club Dues in the tnarnaer a itmple of real props try is.foreziosed and may'atso bring ze acrimi to recover a' money Mg=r for dnc unpaid . - •Cout a= Asscumoat fags ind' Club Dues w t&xft diving any claim of ilea lice foregoing lien is effective froift and its reladve pridriry ahau be eatabluhed from tare date of recording a. claim of lien in the public records nt the county or counties in which the Resort Interest coayeyed.io the Taut= at the time of idmktaxiDi of the dtlinquetii Owner Bendiciary4h tiiTwat an Tware located. The riaim' !tent shall statee'the uww.of the Biuegreen Vacation Club and identify tine Resort Interest and Ct,Ngfner Beneficiary hts for Which tine lien is effective;>the aarnt of the owner. Btriefioiary, .the Comsiion Assessment Fms 'ar d Club Dues amount due and 'mte the 'due dates thereof: Tine foregoing lien is effective una suisfied or'%intil:five (5). Years Dave v;xpired-after the dace the' claim of lien-isrecorded runless, atithitn that tune, an arson to enforce the 'llen is commenced purr,tamt to the.foregoing. Mz claim of heir may incladc ofnly Cornmon Assrssrntiu Fees and Llub Dues which tea tine whets file claim is recorded. The .. . " ciaiin of lien ":be signod ind acknowiedgtd by an afffcxr o; agtstt of rSne ttacation Club Messaging-Eindty. . Beneficiary. Upon full payment, the person making the payment is entitled to receive a satiifacdon ofahe lien. A - juidgr�ezit in any action or suit brought.un4ier the section shall include costs aund reasonable attorneys'. fact for the . prevailing party. VotwithstmdIng anything contained herein to 'the contrary, -the Vacation Club Managiug'Fdniatr Betieficiary is expressly auiborized tp satisfy its ilea and amounts "due respecting such unpaid Comrnon Assessaunl Fees or Crab Dues in the event that. the Trustee deletes the delinquent .Owner Btmefutiary- from, the tetrris 'I dais 'rust. and die Trustee"retains tine Resort interest subject to the foregoing lien. A'otwit173tartdsrg the %itgaiag, .the Ttufiee shall not have any -obligation orr duty, except wbtu necessary, to protect the Wrests of the Owdri Bae t:iaries In cotrmeinncing or defending any actiott at Iaw or in egpity relating to , 1R : 1lta Taut F,state, .All exercise of hSW.bj the Trustee shall be at titrt expense of the Owner Beneficiaries through doendintre of fpnds,ln dw Operating Fund. 16 addition to in the foreroing, the Trustee shalt be empowered to do ariy and all things as may `be necessary in accordarfce with all applicable laws, ordinances and rabuladons; including such applicable Jaws, ordinances and regulations as are adoptedby the: Divisions or promulgated by any goversime ital authoriry. concerning. - the' Trost 'lEstate or any portion thereof Muding, but not limited to, modifying; aattndittg at restating, this Truij.% . Agreertient to comply with such,laars, ordinance to regulations. Attntrf E, 10A $tirs:ahBiiy Should any. provision' of this Trust •Agreement be or becopac invalid or uaenforcrabie, rile retraining provisions of this Agreanunt shalt'be and coat1hue to be fully effective. 10.2 ;-.D'ottrxs. fay gotice or, communication. required or permitted wader this Truse Agreement to be delivered or to be served on the Trustee or on nay Beaeficiaty.sliail be deemed properly delivered to, saved on and rt•ceived by -the Tiisstee or such Mpecdve Eenefxiafy, whin Person delivered to the Trustee or to such respecuve �eatf�ciaiy, or'iii Jleu of,guclt' M-aw, service: when deposited ;n the: United States Mazy, certified tt>ail,•wirh postage prepaid, -addressed, m ute•Trnstee it: the following address: . Vacation Tntsi. 'btc., a Florida' Corporation 4950 Cornmanicarion Aventu, 4Wte 404, + Boca baton, Florida 33431 or; in the ease of any Owner Beneliciary, at the';tddrtss last shown on the _records of ttir 3rusteo for such Owner Beneficiary. Inthe event of each oilier Beneficiary hereunder, the address shall be such address as supplied to the Trustee, from time to here, in writing, by. such Beneficiary. 10.3 -dpptfr z Taw The Trust created by ibis Agreement has been accepted by the Trustee in the State.of Porida; will be administered by the Trustee in said •state;,and the 'rslidity, co tssuuctSors and all rights wader this Agreamcnr shall be govtmed by the liars of the State. of Florida: 10.4 AmetArriti -Ile Vacation Qub.Msnagiag Entity J3erierxlarv'and the Trnstes may-aU=d this Trust Agreement in writing "and :shall cause stir}1' amendment to be. adopted, provided. ho\vever, - dzat such amendments do not adversely and materially sffect the rights as sec forth hereunder of the Owner BeaefleMes..Any. such• amendment so adop�d shall require of she Vacation Club, Managing Etuity Bepefziaiy -VW tht. Trustee diet they give the 'Division aced each regulatory agency with •i haan the Trust is registered and the Boird of•Director of the Club Bauficiary, -notice of ate 4mendinent at least thirty (30) days before such atnetdment Is effective.. 'ice the wear there is a detarniatrion b7 any of the'foregoing that they will be advercly. and mualally affecud by an j snch amendment, and wrm= objection is received by the Trustee widtia such 30 days by atItast ten (1036) per cent of the owner Beneficiatiea or by the Division, rhea any such amendment shall_ only be adopted upon receiving. a majority approval of the. Ow= Bencfsciaiies.. and the Trustee. and Vacation Club hiauaging. Entity. Beneficiary, Notwithstat dli any other. provision hsrtin to the contrary,. the Trustec. and the Vacation Club . Managing. Entifp . . $eaeficiary may attend this Agreement at any time without. the. approval of any .party, if such araeadnteat is necessary: in. the reasonable opinion of. the Trustee,- so that this Trust Agreement or dre Bluegrecb owwner Agrettntuu ate 'tnade to comply with sny applicable laws, ordinances, rules and regulations, HIS AnnapA9nrp nr' aw! ` No eonsidendon has been paid by the Tmvft for any conveyance of.the Trig EMU he: WMW. Each coriv has been uxepted iatd:rovill i5t belt! by. the TzLtstec subject to sI3 bison eattstnbmces, er ppie its, restrictions or other clouds dr'e irtts aga#nst t ie title thereto, rahe0ser the sense are of reeoid or otherwise. The Tnisi BjWt will be held'on the least, tt= and cooditions and fov the.purposes hereinn-ut forth, until the Trust is otherwlse tcrn i ated tie ura the respetlive portion of the Trust Estate is conveyed•iree'of the Trust, as bertin piovided. 1016 Trust Procedures. The Trust and any Trustee shall at all dines comply with the following: (a) The Trust estate will not be commingled with the assets of any individual, corporation,. limited liab9ity Osnpany. joint venture;. association, joint-stock campany-, irust. unincorporated organization or government agency or political subdivision thereof (each, a "Person") The rust Estate -shall be sepeately identified rind segregated. (y) 'phe'ravbank accounts, if ea:sifnt, shall bd maintained separate from those of. . other Person. (c). All records and beolm of account of the Trust shall be ruintained sep2m frbfii.tfitose of any other Person. Such stacemcnts. records and docu nents shall indicate the separateness of fie Trait Estate aad-.liabilities of the Trust Estate from thane of any other Persou. (d) At all. tunes the Trust shall be held out to the public tincfudins any crcditaca of any x other. Person). unde,,, its own narue, and shall operate so as to. not be coaddered in 'alter -ern` of or otherwise conduct itself as part of any other Persasi. All tnstotnary foriruiities rcgaiding the separate exisleaoc of the Trust shall die observed. . (e) 'Ilse Tmt% business arrd operation shall be tun solely'throttgh the: Trustee. At all . .tunes the charter 'and •oilier operative documents