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HomeMy WebLinkAboutAppendix C. Exhibit 4 DRAFT Subdivision_PD Development AgreementPage 1 of 25 HOLLAND & HART DRAFT February 28, 2020 GORSUCH HAUS SUBDIVISION/PD DEVELOPMENT AGREEMENT THIS GORSUCH HAUS DEVELOPMENT AGREEMENT (the “Agreement”) is made and entered into this ______ day of ____________ by and between THE CITY OF ASPEN, COLORADO, a Colorado home rule municipal corporation (hereinafter referred to as “City”), and NORWAY ISLAND, LLC a Delaware limited liability company (hereinafter referred to as “Norway Island”). WITNESSETH: WHEREAS, Norway Island has, with the consent of the Aspen Skiing Company, submitted to the City an application for Planned Development - Detailed Review approval (the “Application”) for that certain property in the City of Aspen, Colorado, including Parcel ID Nos. 273513127001, 273513126001, and 273513400028 (4 parcels total, 3 Parcel ID numbers) more particularly described on Exhibit A attached hereto and a made a part hereof by this reference (all of which, together with a portion of the South Aspen Street and all of the Summit Street rights-of-way to be vacated by the City, are collectively referred to in this Agreement as the “Property”), which Application requests the approval and recordation of an Approved Plan Set documenting the design, layout and configuration of the proposed development (the “Approved Plan Set”); and the approval, execution and recordation of a Final Plat of the Gorsuch Haus Subdivision/Planned Development (the “Final Plat”), consisting of two (2) platted lots, identified on the Final Plat as Lot 1 (“Lot 1”) and Lot 2 (“Lot 2”); and WHEREAS, City has fully considered the Application, the Approved Plan Set, the Final Plat, the proposed development and improvement of the Property, and the effects of the proposed development and improvement of said Property on adjoining or neighboring properties and property owners; and WHEREAS, City has approved the Application and in connection therewith has imposed certain conditions and requirements in connection with its approval and recordation of the Approved Plan Set and its approval, execution and recordation of the Final Plat, such matters being necessary to protect, promote and enhance the public safety, health and welfare; and WHEREAS, Norway Island is willing to acknowledge, accept, abide by and faithfully perform the conditions and requirements imposed by City in approving the Application, the Approved Plan Set, and the Final Plat; and WHEREAS, pursuant to Section 26.490.060.B., Site Protection Guarantee, and Section 26.490.060.C., Site Enhancement Guarantee, of Title 26, Land Use Regulations, of the Aspen Appendix C. Exhibit 4 Page 2 of 25 Municipal Code ( the “Regulations”), City is entitled to certain financial guarantees to ensure recovery of the Property and surrounding grounds to a safe and visually acceptable condition, and the installation of public improvements on or adjacent to the Property in the event of a work stoppage, and Norway Island is prepared to provide such guarantees as hereinafter set forth; and WHEREAS, pursuant to Section 26.490.070.A.1., Landscape Guarantee; Section 26.490.070.A.7., Public Facilities and Public Infrastructure Guarantee; and Section 26.490.070.8., Storm Water and Drainage Improvements Guarantee, of the Regulations, City is entitled to certain financial guarantees to ensure (i) that the required landscaping is implemented and maintained, (ii) that required public facilities are installed and (iii) the successful implementation of required storm water and drainage infrastructure, and Norway Island is prepared to provide such guarantees as hereinafter set forth; and WHEREAS, contemporaneously with the execution and recording of this Agreement, City and Norway Island have recorded the Approved Plan Set as Reception No. ________ and City and Aspen Skiing Company have executed and recorded the Final Plat in Plat Book _____ at Page ____ as Reception No. ___________, both in the Real Estate Records of the Clerk and Recorder of Pitkin County, Colorado (all recording information described in this Agreement refers to the Real Estate Records of the Clerk and Recorder of Pitkin County, Colorado); and WHEREAS, contemporaneously with the execution and recording of this Agreement Aspen Skiing Company has conveyed to Norway Island all of Lot 1; and WHEREAS, for the purpose of this Agreement, the following additional definitions shall apply: “Gorsuch Haus Project” or the “Project”—the subject development to contain up to 81 lodge keys, four free-market residential units totaling up to 8000 sq. feet of net livable area, one 1-bedroom affordable housing unit, 7,730 sq. feet of net leasable commercial space (including restaurant and retail uses), and ski lift and facilities on Lot 1, together with ski area operations and associated ski and non-mechanized summer uses for the relocated Lift 1A, skier return, snow making infrastructure and event staging and viewing areas on Lot 2. “Gorsuch Haus Lodge”—the main mixed-use building to be developed as part of the Gorsuch Haus Project upon Lot 1, with features to include 81 lodge units and a rooftop public amenity area. “Current Lift 1A”—this term is used to describe the existing and functioning Lift 1A terminal and related skier services and ski patrol facilities “Future Lift Terminal” – this term is used to describe the new lift terminal that will be located in Willoughby Park. “Lift 1 Corridor”—this includes the Property and the property related to the adjacent Lift One Lodge project described in Ordinance No. 38, Series of 2018, together with adjacent future park lands that will eventually become a necessary part of the ski way and ski operations. Page 3 of 25 the “Lift One Lodge Project”—a separate development project approved by the City pursuant to Ordinance No. 38, Series of 2018 that will be developed in connection with the development of the Gorsuch Haus Project. NOW, THEREFORE, for and in consideration of the forgoing provisions, the mutual covenants and agreements herein contained, the approval of the Application and approval and acceptance of the Approved Plan Set and the approval, execution and acceptance of the Final Plat for recordation by the City, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I. PURPOSE OF DEVELOPMENT AGREEMENT 1.1 Purpose. The purpose of this Agreement is to set forth the complete and comprehensive understanding and agreement of the parties hereto with respect to the development of the Gorsuch Haus Project, and to enumerate all terms and conditions under which such development may occur. ARTICLE II. LAND USE APPROVALS 2.1 Approval Actions. The following land use approvals (the “Approvals”) have been granted to Norway Island for the development of the Property: (a) Ordinance No. 39, Series of 2016, approved December 12, 2018 and recorded on April 8, 2019 as Reception No. 655085 (“Ordinance 39”) granted the following land use approvals (i) Planned Development -Project Review; (ii) Rezoning; (iii) Growth Management Quota System Reviews; (iv) Conceptual Commercial Design Review; (v) 8040 Greenline Review; (vi) Mountain View Plane; (vii) Major Subdivision; (viii) Special Review for Lodge Density Standard; (ix) Special Review for affordable housing net unit livable standards; and (x) Vested Property Rights. Ordinance 39 also included approval of vacation by the City of approximately 8,206 sq. feet of public street right of way (a portion of the South Aspen Street right-of-way and the entire Summit Street right-of-way) adjacent to the Property for use in connection with the Project, which vacation is depicted on the Street and Easement Vacation Plat to be executed by the Aspen Skiing Company and the City and recorded immediately prior to recordation of the Final Plat. (b) Planning and Zoning Commission Resolution No. ____ Series of ______ approved _______________ and recorded _______________ as Reception No. ____________ granted Planned Development – Detailed Review approval and Final Commercial Design Review approval for the Project. (c) The Development Order (“Development Order”) for the above-described Approvals was issued by City of Aspen Community Development on _______________, with an effective date of _______________. 2.2 Development Orders Control. The provisions of the above-described Approvals, including the Development Order, are incorporated herein and made a part of this Page 4 of 25 Agreement. To the extent that matters addressed in such Approvals are also addressed in this Agreement, the provisions of the Approvals and the Development Order shall control. 