THE CANYONS RESORT VILLAGE
MANAGEMENT AGREEMENT
THE CANYONS RESORT VILLAGE
MANAGEMENT AGREEMENT
THIS RESORT VILLAGE MANAGEMENT AGREEMENT (the "Agreement") is entered
into to be effective as of this _____ day of __________________, 1999, by and
between ASC Utah, Inc., d.b.a. The Canyons, a Maine corporation with a place of
business at 4000 The Canyons Resort Drive, Park City, Utah 84098 ("ASC Utah" );
American Skiing Company Resort Properties, Inc., a Maine corporation with a
place of business at One Parkway, P.O. Box 450, Bethel, Maine 04217 ("ASCRP");
Wolf Mountain Resorts, L.C., a Utah limited liability company with a mailing
address of P.O. Box 980903, Park City, Utah 84098 ("Lessor"); The Canyons Resort
Village Association, Inc., a Utah nonprofit corporation with a place of business
at 4000 The Canyons Resort Drive, Park City, Utah 84098 (the "Association"); and
each of the property owners listed on Exhibit A hereto (the "Participants").
RECITALS
A. ASC Utah and ASCRP own or lease all of the land shown as Parcel 1 on
the Plan of Land entitled "The Canyons Resort Village - Easement Plan," dated
______________, 1999 (the "Plan"), recorded in the Office of the Recorder for
Summit County as Entry No. _____, in Book _____, beginning at Page _____, and
attached hereto as Exhibit B, as it may be amended from time to time in
accordance with this Agreement.
B. Lessor is the owner of certain premises within Parcel 1, which
premises are leased to ASC Utah under a certain Ground Lease Agreement dated as
of July 3, 1997, and a First Amendment to Ground Lease dated as of August 1,
1998, and a Second Amendment to Ground Lease dated contemporaneously herewith.
C. Participants own or control various parcels of land as shown on the
Plan (the "Participants' Parcels").
D. ASC Utah, ASCRP, the Association, and the Participants wish to
convey certain easements to each other to allow for their joint use of certain
improvements located or to be located on their respective properties and to
enhance the value of each of their properties and the uses contemplated thereon.
E. ASCRP, ASC Utah, and the Participants intend to separately develop
their respective portions of a resort village on Parcel 1 and the Participants'
Parcels, all of which collectively are to be an integral part of the resort
village (the "Resort Village"). The Resort Village development as currently
contemplated is depicted, for illustrative purposes only, on Exhibit C attached
hereto.
F. ASCRP has incurred certain substantial development cost charges in
the planning and permitting of the Resort Village, and in exchange for the
easements granted herein, the Participants desire that the Association shall
reimburse ASCRP for a fixed portion of their costs.
G. The parties hereto desire to delegate to the Association the right,
obligation, responsibility, and authority for the operation and management of
the Resort Village, as set forth herein.
H. The Resort Village is in The Canyons Specially Planned Area ("SPA")
Zone District, under the Snyderville Basin Development Code, pursuant to Summit
County Ordinance Number 333, as amended by Summit County Ordinance Number 333A,
which is implemented by a Development Agreement among Lessor, ASCRP, ASC Utah,
and others, dated July 6, 1998, as amended November __, 1999, as it may be
amended from time to time (the "Development Agreement").
I. The parties to this Agreement desire to establish mechanisms for
payment of fees and charges necessary to implement the Development Agreement and
carry out the objectives of the Association.
J. The Development Agreement requires that a master association be
maintained over development within certain areas of the SPA, for the purpose of
regulating and maintaining certain standards and levels of maintenance of all
buildings, roads, village infrastructure, and landscaping, and for the purpose
of developing certain community amenities to the extent feasible; the parties
hereto desire the Association to fulfill these obligations; and the parties
desire to delegate to the Association the right, obligation, and authority to
perform such functions as more fully set forth herein.
K. ASC Utah, ASCRP, and the Participants desire for the Participants'
Parcels to be operated as an integral part of the Resort Village for the mutual
benefit of all of the parties.
L. All parties desire that the Association operate the Resort Village
in a manner that treats all parties in a fair and equitable manner.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1. Terms Defined in this Agreement. Except as otherwise expressly
provided in this Agreement, the terms used in this Agreement shall be given
their natural, commonly accepted definitions consistent with the Utah
Condominium Ownership Act. In addition to the terms defined elsewhere in this
Agreement, the following terms shall have the following meanings:
1.1 "Assessments" means the Annual Member Assessments, Retail
Assessments, Transient Occupancy Assessments, Real Estate Transfer Assessments,
and the charges, fines, penalties, and other amounts levied, fixed and collected
pursuant to Article IV.
1.2 "Commercial Resort Property" means any Resort Property
used predominantly for retail businesses or commercial services offered to the
public, or wholesale or office activities, since the latest of:
(a) the date on which it became a Resort Property pursuant to this
Agreement;
(b) the date of Substantial Completion of any Improvement on such
Resort Property; or
(c) the earlier of (i) the date of commencement of the term of
occupancy under a lease with respect to such Resort Property
or (ii) the date of first use of such Resort Property for such
services or activities.
"Retail businesses" shall include without limitation businesses engaged
in the sale or lease of tangible personal property. "Commercial services" shall
include without limitation the offering of professional services (including
without limitation medical, legal, accounting, and engineering services) and
nonprofessional services (including without limitation real estate sales and
management, repair, restaurants, health clubs, and beauty salons); "commercial
services" shall not include businesses engaged in the accommodation of tourists,
transients, or permanent guests for compensation. Property owned or controlled
by ASC Utah shall be considered a Commercial Resort Property only for purposes
of the Retail Assessment and only with respect to the retail businesses or
commercial services owned or leased by ASC Utah in the Resort Core other than
facilities primarily related to the operation and administration of ski ticket
sales, ski lifts, ski patrol, ski school, or skiing or snowboard facilities;
provided, however, that retail businesses or commercial services owned by ASC
Utah in Red Pine Village shall be included within the definition of Commercial
Resort Property at such time as the first certificate of occupancy is issued for
a Lodging Resort Property in Red Pine Village. Excluded from the definition of
"Commercial Resort Property" is the operation of snowmobile tours and horseback
riding operations.
1.3 "Commercial Resort Property Member" means any owner of a Commercial
Resort Property.
1.4 "Facilities" means all real property or interests therein,
improvements on real property, personal property, and equipment, dedicated for
use or used by the Association in operating the Resort Village or any Function
thereof.
1.5 "Function" means any activity, function, or service that may be
undertaken by the Association under this Agreement.
1.6 "Function Cost" means, with respect to a particular Function, the
Association's expense, including administrative costs, to perform such Function
in a fiscal year.
1.7 "Improvement" means any building, structure or other improvement,
retaining wall, landscaping, roadway, transportation system, pedestrian pathway,
or any similar alteration of the land, whether of a temporary or permanent
nature, developed or constructed on the Resort Lands, whose primary purpose is
to be used, or which is used as either a Commercial Resort Property, a Lodging
Resort Property or a Residential Resort Property.
1.8 "Lodging Resort Property" means any Resort Property which contains
the attributes of a hotel or a facility established for similar purposes and
which is available for short term occupancy by unit owners or others, and which
contains the following attributes:
Central reservation service for all units, including central check-in
with full-time front desk service, bellhops, and concierge, operated by
the owner/operator, a property management company chosen by the owners'
association, or as a function of the owner's association;
Central access to the building, with no private entrances for
individual units or wings, except in structures which include up to but
not to exceed four dwelling units, unless otherwise approved by the
Director;
Pedestrian traffic funneled through a central lobby area, except in
structures which include up to but not to exceed four dwelling units,
unless otherwise approved by the Director;
Utilities centrally controlled, including cable television, telephone,
electricity, gas, and water; and
Limited storage area for owners.
In addition, such Resort Property shall have been made available for such rental
for more than fourteen (14) days in any calendar year since the latest of:
(a) the date on which it became a Resort Property;
(b) the date of Substantial Completion of any Improvement on the
Resort Property; or
(c) the date of first use of such Resort Property for rental to
the transient public.
With respect to condominiums used for rental to the transient public, "Lodging
Resort Property" means the entirety of property included in any declaration of
condominium, except that individual commercial condominium units shall
constitute Commercial Resort Property for purposes of this Agreement.
1.9 "Lodging Resort Property Member" means an individual owner of a
Lodging Resort Property.
1.10 "Member" means any owner of property within The Canyons SPA or any
lessee of property within The Canyons SPA under a lease with a term of 25 years
or longer (not including renewal options), including each of the following:
(a) Lodging Resort Property Members;
(b) Commercial Resort Property Members;
(c) Residential Resort Property Members;
(d) the Mountain Member; and
(e) all other owners of real estate or fractional or undivided
interest therein.
1.11 "Mortgage" means any mortgage, deed of trust, or other security
instrument (including the seller's rights under a contract for deed) by which
any Resort Land any improvement thereon or any part thereof or interest therein
is encumbered in good faith and for value. A "First Mortgage" is a Mortgage
having priority as to all other Mortgages encumbering any Resort Land, any
improvement thereon, or any part thereof or interest therein.
1.12 "Mortgagee" means any person or entity named as the mortgagee,
beneficiary, or holder of the seller's interest under any Mortgage by which the
interest of any owner of property is encumbered, or any successor to the
interest of such person under such Mortgage. A "First Mortgagee" means any
person or entity holding a First Mortgage including any insurer or guarantor of
a First Mortgage.
1.13 "Mountain Member" means ASC Utah, Inc. d.b.a. The Canyons, or any
successor entity that operates The Canyons Resort.
1.14 "Participant" means each of the property owners within The Canyons
SPA Zone District other than ASCRP, ASC Utah, and the Lessor with respect lands
leased by the Lessor to ASC Utah; provided, however, that the Lessor is a
Participant with respect to any other property owned by Lessor within The
Canyons SPA Zone District and not subject to the Lease described in Recital B
hereof.
1.15 "Person" means any individual or entity, including a corporation,
partnership, limited liability company, trustee or trust, unincorporated
association, public utility, or any municipal or governmental entity or agency.
1.16 "Residential Resort Property" means any Resort Property that is
not a Lodging Resort Property or a Commercial Resort Property, and that has not
been made available for rental to the transient public for more than 14 days in
any calendar year and has been used exclusively for non-commercial purposes, and
that is used predominantly or partially as a single or multi-family residential
accommodation unit since the latest of:
(a) the date on which it became a Resort Property;
(b) the date of Substantial Completion of any Improvement on such
Resort Property; or
(c) the earlier of (i) the date of a sale with respect to such
Resort Property or (ii) the date of first use of such Resort
Property as a residential accommodation unit;
1.17 "Residential Resort Property Member" means any owner of a
Residential Resort Property.
1.18 "Resort Lands" means the real property described on the Plan.
1.19 "Resort Property" means each parcel of real property located
within the Resort Lands that is, or is capable of being, separately owned or
controlled, including each condominium unit or quarter or other fractional share
or club ownership, including without limitation parcels owned by the
Participants, provided that:
(a) any portion of the Resort Lands shall not be considered a
Resort Property for purposes of the Annual Member Assessment
prior to commencement of construction of any improvement
thereon or use thereof for residential, lodging, rental,
commercial or any retail purposes;
(b) a parcel of property owned, leased, held, or used in its
entirety by the Association, or by any governmental entity
(including without limitation Special Improvement Districts
formed pursuant to Utah law), or for or in connection with the
creation, storage, collection, or distribution of electricity,
gas, water, sewer, telephone, television or other utility
service or for access to any property within or without the
Resort Village shall not be considered a Resort Property;
(c) facilities or portions thereof owned or operated by ASC Utah
or located on Resort Lands that are related primarily to the
operation and administration of ticket sales, ski lifts, ski
patrol, ski school, or skiing or snowboard facilities shall
not be considered a Resort Property, and for the purposes of
this subparagraph:
(i) without restricting the generality of the foregoing,
employee housing and changing areas, maintenance
buildings, snowmaking and grooming facilities, and
the like shall be deemed to be facilities related to
the operation and administration of ticket sales, ski
lifts, ski patrol, ski school, or skiing or snowboard
facilities; and
(ii) buildings used for day skier services shall be deemed
to be facilities related to the operation and
administration of ski lifts, ski patrol, ski school,
or skiing or snowboard facilities, except for
commercial businesses located therein that are not
owned or operated by ASC Utah or ASCRP; or
(d) skiing or snowboarding or other recreational facilities owned
or operated by ASC Utah or ASCRP or their affiliates as an
integral part of the operation of the resort shall not
constitute Resort Property.
1.20. "Resort Village" means all of the Participants' Parcels and
Parcel 1, with the exception of the area on which the Mountain Member operates a
ski resort. .
1.21 "Square Footage" means the gross square footage of the floor area
of an Improvement as measured and calculated by the Association on a consistent
basis.
1.22 "Substantial Completion" means the date on which any Improvement
on a Resort Property has received a certificate of occupancy from Summit County,
has been substantially completed as certified by an architect or engineer, or if
no certificate is issued, as determined by the Association.
ARTICLE II
GRANT OF EASEMENTS
2.1 Plan. The Plan reflects the approximate location of the easements
granted hereby on a pre-construction basis. Upon completion of construction
during each construction season, as and when reasonably determined by the
Association, the Association shall have prepared, as an amendment to the Plan, a
survey of all easements granted hereunder. The survey shall be approved by ASC
Utah, ASCRP, the Participants, Textron Financial Corporation, as Administrative
Agent ("Textron") under the mortgage dated September 4, 1998, from Textron to
Grand Summit Resort Properties, Inc., recorded in the Office of the Recorder for
Summit County as entry number 526565, in Book 1217, beginning at Page 184;
BankBoston, N.A. under a Fee and Leasehold Deed of Trust, Assignment of leases
and Rents, Fixture Filing and Security Agreement dated 11/12/97 by and amount
ASC Utah and BankBoston, N.A. as Agent filed in Book 01093, Page 23-65; a Deed
of Trust, Assignment of Leases and Rents, Fixture Filing and Security Agreement
dated as of September 4, 1998 between ASCRP and BankBoston, N.A. as Agent
recorded at Book 12108, Pg. 151; and Key Bank N.A. under a deed of trust,
security agreement, and financing statement with power of sale dated December
18, 1998, and recorded in the Office of the Recorder for Summit County in Book
1253, beginning at Page 264. Pursuant to the provisions of Section 7.1, the
survey shall be recorded as an addendum to this Agreement clarifying the exact
location of the easements granted hereunder.
2.2 Access Easement.
(a) Grant. ASC Utah and ASCRP hereby grant to the Association and
the Participants and Participants' tenants, licensees, guests,
and invitees, for the benefit of the Participants' Parcels,
and the Participants hereby grant to the Association, ASC Utah
and ASCRP and their respective tenants, licensees, guests, and
invitees, for the benefit of Parcel 1, the right and easement,
in common with others, to utilize the roadway system shown on
the Plan, as such roadway system may be expanded and amended
from time to time pursuant to an amendment to the Plan, for
all purposes, including without limitation ingress and egress
on foot and by motor vehicle and for the installation,
maintenance, repair, and replacement of roads, medians,
pavement, drainage ditches, sidewalks, culverts, retaining
walls, directional and informational signs, utility lines,
street lights, wires, pipes, poles, grates, conduits, and
mains, together with the right to alter, excavate, and pave
the surface of the earth for the foregoing purposes
(collectively the "Access Easement"), provided that ASC Utah,
ASCRP, the Participants or the Association, as the case may
be, shall be responsible for obtaining all governmental
approvals for improvements to the Access Easement initially
installed by ASC Utah, ASCRP, such Participants or the
Association, that the surface of the earth and any pavement
and landscaping shall be promptly restored, and any
inconvenience to other parties or disruption of use and
enjoyment by other parties shall be minimized.