of. any, successor trustee shall contain' Provisions identical in purpose to die "Corporate Procedures* set forth.in Article-Mme of the Tsustce's Ardcies of ' `r `Irscorporatian, as ilit. saute may be or tray have been amended, and as in effecf an the date. hereo(: ' (f? The Trust shall act solely isi its own nas a and through the Trustee and shall conduct all business correspondence of the Trust and other communications in the Trust's awn mane and ;fn its own . stationery, (a) I)etisiors vft respect to : the Trust's business and -daily operations, sbail be independcndy made by the Trustee, and Will slot be dictated by any .ether Pelson. The Trust shall not (i) guarantee or assarne any liabilities or obligations .of any other PaTloa or (ii), perinit any other Pelson W assume or guarantee any liabilides•of the Truss (h), The Trost will- trot ih=r nay liabilities, ekcept trade debts on its- own behalf riot in excess of one ihoasand dollars $1000,00). Trust expenses, if any, -will be paid by.the Tranee.from the Trust funds arsd, at all. hurter; all appmgriate formalities of €operation and �indepertdant tnaaagtunnestt of the Trust shhall be observed, The Trust will be operated so as it will not be substantively consolidated with aiip.other . Person. To.the extent the Tnhst jointly toot"acts.with apy ather"Perton to do business with vendors or - sbrvice providers or to share overhead'expenses, the costs incurred in so doing shall br'ailocatcd fairly among. such eaddes and each nch. entity 'shall bear its -fair sharer of such..eosts and shaU ensure that, to. the exteru that the Trust cataracts or does bu:liiess with vendors or service providers where• the 'gdods and services provided arc partially for the benefit of any other Person, the costs incurred in. so, doing 26 ' ULUF.GPXaN VACATION CLUB, . "IC TIMMa No alit Corgorctl 7 By'. Wttcs Pa*kE: Fonda "Prestt rt; Attcstr Witxtt s Danny 1:. Fcrgi saa, -A st-Wix Sccrsarly STATE Off' F'COR13)A COUNTY OI! PaM BEACH I PI'r..RBSY CERTIFY; as ar ofticor duly autltorized to: trim aeknowledgemnts aid oatN in tltc Eton and t ouruy afo�cssid, thir at tttc czecuzion of this Cc7iF=td on ibc, dace set (otth blow, Pattlek 9, Rondcitu pers=lly sppc:ied taros me, as •Prc-iidsttr ot" Bluc&recn Nlzcstioa Club, Inc., a Flor'tda.Non•Prot'u Corporation; and ht: has " crocumd the foregeml bs,1 4m ort'bthad of the Corpcs,.uiot . y,�,, I HERnY MAIM CERTIFY, that �'Ntrick E. Ropdtav, as the person. making dsc forcgoli,g zzl=wledgcm+,°nt, is"di -san�w pcsstsi; cit:r of ng oa :aclmow led nl ezecstlon. of the foregoing: instrurnem mul . dtacrtcsd diem4l bce-tusc.I.pcnou0y know bim oc he has'.prcaueed-a vaiid_;std cxistfrg drivct's tiC.:ztec is • iclrtitifseatian: - - .. . " - " s my baud. and off, " tl s i1t the Stare and Cniq aforesaid, this day of ,.200i. Notary u Li e, NOURYNQ _ (N©TAPJA . �`a MY Garnmi�la+Cf2 ' 4'teaJ •EapiK�Augsus2J.mQt . - . ihd Ownrr &use rits"and Lnrrrst"Holdct' :nefciaries a><ail-bc, identified, from time w time, by' Ara t�citibit-attscbed hereto, wh1ch axhiktit'ah�il be itm= ddd, prriodlcally, 'aa iot forth h sht foregoing Trust .Agmcmcnt. " . ?ha Otvnes Et cttc`satids. Isy esectttion oP 2 B!tccmtetta Ownt r Agr�emrnt; ;ycc�pt cilia Ttust.Xgrccrivrt. The Inic est IIolder Bmreiaiies try accurtmcp of the assignnacnt.or, j Iedge of a Li:n Peet or Pathasa ;�iostcy Lien D:6t accept • tliisTrrst Agraeaitnt. : ' • 0 7Lj THE CITY OF ASPEN Land Use Application Determination of Completeness Date: July 13, 2012 Dear City of Aspen Land Use Review Applicant, We have received your land use application and reviewed it for completeness. The case number and name assigned to this property is 0039.2012.ASLU — Code Interpretation (Vacation Club). The planner assigned to this case is Phil Supino. ❑ Your Land Use Application is incomplete: We found that the application needs additional items to be submitted for it to be deemed complete and for us to begin reviewing it. We need the following additional submission contents for you application: Please submit the aforementioned missing submission items so that we may begin reviewing your application. No review hearings will be scheduled until all of the submission contents listed above have been submitted and are to the satisfaction of the City of Aspen Planner reviewing the land use application. Your Land Use Application is complete: If there are not missing items listed above, then your application has been deemed complete to begin the land use review process. Other submission items may be requested throughout the review process as deemed necessary by the Community Development Department. Please contact me at 429-2759 if you have any questions. Tha You, nnifer Phel Deputy Director City of Aspen, Community Development Department For Office Use Only: Qualifying Applications: Mineral Rights Notice Required SPA PUD COWOP Yes No )/-- Subdivision (creating more than 1 additional lot) GMQS Allotments Residential Affordable Housing Yes No -,/ Commercial ___ E.P.F. _____ • • Sections: 26.3 06.010 Interpretation. 26.306.010 Interpretation. Chapter 26.306 INTERPRETATIONS OF TITLE A. Authority. The Community Development Director shall have the authority to make all interpretations of the text of this Title and the boundaries of the zone district map. B. Initiation. An interpretation may be requested by any affected person, any resident or real property owner in the City of Aspen, or any person having a contractual interest in real property in the City of Aspen. The Community Development Director shall have the authority to initiate interpretations of Title 26. C. Procedures. 1. Submission of request for interpretation. Before an interpretation shall be provided by the Community Development Director, a request for interpretation shall be submitted to the Community Development Director. 2. Determination of completeness. Within fifteen 15) days' after a request for interpretation has elopm been received, the Community event Director shall determine whether the request is complete. If the Community Development Director determines the request is not complete, he shall serve a written notice on the applicant specifying the deficiencies. The Community iDevelopment Director shall take no further action on the request for interpretation until the deficiencies are remedied. 3. Rendering of interpretation. After the request for interpretation has been determined complete, the Community Development Director shall render an interpretation within fifteen (15) days. The Community Development Director may consult with the City Attorney and review this Title and the zone district map, whichever is applicable, before rendering an interpretation. D. Form. The interpretation shall be in writing and shall be sent to the applicant by certified mail. E. Official record The Community Development Director shall maintain an official record of all interpretations in the Community Development Department, which shall be available for public inspection during normal business hours. Once an interpretation is rendered, public notice describing the interpretation shall be published in the legal notice section of an official paper or a paper of general circulation in the City of Aspen. Such notice shall be provided within fifteen (15) days of the interpretation being rendered, and shall be substantially in the following form: "A code interpretation to City of Aspen Land Use Code. August, 2007. 