2.3 Dimensional Requirements. Exhibit B to Ordinance 39 established and approved the following dimensional requirements for the Project:* (a) Minimum Gross Lot Area 44,545 Sq. Ft. (lot 1) (b) Minimum Net Lot Area Per Dwelling Unit N/A (c) Minimum Lot Width +/- 60 Feet (d) Minimum Front Yard Setback 5 feet (e) Minimum Side Yard Setback 5 feet (f) Minimum Rear Yard Setback 5 feet (g) Maximum Height 40 feet (except as otherwise allowed by Section 7.A of Ordinance 39). (h) Allowable Floor Area Lodge Commercial Multi-family Affordable Housing 64,023 Sq. Ft. 42,077 Sq. Ft. 7,730 Sq. Ft. 8,633 Sq. ft. 730 Sq. Ft. (i) Maximum Multi-Family Size Cap 4 units with 1,500 Sq. Ft. per unit (up to 2,000 Sq. Ft. per unit via use of TDRs) (j) Minimum Off-Street Parking Lodge Residential Commercial 81 keys = 41 spaces 4 units = 4 spaces 7,730 Sq. Ft. = 7.7 spaces (k) Public Amenity Space Minimum of 11,136 Sq. Ft. Page 5 of 25 *Note: The approved dimensions from the Project Approval pursuant to Ordinance 39 Series of 2016 remain in full effect. Minor adjustments to reflect programming changes as the project moves from planning to building permit shall be permitted, but in no instance shall any dimensions exceed what is outlined in said Ordinance. Minor changes to the Project’s dimensional requirements may be approved by the City’s Community Development Department provided that the resulting floor areas do not exceed that which is permitted in the Lodge zone district. Should the dimensions of the Final Building Permit issuance be lower than those outlined in the Ordinance 39, the Applicant shall have the right to add additional square footage to the project though an Insubstantial Amendment through the period of vesting. The governing Dimensional Standard in Section 1: General Approval, Section 7: Project Dimensions paragraphs A and B and Exhibit B Dimensional Standards complete approved standards. Norway Island shall also comply with the additional conditions regarding dimensional requirements set forth in sub-sections 7.A (exceptions to height limitation for rooftop elevators, 7.B and 7.C of Ordinance 39. 2.4 Vested Rights. In accordance with the requirements of C.R.S. Section 24-68- 103(b) (2019), a properly noticed public hearing concerning the establishment of such vested rights for the Property was conducted on January 7, 2019. The City has since determined that the Project and the Approvals related to the same constitute a new site-specific development plan pursuant to Land Use Code Section 26.308.010 and C.R.S. § 24-68-101 et seq. attaching to and running with the Property and conferring upon Norway Island the right to undertake and complete the site-specific development plan and use of the Property under the terms and conditions of the site-specific development plan, and any approved amendments thereto. As such, development of the Project and shall not be altered, impaired, diminished or delayed by any subsequent zoning or land use action that is prohibited by C.R.S. Section 24-68-105(1). However, any failure to abide by any of the terms and conditions attendant to the Approvals that is not cured by Norway Island after written notice from the City, a right to a public hearing in accordance with applicable provisions of the Land Use Code, and a reasonable opportunity to cure, will result in the forfeiture of said vested property rights. The City and Norway Island further agree that, due to various factors, including but not limited to the significant scope of this Project, the City’s request to pursue relocation of the base of Current Lift 1A, and the need to wait until all required City-owned property is available for this use, it is appropriate for vested rights to extend beyond three years. Consequently, the right to undertake and complete the development and use of the Property pursuant to the terms and conditions of the Approvals and the Approved Plan Set for the Property shall commence upon the effective date of the Development Order for the Project issued by the City pursuant to Section 26.304.080 of the Land Use Code and be vested thereafter for a period extending until five years following the effective date of the use rights conferred as part of the initial 40-year term of the Dolinsek License pursuant to Section 6.A.1 of Ordinance No. 38, Series of 2018. If the effective date of the use rights conferred as part of the initial 40-year term of the Dolinsek License has already occurred, the vested rights shall extend for a period of five (5) years from the effective date of the Development Order. However, the vesting period shall not extend longer than the validity of the Development Order issued for the Project pursuant to Section 26.304.080 of the Land Use Code, as amended from time to time (which Section 26.304.080 currently provides that a Development Order will not be valid for more than ten years). Additionally, Page 6 of 25 nothing herein shall be construed as limiting Norway Island’s right to proceed with the Project prior to the commencement of the initial 40-year term of the Dolinsek License, provided that the Project has received the required Detailed/Final Review approvals described in Ordinance 39 and complied with the City’s permit requirements. As authorized by CRS § 24-68-102(4)(a), the City and Norway Island agree that the Site Specific Development Plan for the Property consists of and includes, but is not limited to, the number, permitted size, and configuration of the Project’s lodge units, residential units, affordable housing unit, the size and configuration of associated commercial spaces, and other areas of the Project; all matters set forth in the Approvals referenced in Section 2.1 above; the Approved Plan Set recorded as Reception No. ________; the Final Plat recorded as Reception No._________; this Agreement; and all other documents recorded concurrent herewith. For purposes of this Section 2.4, this Agreement shall be considered a “development agreement” as that term is used in C.R.S. Section 24-68-104(2). ARTICLE III. DEVELOPMENT REQUIREMENTS AND RESTRICTIONS 3.1 Project Components. The Project approved pursuant to the Approvals referenced in Section 2.1 above consists of the following principal components: (a) Lodge. The Project will contain eighty-one (81) lodge units with 81 keys. The Project’s lodge units will contain maximum allowable floor area of approximately 42,077 square feet. Minor changes to the Project’s allowable lodge floor area, and any resulting changes to its net livable area, may be administratively approved by the City’s Community Development Department provided that the resulting floor area does not exceed that which is permitted in the Lodge (L) zone district. (b) Commercial Net Leasable Area. The Project’s commercial components will include a restaurant and retail uses, [and others?]. These components are limited to a total net leasable area of 7,730 square feet and to a maximum allowable floor area of approximately 7,730 square feet. Minor changes to the Project’s allowable commercial floor area may be administratively approved by the City’s Community Development Department provided that the resulting commercial floor area does not exceed that which is permitted in the Lodge zone district. (c) Affordable Housing Unit. The Project will contain one onsite (1) one- bedroom affordable housing unit. The one-bedroom unit will contain a minimum of 730 square feet of net livable area. The Project’s affordable housing component is limited to a maximum allowable floor area of approximately 730 square feet. Minor changes to the Project’s allowable affordable housing floor, and any resulting changes to its net livable area, area may be administratively approved by the City’s Community Development Department provided that the resulting lodge affordable housing floor area does not exceed that which is permitted in the Lodge zone district. (d) Parking. The Project will contain fifty-six (56) off-street parking spaces in its Subgrade Garage which are permitted to be tandem spaces. All parking spaces in the Page 7 of 25 Subgrade Garage shall be limited to the use of lodge guests, residential unit owners, affordable housing unit tenants, and users of the Project on space available basis. Each residential unit and the affordable housing unit shall be assigned a standard, non-stacked