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HomeMy WebLinkAboutordinance.council.052-82 RECORD OF PROCEEDINGS 100 Leaves ORDINANCE NO. ~j (Series of 1 AN ORDINANCE AMENDING CHAPTER 20 OF THE MUNICIPAL CODE OF THE CITY OF ASPEN, COLORADO, BY THE ADDITION OF A NEW SECTION 20'24 REGU- LATING THE SUBDIVISION, SALE AND MAINTENANCE OF TIMESHARING PRO- JECTS AND UNITS, SETTING FORTH PROVISIONS FOR APPLICABILITY AND DEFINITIONS, PERMITTING TIMESHARING IN ONLY THE L-l, L-2, L-3, CC, CL AND RMF ZONE DISTRICTS, SETTING FORTH PROCEDURAL REQUIREMENTS FOR TIMESHARE APPLICATIONS, SETTING FORTH STANDARDS AND REQUIRE- MENTS FOR TIMESHARE PROJECTS, SETTING FORTH DISCLOSURE REQUIRE- MENTS, PROVIDING FOR TIMESHARE PROJECT INSTRUMENTS, PROVIDING THAT THE MARKETING AND SALE OF TIMESHARE INTERESTS SHALL BE GOVERNED BY STATE LAW, PROVIDING FOR ASSESSMENT OF FEES AND USE OF UNSOLD UNITS, SETTING FORTH REGULATIONS PERTAINING TO EXCHANGE PROGRAMS, REQUIRING THAT ALL APPROVALS AND REGULATIONS SHALL BE BINDING ON THE APPLICANT'S SUCCESSORS AND ASSIGNS, PROVIDING FOR THE PAYMENT OF SALES TAX ON CERTAIN OCCUPANCIES OF TIMESHARE UNITS, SETTING FORTH PROHIBITED PRACTICES, SETTING FORTH REMEDIES FOR ENFORCEMENT INCLUDING CRIMINAL PENALTIES, SETTING FORTH REQUIREMENTS FOR FULL DISCLOSURE; EXPRESSING THE CITY COUNCIL'S INTENTION TO REVIEW THE REGULATIONS AND REQUIREMENTS SET FORTH IN SECTION ~0-24 WITHIN ONE YEAR AND ANNUALLY THEREAFTER; REPEALING AND RE-ENACTING SECTION 20-5(e) OF THE MUNICIPAL CODE REGARDING THE PROHIBITION OF FRAC- TIONAL FEE INTERESTS; AND AMENDING THE SCHEDULE OF PERMITTED AND CONDITIONAL USES FOR ZONE DISTRICTS ADOPTED IN SECTION 24-3.2 OF THE MUNICIPAL CODE TO PERMIT TIMESHARING IN THE L-l, L-2, L-3, CC, CL AND RMF ZONE DISTRICTS WHEREAS, at a joint special meeting with the City Council on July 27, 1982, the AsPen Planning and Zoning Commission discussed the advantages and disadvantages of timesharing and its appropri- ateness in the City of Aspen, and WHEREAS, a public hearing was held before the Planning and Zoning Commission on August 10, 1982, in order to discuss the issues involved in timesharing, including but not limited to the following issues: 1. The potential reduction of short-term units in the City resulting from timesharing and the possible effect on the remain- ing short-term lodge and hotel units. 2. The possibility of encouraging more people to come to Aspen in the traditional off-season periods and the difficulty of marketing these off-season periods. RECORD OF PROCEEDINGS 100 Leaves 3. The effect of timesharing on the smaller, nonconforming lodges. 4. The possibility of timesharing adding to the unafforda- bility of Aspen through price escalation versus the less expensive ownership alternative provided by timesharing. 5. The importance of consumer protection techniques and strict timesharing regulations in order to prevent fraudulent business practices, misrepresentations and deceptive timeshare sales techniques; and WHEREAS, at the public hearing on August 10, 1982, the Plan- ning and Zoning Commission directed the Planning Office to proceed with work to formulate a timeshare ordinance which would appropri- ately regulate timesharing and address potential problem areas; and WHEREAS, at a special meeting of the Planning and Zoning Com- mission on August 24, 1982, the Planning and Zoning Commission reviewed and made recommendations on a draft timeshare ordinance; and WHEREAS, the Planning and Zoning Commission did recommend that timesharing only be allowed in the L-l, L-2, CC, CL and R-MF zone districts and also the L-3 zone district should such a zone be established; and WHEREAS, an L-3 zone district has been established; and WHEREAS, the Planning and Zoning Commission did determine that "right-to-use" (timeshare license, lease or vacation club) timeshare interests were not appropriate in Aspen as they have most often been the subject of fraudulent practices and are often not covered by regulations governing real estate transactions; and WHEREAS, the Planning and Zoning Commission did recommend that new timeshare projects be subject to subdivision procedures, by amendment to Chapter 20, Aspen Municipal Code, and a condi 2 RECORD OF PROCEEDINGS 100 Leaves tional use review, by amendment to Chapter 24, Aspen Municipal Code; and WHEREAS, the Planning and Zoning Commission did review vari- ous disclosure requirements to be included in timeshare applica- tions so as to offer substantial consumer protection and did establish disclosure requirements which are included as part of this Planning and Zoning recommendation; and WHEREAS, the Planning and Zoning Commission of the City of Aspen did recommend, by its Resolution of September 7, 1982, that a Timeshare Ordinance be adopted by the City Council as an amend- ment to the Aspen Subdivision and Zoning regulations; and WHEREAS, the City Council of the City of Aspen has determined that it is in the best interests of the City of Aspen, its inhabitants and visitors to adopt and implement a Timesharing Ordinance and collaterally amend other provisions of the Municipal Code as may be necessary. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That Chapter 20 of the Municipal Code of the City of Aspen, Colorado, be and hereby is amended by the addition of a new Sec- tion 20-24, to read as follows: "Section 20-24. Timesharing. (A) Applicability. The requirements of this section shall apply to all timesharing projects and units in the City of Aspen, in addition to the other applicable require- ments set forth in this chapter and in this Code and applicable state law. (B) Definitions. (1) "Applicant" means any person or entity and the suc- cessors and assigns of any such person or entity applying for timesharing approval pursuant to this Section. 