4.1 r'' Part 300, Page 17 Section 26.xx.xx of the City of Aspen Land Use Code, requested by xx, was rendered on xx/xx/xx and is available for public inspection in the Community Development Department." _ F. AppeaL Any person who has made a request for interpretation may appeal the interpretation of the Community Development Director to the City Council in accordance with the appeal procedures set forth at Chapter 26.316. (Ord. No..12-2007) LzAlS L -- 4J� ��C, is ��' � �-�- o��t►� �� �. ; �"�a� City of Aspen Land Use Code. August, 2007 Part 300, Page 18 Chapter 26.590 TIMESHARE DEVELOPMENT Sections: 26.590.010 Purpose and intent 26.590.020 Overview of timeshare development 26.590.030 Exempt timesharing 26.590.040 Procedure for review of timeshare lodge development application 26.590.050 Contents of application 26.590.060 Characteristics of a timeshare lodge development 26.590.070 Review standards for timeshare lodge development 26.590.080 Business license and sales tax payments 26.590.090 Timeshare documents Editor's note —Ord. No. 21-2002 § 1 repealed former Chapter 26.590, which pertained to similar provisions and enacted a new Chapter 26.590 as herein set out. Former Chapter 26.590 was derived from Ord. No. 5-1988 § 2 as amended by Ord. Nos. 55-2000 § 17 and 51- 2001 § 2. 26.590.010. Purpose and intent. The purpose of this Chapter is to establish the procedures and standards by which timeshare development may be permitted within the City. It is the City's intent to establish timeshare regulations that provide for the protection of the character of Aspen as a resort community and that help to promote increased tourism and vitality within the City. Specifically, the City intends that new timeshare projects in Aspen will implement the goals of the Aspen Area Community Plan and will help to achieve the following public purposes: A. Increased vitality. Timeshare developments can provide the opportunity for increased tourism to Aspen, can add to the level of community vitality and can help to create a more sustainable local economy. This can be accomplished by expanding the number and variety of "hot beds" available to visitors, raising occupancy levels in the accommodations sector and attracting "new trials" to Aspen, from persons who have not previously visited this community. B. Preserve and enhance lodging inventory. Aspen's tourist accommodations inventory has for some time included a significant percentage of traditional lodges. The community would like to preserve and enhance this lodging inventory, by encouraging timeshare units to be contained in projects that look and operate in a manner similar to Aspen's traditional lodges. These regulations have been designed to accomplish this purpose by establishing standards for the physical and operational features of timeshare lodges, to ensure that new and re -developed timeshare lodges maintain Aspen's lodging traditions. C. Upgrade quality of accommodations. It is important to Aspen's tourist economy that its accommodations are kept up-to-date. Timeshare development offers the opportunity to infuse capital into the short term accommodations inventory, so facilities can be modernized. It is equally important to ensure that once facilities are upgraded, the facility is managed to City of Aspen Land Use Code Part 500, Page 141 • 9 provide a quality visitor experience over time. These regulations are intended to ensure that timeshare lodges are properly maintained over the life of the development. D. Maintain community character. Aspen has a valued reputation as a quality resort community. The City intends to regulate timeshare marketing and sales practices, to ensure that the way timeshare estates are marketed and sold is consistent with the character of this community and to minimize the potential for practices that would create an inappropriate image of Aspen. The City also intends to provide protection for its long term residential neighborhoods, to ensure that the impacts of timeshare development do not adversely affect the character of these residential areas, by limiting this use to the City's lodge and selected commercial zone districts. (Ord. No. 21-2002 § 1 [part]) 26.590.020. Overview of timeshare development. A. Applicability. The requirements of this Chapter shall apply to all timeshare development within the City. These requirements shall be in addition to all other applicable requirements set forth in this Title 26 and those set forth in the Colorado Statutes. B. Types of timeshare development. There are two types of timeshare development that may be permitted within the City, as follows: 1. Timeshare lodge development is the basic form of timesharing permitted in Aspen. It applies to any application to convert lodge units or residential dwelling units to timesharing or to develop new units for timesharing, except for those applications that are eligible for an exemption, as described below. Timeshare lodge development is a permitted use in the Lodge/Tourist Residential (L/TR), Commercial Lodge (CL), Lodge Preservation Overlay (LP), Commercial Core (CC) and Ski Area Base (SKI) Zone Districts. To obtain approval of a timeshare lodge development, an applicant shall follow the procedures outlined in Section 26.590.040 below and shall comply with the applicable characteristics of Section 26.590.060 below and the applicable standards of Section 26.590.070 below. 2. Exempt timesharing is a more limited type of timesharing permitted in Aspen. The only units eligible for this exemption are single-family dwelling units, condominiumized duplex dwelling units and condominiumized multi -family dwelling units within any individual condominium complex or condominium project that contains no more than six (6) such units. Exempt timesharing is a permitted use in the Lodge/Tourist Residential (L/TR) and the Ski Area Base (SKI) Zone Districts. To obtain approval for exempt timesharing, an applicant shall follow the procedures outlined in Subsection 26.590.030.B below and shall comply with the standards of Subsection 26.590.030.0 below. (Ord. No. 21-2002 § 1 [part]) 26.590.030. Exempt timesharing. A. Eligibility for exemption. 1. The following types of dwelling units are eligible to apply for this exemption: City of Aspen Land Use Code Part 500, Page 142 a. Single-family dwelling units; b. Condominiumized duplex dwelling units; and c. Condominiumized multi -family dwelling units within any individual condominium complex or condominium project that contains no more than six (6) such units. 2. To be eligible to apply for the exemption, the single-family, duplex or multi -family dwelling units must be located in the Lodge/Tourist Residential (L/TR) Zone District or the Ski Area Base (SKI) Zone District. B. Minimum requirements to obtain exemption. 1. No more than six (6) estates may be created in any dwelling unit via this exemption. An applicant wishing to create more than six (6) estates in any unit may do so only via an application for a timeshare lodge development. 2. The ownership interests that may be created pursuant to this exemption shall be limited to "time -span estates" as defined in Section 38-33-110, C.R.S., where the annually recurring exclusive right to possession and occupancy is determined by a schedule or formula. 3. Applications for exempt timesharing shall be processed as a subdivision exemption, pursuant to Subsection 26.480.030.A.5 of this Code. 4. The minimum application contents for the subdivision exemption application shall be as follows: a. The applicable portions of the information described in Subsections 26.590.050.A, B, F and G; and b. The general application contents required in Section 26.304.030, Application and fees. C. Review standards for exemption. An applicant for exempt timesharing shall demonstrate compliance with each of the following standards. These standards are in addition to those standards applicable to the review of the subdivision exemption. The proposal shall not conflict with any applicable deed restrictions or private covenants or with any provisions of the Colorado Statutes. If the proposal is for a condominium, it shall comply with the applicable provisions of Subsection 26.590.070.I of this Code. 2. All units to be converted to timesharing shall comply with the City's adopted Fire, Health and Building Codes. If any unit does not comply with said Codes, then no sale City of Aspen Land Use Code Part 500, Page 143 of an interest in that unit shall be closed until a Certificate of Occupancy has been issued that brings the unit into compliance. 