parking space in the Subgrade Garage. Long-term car parking by any user of the Subgrade Garage shall be prohibited provided, however, that the parking of vehicles that are owned or used by the residential unit owners and the affordable housing tenants is permitted. (e) Public Amenity Spaces. Norway Island shall provide a total of 11,136 sq. feet of public amenity space, a portion of which shall be on the rooftop of the Gorsuch Haus Lodge building. Minor changes in the distribution of the Project’s public amenity space may be approved by the City’s Community Development Department. These spaces shall remain permanently accessible to the general public via stairs and/or elevators. These spaces shall not be enclosed with temporary or permanent walls or windows, or otherwise enclosed as interior conditioned space, except to the extent that tents and similar soft-sided enclosures may be allowed pursuant to the land use code, and some portions for the public amenity spaces may need to be covered due to the proximity of the proposed ski lift. The public amenity space may be partially covered by overhangs due to the close proximity of this space to the future ski lift alignment. All public amenity space may be oriented to the ski slope east of the Project. The rooftop public amenity space shall be subject to a public access easement, said easement to be referenced on the Final Plat. The rooftop public access easement shall be subject to the reasonable additional rules and regulations governing its use by the public to be established and periodically updated by the Gorsuch Haus Lodge. (f) Other Ski-related Uses on Lot 2. The Project approvals also contemplate the construction, operation, and maintenance of ski-related infrastructure on Lot 2, ownership of which shall be retained by Aspen Skiing Company. These improvements include a relocated ski lift alignment for the Future Lift Terminal, development of new lift towers, regrading for skier return, regrading for the Aspen Mountain service road, traditional ski and non-mechanized recreational operation maintenance activities, and a ski race finish/special event use viewing area. A special event permit shall be obtained for the viewing area to the extent required by City code at the time of development. Service gates may be placed at the entrance of the realigned Aspen Mountain service road on Lot 2, provided that the service gate locations, dimensions, materials and color shall be subject to future administrative review and approval by the City’s Community Development Department. (g) Growth Management Allotments. The following growth management allotments have been allocated to the Project: (i) Four free market residential dwelling unit allotments (from 2016 GMQS calendar year). (ii) One 1-bedroom affordable housing unit allotment (from 2016 GMQS calendar year). (iii) 7,730 square feet of new commercial net leasable space (from 2016 GMQS calendar year). Page 8 of 25 (iv) 112 lodging pillows, which equals 56 lodging keys, from the 2016 calendar year, with approval for 50 lodging pillows, which equals 25 keys, to be granted from the 2017 GMQS calendar year. 3.2 Affordable Housing. (a) Mitigation Requirements. The Community Development Department has determined that the Project will require the mitigation of 24.68 Full-Time Equivalent employees (“FTEs”). Upon request of APCHA two years after issuance of certificates of occupancy for the Project, Norway Island or its successors, at their own expense, shall complete an audit to evaluate actual employee generation by the Project—if the free market component is shown to generate FTEs in addition to those supplied by the lodging component, additional mitigation may be required by the City commensurate with the employees generated by the free market component, up to an additional 4.64 FTEs. As set forth in Section 3.1(c) above, the Project will contain one (1) one-bedroom unit which is credited with housing 1.95 FTEs. In addition to the provision of one on-site affordable housing unit, mitigation may be satisfied utilizing on-site units, off-site units, “buy-down” units, or City of Aspen Affordable Housing Credits. Off-site units may be provided at locations within the Aspen Urban Growth Boundary. Cash in lieu is not permitted to satisfy affordable housing requirements. All required affordable housing mitigation shall be satisfied prior to issuance of certificates of occupancy for the Project. (b) Special Review. Special Review approval pursuant to Land Use Code Section 26.430.040 was granted pursuant to Ordinance 39 to allow a maximum of fifty (50) percent of the finished floor of the affordable housing unit to be located below finished grade. (c) Affordable Housing Conditions. The Project’s one affordable housing unit shall be deed restricted to the Aspen/Pitkin County Housing Authority’s (“APCHA”) Category 4 income and occupancy guidelines, and shall meet the following conditions: (i) The affordable housing unit shall meet or exceed the minimum net livable area requirements for Category 4 units; (ii) The deed restriction for the affordable housing unit shall be recorded prior to the issuance of a Certificate of Occupancy (“CO“) for the unit. The CO for the affordable housing units shall be issued at the same time or prior to the CO for the Gorsuch Haus Lodge; (iii) All tenants shall be approved by APCHA prior to occupancy; (iv) Employees of the Project residing within the on-site affordable housing unit shall be exempt from APCHA’s maximum asset and income limitations provided, however, that such tenants work full time and do not own any other property within APCHA’s ownership exclusion zone, both as defined in the APCHA Guidelines; (v) Minimum occupancy requirements shall be maintained for each unit as defined in the APCHA Guidelines; Page 9 of 25 (vi) The unit shall not remain vacant for more than forty-five (45) days unless APCHA is notified as to why the unit has been left vacant; (vii) A washer and dryer shall be provided in the affordable housing unit; (viii) The affordable housing unit shall be assigned one (1) parking space in the Subgrade Garage--this space shall not be a stacked or tandem space; and (ix) The affordable housing unit shall be a rental unit. The Project’s Condominium Declaration shall contain language, to be reviewed and approved by APCHA, that in the event the unit becomes an ownership unit: • It will be sold through the lottery system; • The dues for the unit will be pro-rated based on the assessed value of the deed restricted unit versus the free market residential units, as well as the relative square footage of the units; and • No common expenses will be charged to the deed restricted unit owner unless approved by APCHA. 3.3 Reimbursement Agreement for South Aspen Street Improvements. Norway Island agrees to enter into a reimbursement agreement for purposes of cost-sharing, on a proportionate basis, the costs of reconstruction of South Aspen Street as depicted on the engineering drawings prepared by Schmueser, Gordon & Meyer, Inc., and recorded as part of the development approvals for Lift One Lodge in Plat Book 102 at Pages 11-19 (the “South Aspen Street Improvement Plans”). The proportionate share of such expenses allocated to Lot 1 shall be 20.45%. The reimbursement agreement shall also include cost recovery provisions regarding prior road surface and sidewalk improvements as well as certain infrastructure improvements (including water lines, sewer lines, and shallow utility lines) consistent with the development approvals for the One Aspen Townhome project. Any improvements to the cul-de-sac beyond the scope of the South Aspen Street Improvement Plans shall be allocated fully to Norway Island. 3.4 Construction in Accordance with Building Codes and Plans. Construction of the Project, and all its component parts, shall be accomplished in substantial compliance with adopted City building and accessibility codes in effect at the time a Building Permit application is submitted, and with the Approved Plan Set. The elevator access to the Project’s rooftop amenities shall meet International Building Code accessibility requirements. The affordable housing unit shall be provided with an ADA compliant circulation path within the hotel interior that connects the unit to the Subgrade Garage and the public right-of-way. (a) The Project shall be subject to the 2015 IECC Energy Code. (b) Pursuant to Section 26.575.020 (F)(3)(c) of Title 26, Land Use Regulations, building/mechanical heights shall be measured to the first layer of exterior sheathing or weatherproofing membrane. Any additional insulation and associated material Page 10 of 25 requirements imposed by the 2015 IECC Energy Code shall constitute “other veneer treatments” for the purpose of calculating building/mechanical heights. 