(b) Relocation. ASC Utah, ASCRP, and the Association shall have
the right to relocate the roadway system shown on the Plan at
such party's own expense on property owned or controlled by
ASC Utah, ASCRP, or the Association, provided that (i) all
applicable governmental requirements are satisfied, (ii) any
such relocation does not unreasonably interfere with or
disrupt the use of the Access Easement area by the
Participants, (iii) any such relocation does not limit or
restrict the Participants' development of other then-owned or
controlled property, (iv) reasonable prior written notice of
such relocation shall have been given to the Participants and
any mortgagee or holder of a deed of trust of record of the
Participants' Parcels, and (v) the Participants are granted
easements with respect to such relocated roadway system that
are practically equivalent to the easements granted under this
Paragraph.
2.3 Pedestrian Pathways.
(a) Grant. ASC Utah and ASCRP hereby grant to the Association and
the Participants and Participants' tenants, licensees, guests,
and invitees for the benefit of the Participants' Parcels, and
the Participants hereby grant to the Association, ASC Utah,
and ASCRP and their respective tenants, licensees, guests, and
invitees, for the benefit of Parcel 1, the right and easement,
in common with others, to utilize the areas shown as
"Pedestrian Path" on the Plan, as such Pedestrian Path may be
expanded and amended from time to time pursuant to an
amendment to the Plan, for ingress and egress by foot or such
other means as approved by the Association to and from their
respective parcels, and for the installation, maintenance,
repair, and replacement of pavement, drainage ditches, and
information signs. The parties further agree to provide
additional pedestrian easements as reflected on site plans
approved by Summit County.
(b) Relocation. ASC Utah, ASCRP and/or the Association shall have
the right to relocate the Pedestrian Path shown on the Plan,
at ASC Utah's, ASCRP's and/or the Association's own expense,
provided that all applicable governmental requirements are
satisfied, and so long as any such relocation does not
unreasonably interfere with or disrupt the use of the
Pedestrian Path by the Participants, so long as any abandoned
path is landscaped in accordance with the surrounding property
and returned to the relevant Participant at no cost to such
Participant.
2.4 License to Use Facilities.
(a) ASC Utah, ASCRP, and the Association hereby grant to the
Participants and Participants' tenants, licensees, guests, and
invitees for the benefit of the Participants' parcels a
license over, upon, across, and with respect to any Facilities
as appropriate and necessary for access and ingress to and
egress from and use of the Facilities, subject to such
reasonable and uniformly applied fees, rules and regulations
as the Association may impose to assure reasonable use and
enjoyment of Facilities by all persons entitled to such use
and enjoyment.
(b) ASCRP hereby grants to ASC Utah, for the benefit of ASC Utah's
parcels, and ASC Utah hereby grants to ASCRP, for the benefit
of ASCRP's parcels, a license over, upon, across, and with
respect to any Facilities as appropriate and necessary for
access to, ingress to, and egress from the Resort Property of
ASCRP or ASC Utah, as the case may be; encroachment by
improvements caused by the settling, rising, or shifting of
earth; and horizontal and lateral support of improvements;
subject, however, in the case of access, ingress, and egress,
to such reasonable and uniformly applied rules and regulations
as the Association may impose to assure reasonable use and
enjoyment of Facilities by all persons entitled to such use
and enjoyment.
2.5 Utilities.
(a) Grant. ASC Utah and ASCRP hereby grant to the Association and
the Participants on, below, and above Parcel 1 for the benefit
of the Participants' Parcels, and the Participants hereby
grant to ASC Utah, ASCRP, and the Association on, below, and
above the Participants' parcels, for the benefit of Parcel 1,
the right and easement, in common with others, to install,
construct, maintain, and repair utility lines, cables, wires,
conduits, pipes, mains, poles, guys, anchors, fixtures,
supports and terminals, repeaters, and such other
appurtenances of every nature and description as the parties
may deem reasonably necessary to service their properties (the
"Utility Lines") including without limitation those for the
transmission of intelligence by electricity, for water,
electricity, telecommunications, gas, sewage, septic, sanitary
sewer, and drainage. The installation, construction,
maintenance, and repair of the Utility Lines by the
Association and/or the Participants shall not unreasonably
interfere with the development or continuing use of Parcel 1.
The installation, construction, maintenance, and repair of the
Utility Lines by ASC Utah, ASCRP, and/or the Association shall
not unreasonably interfere with the development or continuing
use of the Participants' Parcels, nor shall such Utility Lines
interfere with or be placed under any existing structure or
any structure proposed to be constructed. The parties shall
use their commercially reasonable efforts to install the
Utility Lines so as not to adversely impact the aesthetics of
the surrounding property and to minimize their impact on the
burdened property and shall repair displaced ground to its
former condition.
(b) Location and Relocation. The location of easements for Utility
Lines shall be five (5) feet on each side of the centerline of
such Utility Lines as shown on the Plan, as such Utility Lines
may be expanded and amended from time to time pursuant to an
amendment to the Plan; provided, however, that existing or
future improvements may encroach within the easement area so
long as there is no adverse impact upon maintenance and
operation of the Utility Lines. Each party shall have the
right to relocate the Utility Lines located on such party's
property at its own expense provided that all applicable
governmental requirements are satisfied and so long as any
such relocation does not unreasonably interfere with or
disrupt the use of the easement by the benefited property. For
purposes of this Agreement, a temporary impairment of view
shall not constitute unreasonable interference.
2.6 Easement for Ski Trails, Lifts, Snowmaking Equipment, and
Appurtenances. The Participants, ASCRP, and the Association hereby grant to ASC
Utah, for the benefit of Parcel 1, and for the benefit of any other land that is
or in the future becomes a part of the ski resort operated on Parcel 1, the
right and easement to enter upon each Participant's Parcel or any property they
own within Parcel 1 with persons and equipment for the purpose of constructing,
maintaining, using, locating, relocating, grooming, and repairing ski trails,
ski lifts and people movers, lift towers, trail identification signs, snowmaking
equipment, pipes, hoses and hydrants, and any necessary appurtenances thereto
exclusive of areas occupied by structures, including structures under
construction or approved for construction by the Design Review Committee
pursuant to Article 5 hereof; provided, however, that the exercise of these
easement rights shall be at the sole expense of ASC Utah, and the exercise of
such easement rights shall not materially interfere with the use or occupancy of
ASCRP as to its property within Parcel 1 or the Participants' Parcels by
Participants or their guests and invitees. Without limiting the generality of
the foregoing, the grant of easement herein includes easements through the air
above the surface of the ground for ski lifts. For purposes of this Agreement,
any impairment of view shall not constitute a material interference with use or
occupancy of the units.
ASC Utah hereby agrees to allow tenants, licensees, guests and invitees
of ASCRP, the Association and the Participants to utilize ski trails constructed
and operated by ASC Utah on Parcel 1 and on the Participants' Parcels for access
to the ski area located on Parcel 1; provided, however, that any use of ski
lifts, trails, or other skier facilities located on Parcel 1 by the Association,
or owners or occupants of the Participants' Parcels shall be on the same terms
and conditions as other patrons of the ski area, including without limitation
payment of any access fees or usual and ordinary ticket prices of general
application as determined by ASC Utah in its sole discretion.
2.7 License for Signage. ASC Utah and ASCRP hereby grant to the
Participants on Parcel 1, for the benefit of Participants' Parcels, a license,
for the benefit of the Participants' Parcels, to install, construct, and
maintain signs at such locations as are approved by the Association in
accordance with reasonable signage guidelines adopted by the Association from
time to time. Prior to installation by the Participants of any sign on Parcel 1,
the design, colors, lighting, size, and exact location shall be presented to the
Design Review Committee provided for in Article V hereof for its written
approval.
2.8 Electrical Power. From time to time, in connection with the
operation of certain temporary activities or events within the Resort Village,
the Association may be required to draw electrical power from one or more of the
Participants. Each Member shall allow the Association to draw electrical power
from time to time as necessary for such temporary uses, so long as the
Association pays fair market value for the electrical power so drawn and so long
as such Member has the ability to provide such power without causing a negative
impact on such Member's operations.
2.9 Temporary License for Construction and Maintenance. ASC Utah and
ASCRP (for purposes of this Section 2.9, collectively "Grantors") hereby grant
to ASCRP, The Canyons Resort Properties, Inc., Grand Summit Resort Properties,
Inc., and any Transferee of property from ASC Utah or ASCRP and their invitees
and contractors (for purposes of this Section 2.9, collectively "Grantees") a
non-exclusive, temporary license for construction, maintenance, repair, and
replacement ("Temporary Construction License") on, over, across and through that
portion of Grantors' property located in the vicinity of Grantees' parcels not
otherwise presently occupied by completed structures for the sole purpose of
ingress to and egress from Grantees' parcels, staging and temporary storage of
construction equipment and materials, and other uses directly related to
construction and maintenance and management of construction and maintenance on
Grantees' parcels, including without limitation, post-completion repair and
warranty work, maintenance, and repair and replacement of damaged property
(collectively the "Work"), all at the risk and expense of Grantees. The size,
configuration and dimensions of the Temporary Construction License shall be
limited to that portion of Grantors' property located contiguous to and in the
vicinity of Grantees' parcels as is reasonably needed to complete the Work.
Grantors shall have the right to request that the location of the Work be
altered to accommodate the use of Grantors' property provided that such
relocation does not unreasonably delay or interfere with the completion of the
Work.
The Temporary Construction License is non-exclusive and Grantees shall
conduct their activities on, and otherwise use, the Temporary Construction
License in such a manner so as not to unreasonably interfere with Grantors' use
of their property or the operation of their businesses or Association business.
Grantees shall repair any and all damage that may be caused to
Grantors' parcels by reason of their use of the Temporary Construction Easement.
Grantees shall indemnify and hold Grantors and Grantors' contractors, employees,
officers, trustees and agents, and the Grantor property harmless from and
against all claims of any nature that may arise from Grantees' use of the
Temporary Construction Easement, except those claims that may arise from the
sole negligence of Grantors or their employees and agents.
ARTICLE III
THE CANYONS RESORT VILLAGE ASSOCIATION
3.1 The Canyons Resort Village Association. The parties to this
Agreement desire to delegate the management and operation of the rights, duties,
and obligations arising under this Agreement with respect to the Resort Village
to the Association, which is a nonprofit corporation organized under the laws of
the State of Utah in accordance with the Articles of Incorporation and Bylaws to
be adopted by the Association, which will be consistent with the terms of this
Agreement. In consideration of the easements granted in Article II and as a
condition of the continuation of such easements, the Participants and any Person
that succeeds to the interests of each of the Participants to such Participants'
Parcels and any real estate interest therein and ASC Utah and ASCRP shall be
Members of the Association.
3.2 Purposes and Powers of the Association. Except as otherwise
provided herein or in the Articles of Incorporation, Bylaws, or the Development
Agreement, the Association shall have all the powers, duties, and
responsibilities as are now or may hereafter be provided by this Agreement, the
Articles of Incorporation, the Bylaws, or the Development Agreement, including
but not limited to the following:
(a) To make and enforce all rules and regulations covering the
operation and maintenance of the Resort Village.
(b) To engage the services of a manager, accountants, attorneys,
or other employees or agents and to pay to said persons a
reasonable compensation therefor.
(c) To acquire, own, lease, operate, build, manage, maintain,
rent, sell, develop, encumber, hold, and otherwise deal in and
with real and personal property of every kind and character,
tangible and intangible, wherever located, and interests of
every sort therein; provided, however, that
(i) the Association shall reimburse any Member
who transfers, leases, or otherwise makes
available to the Association property on
which infrastructure or amenities are built
by the Association, the actual cost of such
property to such Member (including, in the
case of property that is leased by the
Member, the proportionate share of all costs
or other payments under such lease
associated with such property); and
(ii) if the property used by the Association for
infrastructure or amenities was initially
entitled to density under the Development
Agreement, as amended, the Association shall
reimburse such Member the fair market value
of such property, unless the original
density is transferred to another property
owned or controlled by that Member and the
value of the transferred density is
comparable to the original density, in which
case the Association shall reimburse the
Member the Member's actual cost for the
property.
(d) To acquire, own, lease, operate, build, manage, maintain,
rent, sell, develop, encumber, hold, and otherwise deal in and
with any Facilities including but not limited to buildings and
other structures; daycare facilities; teen centers; roads,
walkways, streets, and pedestrian paths; parks, playgrounds,
open spaces, gardens, fountains, common areas and public
areas; amphitheaters and other public entertainment areas;
utility lines and systems; outdoor lighting systems;
waterways; landscaping, including without limitation plants,
trees, shrubs, and grass; a medical clinic; cross country ski
facilities; pedestrian, hiking, equestrian, and biking trails;
equestrian facilities; ice rinks; swimming pools, saunas,
steam baths, and spas; golf courses and tennis courts and
other game courts, game areas, and recreational amenities; and
such improvements and equipment as may be appropriate for use
in connection with the operation and maintenance of a world
class resort village.
(e) To determine and pay the expenses of the Association.
(f) To levy the Member Assessments, Retail Assessments, Transient
Occupancy Assessments, Real Estate Transfer Assessments, and
such other assessments as are authorized hereunder against
Members as provided in this Agreement and in the Bylaws; to
charge interest on unpaid assessments and to collect charges,
fees, fines, penalties, and interest in accordance with this
Agreement and the Bylaws, and to create and enforce liens
given as security for such assessments, charges, fees, fines,
penalties, and interest.
(g) To grant easements and licenses and to enter into contracts,
deeds, leases, and/or other written instruments or documents
and to authorize the execution and delivery thereof by the
appropriate officers.
(h) To open bank accounts and designate the signatories therefor.
(i) To borrow funds or raise moneys for any of the purposes of the
Association and from time to time to execute, accept, endorse,
and deliver as evidences of such borrowing, all kinds of
instruments and securities, including but not limited to
promissory notes, drafts, bills of exchange, warrants, bonds,
debentures, property certificates, trust certificates, and
other negotiable or non-negotiable instruments and evidences
of indebtedness, and to secure the payment and performance of
such securities by mortgage on, or pledge, conveyance, deed,
or assignment in trust of, the whole or any part of the assets
of the Association, real, personal, or mixed, including
contract rights, whether at the time owned or hereafter
acquired.
(j) To enter into, make, amend, perform, and carry out, or cancel
and rescind, contracts, leases, permits, management
agreements, and concession agreements for any lawful purposes
pertaining to its business.