3. All dwelling units to be converted to timesharing shall comply with the requirements of the zone district in which they are located and all other applicable standards of this Code or with the requirements of any PUD or other site specific development approval granted to the property. 4. The conversion of any multi -family dwelling unit that meets the definition of residential multi -family housing to timesharing shall comply with the provisions of Chapter 26.530, Resident Multi -Family Replacement Program, even when there is no demolition of the existing multi -family dwelling unit. 5. The marketing, sales, management and operation of the timeshare estates shall comply with the provisions of Subsection 26.590.070.F and 26.590.070.J, of this Code. 6. A wall sign shall be mounted on each building stating that it has been approved by the City for timesharing and providing the name and phone number of a management entity or local contact person who can be called in the event of an emergency or to respond to neighborhood concerns. The sign shall comply with the requirements of Subsection 26.510.030.B.22 of this Code. 7. Development shall be in compliance with the provisions of the Subdivision requirements in Chapter 26.480 when new lots or units are created. (Ord. No. 21-2002 § 1 [per]) 26.590.040. Procedure for review of timeshare lodge development application. All timesharing that is not eligible for an exemption shall be processed as follows: A. PUD Review Required. Timeshare lodge development shall be processed as a Planned Unit Development (PUD), pursuant to Chapter 26.445 of this Code. B. Consolidated PUD Review. The Community Development Director may determine that because a timeshare lodge development is a conversion of an existing building or because of the limited extent of the issues involved in the proposal, the four step PUD review process should be consolidated into a two-step review, pursuant to Subsection 26.445.030.B.2, Consolidated conceptual and final review, development of a timeshare lodge in the Lodge Preservation Overlay (LP) Zone District, shall be processed as a two-step review, pursuant to Subsection 26.445.030.B.3. The Community Development Director is also authorized to waive those PUD submission requirements from Section 26.445.060 and review standards from Section 26.445.050 that the Director finds are not applicable to a proposed timeshare development. C. Subdivision review. Timeshare lodge development shall also require subdivision approval. Review of the subdivision application may be combined with final PUD review, as City of Aspen Land Use Code Part 500, Page 144 authorized by Subsection 26.304.060.13, Combined reviews, and by Subsection 26.445.030.B.4, Concurrent associated reviews. D. Growth Management Quota System review. Whenever a proposed timeshare lodge development or exempt timesharing is subject to review under the City's Growth Management Quota System (Chapter 26.470), the development shall be considered to be a "Tourist Accommodation" or a "Lodge" under that system. E. Authority to grant variations. Variations from the requirements applied to timeshare lodge development may be authorized by the City Council. An applicant requesting a variation shall demonstrate that the provision requested to be varied is not applicable to the proposed development or cannot be met and shall demonstrate that the proposed variation is reasonable, would not be contrary to the public interest and better implements the purpose and intent of these timeshare regulations than the codified requirement. (Ord. No. 21-2002 § 1 [Part]) 26.590.050. Contents of application. In addition to the general application information required in Section 26.304.030, Application and fees and those application contents for PUD and subdivision, the application for timeshare lodge development shall include the following information. For projects that require both conceptual and final review it is expected that this information will be provided in a preliminary manner at the conceptual stage and in a detailed manner at the final stage. A. Timeshare use plan: A detailed description of the basic elements of the proposed timeshare use plan. The use plan shall describe the number of estates being created in each unit, the total number of estates to be created, the expected price for each estate and whether a purchaser is buying a specific unit for a specific time, a specific unit for a floating time or whether there is no specific unit but just a specific time. It shall also describe whether owners will be able to participate in an exchange program and if so, in which programs they will be eligible to participate. The use plan shall also provide a specific description of how the development will comply with the requirements of Section 26.590.060, Characteristics of a timeshare lodge. B. Summary of disclosure statement and timeshare instruments. A detailed summary of each of the key points that will be included in the disclosure statement and the timeshare development instruments. (See Section 26.590.090) if the project receives approval from the City. C. Management plan. A plan for how the timeshare development will be managed, describing whether the applicant will manage the project or if it will be managed by a management company, a branded company or other entity and describing how the project will be operated. D. Marketing plan. The marketing plan for the timeshare development, including information on proposed sales techniques (including a description of gifts, premiums or City of Aspen Land Use Code Part 500, Page 145 promotions to be offered), sales packaging and whether a sales office will be established off - site. E. Budget. A planned budget for the proposed homeowners/condominium association estimating the proposed costs and expenditures for the management and maintenance of the timeshare development. F. Upgrading plan. For any existing project that is proposed to be converted to a timeshare lodge development, the applicant shall submit a plan of how the project will be physically upgraded and modernized. G. Tax collection. A statement indicating the manner in which real estate transfer taxes and sales taxes will be collected. H. Developer's registration. A copy of the Developer's registration with the Colorado Real Estate Commission. If the Developer has not so registered at the time of submission of the application, then this information shall be submitted at the time the timeshare documents are submitted for recordation, pursuant to Section 26.590.090 of this Code. (Ord. No. 21-2002 § 1 [part]) 26.590.060. Characteristics of a timeshare lodge development. It is the intent of the City that all timeshare lodge developments incorporate some of the physical and operational features that are typically found in lodges in Aspen. The City recognizes that each timeshare development is unique and that each development should not contain all of these features. In fact, considering the proposed location of the development and the intended method of operating the facility, certain of these features 'may not be appropriate. The City also recognizes that when owners occupy their units, the development will operate more like a private residential complex than like a lodge. But the City seeks to balance that form of use with opportunities for other guests to use the facility. Therefore, the City has identified a menu of timeshare lodging features, including both mandatory and optional elements. All timeshare lodge developments shall incorporate the mandatory physical and operational features listed herein. However, an applicant may instead propose to substitute optional operational features for one (1) or more of the mandatory features listed herein or may propose its own set of features which ensure that the development operates in a manner similar to a lodge when the owners are not using their timeshare estates, as described further below. A. Mandatory physical elements. 