3.5 Engineering Department Requirements. The Project shall comply with all sections of Title 21, Streets, Sidewalks and Other Public Places, of the Aspen Municipal Code, and all construction and excavation standards published by the Engineering Department. (a) Drainage. The Project shall meet the requirements of the City’s Urban Runoff Management Plan. A compliant drainage plan, including a 100-year mudflow analysis, shall be submitted with the building permit application for the Project. (b) Sidewalk/Curb/Gutter. All sidewalk curb and gutter shall meet the Engineering Standards set forth in Title 21 of the City of Aspen Municipal Code. (c) Excavation Stabilization. Due to the scale of excavation and proximity of excavation to neighboring property, an excavation stabilization plan shall be submitted to the Engineering Department at building permit submittal. Soil stabilization shall be located within the property boundaries or follow Section 21.12.140 of the Municipal Code. (d) Ground Stability Monitoring. In order to ensure that development of the Project does not exacerbate naturally occurring ground movement, an inclinometer shall be installed and maintained by Norway Island or its successors or assigns and bi-annual readings shall be taken through the time until issuance of certificates of occupancy for the Project. 3.6 Fire Mitigation. The Project shall comply with all codes adopted by the Aspen Fire Protection District. This includes, but is not limited to, access (International Fire Code, 2003 Edition, Section 503), approved fire sprinkler, and fire alarm systems (International Fire Code, as amended, Sections 903 and 907). The Subgrade Garage shall have adequate fire access which shall be reviewed and approved by the City’s Fire Marshall. 3.7 Parks Department Requirements. (a) Tree removal permits are required prior to issuance of a building permit for any demolition or significant site work. Mitigation for tree removal (after consideration of any appropriate credits) shall be met by a cash-in-lieu payment, by on-site plantings, or a combination of both as provided for in Title 13, Chapter 13.20, Tree Removal Permits, of the Aspen Municipal Code. Rooftop plantings shall not qualify as mitigation. (b) A tree protection plan depicting the drip lines of each individual tree or group of trees which is to remain on the Property shall be included in the building permit submittal for any demolition or significant site work. The plan shall depict the location of tree protection zones which shall be approved by the City Forester. The plan shall prohibit excavation; the storage of building materials, construction and equipment; and access over or through the protection zones by foot or vehicles. (c) Norway Island shall dedicate to the City on the Final Plat an easement for a public pedestrian and bicycle trail that provides access from Hill Street to the existing public Page 11 of 25 access and skiers easement recorded in Book 42 on Page 489 to the satisfaction of the Parks Department. (d) The Final Plat shall also include a public access easement that permits access across Lot 2 and is commensurate with the Aspen Mountain Service Road to the satisfaction of the Parks Department. The City agrees, however, that public access may be managed to restrict access from time to time at the discretion of the Aspen Skiing Company for safety, maintenance, operations, loading, unloading, and staging purposes, as it determines. This easement may overlap with the trail easement referred to in the preceding sub-paragraph. (e) The Final Plat shall also include dedication of a public access easement on the western stairway of the Gorsuch Haus Lodge to the satisfaction of the Parks Department. 3.8 Aspen Consolidated Sanitation District Requirements. Sanitary sewer service is contingent upon compliance with the Aspen Consolidated Sanitation District’s (“ACSD”) rules, regulations and specifications which are on file at the ACSD office. Prior to certificates of occupancy for the Project, Norway Island shall connect to the recently upgraded sanitary sewer line in the South Aspen Street right-of-way. Prior to construction of the connection, the connection shall be approved to the satisfaction of ACSD. 3.9 Environmental Health Department Requirements. (a) Environmental Health Codes. Code requirements to be aware of when filing a building permit include (i) a prohibition against engine idling, (ii) regulation of fireplaces, (iii) fugitive dust requirements, (iv) noise abatement, and (v) pool design. (b) Trash Requirements. The Project’s trash enclosures shall meet the minimum requirements outlined in Title 12, Solid Waste, of the Aspen Municipal Code. Special Review approval from the Environmental Health Department may be required to satisfy dimensional requirements. (c) Ski Lift Operations. The City and Norway Island understand and acknowledge that functional operation of the Lift 1 Corridor requires that the Aspen Skiing Company undertake certain operation and maintenance activities, including snowmaking, snow grooming, lift maintenance, load in and load out for special events and mountain operations, outside of operational hours, including during early morning, evening, and nighttime hours throughout the Lift 1 Corridor. 3.10 Water / Utilities Department Requirements. The Project shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. All water System Distribution Standards in place at the time of building permit submittal shall apply, and all tap fees will be assessed per applicable codes and standards. 3.11 Outdoor Lighting and Signage. All outdoor lighting and signage shall meet the requirements of Section 26.575.150, Outdoor Lighting, of the Regulations. Compliance with this condition shall be verified at building permit review. Page 12 of 25 3.12 Colorado Passenger Tramway Safety Board Review. The Colorado Passenger Tramway Safety Board will conduct a review of the lift and ski corridor for compliance with safety and design standards. If the review by the Tramway Board requires modification to any element of the design of this approved project to comply with standards, such modifications will be reviewed and may be approved administratively by the Community Development Director. 3.13 Cost Sharing for Dean Street Improvements and Skiers’ Chalet Relocation and Rehabilitation. Pursuant to Ordinance No. 38, Series of 2018 and a separate development agreement between the City and Lift One Lodge, the City shall contribute a fixed amount of $4,360,000.00 to Lift One Lodge in support of the public facing elements of its project, including improvements to Dean Street and the relocation and rehabilitation of the Skiers’ Chalet Lodge. Additionally, at the time of demolition of Aspen Skiing Company’s existing Lift 1A ski operations space), Norway Island shall contribute $1,000.000.00 to the City toward the relocation, rehabilitation and repurposing of the ski operations-related elements of the Skiers’ Chalet Building. Such funds shall then be held in escrow and released to Lift One Lodge upon its delivery of the relocated and rehabilitated Skiers’ Chalet Building in a “white box” condition as provided in Ordinance No. 38, Series of 2018. However, if the delivery of the relocated and rehabilitated Skiers’ Chalet Building in “white box” condition takes place prior to the demolition of the Current Lift 1A ski operations space, then Norway Island shall deliver the $1,000,000.00 contribution directly to Lift One Lodge at the time of delivery. 