(k) To make any guaranty with respect to securities, indebtedness,
notes, interest, contracts, or other obligations created by
any individual, partnership, association, corporation or other
entity, and to secure such guaranties by encumbrance upon any
and all assets of the Association, to the extent that such
guaranty is made in pursuance of the purposes herein set
forth.
(l) To lend money for any of the purposes above set forth; to
invest its funds from time to time and take and hold real and
personal property as security for payment of funds so loaned
or invested.
(m) To promote and market the Resort Village as a world-class
destination resort.
(n) To bring, prosecute, and settle litigation for itself and the
Resort Village.
(o) To obtain insurance for the Association with respect to
workers' compensation, general liability, and any other
insurance it deems necessary or appropriate to protect the
Members and the Association.
(p) To repair or restore any Facilities following damage or
destruction or a permanent taking by the power of or power in
the nature or eminent domain or by an action or deed in lieu
of condemnation.
(q) To keep adequate books and records and implement the policies
and procedures for the inspection of the books and records of
the Association by Members in accordance with the terms of the
Bylaws.
(r) To prepare, adopt, amend, and disseminate budgets and other
information from time to time in accordance with the terms of
the Bylaws.
(s) To grant easements and rights of way over the Facilities owned
or leased by the Association and to approve signage for the
Resort Village and enter into contracts with a management
entity and other entities. Such contracts may, among other
things, obligate the Association to pay assessments and other
costs associated with the maintenance of Facilities that
benefit the Association.
(t) Subject to applicable law, to delegate to a manager by written
agreement all of the powers, duties, and responsibilities of
the Association referred to in this Agreement.
(u) To convey or subject to a mortgage all property owned and
rights held by the Association, including without limitation
Facilities and Assessments; provided, however, that such
actions shall not impair or affect the rights and easements
established under Article 2 of this Amended Agreement.
(v) To organize and sponsor events.
(w) To operate or participate in a transportation system within
the Resort Village and in connection therewith to purchase,
construct, own, or lease and maintain and repair such
roadways, walkways, conveyors, Resort Village transportation
lifts, people movers, rail transport, buses, other vehicles,
and parking lots or parking structures as may be necessary or
convenient for the operation of the Resort Village. To operate
or participate in a transportation system between various
parts of the Park City, Kimball Junction, and Salt Lake City
area and/or between the Resort Village and other parts of the
United States and other areas, and in connection therewith to
enter into special fare program commitments with airlines, own
or lease such buses, rail transport, aircraft, or other
vehicles as may be necessary or convenient for operation of
the Resort Village, and provide for their maintenance and
repair.
(x) To provide, or to enter into agreements with third parties
pursuant to which such third parties may provide, cable
television, telecommunications, electronic communications, or
telephone services, or any service capturing, creating, or
transmitting television, telephone, telecommunications, or
electronic communications signals, and in connection
therewith, to approve or prohibit the placement of appropriate
satellite dishes, antennae, or other similar equipment with
the Resort Village.
(y) To construct, acquire, lease, operate, manage, and maintain
parking facilities within the Resort Village for general
resort guest utilization.
(z) To establish charges for use of Facilities and Functions to
assist the Association in offsetting the costs and expenses
attributable to the use of Facilities; provided that all
charges established shall be reasonable and shall be uniformly
applied with the exception that such charges may differentiate
between Member classifications and each Member shall be
obligated to and shall pay any such charges for use.
(aa) To provide for the care, operation, management, maintenance,
repair, and replacement of the Facilities.
(bb) To pay all costs imposed by, associated with, or incurred as a
result of the Development Agreement or other federal, state,
or local governmental laws, rules, or regulations, including
without limitation costs of benchmarking, studies, consultants
fees and costs, and performance costs.
(cc) To do everything necessary, suitable, convenient, or desirable
for the accomplishment of any of the purposes, the attainment
of any of the objects, or the furtherance of any of the powers
set forth in this Agreement, either alone or in connection
with other corporations, firms, or individuals, and either as
principal or agent, and to do every act or thing incidental or
appurtenant to, or growing out of, or connected with any of
the aforesaid objects, purposes, or powers.
(dd) To provide for the reimbursement to ASCRP of the development
cost charges already incurred by ASCRP in the development of
the Resort Village, as set forth in Section 4.9 hereof.
(ee) To act in accordance with the requirements of the Development
Agreement and to ensure compliance therewith.
3.3 Certain Obligations and Rights of the Association. The obligations
and rights of the Association include, but are not limited to, the following.
(a) Events. The Association may organize and sponsor events,
including without limitation theatrical and musical
performances, sporting events and exhibitions, performances
and displays by local artists, and other events and
exhibitions.
(b) Property Maintenance Function. The Association shall provide
for the care, operation, management, maintenance, repair, and
replacement of all Facilities. This obligation shall include,
without limitation, (i) ensuring that the Facilities are
adequately lighted; (ii) maintaining the parking areas, walks,
trails, drives, malls, stairs, street furniture, and any
resort transportation, ice rink, forum, and other
infrastructure, and similar Facilities in consistently good
condition and attending to the removal of snow and the
application of sand and salt as is necessary for the customary
use and enjoyment of such Facilities; (iii) attending to the
maintenance of the open spaces of the Resort Village,
including public spaces and unimproved areas, and providing
care for the plants, trees, shrubs, and other vegetation in
the Resort Village up to the lot lines of the individual
buildings within the Resort Village; and (iv) plowing,
sanding, salting, and cleaning any roads and sidewalks within
the Resort Village.
(c) Rules and Regulations. The Association may make, amend, and
enforce rules and regulations applicable within the Resort
Village with respect to any of the Facilities, operations, or
Functions as a part of the Resort in addition to the
restrictions contained in Article VI hereof, including, but
not limited to, rules and regulations:
(i) to prevent or reduce fire hazard;
(ii) to regulate signs;
(iii) to regulate use of any and all Facilities;
(iv) to assure fullest enjoyment of use of the Facilities
by the persons entitled to enjoy and use the same;
(v) to protect and preserve property and property rights;
(vi) to promote the economic viability of the Resort
Village; and
(vii) to reasonably regulate the hours of operation for all
commercial operations.
(viii) To ensure that buildings are built in accordance with
the architectural guidelines as developed,
administered, and enforced from time to time by the
Board of Trustees of the Association or its designee.
All rules and regulations adopted by the Association shall be
reasonable and shall be uniformly applied. The Association may
provide for enforcement of any such rules and regulations
through exclusion of violators from Facilities, or otherwise.
(d) Security. The Association may, but shall not be obligated to,
provide security within some portion or all of the Resort
Village.
(e) Marketing. The Association may provide a suitable and
continuing program to promote the Resort Village as a
desirable year-round destination, including but not limited to
stimulating participation in and coordinating major events;
ongoing Resort Village programming; advertising and placing
articles in news media; publishing brochures; establishing
uniform standards for promotional programs of individual
Members; involvement in lecture tours and ski shows;
encouraging responsible groups to hold conferences and
meetings within the Resort Village, and selling, coordinating,
and negotiating arrangements and accommodations for such
groups; conducting tour operations; publishing a newsletter;
providing and operating reception and information centers; and
such other activities as may be necessary or desirable for the
promotion of the Resort Village as determined by the
Association in its discretion. The Association may promote the
Resort village in conjunction with or through any organization
that may be engaged in the promotion of snow-related or other
sports and may pay its fair share of the costs and expense of
promotional activities of any such organization.
(f) Members' Enjoyment of Functions and Facilities. Each Member
shall be entitled to use and enjoy any Facilities suitable for
general use or the services provided by any Functions, and to
grant licenses for such use and enjoyment to its tenants,
guests, and invitees subject to such reasonable rules and
regulations that the Association may adopt and subject to such
reasonable and uniformly applied charges that the Association
may impose to offset costs and expenses, depreciation, and
capital expenses, subject to the provisions of this Agreement
and subject to the following specific limitations. All charges
established under this section shall be reasonable and shall
be uniformly applied, and each Member shall be obligated to
and shall pay any such charges for use. There shall be no
obstruction of any Facilities nor shall anything be stored in
or on any part of any Facilities without the prior written
consent of the Association. Nothing shall be done or kept on
or in any Facility that would result in the cancellation of
the insurance or any part thereof that the Association is
required to maintain pursuant to this Agreement or increase
the rate of the insurance or any part thereof over what the
Association, but for such activity, would pay, without the
prior written consent of the Association. Nothing shall be
done or kept on or in such Facilities that would be in
violation of any statute, rule, ordinance, regulation, permit,
or other requirement of any governmental body. No damage to,
or waste of, Facilities shall be committed, and each Member
shall indemnify and hold the Association and the other Members
harmless against all loss resulting from any such damage or
waste caused by such Member.
(g) Employee Housing. The Association may provide employee housing
for Resort Village employees. In the event that the
Association constructs employee housing, the Mountain Member
shall contribute to the costs of construction of such housing
in an amount proportionate to the projected use of such
housing by employees of the Mountain Member at the time of
construction.
(h) Other Functions. The Association may undertake such other
Functions and activities as may be necessary or convenient for
the operation of the Resort Village, as determined by the
Association in its discretion, including without limitation
providing cooperative purchasing services, telephone answering
service, warehousing and delivery services, and central
laundry service for some or all Members.
3.4 Membership in the Association. There shall be one membership in the
Association attributable to fee simple title ownership, timeshare ownership,
club ownership, or Long Term Lease (where "Long Term Lease" means a lease of 25
years or more) of each Resort Property within the Resort Lands. Each such
membership shall be appurtenant to the fee simple title, timeshare or club
ownership to such Resort Property or Long Term Lease of such Resort Property.
The owner of a Resort Property, or lessee under a Long Term Lease of a Resort
Property, shall automatically be the holder of the membership appurtenant to
that Resort Property. Each owner of a Resort Property or lessee under a Long
Term Lease of a Resort Property shall automatically be entitled to the benefits
and subject to the burdens relating to the membership for that Resort Property.
If fee simple title to, or timeshare or club ownership of, a Resort Property is
held by more than one person or entity, or if a Long Term Lease is in the name
of more than one person or entity, the membership appurtenant to that Resort
Property or Long Term Lease shall be shared by all such persons or entities in
the same proportionate interest as such ownership or Lease of the Resort
Property is held.
3.5 Classes of Membership. The Association shall have the two (2)
classes of voting membership set forth below:
Class A: The Class A Members shall be American Skiing Company Resort
Properties, Inc. or its successors or assigns and the Mountain Member.
Class B: The Class B Members shall be the memberships attributable to
the Resort Property in The Canyons SPA Zone District other than the Class A
Members. Each Class B Member at the time this Agreement is recorded shall pay a
one-time fee of $1,500 (One Thousand Five Hundred Dollars) toward its
representative's fees and costs in negotiating and drafting this Agreement.
3.6 Board of Trustees.
(a) Appointment and Election. The control and management of the
Association and the disposition of its funds and property
shall be vested in a seven-member Board of Trustees who need
not be Members of the Association. Members shall have the
right to elect Trustees as follows:
(i) Class B Members shall have the right to elect three
(3) members of the Board of Trustees, who shall hold
office for terms of two (2) years each. Each Class B
Member shall be entitled to one vote per square foot
of density allocated to such Member's Resort Property
by the Development Agreement. Cumulative voting shall
not be permitted.
(ii) The Class A Members shall appoint four (4) members of
the Board of Trustees, who shall hold office for a
term of two years each. Notwithstanding the
foregoing, at such time as certificates of occupancy
have been issued for 75% of the square footage
authorized to be constructed pursuant to the
Development Agreement, the Class A Member shall
thereafter only appoint three members of the Board of
Trustees, and the Class A Trustees, on one hand, and
the Class B Trustees, on the other, shall together
unanimously appoint a remaining at-large Trustee, who
shall serve for a term of two years. The at-large
Trustee appointed pursuant to the preceding sentence
shall be first appointed at the first regular or
special meeting of the Board of Trustees held after
the Class A Member becomes authorized to appoint only
three Trustees as provided above. Thereafter, the
Trustees other than the at-large Trustee shall
appoint the at-large Trustee every two years.
(iii) Any of the Trustees may serve for consecutive terms
if so appointed or elected.
(iv) The Trustees shall serve without compensation.
Members shall have no voting rights other than the right to
elect members of the Board of Trustees as set forth in this
Section 3.6.
(b) Resignations, Vacancies. Any trustee may resign at any time by
giving written notice to the president or the secretary of the
Association. Such resignation shall take effect at the time
specified, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make
it effective. Any vacancy occurring in the Board of Trustees
by reason of resignation or death of any trustee elected by
Class B Members may be filled by the affirmative vote of a
majority of the Class B Trustees then in office, though not
less than a quorum. Any vacancy occurring in the Board of
Trustees by reason of resignation or death of any trustee
appointed by the Class A Member shall be filled by appointment
by the Class A Member. Any trustee elected or appointed to
fill any vacancy in the Board of Trustees shall serve until
the expiration of the term of his or her predecessor.
(c) General Powers. The Board of Trustees shall have and may
exercise all the powers of the Association except as are
expressly conferred upon the Members by law, the Articles of
Incorporation, or the Bylaws, or this Agreement as from time
to time in force and effect; provided, however, that he Board
of Trustees shall at no time be empowered to authorize any act
or omission that would place the Association in default of the
Development Agreement.
Prior to the time the Class A Member becomes authorized to
appoint only three Trustees as provided in subparagraph
(a)(iii) above, the following restrictions apply:
(i) The Board of Trustees may not take any of the actions
listed below without obtaining approval of five (5) of the
seven (7) Trustees:
A. increase or decrease the rate of the Real Estate
Transfer Assessment, the Retail Assessment, or the
Transient Occupancy Assessment, and after the first
three years of the Association's existence, the
Annual Member Assessment, all as defined in Article 4
of this Agreement;
B. authorize a single purpose capital commitment of
over $5,000,000 (Five Million Dollars), other than
for the golf course or the Association's contribution
to the people mover or to the parking garage, all of
which are contemplated by the Development Agreement
and described in further detail therein; or
C. lend or advance money or sell or lease any
property or right of the Association other than in
the ordinary course of business.
(ii) Approval of six of the seven Trustees shall be required
for the material alteration, repeal, or amendment of the
articles of incorporation or bylaws of the association;
(iii) Unanimous approval of the Trustees shall be required for
the following acts by the Trustees:
A. the implementation of any assessment other than
the Annual Member Assessment, the Transient Occupancy
Assessment, the Retail Assessment, or the Real Estate
Transfer Assessment;
B. the merger, dissolution, or liquidation of the
Association, which is also subject to County
approval.
(d) Regular Meetings. Regular meetings of the Board of Trustees
may be held without call or formal notice at such places
within the State of Utah, and at such times as the Board may
from time to time by vote determine. Any business may be
transacted at a regular meeting. Until further determination,
the regular meeting of the Board of Trustees for the election
of officers and for such other business as may come before the
meeting may be held without call or formal notice immediately
after, and at the same place as, the annual meeting of
Members.
(e) Special Meetings. Special meetings of the Board of Trustees
may be held at any place within Utah at any time when called
by the president, or by two or more trustees, upon at lease
three days prior notice of the time and place thereof being
given to each Trustee by leaving such notice with him or her
at his or her residence or usual place of business, or by
mailing or telegraphing it prepaid, and addressed to such
Trustee at his or her post office address as it appears on the
books of the Association, or by telephone or facsimile
transmission. Notices shall state the purposes of the meeting.