3 RECORD OF PROCEEDINGS 100 Leaves (2) "Disclosure Statement" means that written, sworn statement described in Paragraph (F), and any amendments or supplements thereto. (3) "Hotel and lodge" means a building containing three (3) or more units, none of which units contain kitchen facilities, intended for temporary occu- pancy of guests. Accessory use facilities may consist of an office, laundry facilities used by the occupants, recreation facilities, a lobby or lounge, kitchen and dining facilities and similar accessory uses commonly found in association with a commercial hotel or lodge operation and meeting requirements of the particular zone district in which the building is located. (4) "Multi-family dwelling" means a dwelling containing three (3) or more dwelling units, not including hotels and lodges, but including townhouses, with accessory use facilities and off-street parking used by the occupants. (5) "Off-season" means the time between the date of the closing of Aspen Mountain ski lifts and June 15th of any year and also the time between September 15th to the date of the opening of Aspen Mountain ski lifts in any year. (6) "On-season" means any time of year not included in the off-season. (7) "Person" means one or more natural persons, corpor- ations, partnerships, associations, trusts, other entities or any combination thereof. (8) "Project" or "Unit" means all real property subject to the timesharing project instruments, or in which a timeshare interest is created. (9) "Purchaser" means any person other than an appli- cant who acquires a timeshare interest. (10) "Timeshare Project Instruments" means any document, by whatever name denominated, creating or regulat- ing timeshare projects or units and containing the restrictions or covenants regulating the use, occu- pancy or disposition of a timeshare project or unit, including any amendments or supplements thereto, but excluding any law, ordinance or governmental regulation. (11) ',Timesharing, timeshare and/or timeshare interest" as permitted and regulated by this section means "interval estate", "timeshare estate", or "time- span estate" as such are defined in 38-33-110, C.R.S. 1973, as such may be amended from time to time, or any other similar concept of property ownership involving either interval ownership or fractional fee interests as may be determined by the City Council. "Timesharing" shall not include a "timeshare license or use", which is defined as a 4 RECORD OF PROCEEDINGS 100 Leaves contractual right to exclusive Occupancy of speci- fied premises, where the occupancy of the premises is divided into five (5) or more separate time periods extending over a term of more than two (2) years. (C) Zones In Which Timesharing Shall Be Permitted - Structures Allowed To Be Timeshared. (1) Timesharing as defined herein shall be allowed only in the L-l, L-2, L-3, CC, CL and RMF zones, but only as to those structures for which short term rental is otherwise allowed, provided such use would not adversely affect the public health and welfare, or the character and nature of the sur- rounding neighborhood. Timesharing shall only be permitted as a conditional use in the above zones, requiring a permit in accordance with the proce- dures and requirements for obtaining a conditional use set forth in Chapter 24 of this Code, in addi- tion to subdivision approval as required by this Chapter. To the extent practicable subdivision and conditional use approval shall occur simultane- ously. (D) Procedure. Applications for timesharing shall contain the following: (1) The established fees for subdivision and condi- tional use review. (2) Proof of ownership. (3) Improvement survey for the property. (4) A site plan, which shows in reasonable detail, parking, landscaping and project amenities. With the site plan the applicant shall include a narra- tive description of the existing site amenities and architectural features and the applicant's plan, if any, for upgrading such. (5) A vicinity map showing all adjacent and surrounding uses and their zoning and the names of the owners of the surrounding properties. (6) A written description of the employee housing, if any, currently located in the project and a plan for retention of that same amount of employee hous- ing on the site. (7) Disclosure statement as is more particularly described in Paragraph F below. (8) If the project sought to be timeshared is a condo- minium, written proof that the condominium declara- tion allows timesharing, that one hundred percent (100%) of the owners of the condominium units have approved the timeshare project, that all mortgagees of the condominium have approved the proposed time- share project, and that all condominium units in 5 RECORD OF PROCEEDINGS 100 Leaves the timeshare project shall be included in the same sales and marketing program. (9) The marketing plan for the project including infor- mation on proposed sales techniques (including the description of gifts to be offered and/or premiums or promotions to be offered), sales packaging and the specific time of year use of units is reserved for maintenance. 10) A statement indicating the manner in which the real estate transfer tax will be collected. 