3.14 Lot 2 Development Restriction. The Property Owner shall include a plat note on the final subdivision plat that restricts Lot 2 against all future residential building and residential development and other land uses and activities that are not consistent with the intent and approved development contemplated by Ordinance 39. Any amendment to the condition relating to residential building and residential development shall require a successful majority vote of the public. [NOTE: See also the dedications and reservations as well as the Plat Notes covering ski and non-mechanized recreational uses and operations set forth on the draft Final Plat.] 3.15 South Aspen Street Winter Maintenance. The City is not presently requiring the Gorsuch Haus Project or the Lift One Lodge Project to construct a snowmelt system in South Aspen Street. However, Norway Island hereby agrees to participate in the process outlined in Section 30 of Ordinance 39 to evaluate the feasibility and efficacy of installation of a snowmelt system, to include the pursuit of alternatives to a snowmelt system. After completion of all required elements and triggers pursuant to that process, if it nonetheless determined by the City that a snowmelt system is the only mechanism to adequately and reasonably respond to winter street conditions and actual post-development traffic impacts from this Project and the Lift One Lodge Project, the City may then proceed to require Norway Island and the developer of the Lift One Lodge Project to install a snowmelt system, in which case Norway Island shall only be required to pay 1/3 of the cost. As Aspen Street is a public street, any contemplated snowmelt system shall be exempt from applicable Renewable Energy Mitigation Program (REMP) fees. Page 13 of 25 3.16 Construction Staging and Sequencing Plan. A preliminary construction staging and sequencing plan of coordination between Norway Island, the developer of the Lift One Lodge Project, and Aspen Skiing Company is attached to this Agreement as Exhibit ___. 3.17 Material Representations. All material representations and commitments made by Norway Island in connection with the Project’s development approvals contained or referenced herein, whether made in public hearings or in documentation presented before the Aspen Planning and Zoning Commission or the Aspen City Council, are hereby expressly incorporated in said Project’s development approvals and such representations and commitments shall be complied with by Norway Island as if fully set forth herein, unless amended by an authorized entity. 3.18 School Land Dedication Fee. Before building permits are issued for the Project, Norway Island shall pay to City a cash payment in lieu of school land dedication for the Project’s four free market residential units and one affordable housing unit in an amount to be determined at building permit issuance based on the regulations in effect at that time. 3.19 Park Development Impact Fee. Before building permits are issued for the Project, Norway Island shall pay to City a Park Development Impact Fee for the Project in an amount to be determined at building permit issuance based on the regulations in effect at that time. 3.20 Air Quality Impact Fee. Before building permits are issued for the Project, Norway Island shall pay to City an Air Quality Impact Fee in an amount to be determined at building permit issuance based on the regulations in effect at that time. 3.21 Additional Licenses and Easements. Pursuant to Section 5 of Ordinance 39, within 180 days following the City’s issuance of a Development Order for the Project, and prior to issuance of a CO, Norway Island shall finalize and provide the following additional licenses and easements to the City, which agreements shall all contain commercially reasonable insurance and indemnity provisions (provided, however, that the City will not provide an indemnification to any party): A. An easement agreement between Norway Island and the Aspen Skiing Company to allow ski-related activity and infrastructure on Lot 1 and to allow skiing and ski and lift related activities, equipment, improvements and infrastructure, including, without limitation, subgrade snowmaking infrastructure as well as above grade ski and lift related equipment, improvements and infrastructure to occur on, over and under the Hill Street right-of-way. The easement agreement will provide that Aspen Skiing Company will own and exclusively control all ski and lift related equipment, improvements and infrastructure construed on, over, and under the Hill Street right-of-way. [NOTE: See dedications and reservations shown and described on the Final Plat as well as in the Ski Operations Agreement.] B. A fee-free easement agreement between Norway Island and the City pursuant to which the City will grant to Norway Island an easement over, under and across and through all public rights-of-way and City-owned lands adjacent to the Project for the Page 14 of 25 purpose of allowing construction work and staging, crane swinging, over-digging, shoring, soil nails and other construction activities necessary or appropriate to undertake the construction of the Project and to establish and maintain a safe working environment during such construction. However, no such easements to be granted by the City with respect to the Dolinsek Property shall be legally effective until the City is permitted to grant such easements pursuant to the Dolinsek Deed, and no such easements on the Dolinsek Property shall violate the terms and restrictions of the Conservation Easement on the Dolinsek Property held by the Aspen Valley Land Trust. [NOTE: See dedications and acceptances shown and described in the Vacation Plat as well as in the Final Plat.] 3.22 City Vacation of Street Rights-of-Way and Acceptance of Private Property. Pursuant to Section 4 of Ordinance 39, the City has approved vacation of public right-of-way comprising approximately 8,206 square feet of area, to be replaced with all necessary utility easements, all as shown on the Final Plat. The City has also agreed to accept the dedication of approximately 3,462 square feet of private property at the terminus of South Aspen Street for a public right-of-way for cul-de-sac improvements. To the extent that such dedications and acceptance of private property by the City are not effectuated by the Final Plat, the parties agree to exchange deeds no later than 45 days following the recordation of the Final Plat 3.23 Encroachment Licenses. Upon receipt by the City from Norway Island of completed revocable easement license applications, the City shall grant revocable encroachment licenses to Norway Island for all private improvements and infrastructure for the Project shown on the Approved Plan Set that will be located within City rights of way. 3.24 Other Agreements. Following completion of the construction of the building improvements on Lot 1, a Condominium Map and Condominium Declaration shall be submitted pursuant to Section 26.480.050(A) of the City of Aspen Municipal Code. [See Section 16.C.2 of Ordinance 39 which refers to “Other Agreements as necessary --- between the stakeholders to the project including: the City of Aspen, Aspen Historical Society, Aspen Skiing Company, Lift One Lodge, and Gorsuch Haus.” We should specifically identify any agreements to be signed by the City after the date of the Development Agreement and make sure the Development Agreement commits the City to approve/sign.] ARTICLE IV. PUBLIC IMPROVEMENTS 4.1 Prior to issuance of a final CO for the Project, Norway Island shall accomplish certain public improvements, all as depicted on the recorded Approved Plan Set, including the following: (a) Landscape Improvements. See Exhibit C attached hereto and incorporated herein by this reference. Page 15 of 25 (b) Public Infrastructure Improvements. See Exhibit D attached hereto and incorporated herein by this reference. (c) Storm Water and Drainage Improvements. See Exhibit E attached hereto and incorporated herein by this reference. ARTICLE V. FINANCIAL ASSURANCES 5.1 Site Protection/Enhancements Requirements. (a) Site Protection Guarantee. Before the issuance of any building permits for the Project, Norway Island shall deposit with __________________________ (“Escrow Agent”) the sum of ____________ and 00/ U.S. Dollars ($_________) in the form of cash or wired funds (the “Escrow Funds”) and will execute an Escrow Agreement and Instructions with the Escrow Agent which recites as follows: In the event construction work on the Project shall cease for 90 days or longer (“Work Stoppage”) prior to a final inspection by the City of the work authorized by a foundation/structural frame permit and cessation of such construction work continues for a period of one hundred twenty (120) days after notice from the City to Norway Island specifying the subject work in reasonable detail, or if such Work Stoppage cannot reasonably be cured within such one hundred twenty (120) day period and Norway Island fails to commence and proceed diligently to cure such Work Stoppage within a reasonable time period, then the