No notice of any adjourned meeting of the Trustees shall be
required.
(f) Quorum. Prior to the appointment of the at-large Trustee, a
minimum of three Class A Trustees and two Class B Trustees
shall constitute a quorum; and after the appointment of the
at-large Trustee, a majority of the number of Trustees fixed
by the Bylaws shall constitute a quorum for the transaction of
business. A lesser number than the quorum may adjourn any
meeting from time to time. When a quorum is present at any
meeting, a majority of the Trustees in attendance shall,
except where a larger number is required by law, by the
Articles of Incorporation, the Bylaws, or this Agreement as
from time to time in force and effect, decide any question
brought before such meeting.
(g) Waiver of Notice. Before, at, or after any meeting of the
Board of Trustees, any Trustee may, in writing, waive notice
of such meeting and such waiver shall be deemed equivalent to
the giving of such notice. Attendance by a Trustee at any
meeting of the Board shall be a waiver of notice by him or her
except when a Trustee attends the meeting for the express
purpose of objecting to the transaction of business because
the meeting is not lawfully called or convened.
(h) Informal Action by Trustees. Any action required or permitted
to be taken at a meeting of the Trustees may be taken without
a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the Trustees entitled to vote
with respect to the subject matter thereof. Such consent shall
have the same force and effect as a unanimous vote of the
Trustees.
(i) Presence at Meetings. Any Trustee may participate in a regular
or special meeting of the Board of Trustees by, and such
meeting may be conducted through the use of, any means of
communication by which all Trustees participating may hear
each other during the meeting. A Trustee participating in a
meeting by this means is deemed to be present in person at the
meeting.
(j) Dispute Resolution. The Board shall first exhaust all efforts
to avoid disputes over the interpretation or enforcement of
this Agreement. In the event that an impasse occurs, the
Trustees shall vote on the appointment of a mediator, and if a
mediator is approved by five of the seven Trustees, such
mediator shall be appointed and empowered to render an
enforceable resolution.
(k) The Board of Trustees shall owe a fiduciary duty to all
Members in accordance with Utah law.
3.7 Annual Meeting.
(a) Annual Meeting. The annual meeting of the Members shall be
held at a place in the Resort Village designated by the Board
of Trustees the first Saturday of November in each year, or at
such other date designated by the Board of Trustees, for the
purposes of electing Trustees. The purpose of the annual
meeting shall be to elect Trustees and for such other purposes
as the Board of Trustees shall determine.
(b) Quorum. Except as otherwise provided in the Articles of
Incorporation or the Bylaws, the presence in person or by
proxy of Members of a class who are entitled to vote more than
20 percent of the total votes for the Members of such class
shall constitute a quorum for such class for the election of
members of the Board of Trustees.
(c) Proxies. Votes may be cast in person or by proxy. Every proxy
must be executed in writing by the Member or his or her duly
authorized attorney in fact. No proxy shall be valid after the
expiration of eleven months from the date of its execution,
and every proxy shall automatically cease at such time as the
Member granting the proxy no longer qualifies as a Member in
the class of membership for which vote the proxy was given.
(d) Majority Vote. At the annual meeting, if a class quorum is
present, the affirmative vote of a majority of the votes
represented at the meeting, in person or by proxy, shall be
the act of the Members of such class unless the vote of a
greater number is required by law, the Articles of
Incorporation, or the Bylaws as from time to time in force and
effect.
3.8 Officers of the Association.
(a) Officers. The Board of Trustees shall appoint the following
officers of the Association, which officers need not be
members of the Board of Trustees: a president, one or more
vice presidents, a secretary, and a treasurer. The Board of
Trustees may appoint such other officers, assistant officers,
committees, and agents as it may consider necessary or
advisable, who shall hold their offices for such terms and
have offices, except that no person may simultaneously hold
the offices of president and secretary.
(b) Removal of Officers. Upon an affirmative vote of a majority of
the voting members of the Board of Trustees, any officer may
be removed, either with or without cause, and a successor
appointed at any regular meeting of the Board of Trustees or
at any special meeting of the Board called for such purpose.
(c) Vacancies. A vacancy in any office, however occurring, may be
filled by the Board of Trustees for the unexpired portion of
the term.
(d) President. The president shall be the chief executive officer
of the Association. He or she shall have the general and
active control of the affairs and business of the Association
and general supervision of its officers, agents, and
employees.
(e) Vice Presidents. The vice presidents shall assist the
president and shall perform such duties as may be assigned to
them by the president or by the Board of Trustees. In the
absence of the president, the vice president designated by the
Board of Trustees or (if there shall be no such writing)
designated in writing by the president shall have the powers
and perform the duties of the president.
(f) Secretary. The secretary shall: (i) keep the minutes of the
proceedings of the Members and the Board of Trustees; (ii) see
that all notices are duly given in accordance with the
provisions of this Agreement and the Bylaws, the Articles of
Incorporation, and as required by law; (iii) be custodian of
the corporate records; keep at the Association's office a
record containing the names and addresses of all Members, the
designation of the Resort Property owned or leased by each
Member, and, if such Resort Property is mortgaged and the
mortgagee has given the Association notice thereof, the name
and address of the mortgagee; (v) in general, perform all
duties incident to the office of secretary and such other
duties as from time to time may be assigned to him or her by
the president or by the Board of Trustees.
(g) Treasurer. The treasurer shall be the principal financial
officer of the Association and shall have the care and custody
of all funds, securities, evidences of indebtedness and other
personal property of the Association and shall deposit the
same in accordance with the instructions of the Board of
Trustees. The treasurer shall receive and give receipts and
acquittances for moneys paid in on account of the Association,
and shall pay out of the funds on hand all bills, payables,
and other just debts of the Association of whatever nature.
The treasurer shall perform all other duties incident to the
office of the treasurer and upon request of the Board of
Trustees, give the Association a bond in such sums and with
such sureties as shall be satisfactory to the Board,
conditioned upon the faithful performance of his or her duties
and for the restoration to the Association of all books,
papers, vouchers, money, and other property or whatever kind
in the treasurer's possession or under his or her control
belonging to the Association. The treasurer shall have such
other powers and perform such other duties as may be from time
to time prescribed by the Board of Trustees or the president.
3.9 Assignment of Rights or Obligations to a Lessee. An owner of fee
simple title to a Resort Property may assign to a lessee under a lease with a
term of 25 years or less all (but not less than all) of such owner's rights and
obligations under this Agreement as a Member in the Association, and may enter
into an arrangement with such lessee under which the lessee shall agree to
assume all of such Member's obligations hereunder as a Member of the
Association. The Association shall recognize any such lease or assignment
provided that, to be effective with respect to the Association, such lease or
assignment shall be in writing, shall be in terms deemed satisfactorily specific
by the Association, and a copy thereof shall be filed with and approved by the
Association. Notwithstanding the foregoing, no Member shall be permitted to
relieve himself or herself of the ultimate responsibility for fulfillment of all
obligations hereunder of a Member arising during the period she or he is a
Member.
3.10 Limitation of Liability of Board of Trustees.
(a) The members of the Board of Trustees, the officers, and any
assistant officers, agents, and employees of the Association
(i) shall not be liable to the Members of the Association as a
result of their activities as such for any mistake or
judgment, negligence, or otherwise, except for their own
willful misconduct or bad faith; (ii) shall have no personal
liability in contract to a Member of the Association or any
other person or entity under any agreement, instrument, or
transaction entered into by them on behalf of the Association
in their capacity as such; (iii) shall have no personal
liability in tort to any Member of the Association or any
person or entity, direct or imputed, by virtue of acts
performed by them, except for their own willful or wanton
misfeasance, gross negligence, or bad faith, nor for acts
performed for them in their capacity as such; and (iv) shall
have no personal liability arising out of the use, misuse, or
condition of the Resort Village or the Facilities that might
in any way be assessed against or imputed to them as a result
for by virtue of their capacity as such.
(b) If a member of the Board of Trustees is sued for liability for
actions undertaken in his or her role as a member of the Board
of Trustees, the Association shall indemnify such Trustee for
such Trustee's losses or claims, and undertake all costs of
defense, until and unless it is proven that such Trustee acted
with willful or wanton misfeasance or with gross negligence.
After such proof, the Association is no longer liable for the
cost of defense, and may recover costs already expended from
the Trustee who so acted. Members of the Board of Trustees are
not personally liable to the victims of crimes occurring in
the Resort Village. Punitive damages may not be recovered
against the Association, but may be recovered from persons
whose activity gave rise to the damages.
3.11 Right to Dispose of Facilities. The Association shall have full
power and authority to sell, lease, grant rights in, transfer, provide exclusive
or limited access to, encumber, abandon, or dispose of any Facilities owned by
the Association in the operation and management of the Village, other than any
property on Participants' Parcels.
3.12 Governmental Successor. Any of the Facilities and any Functions
carried out by the Association may be turned over to a governmental entity that
is willing to accept and assume the same under the terms and conditions of this
Agreement.
ARTICLE IV
ASSESSMENTS
4.1 Obligation to Pay Assessments. Each Member, in exchange for the
easements and other benefits conferred by this Agreement, covenants and agrees
to pay to the Association the Annual Member Assessments, Retail Assessments,
Transient Occupancy Assessments, and Real Estate Transfer Assessments and
charges, fines, penalties, or other amounts to be levied, fixed, established and
collected as set forth in this Agreement and the Articles of Incorporation,
Bylaws, and rules and regulations of the Association as from time to time in
force and effect.
4.2 Purpose of Assessments. The assessments levied and any charge,
fine, penalty, or other amount collected by the Association shall be used
exclusively to pay expenses that the Association may incur in performing any
actions permitted or required under this Agreement or its Articles of
Incorporation or Bylaws as from time to time in force and effect, including but
not limited to operating expenses and the costs of acquiring, constructing, and
purchasing Facilities and performing Functions. This Section 4.2 shall not
prohibit the Association from establishing appropriate reserves to defray
anticipated expenses and investing all excess cash in a prudent manner.
4.3 Annual Member Assessments. The Association shall initially levy and
collect from each member an Annual Member Assessment. The Annual Member
Assessment shall be set at the initial rate of $.40 per square foot for the
first three years of the Association's operation for all developed improvements
to property that are substantially complete; thereafter, the Board of Trustees
shall review the Annual Member Assessment rate and shall adjust it to the level
necessary to maintain the Resort Village.
(a) All Annual Member Assessments to be levied shall be levied
monthly in advance or at such other time as the Association
may decide and shall be payable within thirty (30) days after
being levied, and each such assessment not paid within thirty
(30) days of the date (the "Levy Date"), which is the date of
mailing of notice of the assessment, shall accrue interest
until fully paid at 5% (five percent) per annum over the rate
of interest announced from time to time by BankBoston, N.A.,
as its "prime rate" for commercial loans; such interest shall
be payable on demand computed monthly, and if unpaid,
compounded monthly, not in advance, at the rate so calculated
as of thirty (30) days after the Levy Date, and all accruing
interest shall become a part of the assessment due and owing
to the Association. All other amounts owed to the Association
shall bear interest at the same rate calculated and payable in
the same manner.
(b) The Annual Member Assessments shall be used solely for
maintenance of the Resort Village, either for that budget year
or as a sinking fund for future maintenance or replacement of
worn facilities.
4.4 Retail Assessments.
(a) The Association shall levy upon and collect from each
Commercial Resort Property Member in the Association an
assessment which shall be known as a "Retail Assessment," with
respect to (a) all sales of tangible personal property made by
such Member or made, consummated, conducted, or transacted at,
from, in connection with, or in any way arising out of or
associated with such Member's Resort Property, and (b) all
sales of services, including but not limited to equipment
rental made, performed, or rendered by or on behalf of such
Member within the Resort Village that are subject to Utah
state sales tax pursuant to Utah Code Annotated 59-12-101
("Utah Sales Tax"), excluding, however, any lodging rentals
and any other exclusions from and conditions to the definition
of Commercial Resort Property Member in Sections 1.6 and 1.7
above. The Retail Assessment rate shall be 2.5% (two and
one-half percent), with the exception that for temporary
tenants during the period through March 31, 2000, the Retail
Assessment rate shall be 1% (one percent).The Retail
Assessment shall be applied an amount in addition to, and
shall be applied to the price or charge of, any transaction as
described above. The Retail Assessment rate may be adjusted by
the Board after three years as provided in Section 3.6(c)
herein. Retail Assessments shall not apply to any gross
receipts from sales in connection with (i) any event sponsored
by the Association, or (ii) any event sponsored by an
organization exempt from Utah Sales Tax, but only to the
extent such gross receipts relate to purchases by the
organization for official organization business that are
therefore exempt from Utah Sales Tax.
(b) The Retail Assessments due with respect to a Member's Resort
Property shall be due and payable to the Association, without
notice by the Association, each time and at such time as the
Utah Sales Taxes associated with such Resort Property are
required to be remitted or paid to the State of Utah. Each
such Member shall also deliver to the Association, without
notice from the Association, true and correct copies of all
written reports, returns, statements, records, and
declarations, including any supplements or amendments thereto
(collectively, the "Sales Reports") made or provided to the
State of Utah with respect to transactions occurring at, from,
in connection with, or in any way arising out of such Member's
Resort Property under the provisions of the Utah Sales Tax
Act, at such time as such Sales Reports are required to be
made to the State of Utah. If any subsequent adjustments,
additions, or modifications are made to any Utah Sales Tax
remitted or paid or Sales Report made with respect to
transactions occurring at, from, in connection with, or in any
way arising out or such Member's Resort Property to the State
of Utah, such Member shall within 30 days thereafter so notify
the Association and provide it with true and complete copies
of all Sales Reports or other written material issued or
received by such Member with respect thereto. If any
adjustment increases the amount of Utah Sales Tax required to
be remitted with respect to a Member's Resort Property or
results in a refund of such tax, such Member shall accordingly
pay an appropriate additional Retail Assessment or receive an
appropriate refund from the Association of any excess Retail
Assessment previously paid. Subject to the foregoing, the
Association shall have the power and authority to determine
all matters in connection with the Retail Assessment,
including amounts thereof and how and whether the assessment
shall be reflected on bills and sales slips rendered in any
transaction; rules and regulations on record keeping; and
auditing by the Association of such records.
(c) Each Member shall be obligated to pay the Retail Assessment
arising from sales or services transacted at, from, in
connection with, or in any way arising out of or associated
with such Member's Resort Property, even if such Member is not
responsible for such sales or services and each Member shall
comply with any determinations made by the Board of Trustees
with respect to such Retail Assessments. Any portion of any
Retail Assessment not paid by any Member when due and payable
shall become a lien on and against all of the real property
owned by such Member in the Resort Village pursuant to Section
4.12.