11) A statement demonstrating that upgrading as re- quired by this section will be performed and assurances of such performance. (12) A thorough account of the proposed budget giving a true indication of necessary costs and expendi- tures. (13) A statement demonstrating the manner in which management/assessment fees will be held, util- ized and accounted for. (14) Documentation establishing the adequacy of a reserve fund to assure that the project is satis- factorily maintained throughout its lifetime. (15) An affidavit by the applicant attesting that the required documentation and facts contained therein are true and accurate and an acknowledgement that the requirements of this section shall be binding on the successors and assigns of the applicant. (E) Timesharing Standards and Review Criteria. In addition to those standards and review criteria generally per- taining to subdivision and conditional use proposals, the following shall also be considered in evaluating a timeshare project or unit: (1) Right-to-Use: Right-to-use timeshare concepts (e.g. leaseholds, vacation clubs) are considered inappropriate and not in the community's best interest in that they are not regulated by real estate laws and are the most abused form of time- share. (2) Integration: Timesharing must be conducted in all units of a given project or not at all. Mixing timesharing with other less intensive uses is unde- sirable as a tourist use and is incompatible with residential uses or less intensive tourist uses. (3) Marketing and Sales Practices. A project's market- ing program should reveal responsible, ethical sales practices, and such marketing program should not permit the following practices: (a) Use of public malls and streets for sales; (b) Sales campaigns using phone solicitations; 6 RECORD OF PROCEEDINGS 100 Leaves (c) The giving of gifts in a deceptive manner to encourage people to attend sales presentations or to encourage people to buy a timeshare estate. Any exact description of gifts pro- posed to be given by the developer to prospec- tive purchaser and the cost to the developer of any gift used in a sales or marketing pro- gram must be disclosed and shall be subject to prior approval by Council. (d) Any unethical sales and marketing practices which would tend to mislead potential pur- chasers. The marketing plan shall satisfactorily demonstrate that off season timeshare weeks are being packaged and included in the proposed sales packages, and that off season periods will be adequately marketed and sold. The marketing plan shall include, at a minimum, a multi-week package including one off- season week sold with one on-season week. A mar- keting plan may present alternative packaging of weeks to be sold, if it can be proven to the City Council that the proposed packaging adequately accomplishes the marketing and sales of off-season weeks. (4) Amenities. A timeshare project's recreational facilities and amenities shall be sufficient so as to not create an undue burden on public facilities. Recreational facilities and amenities of newly con- structed or existing structures must sufficiently service the needs of the project during both the summer and winter seasons. 5) Parking. Parking shall be sufficient to meet the demands of the project. 6) Maintenance. In light of the fact that timesharing is an intensive, high impact use, a timeshare pro- ject shall provide and reserve an adequate time period for project maintenance. A minimal four (4) week annual maintenance period, two (2) weeks in the spring and two (2) weeks in the fall is con- sidered adequate, but, in all events, the proposed maintenance period must be sufficient to accomplish proper maintenance of the timeshare project. 7) .~udget. The proposed budget shall demonstrate an accurate indication of necessary costs and expendi- tures. 8) Conversions. Adequate upgrading shall be performed on existing structures converting to timeshare as required by this section. 9) Escrow. Deposits or downpayments made in connec- tion with the purchase of a timeshare unit shall be held in an escrow account until closing or the issuance of a certificate of occupancy, whichever is later. The escrow agent or holder of the escrow 7 RECORD OF PROCEEDINGS 100 Leaves shali be a neUtral third party not having any interest in the purchase and sale transaction. 10) Management/Assessment Fees. A fair procedure for reviewing/approving any fee increases which may be made throughout the life of the project shall be established to provide assurances and protection to timeshare owners that management/assessment fees will be applied and used appropriately. 11) Reserve. A reserve account shall be established to assure that the project will be satisfactorily maintained throughout the lifetime of the project. 12) Occupancy Standards. Occupancy levels throughout the life of the project shall be in compliance with applicable building code requirements. (F) Disclosure. (1) General Requirements: A written sworn disclosure statement containing sufficient detail and informa- tion to allow the City to verify any and all dis- closures required shall be filed with the City at the time the application is submitted and updated as required herein. The disclosure statement shall contain and fully and accurately disclose the fol- lowing: a) The name and address of the developer of the timeshare units as well as a summary of the developer's business experience including all his background and experience in the develop- ment of timeshare projects and a resume with references of the developer and his present financial condition. b) The name and address of the plan manager, if any, and a description of his responsibility, authority and his business experience along with his resume with references. All informa- tion on the plan