1. All timeshare lodge developments shall have a staffed on -site front desk, located within a lobby that is sized to meet the needs of the project. If the timeshare lodge is part of a multi -site development, there may be a single front desk for these sites. The staffed front desk shall be open at least during regular business hours and shall be managed to provide full time registration and reservation services, including provision for late check -in and for other off -hours guest needs. The front desk shall - accommodate walk-in rentals. City of Aspen Land Use Code Part 500, Page 146 2. A timeshare lodge development shall contain a sufficient level of recreational facilities (such as exercise equipment, a pool or spa or similar facilities) and other amenities (such as a lobby, meeting spaces and similar facilities) to serve the occupants, including facilities that can be used in the winter and the summer seasons. The extent of the facilities provided should be proportional to the size of the timeshare lodge development. The types of facilities should be consistent with the planned method and style of operating the development. 3. A timeshare lodge in the Commercial Core (CC) Zone District shall not have any lodge rooms located on the ground floor. Instead, a timeshare lodge in the CC Zone District shall contain at least one of the following elements: a bar, restaurant or retail facilities. The elements provided shall be located along the street front, shall be accessible from the street and shall be designed to serve the public, not just the occupants of the timeshare lodge. B. Mandatory operational practices. The City wants to ensure that the units in a timeshare lodge development are available for rental to the public when they are not being occupied by the owner, the owner's guests or persons occupying the unit under an exchange program. The City has identified certain operational practices that will accomplish this intent, which are listed in this Section. An applicant who agrees to include all of the practices listed below in the operation of the timeshare development shall be deemed to have complied with the requirements of this Subsection B and need not address auy of the optional operational practices of Subsection C. The City recognizes, however, that there may be other ways to comply with this intent and will consider these and other operational practices. Applicants may propose to substitute one (1) or more of the optional practices listed in Subsection C, below, for one (1) or more of the mandatory practices listed in this Subsection B. Applicants may also propose other operational practices not listed in Subsection ) as a means of demonstrating compliance with this standard. Acceptance of the proposed optional practices as a substitute for one (1) or more of the mandatory practices shall be at the sole discretion of the City Council. 1. Timeshare estates shall be made available for short-term rental when the estate is not in use by the owner of the unit, the owner's guests or persons occupying the unit under an exchange program. Units that are available for rental shall be listed at competitive rates in a central reservation system. Listing of the unit with a recognized central reservation system in Aspen or through the central reservation system of the company that will manage the timeshare development, is preferred. 2. The covenants of the homeowners association shall permit walk-in rental of units. The association shall not limit rental of units to such arrangements as only weekly rentals or Saturday -to -Saturday rentals; instead the association shall permit shorter stays, split -week rentals and similar flexible arrangements. City of Aspen Land Use Code Part 500, Page 147 Owners of timeshare estates shall be required to reserve their unit/time sufficiently far enough in advance to enable the public to obtain access to those units that are not so reserved. 4. The owner of a timeshare estate shall not be permitted to occupy that estate for any period in excess of thirty (30) consecutive calendar days. 5. The units that remain in the developer's inventory shall be made available for rental to the public while the estates are being sold, except for models and other units that are needed for marketing or promotional purposes. C. Optional operational features. 1. Timeshare lodge developments that subdivide each unit into a larger number of estates (more than ten (10) estates per unit) are preferred to those which subdivide each unit into a smaller number of estates (less than ten (10) estates per unit). 2. Applicants may formulate their timeshare use plan such that the purchaser would not expect to occupy the same unit each visit; instead the purchaser would purchase the right to occupy a certain type of unit for a certain period of time. Applicants may also include provisions in the Homeowners Association documents prohibiting owners from personalizing the unit they have purchased. 3. Applicants may design their development as a mixed project, which includes not only timeshare units, but also some units that would continue to be owned and operated by the applicant and his or her successors or assigns as traditional lodge units. Another type of use plan that is encouraged would be for the applicant to agree not to sell all of the shares in every unit, but to instead keep some time reserved for rental to the public at market rates during both the high seasons and the off-seasons. 4. Applicants may decide to sell on and off-season estates as a package. 5. Applicants may include in their use plan provisions that allow for a wide range of exchange opportunities for owners, which will promote new Aspen trials. (Ord. No. 21-2002 § 1 [part]) 26.590.070. Review standards for timeshare lodge development. An applicant for timeshare lodge development shall demonstrate compliance with each of the following standards, as applicable to the proposed development. These standards are in addition to those standards applicable to the review of the PUD and Subdivision applications. A. Fiscal impact analysis and mitigation. Any applicant proposing to convert an existing lodge to a timeshare lodge development shall be required to demonstrate that the proposed conversion will not have a negative tax consequence for the City. In order to demonstrate the tax consequences of the proposed conversion, the applicant shall prepare a detailed fiscal impact study aspart of the final PUD application. The fiscal impact study shall contain at - -- City of Aspen Land Use Code Part 500, Page 148 0 least the following comparisons between the existing lodge operation and the proposed timeshare lodge development: A summary of the sales taxes paid to. the City for rental of lodge rooms during the prior five years of its operation. If the lodge has stopped renting rooms prior to the time of