(d) All Retail Assessments to be levied shall be levied at such
time as the Utah Sales Tax associated with such Resort
Property and shall be payable within thirty (30) days after
being levied, and each such assessment not paid within thirty
(30) days of the date (the "Levy Date"), which is the date of
mailing of notice of the assessment, shall accrue interest
until fully paid at 5% (five percent) per annum over the rate
of interest announced from time to time by BankBoston, N.A.,
as its "prime rate" for commercial loans; such interest shall
be payable on demand computed monthly, and if unpaid,
compounded monthly, not in advance, at the rate so calculated
as of thirty (30) days after the Levy Date, and all accruing
interest shall become a part of the assessment due and owing
to the Association. All other amounts owed to the Association
shall bear interest at the same rate calculated and payable in
the same manner.
(e) Funds collected from the Retail Assessments shall be used only
for transportation expenses of the Resort Village and for
marketing of the Resort Village, unless there are any funds
collected in excess of the budgeted annual transportation and
marketing expenses, in which case such surplus funds may be
used first for maintenance of the Resort Village if there is a
shortfall of maintenance funds, and second for capital
projects of the Association, including reimbursement of
American Skiing Company.
4.5 Transient Occupancy Assessment.
(a) The Association shall levy upon and collect from each Lodging
Resort Property Member in the Resort Village an assessment,
which shall be known as a "Transient Occupancy Assessment" or
"TOA," with respect to all transient occupancy rentals made by
or on behalf of such Member within the Resort Village that are
subject to the Transient Room Tax Ordinance of Summit County
as in effect on the date this Agreement is recorded. The TOA
shall be set as an amount in addition to, and shall be a
percentage or rate applied to the charge of any transaction as
described above. The percentage or rate for the TOA shall be
2.5 % (two and one-half percent), and may be adjusted by the
Board after three years as provided in Section 3.6(c).
(b) The TOA due with respect to a Member's Resort Property shall
be due and payable to the Association, without notice by the
Association, each time and at such time as the Transient Room
Tax associated with such Resort Property is required to be
remitted or paid to Summit County. Each such Member shall also
deliver to the Association, without notice from the
Association, true and correct copies of all written reports,
returns, statements, records, and declarations, including any
supplements or amendments thereto (collectively, the "Lodging
Reports") made or provided to Summit County in connection with
any charges occurring at, from, in connection with, or in any
way arising out of such Member's Resort Property in connection
with any charges under the provisions of the Transient Room
Tax Ordinance of Summit County, at such times as such Lodging
Reports are required to be made to Summit County. If any
subsequent adjustments, additions, or modifications are made
to any Summit County Transient Occupancy Tax remitted or paid
or Lodging Report made to Summit County with respect to
transactions occurring at, from, in connection with, or in any
way arising out of such Member's Resort Property, such Member
shall within 30 days thereafter so notify the Association and
provide it with true and complete copies of all Lodging
Reports or other written material issued or received by such
Member with respect thereto. If any adjustment increases the
amount of Summit County Transient Occupancy Tax required to be
remitted with respect to a Member's Resort Property or results
in a refund of such tax, such Member shall accordingly pay an
appropriate additional TOA or receive an appropriate refund
from the Association of any excess TOA previously paid.
Subject to the foregoing, the Association shall have the power
and authority to determine all matters in connection with the
TOA, including amounts thereof and how and whether the TOA
shall be reflected on bills and sales slips rendered in any
transaction; rules and regulations or record keeping; and
auditing by the Association of such records.
(c) Each Member shall be obligated to pay the TOA arising from
lodging rentals transacted at, from, in connection with, or in
any way arising out of or associated with such Member's Resort
Property, even if such Member is not responsible for such
lodging rentals, and each Member shall comply with any
determinations made by the Board of Trustees with respect to
such assessments. The TOA shall not apply to the right of the
owner of a timeshare estate or the guest of such owner to
occupy the unit in which the owner retains that interest.
"Guest" of an owner includes, without limitation, a person
occupying a unit pursuant to any form of exchange program. Any
portion of any TOA not paid by any Member when due and payable
shall become a lien on and against all of the real property
owned by such Member in the Resort Village.
(d) All Transient Occupancy Assessments to be levied shall be
levied at such time as the Transient Room Tax of Summit County
is levied by Summit County and shall be payable within thirty
(30) days after being levied, and each assessment not paid
within thirty (30) days of the date (the "Levy Date"), which
is the date of mailing of notice of the assessment, shall
accrue interest until fully paid at 5% (five percent) per
annum over the rate of interest announced from time to time by
BankBoston, N.A., as its "prime rate" for commercial loans;
such interest shall be payable on demand computed monthly, and
if unpaid, compounded monthly, not in advance, at the rate so
calculated as of thirty (30) days after the Levy Date, and all
accruing interest shall become a part of the assessment due
and owing to the Association. All other amounts owed to the
Association shall bear interest at the same rate calculated
and payable in the same manner.
(e) Funds collected from the Transient Occupancy Assessments shall
be used only for (i) transportation expenses as described in
the Development Agreement, and (ii) marketing of the Resort
Village, unless there are any funds collected in excess of the
budgeted annual transportation and marketing expenses, in
which case such surplus funds may be used first for
maintenance of the Resort Village if there is a shortfall of
maintenance funds, and second for capital projects of the
Association, including reimbursement of ASCRP.
4.6 Real Estate Transfer Assessments. Upon the occurrence of a
Transfer, as defined below, the Transferee under such Transfer shall pay to the
Association for the benefit of the Association a real estate transfer assessment
(the "Real Estate Transfer Assessment") equal to the Fair Market Value, as
defined below, of the Resort Property subject to transfer, multiplied by the
Real Estate Transfer Assessment Rate shall be 2% (two percent) of the Fair
Market Value of improved land, and 1% (one percent) of the Fair Market Value for
unimproved land. The Real Estate Transfer Assessment may be adjusted by the
Board as provided by Section 3.6(c) herein. Each Member shall be obligated to
pay and shall pay to the Association the Real Estate Transfer Assessment levied
with respect to such owner's site and each Member shall comply with any
determinations made by the Board of Trustees with respect to such assessments.
Proceeds of the Real Estate Transfer Assessments shall be segregated in a fund
to be known as the "Sinking Fund," as described in subparagraph (d) below.
(a) Definitions.
"Transfer" means, whether in one transaction or in a series of related
transactions, any conveyance, assignment, lease, or other transfer of beneficial
ownership of any Resort Property, including but not limited to (1) the
conveyance of fee simple title to any Resort Property, (2) the transfer of any
ownership interest in any timeshare or fractional ownership interest or vacation
club interest; (3) the transfer of more than 50 percent of the outstanding
shares of the voting stock of a corporation which, directly or indirectly, owns
one or more Resort Property, and (4) the transfer of more than 50 percent of the
interest in net profits or net losses of any partnership, joint venture, limited
liability company, or other entity which, directly or indirectly, owns one or
more Resort Property, but "Transfer" shall not mean or include the Transfers
excluded under subparagraph (b) below.
"Transferee" means all parties to whom any interest passes by a
transfer, and each party included in the term "Transferee" shall have joint and
several liability for all obligations of the Transferee under this section.
"Fair Market Value" of a Resort Property subjected to Transfer means,
in the case of a Transfer that is in all respects a bona fide sale, the
consideration, as such term is defined below, given for the Transfer; provided,
however, that the value of timeshare interests and timeshare estates and
vacation club ownership interests, for purposes of determining Fair Market
Value, shall be determined by valuing the real property interest associated with
the timeshare interest or timeshare estate, exclusive of the value of any
intangible property and rights associated with the acquisition, operation,
ownership, and use of the timeshare interest or timeshare estate, including the
fees and costs associated with the sale of the timeshare interests and timeshare
estates that exceed those fees and costs normally incurred in the sale of other
similar properties, the fees and costs associated with the operation, ownership,
and use of timeshare interests and timeshare estates, vacation exchange rights,
and benefits available to a timeshare unit owner. In case of a Transfer that is
a lease or is otherwise not in all respects a bona fide sale, Fair Market Value
of the Resort Property subjected to Transfer shall be determined by the
Association. A transferee may make written objection to the Association's
determination within 15 (fifteen) days after the Association has given notice of
such determination, in which event the Association shall obtain an appraisal, at
the Transferee's sole expense, from a MAI real estate appraiser of good
reputation, who is qualified to perform appraisals in Utah, who is familiar with
Summit County and Park City area real estate values, and who shall be selected
by the Association. The appraisal so obtained shall be binding on both the
Association and the transferee. Notwithstanding above provisions to the
contrary, where a Transferee does not object within 15 days after the time
required by this section for objecting, the Transferee shall be deemed to have
waived all right of objection concerning Fair Market Value, and the
Association's determination of such value shall be binding.
"Consideration" means the total of money paid and the Fair Market Value
of any property delivered, or contracted to be paid or delivered, in return for
the Transfer of any Resort Property, and includes the amount of any note,
contract indebtedness, or rental payment reserved in connection with such
Transfer, whether or not secured by any lien, deed of trust, or other
encumbrance, given to secure the transfer price, or any part thereof, or
remaining unpaid on the property at the time of Transfer, whether or not assumed
by the Transferee. The term "consideration' does not include the amount of any
outstanding lien or encumbrance for taxes, special benefits or improvements, in
favor of the United States, the State of Utah, or a municipal or quasi-municipal
governmental corporation or district.
(b) Exclusions. The Real Estate Transfer Assessment shall not
apply to any of the following, except to the extent that they
are used for the purpose of avoiding the Real Estate Transfer
Assessment:
(i) Any Transfer to the United States, or any agency or
instrumentality thereof, the State of Utah, any
county, city, municipality, district, or other
political subdivision of the State of Utah.
(ii) Any Transfer to the Association.
(iii) Any Transfer, whether outright or in trust, that is
for the benefit of the transferor or the transferor's
relatives (including the transferor's spouse), but
only if there is no more than nominal consideration
for the Transfer. For the purposes of this exclusion,
the relatives of a transferor shall include all
lineal descendants of any grandparent of the
transferor, and the spouses of the descendants. Any
person's stepchildren and adopted children shall be
recognized as descendants of that person for all
purposes of this exclusion.
(iv) Any Transfer arising solely from the termination of a
joint tenancy or the partition of property held under
common ownership or in connection with a divorce,
except to the extent that additional consideration is
paid in connection therewith.
(v) Any Transfer or change of interest by reason of
death, whether provided for in a will, trust, or
decree of distribution, or by reason of the
dissolution or winding up of any business entity.
(vi) Any Transfer made solely for the purpose of
confirming, correcting, modifying, or supplementing a
transfer previously recorded, making minor boundary
adjustments, removing clouds on titles, or granting
easements, rights of way, or licenses.
(vii) Any Transfer pursuant to any decree or order of a
court of record determining or vesting title,
including a final order awarding title pursuant to a
condemnation proceeding, but only where such decree
or order would otherwise have the effect of causing
the occurrence of a second assessable transfer in a
series of transactions which includes only one
effective transfer of the right to use or enjoyment
of a Resort Property.
(viii) Any lease of any Resort Property (or assignment or
transfer or any interest in any such lease) for a
period of less than 25 years (including renewal
options).
(ix) Any Transfer solely of minerals or interests in
minerals.
(x) Any Transfer to secure a debt or other obligation or
to release property that is security for a debt or
other obligation, including transfers in connection
with foreclosure or a deed of trust or mortgage or
transfers in connection with a deed given in lieu of
foreclosure.
(xi) The subsequent Transfer or Transfers of a Resort
Property involved in a "tax free" or "tax deferred"
trade under the Internal Revenue Code wherein the
interim owner acquires property for the sole purpose
of reselling that property within 30 days after the
trade. In these cases, the first Transfer of title is
subject to the Real Estate Transfer Assessment and
subsequent Transfers will only be exempt as long as a
Real Estate Transfer Assessment has been paid in
connection with the first Transfer of such Resort
Property in such exchange.
(xii) Any Transfer constituting a "tax free" or "tax
deferred" exchange under Section 1031 of the Internal
Revenue Code, so long as both properties involved in
such exchange are located within the SPA; or any
Transferor Transfers of Resort Lands in exchange for
other Resort Lands, but without additional
Consideration being exchanged by the transferor or
transferee.
(xiii) The Transfer or Transfers of Resort Lands in exchange
for other Resort Lands, but without additional
Consideration being exchanged by the transferor or
transferee, for the purpose of making boundary line
adjustments, or to facilitate the location and
development of Access Easements, Pedestrian Pathways,
Utility Lines, or other easements, rights of way, or
licenses.
(xiv) The Transfer of a Resort Property to an organization
that is exempt from federal income taxation under
Section 501(c)(3) of the Internal Revenue Code, as
amended, provided that the Association specifically
approves such exemption in each particular case.
(xv) Any transfer made by a corporation or other entity,
for consideration, (i) to any other corporation or
entity that owns 100 percent of its equity securities
(a "Holding Company") or (2) to a corporation or
entity whose stock or other equity securities are
owned, directly or indirectly, 100 percent by such
Holding Company.
(xvi) Any Transfer solely of water or water rights.
(xvii) Any Transfer from American Skiing Company, ASCRP, ASC
Utah, or any or its or their subsidiaries or
affiliates pursuant to a purchase contract or
purchase and sale agreement for interests or units in
the Grand Summit Resort Hotel at The Canyons and
Sundial Lodge Pavilions B and C entered into prior to
the Effective Date of this Amended Agreement, and any
subsequent transfers of those properties.
(xviii) Any Transfer of two or more fractional interests,
condominium units, or other Resort Property by a
mortgagee or an affiliate thereof to an affiliate of
such mortgagee or to a third party, where the intent
of such transferee is not to make personal use of
such fractional interest, condominium unit, or other
Resort Property, but is rather to resell the same.
(xix) Any Transfer to an affiliated party, where
"affiliated party" means any entity that controls, is
controlled by, or is under common control with
another person or entity, including control through
voting interests, management agreements, or other
arrangements resulting in effective control over the
management of the affairs of such entity.
(xx) Any Transfer to American Skiing Company or its
affiliates or subsidiaries from the Lessor pursuant
to the terms and conditions of the Lease identified
in Recital B hereto.
(c) All Real Estate Assessments to be levied shall be levied at
the time of a Transfer and shall be payable within thirty (30)
days after being levied, and each assessment not paid within
thirty (30) days of the date (the "Levy Date"), which is the
date of mailing of notice of the assessment, shall accrue
interest until fully paid at 5% (five percent) per annum over
the rate of interest announced from time to time by
BankBoston, N.A., as its "prime rate" for commercial loans;
such interest shall be payable on demand computed monthly, and
if unpaid, compounded monthly, not in advance, at the rate so
calculated as of thirty (30) days after the Levy Date, and all
accruing interest shall become a part of the assessment due
and owing to the Association. All other amounts owed to the
Association shall bear interest at the same rate calculated
and payable in the same manner.
(d) There shall be a fund known as a "Sinking Fund" into which all
proceeds from the Real Estate Transfer Assessments shall be
deposited. The Association shall use the Sinking Fund only for
capital projects and reimbursement of ASCRP as provided in
Section 4.9 below. The priorities of the Sinking Fund shall be
in the following order: (i) the golf course required under the
Development Agreement and all other amenities required by the
Development Agreement to be provided by the Association on a
timely basis; (ii) reimbursement of ASCRP in accordance with
Section 4.9 below; provided, however, that if third party
financing for the golf course is obtained, then reimbursement
of ASCRP shall replace the golf course as the first priority
of the sinking Fund so long as such payments do not cause a
default in the Development Agreement; and (iii) all other
capital projects required by the Development Agreement.