manager's background and experience specifically related to timeshare projects should be provided. c) The names and addresses of the marketing en- tity 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 investiga- tions. A summary of the marketing entity's business experience including all background and experience related to timeshare projects and a resume with references on the marketing entity shall be provided. d) A description of the timeshare units, includ- ing the developer's schedule for completion of all buildings, units and project amenities and 8 RECORD OF PROCEEDINGS 100 Leaves dates of availability. In the event the pro- ject is to be a phase project, the developer shall provide, to the satisfaction of the City of Aspen, a bond or letter of credit insuring that all phases of construction will be com- pleted. (e) If the timeshare plan is located in a condo- minium or a similar form of ownership, a description of the project and any pertinent provisions of the project instruments. (f) Any restraints on the transfer of the pur- chaser's timeshare interest in the timeshare units or plan. (g) The timeshare ownership plan (timeshare, frac- tional fee, interval ownership) which shall include a description of the rights and responsibilities under the plan; this descrip- tion should also disclose whether a prospec- tive purchaser is buying a specific unit for a specific time or a specific unit for a float- ing time, or whether there is no specific unit but just a specific time. (h) Notice of any liens, title defects or encum- brances 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. i) 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. j) The total financial obligation of the pur- chaser, which shall include the initial price and any additional charges to which the pur- chaser may be subject in purchasing the unit. k) 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 prorata share of the overall maintenance costs, or any other means utilized to compute maintenance fees. 1) A description of any financing offered by the applicant. (m) The terms and significant limitations of any warranties provided, including statutory war- ranties and limitations on the enforcement thereof or on damages. (n) A statement that any deposits or downpayments made in connection with the purchase of a 9 RECORD OF PROCEEDINGS 100 Leaves timeshare unit will be held in an escrow account until closing of the transaction or availability for occupancy, whichever is later. The escrow agent or holder of the escrow shall be a neutral third party not having any interest in the purchase and sale transaction. (o) Any current or expected fees or charges to be paid by timeshare owners for the use of any facilities related to the property. (p) 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. (q) A statement that there is a ten (10) day calendar period of mutual recission in the purchase of the unit. (r) The developer must disclose the minimum per- centage of units he intends to sell before he will proceed with the completion of the time- share project. (s) A description of the maintenance to be sup- plied to the timeshare units and how such maintenance will be provided, and what time periods during the year, are set aside for only maintenance so that the unit will not be able to be occupied. (t) How the project will deal with the problem of a unit not being available to an owner because of a prior occupant holding over and not yielding possession of the unit; and, in the case of a holdover problem, what means are available to discourage and penalize persons who do hold over. (u) A statement of what times of year are high season (on-season) and are low season (off- season), including a statement of when the local ski areas are open for skiing and how the developer intends to market the off-sea- son. (v) Whether all the units in the project, or only certain specific units, if any, are available for participation in a exchange program. (w) All unusual and material circumstances, fea- tures and characteristics of the property. (x) A description of all insurance covering the property. (y) A description of the on-site amenities and recreational facilities which are available for use by the unit owners. All on-site amen- ities must be owned by the homeowner's associ- ation and the developer shall not be allowed 10 RECORD OF PROCEEDINGS 100 Leaves to charge any additional fees for use of the amenities. (z) A list of any units in the project that have existing kitchens and any proposals for addi- tional kitchens. (aa) A list of the limitations on the number of persons who can occupy a unit at any one time and what those limitations are for each unit in the project. These limitations must meet minimum occupancy requirements established by applicable building codes. (bb) A statement that the Homeowners Association and/or the Managing Agent shall serve as the owner's designated agent for the service of process (in a manner sufficient to satisfy the requirements of Personal Service in State, pursuant to Rule 4, C.R.C.P., as amended) or legal notices pertaining to the timeshare interest. (cc) A statement that any timeshare interest shall be expressly subject to all requirements and representations set forth in the disclosure statement on record with the Pitkin County Clerk and Recorder. (2) Conversion Property: The disclosure statement for the timeshare units in a conversion property must contain, in addition to the information required by Section (1) above: (a) A statement by the developer, based on a report prepared by an independent