submission of the application, then the summary shall reflect the final five (5) years the lodge was in operation. The summary of past taxes paid shall be compared to a projection of the sales taxes the proposed timeshare lodge development will pay to the City over the first five (5) years of its operation. As part of this projection, the applicant shall specify the number of nights the applicant anticipates each timeshare lodge unit will be available for daily rental to visitors (that is, the annual number of nights when the unit will not be occupied by the owner or the owner's guests), the expected visitor occupancy rate for these units, the expected average daily cost to rent the unit and the resulting amount of sales tax that will be paid to the City. 2. An estimation of the real estate transfer taxes that would be paid to the City if the existing lodge were to be sold. If an actual sale of the property has occurred within the last twelve (12) months, then the real estate taxes paid for that sale shall be used. This estimation shall be compared to a projection of the real estate transfer taxes the proposed timeshare lodge development will pay to the City over the first five (5) years of its operation. This projection shall include a statement of the expected sales prices for the timeshare estates and the applicable tax rate that will be applied to each sale. 3. A summary of the City -portion of the property taxes paid for the lodge for the prior five (5) years of its operation and a projection of the property taxes the proposed timeshare lodge development will pay to the City over the first five (5) years of its operation. This projection shall include a statement of the expected value that will be assigned to the property by the Tax Assessor and the applicable tax rate. The fiscal impact study may also contain such other information that the applicant believes is relevant to understanding the tax consequences of the proposed development. For example, the applicant may provide information demonstrating there will be "secondary" or "indirect" tax benefits to the City from the occupancy of the timeshare units, in terms of increased retail sales and other economic activity in the community as compared to the existing lodge development. The applicant shall be expected to prove definitively why the timeshare units would cause such economic advantages that would not be achieved by a traditional lodge development. Any such additional information provided shall compare the taxes paid during the prior five (5) years of the lodge's operation to the first five (5) years of the proposed timeshare lodge's operation. If the fiscal impact study demonstrates there will be an annual tax loss to the City from the conversion of an existing lodge to a timeshare lodge in any of the specific tax categories (property tax, sales tax, lodging tax, RETT tax), then the applicant shall be required to propose a mitigation program that resolves the problem, to the satisfaction of the City Council. Analysis of the fiscal impact study shall compare existing tax City of Aspen Land Use Code Part 500, Page 149 0 • revenues for a lodging property with anticipated tax revenues. The accepted mitigation program shall be documented in the PUD agreement for the project that is entered into between the applicant and the City Council. B. Upgrading of existing projects. Any existing project that is proposed to be converted to a timeshare lodge development shall be physically upgraded and modernized. The extent of the upgrading that is to be accomplished shall be determined as part of the PUD review, considering the condition of the existing facilities, with the intent being to make the development compatible in character with surrounding properties and to extend the useful life of the building. 1. To the extent that it would be practical and reasonable, existing structures shall be brought into compliance with the City's adopted Fire, Health and Building Codes. 2. No sale of any interest in a timeshare lodge development shall be closed until a Certificate of Occupancy has been issued for the upgrading. C. Preservation of existing lodging inventory. An express purpose of these regulations is to preserve and enhance Aspen's existing lodging inventory. Therefore, any proposal to convert an existing lodge or other property that provides short-term accommodations to a timeshare lodge should, at a minimum, replace the existing number of units on the property in the planned timeshare lodge. If the applicant is unable to replace the existing number of units, then the timeshare lodge development shall replace the existing number of bedrooms on the property or the applicant shall demonstrate how the proposal complies with the purposes of these regulations, even though the planned timeshare lodge will not replace either the existing number of units or bedrooms. D. Affordable housing requirements. 1. Whenever a timeshare lodge development is required to provide affordable housing, mitigation for the development shall be calculated by applying the standards of the City's housing designee for lodge uses. The affordable housing requirement shall be calculated based on the maximum number of proposed lock out rooms in the development and shall also take into account any retail, restaurant, conference or other functions proposed in the lodge. 2. The conversion of any multi -family- dwelling unit that meets the definition of residential multi -family housing to timesharing shall comply with the provisions of Chapter 26.530, Resident Multi -Family Replacement Program, even when there is no demolition of the existing multi -family dwelling unit. E. Parking requirements. 1. The parking requirement for timeshare lodge development shall be calculated by applying the parking standard for the underlying zone district for lodge uses. The City of Aspen Land Use Code Part 500, Page 150 parking requirement shall be calculated based on the maximum number of proposed lock out rooms in the development. 2. The timeshare lodge development shall also provide an appropriate level of guest transportation services, such as vans or other shuttle vehicles, to offer an alternative to having owners and guests using their own vehicles in Aspen. 3. The owner of a timeshare estate shall be prohibited from storing a vehicle in a parking space on -site when the owner is not using that estate. F. Appropriateness of marketing and sales practices. The marketing and sale of timeshare estates shall be governed by the real estate laws set forth in Title 12, Article 61, C.R.S., as may be amended from time to time. The applicant and licensed marketing entity shall present to the City a plan for marketing the timeshare development. 1. The following marketing and sales practices for a timeshare development shall not be permitted: a. The solicitation of prospective purchasers of timeshare units on any street, mall or other public property or facility; and b. Any unethical sales and marketing practices which would tend to mislead potential purchasers. 