"Capital projects" include without limitation any of the
following: to acquire, own, lease, operate, build, manage,
maintain, rent, sell, develop, encumber, hold, and otherwise
deal in and with any Facilities including but not limited to
the golf course required by the Development Agreement;
buildings and other structures; employee housing; daycare
facilities; teen centers; roads, walkways, streets, and
pedestrian paths; parks, playgrounds, open spaces, gardens,
fountains, common areas and public areas; an amphitheater, a
forum (other than the main forum, which shall be built by
ASCRP), or other public entertainment or gathering areas; a
jumbotron or video walls; utility lines and systems; outdoor
lighting systems; waterways; landscaping, including without
limitation plants, trees, shrubs, and grass; a medical clinic;
cross country ski facilities; pedestrian, hiking, equestrian,
and biking trails; equestrian facilities; ice rinks; swimming
pools, saunas, steam baths, and spas; tennis courts and other
game courts, game areas, and recreational amenities; and such
uses as may be appropriate for use in connection with the
operation and maintenance of a world class resort village, in
the reasonable discretion of the Association; and all costs
imposed by, associated with, or incurred as a result of the
Development Agreement or other federal, state, or local
governmental laws, rules, or regulations, including without
limitation costs of benchmarking, studies, consultants fees
and costs, and performance costs; provided, however, that
1. the Association will be responsible for funding a minimum
of 50% of the costs of construction and operation of the
people mover planned pursuant to the Development Agreement;
and
2. the Association will be responsible for funding a minimum
of 25% of the costs of construction and operation of the
parking structure planned pursuant to the Development
Agreement.
4.7 Obligations of The Mountain Member. The Mountain Member shall
satisfy its obligation to pay an annual assessment by annually committing to
spend a certain amount of money on maintenance of, marketing of, and
transportation for the Resort Village. This obligation shall be known as the
Mountain Member Annual Obligation. During the Association's first fiscal year,
the Mountain Member shall expend a minimum of $250,000 as the Mountain Member
Annual Obligation. For each fiscal year thereafter, the Mountain Member's Annual
Obligation shall be a base of $250,000 until paid annual skier visits reach
250,000; thereafter, the Mountain Member's Annual Obligation shall be increased
in proportion to the increase in the number of paid annual skier visits from
250,000. In the event that the Mountain Member expends more than the obligated
amount in any particular fiscal year on maintenance and transportation, the
Mountain Member shall receive a credit toward the next year's or subsequent
years' Mountain Member Annual Obligations in such excess amount.
4.8 Books. The Association or its designee shall keep and maintain
separate accounts of all income and expenditures relating to each Function
within the Resort Village and in doing so shall allocate its or its designee's
administrative costs to such Functions on a reasonable basis. The Function Cost
shall be allocated to the appropriate Cost Center.
4.9 Reimbursement of ASCRP.
(a) A priority of the Association will be to reimburse ASCRP for
the development costs it has incurred on behalf of the Resort
Village. The amount to be reimbursed ASCRP is set at a fixed
amount of $4,000,000 plus interest. To meet this obligation,
the Association will execute a promissory note to ASCRP for
the debt within 30 days of the execution of this Agreement,
with fixed interest at 10% and an initial amortization period
of twenty (20) years. Any excess funds in the Association at
each year end that are not required to fund any Association
obligations shall be paid to ASCRP toward the Reimbursement
Amount. In addition, the Association will immediately
undertake commercially reasonable efforts to replace this
promissory note by obtaining third party financing to repay
ASCRP in full, with debt service amortized over as long a
period as possible in order to minimize the annual burden on
the Association, and if the Association is unable to
immediately obtain third party financing, it shall continue to
make commercially reasonable efforts to obtain such financing.
In the event the Association repays the Reimbursement Amount
within three years of the date of this Agreement, interest
charges on the promissory note executed by the Association to
ASCRP will be reduced by 50%.
(b) The parties to this Agreement recognize and agree that ASCRP,
ASC Utah, or their affiliates or subsidiaries have the right
to establish fees and charges for utilization of all utility
infrastructure owned by such parties, including without
limitation sewer, water, electricity, gas, and cable, on a
user pay basis.
4.10 Budget. The Association shall, not later than thirty (30) days
following the completion of each fiscal year of the Association, cause to be
prepared and shall approve a Budget for the next fiscal year (including a
reasonable allowance for contingencies) (the "Budget"). The Budget shall set
forth the anticipated Function Costs for each Function of the Association,
including adequate reserves.
4.11 Billing. All Assessments levied hereunder shall be mailed or hand
delivered to each Member at such Member's address as set forth in this
Agreement. For purposes of billing, each assessment of a Lodging Resort Property
or a Residential Resort Property that is a condominium shall be sent to the
condominium association of which such Lodging Resort Property Member or
Residential Resort Property Member is a member and the condominium association
shall be responsible for paying the assessments in full, notwithstanding any
failure of the individual unit or fractional share owners to pay their pro rata
portion of the assessment.
4.12 Lien Rights. All Assessments, including Annual Member Assessments,
Retail Assessments, Transient Occupancy Assessments, and Real Estate Transfer
Assessments, due and unpaid shall constitute and each Member hereby grants to
the Association, with power of sale, a lien and security interest on the Resort
Property to which such Assessments are attributable, to the extent of such
unpaid Assessments, together with all interest, collection, and enforcement
charges thereon, including attorney's fees and costs. The Association is
authorized to give the Summit County, Utah Recorder's office written notice of
the Assessments and the liens arising under this Agreement. The lien may be
foreclosed by Association, in the same manner as a mortgage or deed of trust, in
accordance with Utah law.
The Association may bid for a Resort Property at a foreclosure sale and
acquire, hold, lease, mortgage, and convey such Resort Property. While a Resort
Property is owned by the Association following foreclosure, (a) no right to vote
shall be exercised on behalf of such Resort Property; (b) no Annual Member
Assessment shall be levied on it; and (c) each other Resort Property shall be
charged, in addition to its usual Annual Member Assessment, its pro rata share
of the Annual Member Assessment that would have been charged such Resort
Property had it not been acquires by the Association. The Association may sue
for unpaid assessments and other charges authorized hereunder without
foreclosing or waiving the lien securing the same. After acquisition at
foreclosure, the Association shall make all reasonable efforts to re-sell the
property at the best competitive price available.
4.13 Joint and Several Liability of Members. A Member shall be jointly
and severally liable for the payment of any Assessments, fee, charge, or other
amount and all interest thereon due and owing to the Association, including any
assessment, fee, charge or other amount arising by, through or under any tenant
of the whole or part of such Member's Resort Property.
4.14 Remaining Member. Any Member in the Association against whom any
Assessments are levied in respect of any Cost Center shall be a "Member" of that
particular Cost Center and shall remain a Member thereof for as long as such an
assessment is leviable against such Member.
4.15 Right to Stop Performing Functions. In addition to any recourses
the Association may have in such circumstances, the Association has the right to
stop performing any Function (including without limitation the Central
Reservation and Information Function) and to deny access to or use of any of the
easements granted in this Agreement to a Member who is in arrears in paying such
Member's Assessments or any other amounts owing by such Member to the
Association.
4.16 Exempt Use. No assessable Square Footage or assessment liability
shall be deemed to exist for any Resort Property that is used for an exempt use
or by an exempt user. An exempt user also means the Association or the
Government. An exempt use means the actual supplying of electricity, gas, water,
sewer, telephone, television, or other utility service within the Resort
Village.
4.17 Pro-ration. Assessments levied against any Resort Property shall
be pro-rated for the number of days any Improvement exists on or within a Resort
Property in relation to the number of days within the Association's fiscal year.
The pro-ration shall be calculated as follows:
The number of days the Improvement exists
within the current fiscal year of ASC Utah
365
An Improvement shall be deemed to exist from the date of Substantial
Completion.
4.18 Determination by the Association. The Association, in its sole
discretion, shall determine if and when an Improvement is substantially complete
with respect to any Resort Property, the Square Footage of such Improvement, and
how such Improvement is defined within the types of Resort Property as provided
by this Agreement. For purposes of the classification of Square Footage and
Resort Property, the Association shall rely on evidence available from rental
management companies, other sources, and a declaration by the owner of the
Resort Property as to the use of that Resort Property. Such declaration shall be
made yearly to the Association by the owner of the particular Resort Property
attesting to the use of the Resort Property including its commercial, lodging,
or residential usage.
4.19 No Waiver of Assessments. The Association shall not have the power
to waive any Assessments pursuant to this Agreement.
ARTICLE V
DESIGN REVIEW
5.1 Purpose. In order to preserve the natural beauty of the Resort
Village and its setting, to create a unique architectural character and quality
for the Resort Village, to maintain the Resort Village as a pleasant and
desirable environment, to establish and preserve a harmonious design for the
community, and to protect and promote the value of property, exterior design,
landscaping, and use of all new development, and additions, changes, or
alterations to existing use, landscaping, and exterior design and development in
the Canyons Resort Village shall be subject to design review.
5.2 Objectives. Design review shall be directed toward attaining the
following objectives for the Resort Village:
(a). Preventing excessive or unsightly grading, indiscriminate
earth moving or clearing of property, or removal of trees and
vegetation that could cause a disruption of natural
watercourses or scar natural landforms.
(b) Ensuring that the location and configuration of all buildings
and structures are in harmony with the natural landscape,
blending into the vegetation (grasses, trees, and shrubs) and
landforms of the immediate surroundings in which they are
placed.
(c) Ensuring that the buildings and structures are low profile and
small scale, with an appearance that is rustic and with
integrated colors and materials specifically existing in
nature at these locations and ensuring that buildings and
structures are viewed as art placed in nature, as opposed to
standard urban or resort forms found elsewhere in the
Snyderville basin.
(d) Ensuring that the architectural design of structures and their
materials and colors are visually harmonious with The Canyons
SPA's overall appearance, history, and cultural heritage, with
surrounding development, with natural landforms and native
vegetation, and with development plans, zoning requirements
and other restrictions officially approved by the Association,
Summit County, or any government or public authority, if any,
for the areas in which the structures are proposed to be
located.
(e) Ensuring that plans for the landscaping of open spaces provide
visually pleasing settings for structures on such sites and on
adjoining and nearby sites and blend harmoniously with the
natural landscape.
(f) Ensuring that any development, structure, building, or
landscaping complies with the provisions of this Agreement,
including but not limited to those provisions set forth in
Article VI.
5.3 Design Review Committee. As soon as possible after its
incorporation, the Association shall establish a Design Review Committee (the
"Committee"), which shall consist of five (5) members all of whom shall be
appointed by the Board of Trustees by a vote of five of seven of the Trustees.
The members of the Design Review Committee shall serve without compensation.
Until such time as the Board establishes the Committee, the current interim
Design Review Committee shall continue in effect. The Committee shall follow the
Architectural Guidelines established by the Development Agreement. The Committee
is authorized to retain the services of one (1) or more consulting architects,
landscape architects or urban designers, who need not be licensed to practice in
the State of Utah, to advise and assist the Committee in performing the design
review functions prescribed in this Article V and in carrying out the provisions
of Article VI. Such consultants may be retained to advise the Committee on a
single project, on a number of projects, or on a continuing basis.
5.4 Vacancies. A vacancy on the Committee, however occurring (other
than the routine expiration of a term) may be filled by the Board of Trustees
for the remainder of such Committee Member's term.
5.5 Design Review Committee Approval and Control.
(a) No Member or lessee, assignee, guest or invitee of a Member
shall perform site preparation; landscaping; building
construction; sign erection; exterior change, modification,
alteration, or enlargement of any existing structure; paving;
fencing; planting; or other improvements to any Resort
Property or other property or building or structure thereon;
or change the use of any Resort Property or other property or
building or structure thereon unless and until the Committee
has approved the plans and specifications for such project and
the construction procedures to be used to insure compliance
with Article VI; provided, however, that Committee review and
approval shall not be required for projects that are under
construction as of the Effective Date of this Amended
Agreement, nor shall Committee review and approval be required
for the erection of signs on Resort Property owned or leased
under a lease, with a term greater than 25 years, by ASC Utah,
ASCRP, or any affiliate, parent, or subsidiary of either of
them. Alterations or remodeling that are completely within a
building or structure and that do not change the exterior
appearance and are not visible from the outside of the
structure, or the reconstruction of existing structures or
improvements following a casualty, provided such
reconstruction is according to the same plans as the damaged
or destroyed structure, may be undertaken without Committee
approval, provided such alterations or remodeling do not
change the use of, or the number of, dwelling units (as such
term is defined in The Canyons SPA Development Agreement) or
the amount of commercial space in the building or structure.
(b) All actions taken by the Committee shall be in accordance with
rules and regulations established by the Committee, which
shall be published as set forth in Section 5.6 and shall be in
accordance with the purposes and intent of The Canyons SPA.
Such rules and regulations may be amended from time to time by
action of the Committee that is consistent with and fulfills
the purpose of this Agreement. The approval or consent of the
Committee on matters properly coming before it (with payment
of the Design Review Fee) shall not be unreasonably withheld,
actions taken shall not be arbitrary or capricious, and
decisions shall be conclusive and binding on all interested
parties, subject only to the right of appeal and review by the
Association as set forth below; and such approval or consent
shall not prohibit enforcement of the provisions of this
Agreement under Section 7.6. The Committee or its designated
representative shall monitor any approved project to the
extent required to insure that the construction or work on
such project complies with any and all approved plans and
construction procedures. The Committee or its designated
representative may enter upon any Resort Property at any
reasonable times to inspect the progress, work status, or
completion of any project. In addition to the remedies
described in Section 7.6, the Committee may withdraw approval
of any project thereby stopping all activity at such project
if deviations from the approved plan or approved construction
practices are not corrected or reconciled within 24 hours
after written notification to the Member specifying such
deviations.
(c) Any material to be submitted or notice to be given to the
Committee shall be submitted at the offices of the Association
at The Canyons.
(d) All actions requiring approval of the Committee shall be
deemed approved if such approval is obtained in writing from
the Committee.
(e) If the Committee fails to respond to a request for its consent
within thirty days after its receipt of such request, the
Committee shall be deemed to have granted its consent to the
actions described in such request, unless for cause the
Committee notifies the applicant that an additional thirty
(30) days is required for review.
(f) In addition to the remedies described in Section 5.9 below,
the Committee may withdraw approval of any project and require
all activity at such project to be stopped if deviations from
the approved plan or approved construction practices are not
corrected or reconciled within twenty-four hours after written
notification to the Member specifying such deviations.
(g) The Summit County Community Development Director may override
the decision of the Committee after the applicant has
exhausted the review process set forth herein.
5.6 Design Standards and Construction Procedures. The Committee shall
promulgate and publish rules and regulations that shall state the general design
theme of all projects in the Resort Village, specific design requirements, and
the general construction procedures that will or will not be allowed in the
Resort Village (such rules and regulations shall be referred to hereinafter as
the "Design Regulations"). The Committee shall also promulgate and publish rules
and regulations that shall set forth the procedures to be followed in order to
obtain review of proposed construction by the Committee. The Committee shall
make such publications or materials available to Members in the SPA.