City, in its reasonable discretion, may draw upon the Escrow Funds from time to time as needed for the purposes of protecting and securing the Project site and improvements from damage by the elements and/or from trespass by unauthorized persons and for purposes of improving the Project site to a safe condition such that it does not become an attractive nuisance or otherwise pose a threat to neighbors or other persons. The City shall use commercially reasonable efforts to not adversely impact the operation of, or access to the Project by Norway Island. The Escrow Funds or any remaining balance thereof shall be returned to Norway Island upon completion by the City of a final inspection of the work authorized by the Foundation/Structural Frame Permit on the Project; provided, however, that the Community Development Director shall promptly authorize partial releases, in increments of no less than 25% of the original surety, of the Site Protection Guarantee as portions of the Project protection, security, and safety are reduced. The City shall be a named party to the Escrow Agreement with the express right and authority to enforce the same from time to time. (b) Site Enhancement Guarantee. Before the issuance of a Building Permit for the Project, Norway Island shall deposit with _________________ (“Escrow Agent”) the sum of ___________ and 00/ U.S. Dollars ($__________) in the form of cash or wired funds (the “Escrow Funds”) and will execute an Escrow Agreement and Instructions with the Escrow Agent which recites as follows: Page 16 of 25 In the event construction work on the Project shall cease for 90 days or longer (”Work Stoppage“) prior to a final inspection by the City of the work authorized by any permit or phase of permit for the Project and cessation of such construction work continues for a period of one hundred twenty (120) days after notice from the City to Norway Island specifying the subject work in reasonable detail, or if such Work Stoppage cannot reasonably be cured within such one hundred twenty (120) day period and Norway Island fails to commence and proceed diligently to cure such Work Stoppage within a reasonable time period, then the City, in its reasonable discretion, may draw upon the Escrow Funds from time to time as needed for the purposes of improving the appearance of any construction work already completed on the Project site and for installing any public improvements on or adjacent to the Project site. The City shall use commercially reasonable discretion with respect to the manner or improving the appearance of construction work in progress as well as determining the public improvements to be installed. The City shall use commercially reasonable efforts to not adversely impact the operation of, or access to the Project by Norway Island. The Escrow Funds or any remaining balance thereof shall be returned to Norway Island upon completion by the City of a final inspection of the work authorized by the Foundation/Structural Frame Permit on the Project; provided, however, that the Community Development Director shall promptly authorize partial releases, in increments of no less than 25% of the original surety, of the Site Enhancement Guarantee as portions of the Project pertaining to its appearance, or the installing any public improvements on or adjacent to the Project are substantially performed. The City shall be a named party to the Escrow Agreement with the express right and authority to enforce the same from time to time. 5.2 Performance Guarantees. 5.2.1 Public Improvements. (a) Public Improvements Itemized. (i) Landscape Improvements for landscaping to be placed on Lot 1 and Lot 2 are itemized on Exhibit C attached hereto and incorporated herein by this reference. (ii) Public Infrastructure Improvements for Lots 1 and 2 are itemized on Exhibit D attached hereto and incorporated herein by this reference. (iii) Storm Water and Drainage Improvements associated with Lot 1 and Lot 2 are itemized on Exhibit E attached hereto and incorporated herein by this reference. (b) Security for Improvements. Prior to the issuance of a Building Permit for the Project, Norway Island shall provide a performance guarantee (the “Guarantee”) in an amount (the “Guarantee Amount”) equal to one hundred fifty percent (150%) of the estimated costs of the Public Improvements (“Improvements”) itemized on Exhibits C, D & E attached hereto. The Guarantee may be in the form of a cash escrow held by a third-party escrow agent (an “Escrow Agent”), an irrevocable sight draft or letter of commitment from a financially Page 17 of 25 responsible lender, or any financial security acceptable to the City Attorney. It is further agreed that Guarantee Amount described above shall constitute the total of all security required for all the Improvements which Norway Island is required to perform. For purposes hereof “Substantially Complete“ or “Substantial Completion” shall mean that the City has inspected the Improvements and has reasonably determined that they are Substantially Complete in compliance with applicable specifications and has issued a Certificate of Substantial Completion or similarly intended form of approval. Subject to provisions below in section 5.2.1 (c) including, without limitation, partial release provisions, the Guarantee Amount representing the cost of part or all of the Improvements (as itemized on Exhibit C, D, or E) which are Substantially Complete shall be immediately released to Norway Island. If there is any balance remaining in the Guarantee Amount after all partial releases and all Improvements are Substantially Complete, all such remaining amounts shall be immediately released to Norway Island upon delivery of written notice to any applicable Escrow Agent by Norway Island directing such delivery. (c) Escrow Release Provisions. Upon delivery by Norway Island of written notice that the Improvements or any part or parts thereof are complete and ready for inspection (“Request for Inspection“) along with a showing of the value of the Improvements or part(s) thereof completed, the City will, within 14 days, inspect the Improvements identified in the Request for Inspection, to determine whether or not such Improvements are Substantially Complete. If the City finds that the Improvements identified in the Request for Inspection are Substantially Complete, the City shall, within 7 days, deliver a written Certificate of Substantial Completion to Norway Island and any applicable Escrow Agent. Upon receipt of a Certificate of Substantial Completion for Improvements identified in the Request for Inspection, the City or any applicable Escrow Agent shall immediately release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete. Pursuant to Section 26.445.070(C)(4) of the Land Use Code, ten percent (10%) of the value of the Improvement(s) set forth in the City’s Certification of Substantial Completion shall be retained by the City or any applicable Escrow Agent. If no Certificate of Substantial Completion is delivered within the said seven (7) day period, all Improvements identified in the Request for Inspection shall automatically be deemed Substantially Complete without requirement of any further action. Norway Island need only provide written notice to any applicable Escrow Agent, with a copy to the City that no Certificate of Substantial Completion was delivered. Such notice to any applicable Escrow Agent shall be deemed the equivalent of a Certificate of Substantial Completion from the City and upon receipt of such notice, the City or any applicable Escrow Agent is authorized to promptly release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. If the cost to Substantially Complete the Improvements, or part(s) thereof is less than the corresponding amount itemized in each of Exhibits C, D & E attached hereto, and the City certifies that such Improvements, or part (s) thereof are Substantially Complete, the City or any applicable Escrow Agent shall immediately release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% required to be withheld pursuant to Section 26.445.070(C)(4) of the Land Use Code. Page 18 of 25 If the City finds that all or a portion of the Improvements identified in the Request for Inspection are not Substantially Complete, the City shall furnish a letter of potential deficiencies to Norway Island and any applicable Escrow Agent within fourteen (14) days of such finding. Any such letter of potential deficiencies shall specify which