architect or engineer, licensed by the State of Colorado, describing the present condition of all struc- tural components and mechanical and electrical installations material to the use and enjoy- ment of the timeshare units. (b) A statement by the developer of the expected useful life of each item reported on in para- graph (a) or a statement that no representa- tions are made in that regard; and (c) 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. (3) Updating and Piling: The applicant and applicant's 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 project instruments. Such amendments shall comply with the requirements of this section. No amendment which shall signifi- cantly alter the disclosure statement or the time- share project instruments shall be effective unless 11 RECORD OF PROCEEDINGS 100 Leaves approved and accepted by the City and filed in the Office of the Pitkin County Clerk and Recorder. All amendments shall be initially submitted for review to the Planning 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 conditional use approval. The foregoing updating and filing requirements do not apply to the single unit owner; however, the Condominium Association and/or the Homeowners Asso- ciation, or both if there be multiple associations, shall have the continuing responsibility to update and file the disclosure statement and any amend- ments to the condominium documents and/or timeshare project instruments with the City and, subject to applicable City approvals, to file the same in the office of the Pitkin County Clerk and Recorder as soon as practicable after City approval has been granted. Once the Condominium Association has been formed, the City shall not accept any amendments for review without prior approval thereby. (4) Time for Provision of Disclosure Statement: 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 owner of a single timeshare unit in a project who is attempting to sell that one (1) unit. The owner of the single timeshare unit who is attempting to sell that one (1) unit must supply the following items: (a) A statement of the amount of the timeshare assessments for the year previous to the time of sale. (b) Copies of the timeshare and/or condominium documents covering the project. (c) A copy of the existing or proposed budget. If it is a proposed budget, it must also be dis- closed that it is only a proposed budget. (d) A statement of the amount of taxes for the year previous to the time of sale, and how these taxes are paid. (e) Copies of any documents pertaining to the day- to-day or routine operations of a project, including any management contracts entered into by the owners association. (f) A statement of any amounts held in reserve by the owners association and for what purposes the reserve may be utilized. (g) Notice of any pending special assessments. 12 RECORD OF PROCEEDINGS 100 Leaves (h) A copy of the covenants, conditions and restrictions affecting the timeshare project at the time of sale. (5) Right to Rescind: Within ten (10) calendar days after the execution of a contract to purchase an interest in a timeshare project, or within ten (10) calendar days after Purchaser's receipt of the dis- closure statement required by subparagraph four (4) above, whichever occurs later, either party may cancel the contract without penalty. The Seller shall obtain a written receipt of the disclosure statement documenting Purchaser's receipt of the disclosure statement. The Seller shall clearly and conspicuously notify the Purchaser in writing of the rights of the Purchaser under this section. The Seller shall also provide an adequate oppor- tunity to the Purchaser to exercise his right of rescission. Within ten (10) days after receipt of a written notice of rescission, the developer shall return to the Purchaser any and all monies given by the Purchaser to the developer. (6) Escrow of Deposits: Any deposit made in connection with the purchase or reservation of a timeshare unit from a Seller must be placed in escrow and held in an account designated solely for that pur- pose by a title insurance company licensed in this State, or with an institution whose accounts are insured by a governmental agency or instrumentality until: (1) delivered to the Seller at the expira- tion of the time for rescission or such later time as may be specified in any contract of sale; or (2) delivered to the Seller because of purchaser's default under a contract to purchase the timeshare; or (3) refunded to the purchaser. (7) Effect: No conveyance of a timeshare interest shall be valid unless the instrument of conveyance shall indicate that title is being transferred sub- ject to the Condominium Declaration which shall include the disclosure statement as an exhibit thereto. (G) Building Code-Health and Safety Requirements. Previ- ously existing structures which are converted to time- sharing use shall, to the extent practicable, comply with current fire and building codes. In such cases the Building Inspector shall inspect the structure and determine that there is no present danger to the health and safety of occupants. (H) Upgrading Timeshare Project. Existing structures con- verted to timesharing shall be physically upgraded in accordance with the following requirements: (1) A minimum of thirty percent (30%) of the fair mar- ket value (according to a current MAI appraisal prepared within a twelve (12) month period prior to the date the timeshare application is submitted) of the property prior to conversion to timesharing 13 RECORD OF PROCEEDINGS 100 Leaves shall be applied to the required