5.7 Exterior Maintenance. Pursuant to Section 6.4, after 30 days notice
to a Member of the failure of such Member to maintain his or her property or the
improvements thereon as required under this Agreement the Committee may request
that the Association provide exterior maintenance and repair upon any Resort
Property.
5.8 Review Fee. The Committee may set a review fee schedule sufficient
to cover all or part of the cost of Committee time, consultant's fees, and
incidental expenses. Applicants for design review may be required to deposit
with the Committee a fee that the Committee deems sufficient to cover the costs
of design review from which the actual costs shall be deducted when determined
and the balance returned to the applicant following completion of the design
review procedure.
5.9 Enforcement of Restrictions. If a Member violates any term or
condition set forth in this Article 5 or in Article VI hereof, or the Design
Regulations, the Association shall have the following remedies, any of which the
Association my delegate to the Committee:
(a) The Association may, by written notice to the Member, revoke any
approval previously granted to the Member by the Committee, in which event the
Member shall, upon receipt of such notice, immediately cease any construction,
alteration, or landscaping covered by the approval so revoked.
(b) The Association may, but is not obligated to, enter upon the
Member's Resort Property and cure such violation at the Member's sole cost and
expense. If the Association cures any such violation, the Member shall pay to
the Association the amount of all costs and expenses incurred by the Association
in connection therewith within thirty days after the Member receives an
assessment therefor from the Association.
(c) The Association may sue such Member to enjoin such violation.
(d) The Association shall have all other rights and remedies available
to it under this Agreement, at law, or in equity. All rights and remedies of the
Association shall be cumulative and the exercise of one right or remedy shall
not preclude the exercise of any other right or remedy.
5.10 Reconsideration, Review, and Appeal. Within seven days following
action of the Committee, its decision to approve or disapprove the project
design shall be transmitted to the applicant and to the Association, and posted
in a conspicuous manner at the offices of the Association at The Canyons. The
Association may confirm, modify, or reverse the decision of the committee within
20 days following the decision. The decision shall become final if no action is
taken by the Association and no written request for reconsideration is made to
the Committee by the aggrieved party within 20 days following the decision of
the Committee. If no action is taken by the Association and a request for
reconsideration is timely made, the Committee shall reconsider the matter at its
next regularly scheduled meeting. The decision rendered upon such
reconsideration shall be transmitted to the aggrieved party and the Association
as set forth above, and shall become final if no written appeal to the
Association is made to such decision within seven days following the date of
notice of such decision. Not more than 30 days following the filing of an appeal
by the aggrieved party, the Association shall review the action of the Committee
and shall, in writing, confirm, modify, or reverse the decision of the
Committee. If the Association deems insufficient information is available to
provide the basis for a sound decision, the Association may postpone final
action for not more than 30 additional days. Failure of the Association to act
within 60 days from the date of the filing of the appeal shall be deemed
approval by the Association of the design of the project unless the applicant
consents to a time extension. Any decision by the Association that results in
disapproval of the project design shall specifically describe the purpose,
development plan, covenant, or Design Regulations with which the project does
not comply and the manner of noncompliance.
5.11 Lapse of Design Review Approval. Approval of the design of a
project shall lapse and become void one year following the date of final
approval of the project by the Committee, unless prior to the expiration of one
year, a building permit is issued and construction is commenced and diligently
pursued toward completion.
5.12 Assignment of Function. Any function to be performed by the
Committee pursuant to Article V or Article VI may be assigned to the Association
in whole or in part at any time or from time to time at the sole discretion of
the Association.
5.13 Liability. Neither ASCRP, ASC Utah, the Committee, or the
Association, nor any of their respective officers, trustees, employees, or
agents shall be responsible or liable for any defects in any plans or
specifications submitted, revised, or approved under this Article V nor for any
defects in construction pursuant to such plans and specifications. Approval of
plans and specifications under this Article V shall not be deemed in lieu of
compliance by Members or lessees with applicable governmental laws or
regulations.
ARTICLE VI
RESTRICTIONS APPLICABLE TO RESORT PROPERTIES
6.1 Property. "Property" as used in this Article VI shall mean any and
all real property that is now or may hereafter be included within The Canyons
SPA, including public or private streets, roads, and any public or private
easements or rights of ways and including any and all improvements on any of the
foregoing. For the purpose of recording this Agreement, the Property shall be
that Property described in Exhibit F.
6.2 Land Use Restrictions. In addition to the restrictions found in
this Article VI, all or any portion of the Property to be sold or leased within
The Canyons SPA shall be further restricted in its use, density, or design
according to the Development Agreement for The Canyons SPA, as such agreement
may be amended from time to time, and as recorded with the Office of the
Recorder for Summit County, Utah.
6.3 Occupancy Limitations. No portion of any Property shall be used as
a residence or for living or sleeping purposes other than a room designed for
living or sleeping in a completed structure for which a certificate of occupancy
has been issued. No room in any structure shall be used for living or sleeping
purposes by more persons than it was designed to accommodate comfortably. Except
as expressly permitted in writing by the Design Review Committee, no trailers or
temporary structures shall be permitted on any Property.
6.4 Maintenance of Property. All Property, including all improvements
on any Property, shall be kept and maintained by the owner thereof in a clean,
safe, attractive, and sightly condition and in good repair. If a Member fails to
maintain his or her property or improvements on such property or fails to
perform any act of maintenance or repair required under this Agreement after
thirty (30) days notice of such failure, to the Member, the Design Review
Committee may request that the Association provide exterior maintenance and
repair on any such property. In the event that the Association provides
maintenance services under this Paragraph the relevant Member shall be assessed
for the cost of such maintenance services.
6.5 No Noxious or Offensive Activity. No noxious or offensive activity
shall be carried out upon any Property that is or may become a nuisance or cause
any significant disturbance or annoyance to others.
6.6 No Hazardous Activities. No activities shall be conducted on any
Property and no improvements constructed on any Property that are or might be
unsafe or hazardous to any person or Property. Without limiting the generality
of the foregoing, no firearms shall be discharged upon any Property, and no open
fires shall be lighted or permitted on any Property except in a contained
barbecue unit while attended and in use for cooking purposes or within a safe
and well-designed interior fireplace; except, however, for campfires or bonfires
on Property designated for such use by ASC Utah or the Association, and
controlled and attended fires authorized in writing by ASC Utah or the
Association and required for clearing or maintenance of land.
6.7 No Unsightliness. No unsightliness shall be permitted on any
Property. Without limiting the generality of the foregoing, (a) all unsightly
structures, facilities, equipment, objects, and conditions shall be enclosed
within an approved structure; (b) trailers, mobile homes, trucks (including
pickup trucks), boats, tractors, all vehicles (including automobiles), campers
not on a truck, snow removal equipment, and garden or maintenance equipment
shall be kept in an enclosed structure at all times, except when in actual use;
provided, however, that such equipment may be parked on parking lots or other
areas specifically designated by the Association or the Design Review Committee
for such equipment; (c) refuse, garbage, and trash shall be kept within an
enclosed structure; (d) service areas and facilities for hanging, drying, or
airing clothing or fabrics shall be kept within an enclosed structure; (e) pipes
for water, gas, sewer, drainage, or other purposes; wires, poles, antennas and
other facilities for the transmission or reception of audio or visual signals,
or electricity, utility meters, or other utility facilities; gas, oil, water, or
other tanks; and sewage disposal systems or devices shall be kept and maintained
within an enclosed structure or below the surface of the ground; and (f) no
lumber, grass, shrub, or tree clippings or plant waste, compost, metals, bulk
materials, or scrap or refuse or trash or unused items of any kind shall be
kept, stored, or allowed to accumulate on any Property. All enclosed structures
shall comply with the rules and regulations of the Design Review Committee as in
effect from time to time. The Design Review Committee shall have the power to
grant a variance from the provisions of this Section 6.7 from time to time as it
deems necessary or desirable.
6.8 No Annoying Lights, Sounds, or Odors. No light that is unreasonably
bright or causes unreasonable glare shall be emitted from any Property; no sound
that is unreasonably loud or annoying shall be emitted from any Property; and no
odor that is noxious or offensive to others shall be emitted from any Property.
6.9 Restrictions on Animals. No animals other than sheep, horses, cats,
dogs, or other household pets that do not unreasonably bother or constitute a
nuisance to others shall be kept on any Property, subject to such additional
reasonable restrictions pertaining to the keeping of animals on any Property as
may be established by the Association.
6.10 Restriction on Signs. No signs or advertising devices of any
nature shall be erected or maintained on any Property except signs approved by
the Design Review Committee, signs required by law or legal proceedings,
identification signs for work under construction, temporary signs to caution or
warn of danger or signs of the Association or the ASC Utah necessary or
desirable to give directions or advise of rules or regulations.
6.11 Restriction on Parking. Parking of vehicles on any Property within
the Resort Village is permitted with respect to a Property only within parking
spaces constructed with the prior approval of the Design Review Committee or
within spaces under construction as of the Effective Date of this Amended
Agreement, and such parking shall be used only by the owner or Member or the
lessee or guests of such owner or Member for the parking of personal vehicles.
ASC Utah and the Association shall have the right to park any type of vehicle
owned or used by ASC Utah or the Association upon Property within the Resort
Village within parking areas or structures designated for such purpose.
Notwithstanding the above, ASC Utah or the Association may designate areas for
off-street parking on Property for the temporary parking of maintenance and
delivery vehicles, for the sole purpose of assisting in a maintenance operation
or to provide for the loading or unloading of such vehicles, or to accommodate
special circumstances.
6.12 Landscape Restriction. No trees of such dimensions as determined
by the Design Review Committee may be removed from any Property without the
prior written approval of the Design Review Committee. Vegetation on all
Property shall be maintained to minimize erosion and encourage growth of ground
cover and all tree and shrub planting must be consistent with the landscaping
plan approved by the Design Review Committee.
6.13 No Mining and Drilling. No Property shall be used for the purpose
of mining, quarrying, drilling, boring, or exploring for or removing oil, gas,
or other hydrocarbons, minerals, rocks, stones, gravel, or earth.
6.14 No Cesspools or Septic Tanks. No cesspools or septic tanks shall
be permitted on any Property without the prior written approval of the Design
Review Committee, which shall not be unreasonably withheld.
6.15 No Fences. No fences, walls, or other barriers shall be permitted
for the purpose of enclosing or demarcating any Property boundaries without the
prior written approval of the Design Review Committee.
6.16 Construction. The following provision shall apply to any
construction, renovation, maintenance or other work authorized by the terms of
this Agreement and performed by one party upon the property of another:
(a) Once commenced, the work shall be diligently prosecuted to
completion.
(b) All work shall be performed in a good and workmanlike manner,
shall minimize any inconvenience to the operations conducted
by the owner of the burdened property, and shall comply with
all applicable laws, ordinances regulations.
(c) If, as a result of any work, any part of the impacted property
is altered or disturbed (other than any area to be permanently
altered as result of such work) the disturbed area shall be
promptly restored to as near its original condition as
possible.
(d) All work shall be started only after reasonable advance notice
to the landowner, or the Association as the case may be, shall
be performed at reasonable times and shall be done in a manner
so as to minimize disruption to the use and operation of the
impacted property, including the performance of work off
season or off hours, if appropriate. For any work in excess of
$100,000, such work shall be started only after written notice
to all affected parties, including without limitation ASC
Utah, the Association, and adjacent property owners or
adjacent tenants. This subsection shall not apply to any
projects under construction as of the Effective Date of this
Agreement.
(e) The landowner performing the work shall indemnify, defend, and
hold harmless the landowner on whose property work is being
performed from any loss or damage to persons or property, and
from any expenses associated with any claims arising from any
such loss or damage which related to the performance of the
work.
6.17 Construction Period Exception. During the course of actual
construction of any permitted structures or improvements on any Property, the
Design Review Committee may, by written instrument, waive certain provisions
contained in this Article 6 to the extent necessary to permit such construction,
provided that, during the course of such construction, nothing is done that will
result in a violation of any of such provisions upon completion of construction.
6.18 Compliance With Law. No Property shall be used, occupied, altered,
charged, improved, or repaired except in compliance with all present and future
laws, rules, requirements, orders, directions, ordinances, and regulations of
the United States of America, the State of Utah, Summit County, and all other
municipal, governmental, or lawful authority, affecting the Property or the
improvements thereon or any part thereof.
6.19 Condominium Ownership. Prior to the recording in the Office of the
Recorder for Summit County, Utah, of an instrument submitting any portion of the
Resort Lands to condominium ownership, the Member with respect to such Property
shall submit to the Association for its review and approval copies of the
proposed condominium declaration, record of survey map, articles of
incorporation and bylaws of the condominium association. The Association shall
approve or disapprove of such documents within 30 days of the submittal to the
Association. The Association's approval or disapproval shall be by written
notice to such Member. In the event the Association disapproves of such
documents, the Association shall set forth in the written notice the specific
reason or reasons for such disapproval. If notice or approval or disapproval is
not given by the Association on or before such 30-day period, such documents
shall be deemed to be approved. The approval of the Association under this
Section 6.19 shall not be unreasonably withheld. This Section 6.19 shall not
apply to any projects under construction as of the Effective Date of this
Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment of Agreement.
(a) Additional Members. The parties to this Agreement understand
and agree that this Agreement contemplates the addition of
Members and Resort Property to the Association as the
development of the Resort Village continues and grows.
Accordingly, by entering into this Agreement, the parties
hereto consent to the repeated amendment of this Agreement,
which needs only to be executed by ASC Utah, ASCRP, the
Association, and such additional Member or Members, for the
purpose of adding Members, Resort Property and Property to
this Agreement, under the same terms and conditions as this
Agreement, such terms and conditions to differ only with
respect to: (i) an amended Plan to reflect the addition of
such Member; and (ii) any additions to Article II (Grant of
Easements) specific to such Member as necessary or desirable
for ASC Utah to grant such Member easements and for such
Member to grant easements to ASC Utah and all other parties
hereto for access, pedestrian pathways, utilities, ski trails,
lifts, and snowmaking equipment, golf, and signage, and
provided that the Association shall provide to all parties
hereto copies of all such amendments.
(b) Amendment to the Plan. The parties to this Agreement
understand and agree that this Agreement contemplates that
repeated amendments will be made to the Plan as the
development of the Resort Village continues and grows.
Accordingly, by entering into this Agreement, the parties
hereto consent to the repeated amendments of the Plan for the
purpose of expanding and amending the easements and other
rights arising under Article II (Grant of Easements), which
amendments to the Plan need only to be executed by ASC Utah,
ASCRP, the Association and such additional parties whose
property is either benefited or burdened by the expanded or
amended easements and other rights.
(c) Other Amendments. Other than for the purposes set forth in
subparagraph (a) above, this Agreement may not be amended or
modified in any way except by an instrument in writing
executed by all parties hereto.