Improvements identified in the Request for Inspection are potentially deficient. If a letter of potential deficiencies is issued which specifies a portion of the Improvements identified in the Request for Inspection as potentially deficient, then all Improvements identified in such Request for Inspection which are not specified as being potentially deficient shall automatically be deemed Substantially Complete without requirement of any further action. Norway Island need only provide written notice to any applicable Escrow Agent with a copy to the City that the Improvements not specified in the letter of potential deficiencies are Substantially Complete. Such notice to any applicable Escrow Agent shall be deemed the equivalent of a Certificate of Substantial Completion from the City and upon receipt of such notice, the City or any applicable Escrow Agent shall immediately release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. If no letter of potential deficiency is furnished within the said fourteen (14) day period, all Improvements identified in the Request for Inspection shall automatically be deemed Substantially Complete without requirement of any further action. Norway Island need only provide written notice to any applicable Escrow Agent, with a copy to the City that no letter of potential deficiency was provided as required hereunder. Such notice to any applicable Escrow Agent shall be deemed the equivalent of a Certificate of Substantial Completion from the City and upon receipt of such notice, the City or any applicable Escrow Agent shall promptly release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. With respect to any Improvements identified in the Request for Inspection that are specified as potentially deficient in a letter of potential deficiencies as provided hereunder, Norway Island shall have a reasonable period of time to cure any such potential deficiencies. After performing cure measures, Norway Island shall submit to the City a Request for Inspection, along with a showing of the cost of the Improvements completed. The City will, within 14 days, inspect the Improvements previously identified as potentially deficient to determine whether or not such Improvements have been made Substantially Complete. If the City reasonably finds that the Improvements previously identified as potentially deficient have been made Substantially Complete, the City shall, within 7 days, deliver a Certificate of Substantial Completion to Norway Island and any applicable Escrow Agent. In such event, the City or any applicable Escrow Agent shall release to Norway Island within 5 days, the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. If the City fails to respond to Norway Island’s Request for Inspection regarding cure measures taken as to previously identified potentially deficient Improvements within such 7-day period, all such Improvements identified in the Request for Inspection shall automatically be deemed Substantially Complete. Norway Island need only provide written notice to any applicable Escrow Agent, with a copy to the City that no letter of potential deficiency was provided as required hereunder. Such notice to any applicable Escrow Agent Page 19 of 25 shall be deemed the equivalent of a Certificate of Substantial Completion from the City and upon receipt of such notice, the City or any applicable Escrow Agent shall promptly release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. If the City reasonably finds that the Improvements previously identified as potentially deficient have not been made Substantially Complete then City and Norway Island shall have 14 days after the date of the City’s finding, to reach written resolution regarding the Improvements determined by the City to be potentially deficient. If Norway Island and the City are not able to reach resolution within such 14 day period then the City and Norway Island agree to submit the dispute to the Board of Appeals and Examiners of the City of Aspen (hereinafter referred to as ”Board“). The Board shall base its decision upon substantial evidence presented. The Board’s finding would be subject to review pursuant to C.R.C.P. Rule 106(a)(4) in accordance with the laws of the State of Colorado. If Norway Island has not applied to the District Court for review of the determination of the Board within that time set forth pursuant to C.R.C.P. 106(a)(4) and has not obtained a Certificate of Substantial Completion City regarding the potentially deficient Improvements within such time or such additional time as may be reasonably needed by Norway Island under the circumstances, the City may cause the potentially deficient Improvements to be Substantially Complete and the costs of making the potentially deficient Improvements Substantially Complete shall be paid from the Guarantee Amount; provided, however, that in so doing, the City’s expenses shall be commercially reasonable. If the City’s costs are less than the itemized amounts for such Improvements (per Exhibit C, D or E) the difference remaining shall be promptly paid to Norway Island. If the Board finds that the City’s determination was correct, then Norway Island, in addition to appeal rights, shall have the right to take such corrective action as may be reasonably necessary to correct the Improvements found by the Board to be potentially deficient. Upon completion of such corrective action, Norway Island will submit to the City a Request for Inspection. If the City determines that Improvements found by the Board to be potentially deficient have been made Substantially Complete then the City shall, within 7 days, deliver a Certificate of Substantial Completion to Norway Island and any applicable Escrow Agent. In such event, the City or any applicable Escrow Agent shall release to Norway Island within five (5) days, the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. If the City determines that Improvements found by the Board to be potentially deficient remain potentially deficient then the City may cause such potentially deficient Improvements to be Substantially Complete and the costs of making such potentially deficient Improvements Substantially Complete shall be paid from the Guarantee Amount; provided, however, that in so doing, the City’s expenses shall be commercially reasonable. If the City’s costs are less than the itemized amounts for such Improvements (per Exhibit C, D or E) the difference remaining shall be promptly paid to Norway Island. In the event the Board finds in favor of Norway Island, then the Improvements in issue shall automatically be deemed Substantially Complete without requirement of any further action. Page 20 of 25 Norway Island need only provide written notice to any applicable Escrow Agent, with a copy to the City that the Board found in favor of Norway Island. Such notice to any applicable Escrow Agent shall be deemed the equivalent of a Certificate of Substantial Completion from the Board. Upon receipt of such notice, the City or any applicable Escrow Agent shall immediately release to Norway Island the total itemized amount (per Exhibit C, D, or E) corresponding to all Improvements which the City has certified as Substantially Complete minus the 10% withholding as per Section 26.445.070(C)(4) of the Land Use Code. Notwithstanding anything to the contrary contained herein, after any and all partial releases, and once all Improvements are Substantially Complete, the 10% withheld pursuant to Section 26.445.070(C)(4) of the Land Use Code shall be immediately released by the City or any applicable Escrow Agent to Norway Island. If there are delays in performance hereunder due to abnormal adverse weather conditions, acts of God, casualties or any causes beyond the control of Norway Island or the City, or by other causes which reasonably would justify delay, then the affected time period or deadline shall be extended for a reasonable period of time, as may be agreed upon by the parties. No agreement to extend may be unreasonably withheld or delayed. It is the express understanding of the parties that compliance with the procedure set forth in Article VI below pertaining to the procedure for default and amendment of this Agreement shall be required with respect to the enforcement and implementation of the financial assurances and guarantees to be provided by Norway Island as set forth above; provided, however that all procedures and requirements of this Article V shall be exhausted by the City