upgrading of the project. Upgrading shall be pursuant to plans sub- mitted to and approved by the City Building Inspec- tor within nine (9) months after the timeshare approval by the City. Upgrading shall be completed within fourteen (14) months after the building per- mit for such upgrading is issued; or (2) The applicant demonstrates to the satisfaction of City Council that funds previously expended have sufficiently upgraded the timeshare project so as to make further upgrading unnecessary and that the project will continue to accommodate its occupants in a manner consistent with or better in quality than provided prior to the timeshare use. Such information shall be presented in the form of an affidavit itemizing the expenses incurred during previous months and documenting that the expendi- tures have resulted in an actual upgrading of the structure, the appearance thereof, and/or its guest facilities; or (3) The applicant may present a plan for upgrading the project in phases and post a bond or letter of cre- dit sufficient to satisfy the City Council that the upgrading will be completed. The plan must be approved by the City Council and implemented in accordance with the approval. No sale of timeshare units shall be closed until a certificate of occupancy has been issued pursuant to any upgrading plan. In passing upon require- ments for upgrading, due consideration shall be given by the City Council to the fact that the lodges of Aspen attract clientele from diverse economic sectors, certain lodges catering to cer- tain sectors, and the intent herein is not to cre- ate a uniformity in lodge character and roles, but to upgrade the physical appearance and facilities that each lodge provides. (I Timeshare Project Instruments. Timeshare project instruments shall include, without limitation, the fol- lowing documentation or information: (1) Disclosure statement. (2) Instruments for a timeshare estate as defined and permitted by this section. a) The legal description, street address or other description sufficient to identify the pro- perty. b) Identification of timesharing 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. 14 RECORD OF PROCEEDINGS 100 Leaves (d) The formula, fraction or percentage of the co~mon expenses and any voting rights assigned to each timeshare estate. (e) Any restrictions on the use, occupancy, alter- ation or alienation of timeshare units. (f) Any other matters that the applicant or the City Council deems reasonably necessary to consider the project. (3) All timeshare project instruments shall provide for the following: (a) That a homeowners' association shall be estab- lished. Title to the common areas of the pro- ject and responsibility for maintenance of the project 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 sixty (60) days notice. In the event the manager is termi- nated, a new managing agent shall be desig- nated as quickly as possible by the associa- tion. Any management agreement shall specify the managing agent's duties to maintain the project. (b) A stipulation by the owner of the timeshare interest irrevocably designating the Home- owners Association and/or the Managing Agent as an agent for the service of process (in a manner sufficient to satisfy the requirements of Personal Service in State, pursuant to Rule 4 C.R.C.P., as amended) or legal notices for any legal action, proceeding or hearing per- taining to the timeshare interest. (c) Each timeshare interest with a multiple owner- ship shall be required to designate one manag- ing 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 an owner's fees are not paid, his interest shall be subject to a lien and fore- closure or other divestment. In the event an owner or his guests violate the rules and regulations of the association, the associa- tion shall have the right to enjoin the viola- tion and the prevailing party in such suit shall be awarded his court costs and reason- able attorney's fees. (e) How proceeds shall be distributed in the event the property is taken by reason of condemna- tion or eminent domain. 15 RECORD OF PROCEEDINGS 100 Leaves (J Marketing of Timeshare Units. The marketing and sale of timeshare units shall be governed by the real estate laws set forth in Title 12, Article 61, C.R.S. 1973, as amended. The City, however, reserves the right to implement its own licensing scheme should it deem it necessary. The applicant and licensed marketing entity shall present to the City the plan for marketing the timeshare units. In addition to all other remedies or penalties, any deviation from the approved marketing plan shall give the City the right to enjoin these sale techniques. The applicant shall be responsible for pay lng the costs of such legal action to enjoin, including the City's legal fees and expert witness fees. To secure this responsibility, a sum of Twenty thousand dollars ($20,000.00) cash, a twenty thousand dollar ($20,000.00) irrevocable letter of credit or a One hun- dred thousand dollar ($100,000.00) surety bond for each timeshare project in which the applicant or marketing entity are involved in shall be required to be posted with the City to ensure that the applicant and the mar- keting entity do not deviate from the approved marketing plan. (K) Unsold Units. The applicant shall pay with respect to unsold timeshare units assessments and fees equal to those assessed or levied on sold tim~share units. The applicant may rent unsold timeshare units provided that any funds realized from the rental, to the extent neces- sary, shall be utilized to defray maintenance costs. (L) E~change