7.2 Recording. This Agreement shall be recorded in the Office of the
Recorder for Summit County. Each party to this Agreement acknowledges and agrees
that the easements granted and obligations created by this Agreement, including
without limitation the obligation to pay assessments, including, but not limited
to, the Annual Assessment, Retail Assessments, Transient Occupancy Assessment
and Real Estate Transfer Assessment, are perpetual, touch and concern the land,
shall run with the land, and are and shall be binding upon and inure to the
benefit of the parties, their successors and assigns as to their interests in
the Resort Lands. Every Person who acquires an interest in the Resort Lands
after the recording in the Office of the Recorder for Summit County of this
Agreement shall become subject to be bound by the terms and conditions of this
Agreement.
7.3 Warranties. Each party warrants to the others that it has good and
marketable title to the easements and rights conveyed hereby, that the execution
and delivery of this Agreement will not violate or cause a breach of any
agreement by which such party is bound or which affects the easements and
rights, and that each party will warrant and defend the title hereby conveyed to
other by and through all persons.
7.4 Breach. In the event of breach or threatened breach of this
Agreement, any party hereto shall be entitled to institute proceedings (at law
or in equity) for full and adequate relief, and/or compensation from the
consequences of said breach or threatened breach. Such remedies shall include
without limitation the right to specific performance and injunctive relief.
7.5 Effect of Provisions of Agreement. Each provision of this
Agreement, and any agreement, promise, covenant and undertaking to comply with
each provision of this Agreement, and any necessary exception or reservation or
grant of title, estate, right, or interest to effectuate any provision of this
Agreement: (a) shall be deemed incorporated in each deed or other instrument by
which any right, title, or interest in any real property within The Canyons SPA
is granted, devised, or conveyed, whether or not set forth or referred to in
such deed or other instrument; (b) shall, by virtue of acceptance of any right,
title, or interest in any real property within The Canyons SPA by a Member, be
deemed accepted, ratified, adopted, and declared as a personal covenant of such
Member, and as a personal covenant shall be binding on such Member and such
Member's heirs, personal representatives, successors, and assigns, and as a
personal covenant of a Member, shall be deemed a personal covenant to, with, and
for the benefit of ASC Utah but not to, with or for the benefit of any other
Member; (c) shall be deemed a real covenant by ASC Utah for itself, its
successors and assigns, and also an equitable servitude, running in each case as
a burden with and upon the title to each parcel of real property within The
Canyons SPA, and as a real covenant and also as an equitable servitude, shall be
deemed a covenant and servitude for the benefit of any real property now or
hereafter owned by ASCRP or ASC Utah within The Canyons SPA and for the benefit
of any and all other real property within The Canyons SPA; and (d) shall be
deemed a covenant, obligation, and restriction secured by a lien binding,
burdening, and encumbering the title to each parcel of real property within The
Canyons SPA, which lien with respect to any Property shall be deemed a lien in
favor of the Association.
7.6 Enforcement and Remedies. Each provision of this Agreement shall be
enforceable by the Association, or by any Member who has made written demand of
the Association to enforce such provision and 30 days have lapsed without
appropriate action having been taken by the Association by a proceeding for an
injunction. Each provision of this Agreement with respect to a Member or Resort
Property of a Member shall be enforceable by the Association by a proceeding for
an injunction or by a suit or action to recover damages, or in the discretion of
the Association, for so long as any Member fails to comply with any such
provisions, by exclusion of such Member and such Member's lessees, guests or
invitees from use of any Facility and from enjoyment of any Function. If court
proceedings are instituted in connection with the rights of enforcement and
remedies provided in this Agreement, the prevailing party shall be entitled to
recover its costs and expenses in connection therewith, including reasonable
attorneys' fees.
7.7 Mortgagee Protection.
(a) The Association shall maintain a roster of Members, which
roster shall include the mailing addresses of all Members. The
Association will also maintain a roster containing the name
and address of each First Mortgagee of a Resort Property if
the Association is provided notice of such First Mortgage by
way of a certified copy of the recorded instrument evidencing
the First Mortgage and containing the name and address of the
first mortgagee and a statement that the Mortgage is a First
Mortgage. The First Mortgagee shall be stricken from the
roster upon request by such First Mortgagee or upon receipt by
the Association of a certified copy of a recorded release or
satisfaction of the First Mortgage. Notice of such removal
shall be given to the First Mortgagee unless the removal is
requested by the First Mortgagee.
(b) The Association shall give to any First Mortgagee on the
roster written notification of any default by the mortgagor of
the respective Resort Property in the performance of such
mortgagor's obligations under this Agreement that is not cured
within thirty (30) days.
(c) A First Mortgagee of any Resort Property who comes into
possession of the Resort Property pursuant to the remedies
provided in the First Mortgage or foreclosure of the First
Mortgage, or by way of deed or assignment in lieu of
foreclosure, shall take the property free of any claims for
unpaid Assessments under this Agreement or charges against the
mortgaged Resort Property which accrued prior to the time such
First Mortgagee comes into the possession of the Resort
Property, except for claims for a pro rata share of such
Assessments or charges resulting from a pro rata reallocation
of such Assessment or charges to all Resort Property,
including the mortgaged Resort Property. Furthermore, upon
such foreclosure or deed or assignment in lieu of foreclosure,
or the entry into First Mortgagee's possession, either
directly or through a receiver, any rights with respect to any
Resort Property that have been suspended with respect to the
defaulting Member shall be reinstated.
(d) Any liens created under this Agreement upon any Resort
Property shall be subject and subordinate to and shall not
affect the rights of a First Mortgagee under a First Mortgage
on such Resort Property made in good faith and for value;
provided, however, that any lien created after a foreclosure
sale shall have the same effect and be enforced in the same
manner as provided in this Agreement, and/or the Bylaws.
(e) No amendment to this paragraph of this Agreement shall
adversely affect a First Mortgagee who has recorded a valid
First Mortgage prior to the recordation of any such amendment.
7.8 Eminent Domain. In the event any of the Easements granted hereunder
are appropriated or taken under the power of eminent domain, in whole or in
part, by any public or quasi-public authority, the owner of the underlying
property so condemned shall be entitled to the entire award or compensation in
such proceedings. Beneficiaries of any of the Easements granted under this
Agreement shall not be entitled to any portion of the award or compensation in
such proceedings, nor shall any beneficiary of easements granted under this
Agreement be entitled to any compensation or damages from the Association, ASC
Utah, or ASCRP for any inconvenience, annoyance, or damage occasioned by any
such proceedings. For purposes of this Section, a voluntary sale or conveyance
in lieu of condemnation, but under the threat of condemnation, shall be deemed
an appropriation or taking under the power of eminent domain.
7.9 Damage and Reconstruction. In the event any property insured by the
Association is damaged by fire or other casualty, the proceeds payable under the
Association's insurance policies shall be payable to the Association. No Member
shall be entitled to any compensation or damages from the Association, ASC Utah,
or ASCRP for loss of the use of either the whole or any part of any property
owned or controlled by the Association, nor shall any Member be entitled to any
compensation or damages from the Association, ASC Utah, or ASCRP for any
inconvenience, annoyance, or damage occasioned by any casualty or the repair,
reconstruction, or restoration of the damage caused by such casualty.
7.10 Limited Liability. Neither the Association, the Board of Trustees,
or the Design Review Committee, nor any member, agent, or employee of any of the
same shall be liable to any party for any action or for any failure to act with
respect to any matter if the action taken or failure to act was in good faith
and without malice.
7.11 Use of Trademark. Each Member, by acceptance of a deed for his or
her Resort Property, whether or not it shall be so expressed in any such deed or
other conveyance, shall be deemed to acknowledge that "The Canyons" is a service
mark and trademark of ASC Utah or its licensees, and to covenant that he or she
shall not use the term "The Canyons" without the prior written consent of ASC
Utah.
7.12 Partial Invalidity. The invalidity or unenforceability of any term
or provision of this Agreement by the application of such term or provision to
any person or circumstance shall not impair or affect the remainder of this
Agreement, and its application to other persons and circumstances and the
remaining terms and provisions hereof shall not be invalidated but shall remain
in full force and effect.
7.13 Entire Agreement. This Agreement supersedes any and all prior
agreements or understandings between the parties with respect to the subject
matter of this Agreement.
7.14 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah.
7.15 No Easements by Prescription. No easements, licenses, leases, or
other property interests shall be acquired by any party hereto or by the public
by adverse possession or by prescription. The parties agree that landowners
whose property is burdened by a license or easement hereunder shall be permitted
from time to time to reasonably deny access to any party not benefited hereunder
for purposes of preventing the prescription of any public or private licenses,
rights or way, or easements.
7.16 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by
duly authorized representatives of the parties as of the date first set forth
above.
ASC UTAH, INC., d.b.a. The Canyons
By: /s/ Greg Spearn
--------------------------------------
Its Vice President
AMERICAN SKIING COMPANY
RESORT PROPERTIES, INC.
By: /s/ Edward L. Grampp, Jr.
--------------------------------------
Its Vice President
WOLF MOUNTAIN RESORTS, L.C.
----------------------------
By:
Its
THE CANYONS RESORT
VILLAGE ASSOCIATION, INC.
By:
Its
STATE OF UTAH
COUNTY OF SUMMIT, ss
Then personally appeared before me the above named Greg Spearn in his said
capacity and acknowledged the foregoing to be his free act and deed and the free
act and deed of ASC Utah, Inc., d.b.a. The Canyons.
Before me,
/s/ Spencer G. Sanders
--------------------------------------
Notary Public
Name: Spencer G. Sanders
STATE OF UTAH
COUNTY OF SUMMIT, ss
Then personally appeared before me the above named Edward L. Grampp in his
said capacity and acknowledged the foregoing to be his free act and deed and the
free act and deed of ASC Utah, Inc., d.b.a. The Canyons.
Before me,
/s/ Spencer G. Sanders
--------------------------------------
Notary Public
Name: Spencer G. Sanders
STATE OF ___________________
COUNTY OF ________________, ss
Then personally appeared before me the above named
_____________________ in his said capacity and acknowledged the foregoing to be
his free act and deed and the free act and deed of Wolf Mountain Resorts, L.C.
Before me,
Notary Public
Name:
STATE OF ________________
COUNTY OF ________________, ss
Then personally appeared before me the above named
_____________________ in his said capacity and acknowledged the foregoing to be
his free act and deed and the free act and deed of The Canyons Resort Village
Association, Inc.
Before me,
Notary Public
Name:
C & M Properties, LLC
By: /s/ Raymond Klein
Its: Manager
STATE OF UTAH )
) :ss
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 17th day of November
1999, by Raymond Klein.
/s/ Sabra Karr Dator
Notary Public
Residing at: Summit Co.
My Commission Expires:
June 25, 2003
Silver King Mines
By: /s/ JW Giallivan, Jr
Its: President
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 8th day of November
1999, by Jack Giallivan, Jr.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
D A Osguthorpe Family Partnership
By: /s/ Stephen A. Osguthorpe
Its: Owner
STATE OF Utah )
) :ss.
COUNTY OF Summit )
The foregoing instrument was acknowledged before me this 7th day of November
1999, by Stephen A. Osguthorpe.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
Parkwest Associates
By: /s/ Walter J. Plumb
/s/ James C. Nogg
Its: General Partners
STATE OF Utah )
):ss:
COUNTY OF Summit )
The foregoing instrument was acknowledged before me this 9th day of November
1999, by Walter J. Plumb, III and James C. Nogg.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
Beaver Creek Associates
By: illegible
Its: Pres., Madison Company, Gen. Partner
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 9th day of November
1999, by illegible.
Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
Olympus Construction LLC
(Jaffe - Groutage Parcel)
By: /s/ Scott Jaffa
Its: General Manager
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 8th day of November
1999, by Scott Jaffa.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
The Canyons Cabin Club, LLC
(Baker Parcel)
By: /s/ Joan B. Edwards
Its: Principal
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 6th day of November
1999, by Joan B. Edwards.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
Harold R. & Ruth B. Weight
By: /s/ Harold R. Weight
/s/ Ruth B. Weight
Its: Owners
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 6th day of November
1999, by Ruth B. Weight and Harold R. Weight.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
Sugarbowl Associates, LLC
By: /s/ Walter J. Plumb
/s/ Ronald Ferrin
Its: General Partners
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 9th day of November
1999, by Walter J. Plumb and Ronald A. Ferrin.
/s/ Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
IHC Hospitals, Inc.
aka IHC Health Services, Inc.
By: /s/ Everett N. Goodwin Jr.
Its: CFO
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 5th day of November
1999, by Everett N. Goodwin, Jr.
/s/ Janet P. Tuttle
Notary Public
Residing at: Salt Lake
My Commission Expires:
February 21, 2001
Joseph L. Krofcheck
By: /s/ J.L. Krofcheck
Its:
STATE OF Virginia )
) :ss.
COUNTY OF Fairfax )
The foregoing instrument was acknowledged before me this 10th day of November
1999, by J.L. Krofcheck.
/s/ illegible
Notary Public
Residing at: Nur, Inc. Fairfax, Va.
My Commission Expires:
August 31, 2001
Wolf Mountain Resorts, LC
By: /s/ Kenneth Griswold
Its: Managing Member
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 15th day of November
1999, by Kenneth Griswold.
/s/ Barbara L. Myers
Notary Public
Residing at: Park City
My Commission Expires:
April 10, 2002
Willow Draw, LC
By:/s/ Kenneth Griswold
Its: Managing Member
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 15th day of November
1999, by Kenneth Griswold.
/s/ Barbara L. Myers
Notary Public
Residing at: Park City
My Commission Expires:
April 10, 2002
/s/ William Lincoln Spoor
/s/ Leslee Sherrill Spoor
By: William Spoor
Leslee Spoor
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 12th day of November
1999, by Lincoln Spoor and Leslee Sherrill.
/s/ Catherine Dalyai
Notary Public
Residing at: Sandy, UT
My Commission Expires:
May 25, 2000
The Hansen Group, L.C.
By: /s/ David M. Hansen
Its: Member
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 13th day of November
1999, by David M. Hansen, a member of The Hansen Group, L.C.
/s/ Spencer G. Sanders
Notary Public
Residing at: Salt Lake County
My Commission Expires:
November 12, 2003
Beaver Creek Associates
By: /s/ Ronald Ferrin, Madison Co.,
Its: Gen. Partner, President
/s/ Walter J. Plums III, Secretary
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 9th day of November
1999, by Ronald Ferrin & Walter J. Plums III.
Angelica Perez
Notary Public
Residing at: Summit County
My Commission Expires:
November 12, 2002
Thair Schneiter
By: /s/ Walter J. Plumb
Its: Attorney
STATE OF UTAH )
) :ss.
COUNTY OF SUMMIT )
The foregoing instrument was acknowledged before me this 15th day of November
1999, by Walter J. Plumb
/s/ William E. Casaday
Notary Public
Residing at: Salt Lake County
My Commission Expires:
January 18, 2000
Gerald Freedman
By: /s/ Gerald M. Friedman
STATE OF California )
) :ss.
COUNTY OF Los Angeles)
The foregoing instrument was acknowledged before me this 10th day of November
1999, by Gerald M. Friedman.
/s/ Shirley S. Wawee
Notary Public
Residing at: Los Angeles, California
My Commission Expires:
July 19, 2003
EXHIBITS
EXHIBIT A: List of Participants
EXHIBIT B: The Canyons Resort Village - Easement Plan
EXHIBIT C: Plan of Resort Village Development