2. Giving of gifts to encourage potential purchasers to attend a sales presentation or to visit a timeshare development is permitted, provided the gift reflects the local Aspen economy. For example, gifts for travel to or accommodations in Aspen, restaurants in Aspen and local attractions (ski passes, concert tickets, rafting trips, etc.) are permitted. Gifts that have no relationship to the local Aspen economy are not permitted. The following gifts are also not permitted: a. Any gift for which an accurate description is not given; b. Any gift package for which notice is not given to the prospective purchaser that the purchaser will be required to attend a sales presentation as a condition of receiving the gifts; and c. Any gift package for which the printed announcement of the requirement to attend a sales presentation is in smaller type face than the information on the gift being offered. G. Adequacy of maintenance and management plan. The applicant shall provide documentation and guarantees that the timeshare lodge development will be appropriately managed and maintained in a manner that will be both stable and continuous. This shall include an identification of when and how maintenance will be provided and shall also address the following requirements: City of Aspen Land Use Code Part 500, Page 151 0 • 1. A fair procedure shall be established for the estate owners to review and approve any fee increases which may be made throughout the life of the timeshare development, to provide assurance and protection to timeshare owners that management/assessment fees will be applied and used appropriately. 2. The applicant shall also demonstrate that there will be a reserve fund to ensure that the proposed timeshare development will be properly maintained throughout its lifetime. H. Compliance with State Statutes. The applicant shall demonstrate that the proposed timeshare lodge development will comply with all applicable requirements of Title 12, Article 61, C.R.S.; Title 38, Article 33, C.R.S.; and Title 38, Article 33.3, C.R.S.; including the requirements concerning the five (5) day period for rescission of a sales contract and the procedures for holding deposits or down payments in escrow. I. Approval by condominium owners. If the development that is proposed to be timeshared is a condominium, the applicant shall submit written proof that the condominium declaration allows timesharing, that one hundred percent (100%) of the owners of the condominium units have approved the timeshare development, including any improvements to the common elements that the applicant may propose, that all mortgagees of the condominium have approved the proposed timeshare development and that all condominium units in the timeshare development will be included in the same sales and marketing program. J. Prohibited practices and uses. Without in any way limiting any requirement contained in this Chapter, it is unlawful for any person to knowingly engage in any of the following practices: 1. The creation, operation or sale of a right -to -use interest or any other timeshare concept which is not specifically allowed and approved pursuant to the requirements of this Section. Right -to -use timeshare concepts (e.g., lease -holds and vacation clubs) are considered inappropriate in Aspen and are not permitted. 2. Misrepresentation of the facts contained in any application for timeshare approval, timeshare development instruments or disclosure statement. 3. Failure to comply with any representations contained in any application for timesharing or misrepresenting the substance of any such application to another who may be a prospective purchaser of a timeshare interest. 4. Manage, operate, use, offer for sale or sell a timeshare estate or interest therein in violation of any requirement of this Chapter or any approval granted pursuant hereto or cause or aid and abet another to violate any requirement of this Chapter or an approval granted pursuant to this Chapter. (Ord. No. 21-2002 § 1 (part), 2002; Ord. No. 13-2005, § 5) City of Aspen Land Use Code Part 500, Page 152 ! 0 26.590.080. Business license and sales tax payments. A. Business license. It shall be unlawful for any timeshare development to operate in the City without first obtaining a business license in accordance with the standard procedures of the City. B. Sales tax payments. Occupancy of any timeshare unit by anyone who pays a rental fee for the use of the unit (other than the owner thereof) shall be subject to the City's sales tax the same as if such occupancy were of a hotel or lodge unit. Any timeshare development, as a condition of its approval, shall be required to obtain an Aspen sales tax/lodging tax license, which shall establish how this tax shall be collected and paid to the City. The manager of the association shall be responsible for the timely collection of the City sales tax for the City for rentals made through the association or a reservation system. The manager shall notify individual estate owners that they are responsible for the payment of sales tax to the City for units rented on a private basis. (Ord. No. 21-2002 § 1 (part), 2002) 26.590.090. Timeshare documents. At the same time the applicant submits the PUD development plan and PUD agreement to the City for recordation, pursuant to Section 26.445.070 or submits the necessary documents to record the subdivision exemption, the applicant shall also submit the following timeshare documents in a form suitable for recording. The Community Development Director may require the applicant to submit a draft version of these timeshare documents at the time of submission of the final PUD application. A. Disclosure statement. The applicant shall submit a disclosure statement that contains the following information: 1. The name and address of the developer of the timeshare development as well as a summary of the developer's business experience, including all background and experience in the development of timeshare development and the present financial condition of the developer. 2. The name and address of the manager/management company for the development, if any and a description of the manager's/management company's responsibilities, powers, duties, authority and business experience. All information on the manager's background and experience specifically related to timeshare development shall be provided. 3. The names and addresses of the marketing entity and the listing broker and a statement of whether there are any lawsuits pending or investigations that have been undertaken against the marketing entity or listing broker and if so, a description of the status or disposition of said lawsuits or investigations. A summary of the marketing entity's business experience including all background and experience related to timeshare development. City of Aspen Land Use Code Part 500, Page 153 4. A description of the timeshare units, including the developer's schedule for completion of all buildings, units and amenities, with dates of availability. 5. If the timeshare plan consists of a condominium or a similar form of ownership, a description of the development and any pertinent provisions of the condominium instruments. 6. Any restraints on the transfer of the purchaser's interest in the timeshare units or plan. 7. The timeshare use plan, which shall include a description of the rights and responsibilities under the plan. 8. Notice of any liens, title defects or encumbrances on or affecting the title to the units or plan and, if there are encumbrances or liens, a statement as to whether, when and how they will be removed. 9. Notice of any pending or anticipated legal actions that are material to the timeshare units or plan of which the applicant has or should have, knowledge. 10. The total financial obligation of the purchaser, which shall include the initial price and any additional charges to which the purchaser may be subject in purchasing the unit. 11. An estimate of the dues, maintenance fees, real property taxes, sales taxes, real estate transfer tax and similar periodic expenses and the method or formula by which they are derived and apportioned, which shall include whether maintenance fees are determined by unit, time of year or prorated share of the overall maintenance costs or any other means utilized to compute maintenance fees. 12. A statement demonstrating the manner in which management/assessment fees will be held, utilized and accounted for. 13. A description of any financing offered by the applicant. 