Programs. If the timeshare owners are to be permitted or required to become members of or to parti- cipate in any program for the exchange of occupancy rights among themselves or for the timeshare owners of other timeshare parcels or both, prospective purchasers shall be provided with a full and accurate disclosure of all the details, costs, expenses, procedures, names or persons and other timeshare projects involved and any other matters pertinent to a timeshare owner's partici- pation in such program. The materials provided to pro- spective purchasers shall demonstrate that the timeshare project has been accepted in the exchange program with which it claims it is affiliated and shall disclose what the confirmation percentage is in the exchange program with which the timeshare project is associated, indicat- ing the likelihood of the purchaser actually being able to obtain occupancy time in another project in the exchange program at a time and a location the purchaser desires. (M) Binding Effect. The requirements of this section and any approval granted pursuant to this section shall be binding on applicant and the applicant's successors or assigns. (N) Disclosure of Information: This Section 20-24 is intended to regulate the creation and sale of timeshare interests within the City of Aspen, an no warranty or guarantee is made by the City of Aspen with regard to the completeness or accuracy of any information or docu- mentation submitted to the City of Aspen or any approval granted by the City of Aspen. No person may advertise or represent that the City of Aspen or any of its offi- 16 RECORD OF PROCEEDINGS 100 Leaves cers or employees have recommended the sale or purchase of timeshare units. (0 Prohibited Practices and Uses: Without in any way ~imiting any requirement contained in this Section 20- 24, 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. (2) Sales campaigns utilizing phone solicitors or the giving of gifts or other gratuity in a deceptive manner to encourage prospective purchasers to view the timeshare project or unit or listen to any pro- motional or sales discourse. (3) Solicitations of prospective purchasers of time- share units on any City streets or malls or other public property or facility. (4) Misrepresenting the facts contained in any applica- tion for timesharing approval, timeshare project instruments or disclosure statement. (5) Failure to comply with any representations con- tained in any application for timesharing or mis- representing the substance of any such application to others who may be prospective purchasers of timesharing interests. (6) Managing, operating, using, offering for sale or selling a timeshare estate or interest therein in violation of any requirement of this section or any approval granted pursuant hereto or causing or aid- ing and abetting others to violate any requirement of this section or approval granted pursuant to this section. (P) City Sales Tax. Occupancy of any timeshare unit by any- one other than the owner thereof who pays a fee for the use of the unit shall be subject to the City's sales tax the same as if such occupancy were of a hotel or lodge unit. Any timeshare project, as a condition to appro- val, shall be required to obtain the approval of the City Finance Director of the means by which this tax shall be collected and paid to the City. The manager of the association shall be responsible for the timely col- lection of the City sales tax for the City of Aspen. (Q) Remedies. (1) In addition to all remedies provided by law, this chapter (see Sec. 20-5), and this Code, the provi- sions of this Section 20-24 are enforceable as fol- lows: (a) The City may institute an injunction, manda- mus, abatement or other appropriate action or 17 RECORD OF PROCEEDINGS 100 Leaves proceeding to prevent or enjoin a use, occu- pancy or conveyance relating to a timeshare project or to enjoin any property owner, developer or applicant from selling, agreeing to sell or offering to sell or otherwise con- vey a timeshare use, before full compliance with the provisions of this Section 20-24 and all approvals required herein are obtained. (b) The City Council may withdraw any approval of a plan or plat or require certain corrective measures to be taken following the determina- tion that information provided by an appli- cant, or by anyone on his behalf, on which a decision was based, was materially and sub- stantially false or inaccurate. The City's remedies hereunder shall be only as against the applicant and/or the Homeowner's Associa- tion and/or unit owners' and/or Condominium Associations and shall not apply to indi- viduals who have purchased units from the developer, unless such individuals actively participated in providing false or inaccurate information. The City Council shall cause written notice to be served on the applicant, or his assignees, setting out a clear and con- cise statement of the alleged false or inaccu- rate information provided by the applicant or by agents on his behalf, and to direct the applicant to appear at a time certain for a hearing before the City Council not less than ten (10) days or more than thirty (30) days after the date of service of notice. The City Council shall determine at the hearing the nature and extent of the alleged false or inaccurate information and shall have power, on good cause being shown, to withdraw any approval or require certain corrective mea- sures to be taken in the event it finds the allegedly false or inaccurate information was materially and substantially false or inaccu- rate and had the correct information been sup- plied at the time of initial approval, the outcome would have been different. However, withdrawal of approval or imposition of cor- rective requirements shall not be an exclusive remedy and any and all remedies provided by law may be exercised. (2) The operation, sale or ownership of any timeshare project in violation of the requirements of this section or in violation of any approval granted pursuant to this section is hereby declared to be unlawful and punishable, upon conviction, by a fine not exceeding three hundred dollars ($300.00) or imprisonment for a period of not more than ninety (90) days, or both, such fine and imprisonment at the discretion of the Court. Each day any such violation shall continue shall constitute a separ- ate offense. 