before any action under Article VI below is taken by the City with regard to matters pertaining to this Article V. ARTICLE VI. NON-COMPLIANCE AND REQUEST FOR AMENDMENTS OR EXTENSIONS In the event that the City determines that Norway Island is not acting in substantial compliance with the terms of this Agreement, the City shall notify Norway Island in writing specifying the alleged non-compliance and asking that Norway Island remedy the alleged non- compliance within such reasonable time as the City may determine, but not less than 30 days. If the City determines that Norway Island has not complied within such time, the City may issue and serve upon Norway Island a written order specifying the alleged non-compliance and requiring Norway Island to remedy the same within thirty (30) days. Within twenty (20) days of the receipt of such order, Norway Island may file with the City Council either a notice advising the City that it is in compliance or a written request to determine any one or both of the following matters: (a) Whether the alleged non-compliance exists or did exist, or (b) Whether a variance, extension of time or amendment to this Agreement should be granted with respect to any such non-compliance which is determined to exist. Upon the receipt of such request, the City shall promptly schedule a meeting of the parties to consider the matters set forth in the order of non-compliance. The meeting of the parties shall be convened and conducted pursuant to the procedures normally established by the Page 21 of 25 City. If the City determines that a non-compliance exists which has not been remedied, it may issue such orders as may be appropriate, including the imposition of daily fines until such non- compliance has been remedied, the withholding of permits and/or certificate of occupancy, as applicable; provided, however, no order shall terminate any land use approval. The City may also grant such variances, extensions of time or amendments to this Agreement as it may deem appropriate under the circumstances. In addition to the foregoing, Norway Island may, on its own initiative, petition the City for a variance, an amendment to this Agreement or an extension of one or more of the time periods required for performance hereunder. The City may grant such variances, amendments to this Agreement, or extensions of time as it may deem appropriate under the circumstances. The parties expressly acknowledge and agree that the City shall not unreasonably refuse to extend the time periods for performance hereunder if Norway Island demonstrates that the reasons for the delay(s) which necessitate said extension(s) result from acts of God or other events beyond the reasonable control of Norway Island, despite good faith efforts on its part to perform in a timely manner. ARTICLE VII. PRIOR INSTRUMENTS AND APPROVALS 7.1 Prior Instruments and Approvals. (a) Ordinance 39. (b) Street and Easement Vacation Plat. (c) Planning and Zoning Commission Resolution No. ____ (d) City of Aspen Community Development Order No. _____ (e) [Any others?] (f) Any and all agreements, approvals, ordinances, resolutions, and similar instruments not specifically listed above (recorded or unrecorded) which could be construed to adversely affect, negate, or otherwise diminish the Approved Plan Set, Final Plat, this Agreement, any amendments to any of the foregoing, and any and all agreements or instruments made or given in connection with the Approved Plan Set, Final Plat, and this Agreement. ARTICLE VIII. GENERAL PROVISIONS 8.1 The provisions hereof shall be binding upon and inure to the benefit of Norway Island and City and their respective successors and assigns. 8.2 This Agreement shall be subject to and construed in accordance with the laws of the State of Colorado. Page 22 of 25 8.3 If any of the provisions of this Agreement or any paragraph, sentence, clause, phrase, word, or section or the application thereof in any circumstance is invalidated, such invalidity shall not affect the validity of the remainder of this Agreement, and the application of any such provision, paragraph, sentence, clause, phrase, word, or section in any other circumstance shall not be affected thereby. 8.4 This Agreement and the exhibits attached hereto contain the entire understanding between the parties hereto with respect to the transactions contemplated hereunder. Norway Island, its successors or assigns, may, on its own initiative, petition the City Council for an amendment to this Agreement or for an extension of one or more of the time periods required for performance hereunder. The City Council shall not unreasonably deny such petition for amendment or extension after considering all appropriate circumstances. Any such amendments or extensions of time shall only become effective upon the execution by all parties hereto that are affected by the proposed amendment. 8.5 Numerical and title headings contained in this Agreement are for convenience only, and shall not be deemed determinative of the substance contained herein. As used herein, where the context requires, the use of the singular shall include the plural and the use of any gender shall include all genders. 8.6 Upon execution of this Agreement by all parties hereto, City agrees to approve and execute the Final Plat and to approve the Approved Plan Set and to accept the same for recordation in the Office of the Clerk and Recorder of Pitkin County, Colorado, upon payment of the recordation fees by Norway Island. 8.7 Notices to be given to the parties to this Agreement shall be considered to be given if hand delivered or if deposited in the United States Mail to the parties by certified mail, return receipt requested, at the addresses indicated below, or such other addresses as may be substituted upon written notice by the parties or their successors or assigns Page 23 of 25 CITY: City of Aspen City Manager 130 South Galena Street Aspen, CO 81611 (Email: ____________________) NORWAY ISLAND: Norway Island, LLC c/o James DeFrancia P.O. Box 12393 Aspen, CO 91612 (Email:jdefrancia@lowe-re.com) With copies to: ____________________________________ ____________________________________ 8.8 This Agreement may be executed in counterparts, in which case all such counterparts together shall constitute one and the same instrument which is binding on all of the parties thereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart. Facsimile and email signatures shall be treated as original signatures hereon. 8.9 The terms, conditions, provisions and obligations herein contained shall be deemed covenants that run with and burden the Property and any and all owners thereof or interests therein, their respective successors, grantees or assigns, and further shall inure to the benefit of and be specifically enforceable by or against the parties hereto, their respective successors, grantees or assigns. Page 24 of 25 IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. CITY: THE CITY OF ASPEN, COLORADO, a Colorado home rule municipal corporation By: _____________________________ ____________________, Mayor Attest: ________________________________ City Clerk APPROVED AS TO FORM: ____________________________ James True, City Attorney STATE COLORADO COUNTY OF PITKIN ) ) ss. ) The foregoing instrument was acknowledged before me this _____ day of ________, 2020__, by ___________________ as Mayor and _____________________ as City Clerk of the City of Aspen, Colorado, a Colorado home rule municipal corporation. Witness my hand and official seal. My commission expires: _________________________________ Notary Public Page 25 of 25 NORWAY ISLAND: NORWAY ISLAND, LLC a Delaware limited liability company By: Destination Lift One, LLC, a Delaware limited liability company, its Administrative Managing Member, By: LDD Lift One Investor, LLC, a Delaware limited liability company, its Managing Member By: _________________________________ Name/Title 14261104_1.docx STATE OF COLORADO COUNTY OF ____________ ) ) ss. ) The foregoing instrument was acknowledged before me this _____ day of ________, 2020, by _______________________ as ___________________ of LDD Lift One Investor, LLC, a Delaware limited liability company, as Managing Member of Destination Lift One, LLC, a Delaware limited liability company, as Administrative Managing Member of Norway Island, LLC, a Delaware limited liability company. Witness my hand and official seal. My commission expires: _________________________________ Notary Public