14. The terms and significant limitations of any warranties provided, including statutory warranties and limitations on the enforcement thereof or on damages. 15. A statement that the proposed development will comply with all applicable requirements of Title 12, Article 61, C.R.S. Upon request from the City, the applicant shall provide a copy of the documents submitted to the State for the registration and certification of the timeshare developer. 16. The extent to which a timeshare unit may become subject to a tax or other lien arising out of claims against other timeshare owners of the same timeshare unit. 17. The minimum percentage of units the developer will require be sold before the developer will proceed with the completion of the timeshare development. City of Aspen Land Use Code Part 500, Page 154 0 0 18. A description of the maintenance to be supplied to the timeshare development, including how and when such maintenance will be provided. 19. Whether any or all the units in the proposed development will be available for participation in an exchange program. The applicant shall disclose which exchange program(s) the timeshare estate owners will be eligible to utilize. 20. A description of all insurance covering the property. 21. A description of the on -site amenities and recreational facilities which are available for use by the unit owners. All on -site amenities shall be owned by the homeowner's association and the developer shall not be allowed to charge any additional fees for use of the amenities. If there are any off -site facilities that are related to the property, these shall also be described, including a summary of any fees that timeshare owners would have to pay to use those off -site facilities. 22. A statement that any timeshare interest shall be expressly subject to all requirements and representations set forth in the disclosure statement. 23. For any timeshare development that is a conversion of an existing project, a statement shall be provided by the developer, based on a report prepared by an independent architect or engineer, licensed by the State, describing the present condition of all structural components and mechanical and electrical installations material to the use and enjoyment of the timeshare units. The statement shall also provide a list of any outstanding notices of uncured violations of Building Code or other municipal regulations, together with the estimated cost of curing those violations. B. Timeshare development instruments. The applicant shall submit the follo«,ing timeshare development instruments: 1. Instruments for the interval estate or time span estate including: a. The legal description, street address or other description sufficient to identify the property. b. Identification of timeshare time periods by letter, name, number or combination thereof. c. Identification of the timeshare estate and the method whereby additional timeshare estates may be created. d. The formula, fraction or percentage of the common expenses and any voting rights assigned to each timeshare estate. e. Any restrictions on the use, occupancy, alteration or alienation of timeshare units. City of Aspen Land Use Code Part 500, Page 155 • • f. Any other matters that the applicant or the City Council deems reasonably necessary. 2. All timeshare development instruments shall provide for the following: a. That a homeowners association shall be established. Responsibility for maintenance of the development shall reside within the association. The association shall designate a managing agent. The management contract with the managing agent shall allow for either party to terminate, for cause, upon thirty (30) days notice. In the event the manager is terminated, a new managing agent shall be designated as quickly as possible by the association. Any management agreement shall specify the managing agent's duties and responsibilities to maintain the development. b. A stipulation by the owner of the timeshare interest irrevocably designating the homeowners association and/or the managing agent as an agent for the service of legal notices for any legal action, proceeding or hearing pertaining to the timeshare interest or for the service of process (in a manner sufficient to satisfy the requirements of personal service in the state, pursuant to Rule 4 C.R.C.P., as amended). c. Each timeshare interest with a multiple ownership shall be required to designate one managing agent as the spokesperson and voter for all of the owners involved. d. That the association shall have the ability to compel a timeshare owner to pay maintenance fees and if any owner's fees are not paid, his or her interest shall be subject to a lien and foreclosure or other divestment. In the event an owner or his or her guests violate the rules and regulations of the association, the association shall have the right to enjoin the violation and the prevailing party in such suit shall be awarded his or her court costs and reasonable attorney's fees. e. Provisions addressing reconstruction or repair of all or a portion of the timeshare development following its willful or non -willful destruction. Provisions should also be included addressing termination of the association, including the percentage of owners that must agree for the termination to become effective, what happens to the common elements in the event of a termination and how the proceeds shall be distributed in the event the property is taken due to condemnation or eminent domain. 3. Updating and filing. a. The developer and his or her successors and assigns (other than individual unit purchasers) shall have a continuing duty to update the disclosure statement and file with the City all amendments to the timeshare development's instruments. Such amendments shall comply with the requirements of this Section. No amendment which shall significantly alter the physical elements or operational practices of a City of Aspen Land Use Code Part 500, Page 156 0 • timeshare lodge shall be effective unless approved and accepted by the City. All amendments shall be initially submitted for review to the Community Development Director who shall have authority to either approve a proposed amendment as in compliance with the requirements of this Section or refer the proposed amendment for appropriate subdivision or PUD approval. b. The condominium association and/or the homeowners association or both if there be multiple associations and not individual unit owners shall have the continuing responsibility to submit to the City any amendments to the condominium documents and/or timeshare development instruments that would alter any condition imposed by the City or any prior representation made by the applicant to obtain approval of the timeshare development. Once the condominium association has been formed, the City shall not accept any amendments for review without prior approval thereby. 4. Before transfer of a timeshare unit and no later than the date of execution of any contract of sale, the applicant or any other seller of a timeshare unit shall provide the intended transferee with a copy of the disclosure statement and any amendments thereto, except this requirement shall not apply to the owner of a single timeshare estate in a development who is attempting to sell the estate. 5. Conveyance of a timeshare interest shall be subject to the condominium declaration which shall include the disclosure statement as an exhibit thereto. (Ord. No. 21-2002 § 1 (part), 2002) City of Aspen Land Use Code Part 500, Page 157