18 RECORD OF PROCEEDINGS 100 Leaves (3) Any purchaser of a timeshare unit sold in violation of any of the provisions of this Section 20-24 shall have the right, at his option, within thirty (30) days after closing on the purchase of his unit, to void such a sale and thereupon purchaser shall be refunded all monies and things of value paid pursuant to such sale. This section shall not be construed or interpreted to eliminate or limit any other remedies available to purchaser at law or equity. (4) The remedies afforded the City set forth herein shall be deemed cumulative. (R) Annual Review. The regulations set forth in this sec- tion shall be subject to an annual review by the Plan- ning and Zoning Commission and the City Council in July of each year or as soon after July as is practicable. This annual review shall be to re-evaluate the appropri- ateness and effectiveness of the adopted timeshare regu- lations in this Section, to review the total number of units that have been timeshared and the impacts these units have had on the community and to make any changes in the timeshare regulations which may be necessary to make the regulations more effective." Section 2 The City Council hereby expresses its intention to review the regulations and requirements set forth in Section 20-24 approxi- mately one year from the effective date of this ordinance. Section 3 The City Council shall have the power, in addition to other powers or remedies it may have under state law or the City Charter or Municipal Code, to declare a moratorium of up to twelve (12) months on the acceptance and processing of timeshare applications hereunder or relating hereto, if it finds that it is in the best interests of the City to do so. Section 4 That Section 20-5(e) of the Municipal Code of the City of Aspen be and the same is hereby repealed and re-enacted to read as follows: "(e) Prohibited Occupancy and Use. It is unlawful to occupy or otherwise use any building, structure or land in vio- lation of any of the provisions of this chapter." 19 RECORD OF PROCEEDINGS 100 Leaves Section 5 That the schedule of permitted and conditional uses for the various zone districts adopted by Section 24-3.2 of the MuniciPal Code of the City of Aspen be and the same is hereby amended to permit timesharing in the L-l, L-2, L-3, CC, CL and RMF zone dis- trict, as follows: (a) That the conditional use column of the Lodge-One (L-l) District be amended to read "Restaurant; timesharing". (b) That the conditional use column of the Lodge-Two (L-2) District be amended to read "Restaurant; timesharing". (e) That the conditional use column of the Lodge-Three (L-3) District be amended to read "Restaurant included within a lodge operation serving guests and others; timeshar- ing''. (d) That the conditional use column of the Commercial Core (CC) District be amended by the addition of a new item (4) to read as follows: "(4) Timesharing". (e) That the conditional use column of the Commercial Lodge (CL) District be amended by deleting the word "none" and adding the following: "Timesharing". (f) That the conditional use column of the Residential/ Multi-Family (RMF) District be amended to read as fol- lows: "Same as R-6/ timesharing". Section 6 The City Council hereby finds and declares that this ordinance is necessary and proper for the health, safety and welfare of the City of Aspen, Colorado, and its inhabitants and visitors. Section 7 If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof. 20 RECORD OF PROCEEDINGS 100 Leaves Section 8 A public hearing on the ordinance shall be held on the ~z//~ day of ~ , 1982, at 5:00 P.M. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, 15 days prior to which hearing notice of the s~ne shall be published once in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED published as provided by law by the City Council of the City of Aspen on the day of ~ , 1982. ~ ~ Herman Edel, Mayor ATTEst: ~ FINALLY adopted, passed and approved this ~ day of ~ , 1982. Herman Edel, Mayor ~TTEST i'~ ' K.~~, City Clerk 21 RECORD OF PROCEEDINGS 100 Leaves STATE OF COLO~.DO ) ) ss CERTIFICATE COUNTY OF PITKIN ) I, Kathryn S. Koch, City Clerk of Aspen, Colorado~ do hereby certify that the above and foregoing ordinance was introduced, read in full, and passed ob reading at a regular meeting of the City Council of the City of Aspen on ~ ~ , 19~, and published in the Aspen Times a weekly newspaper of general circulation published in the City of Aspen, Colorado, in its issue of ~ //, 19 ~, and was finally adopted and approved at a regular meeting of the City Council on ~ j~ , 19 ~, and ordered published as Ordinance No. ~ , Series of 19.~ , of said City, as provided by law. IN WITNESS WHEREOF, I have hereunto set mY hand and the seal of said City of Aspen, Colorado this /~--~day ~Ci~y SEAL Deputy City Clerk