07-26-2016 Restated Development Agreement for Tract CRESTATED DEVELOPMENT AGREEMENT
FOR TRACT C
THIS RESTATED DEVELOPMENT AGREEMENT FOR TRACT C ( "Agreement') is
made and entered into as of July 26, 2016 by and between Points of Colorado, Inc., a Colorado
corporation ( "Owner "), and the Town of Avon, a Colorado home rule municipal corporation
( "Town ").
RECITALS
A. Owner is a Corporation duly organized and in good standing under the laws of the State of
Colorado.
B. Owner owned a parcel of real property known as Lot C (also known as Tract C), Mountain
Vista Resort Subdivision (hereinafter referred to as "Lot C ").
C. On or about October 27, 1998, the Town entered into a Development Agreement —
Confluence and Tract C, with the Eagle County, Colorado Clerk and Recorder (the
"Records ") on February 5, 2001 at Reception No. 749431 (hereinafter referred to as "1998
Development Agreement ") with Vail Associates Investments, Inc., a Colorado limited
liability company and entered into a subsequent PUD Development Plan and Amendment to
Development Agreement for Confluence and Tract C on February 22, 2000, Ordinance No.
02, Series of 2000, concerning Lot C only, recorded in the Records on February 5, 2001 at
Reception No. 749432 (hereinafter referred to as "2000 PUD Development Plan and
Development Agreement "). For purposes of clarity, the 2000 Development Agreement
superseded a prior Amendment to Development, recorded in the Records on May 30, 2000 at
Reception No. 730844.
D. In March 2000, Vail Investments Inc. assigned, transferred and conveyed all of its rights,
liabilities and obligations as to Lot C to the Owner, Points of Colorado, Inc. and its affiliates
and assigns.
E. Owner developed Phase IA and Phase 113 of Lot C in accordance with the 2000
Development Agreement. On February 22, 2012, the vested rights of Lot C expired in
accordance with Article III of the 2000 Development Agreement and Article 68 of Title 24,
C.R.S. as amended.
F. On May 20, 2016, Owner amended the description of Lot C by recording the Second
Amended Final Plat, a Replat of Lots 4, 2C and 5, Mountain Vista Subdivision, in the
Records at Reception No. 201607621 and thereafter conveyed Lot 4 of the Mountain Vista
Subdivision to the Town of Avon by Special Warranty Deed, recorded in the Records on
May 20, 2016, at Reception No. 201607623 (herein referred to as "Lot 4 ").
G. On May 13, 2016, Owner submitted a rezoning application for Lots 1, 2A, 213, 2C, 3 and 5,
Mountain Vista Subdivision, Avon, CO from Planned Unit Development (PUD) zoning to
the Town Center (TC) zone district in accordance with the Avon Development Code, Section
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FINAL July 16, 2016
Page 1 of 12
7.20.080(c) ( "Property ").
H. The Avon Development Code authorizes conditions to the rezoning of property and the Avon
Town Council finds that the amendment to, and restatement of, the 1998 Development
Agreement and 2000 Development Agreement will document the current understanding,
interpretation and approval of the Town and Owner desires clarification, interpretation and
confirmation of applicability of the Town Center zone district and Avon Development Code
requirements to existing and additional development of the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth above, the terms,
conditions and covenants set forth in this Agreement, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Owner and the Town agree as
follows:
ARTICLE I
SCOPE OF AGREEMENT
1.1. Recitals Incorporated. The recitals stated above are incorporated herein as material
terms of this Agreement.
1.2. Restatement of Development Agreement. This Agreement replaces and supersedes the
1998 Development Agreement and the 2000 Development Agreement in their entirety
with regard to all property located in the former Lot C, now known as Lots 1, 2A, 213,
2C, 3, 4 and 5, Mountain Vista Subdivision, Avon, CO.
1.3. No Effect on Other Properties. This Agreement shall not amend, modify or affect any
other agreements between the Town and other third parties with regard to any property
other than Lot C. The parties expressly intend not to modify any of the terms of the 1998
Development Agreement insofar as that agreement refers to and concerns the properties
defined therein as the "Confluence and "Tract B ".
1.4. Amendment of Agreement. Except as otherwise set forth in this Agreement, this
Agreement may be amended or terminated only by mutual consent of the Town and
Owner in writing following the public notice and public hearing procedures required for
approval of this Agreement. For the purpose of any amendment to this Agreement,
"Owner" shall mean only the Owner as defined herein and those parties, if any, to whom
such signatories have specifically been granted, in writing by Owner, the power to enter
into such amendments.
1.5. Cooperation in Defending Legal Challenges. If any legal or equitable action or other
proceeding is commenced by a third party challenging the validity of any provision of
this Agreement, Owner and the Town agree to cooperate in defending such action or
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proceeding and to bear their own expenses in connection therewith. Unless the Town and
Owner otherwise agrees each party shall select and pay its own legal counsel to represent
it in connection with such action or proceeding.
1.6. Owner Obligations. Except as specified in Article III, Owner shall have no obligations
under Article III of the 1998 Development Agreement or under Section 8.13 of the 2000
Development Agreement. Owner shall have no obligation to develop all or any portion
of the Property and shall have no liability to the Town or any other party for its failure to
develop all or any part of the Property.
ARTICLE II
DEFINITIONS
The following terms and references shall have the meanings set forth below unless the
context in which they are used clearly indicates otherwise:
2.1. ADC shall mean the Avon Development Code, Title 7 of the Avon Municipal Code, as
maybe amended from time to time.
2.2. Effective Date shall mean August 25, 2016.
2.3. Exhibits. The following are Exhibits to this Agreement, all of which are incorporated by
reference into and made a part of this Agreement:
Exhibit A: Legal Description of the Property
2.4. Municipal Code shall mean the Avon Municipal Code, as may be amended from time to
time.
2.5. Property shall mean the parcel of property described on Exhibit A: Legal Description of
the Property.
2.6. Real Estate Transfer Tax shall mean for purposes of this Agreement, any municipal real
estate transfer tax imposed by the Town pursuant to the Municipal Code or any similar
code provision enacted during the Term of this Agreement upon sales of time share units
within the Property.
2.7. Town shall mean the Town of Avon, a Colorado home rule municipal corporation.
2.8. Town Council shall mean the Town Council of the Town.
2.9. Zoning shall mean the final passage of an ordinance by the Town Council approving the
Town Center zone district designation for the Property. Such final passage shall be
deemed to occur after the passage of any statutory or common law period for the filing of
a petition for referendum to reverse or nullify such zoning ordinance.
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2.10. Zoning Application shall mean the zoning applications for the Property and any parcel
within the Property.
ARTICLE III
ZONING AND INTERPRETATIONS
3.1. Town Center Zoning. The Property has been rezoned to the Town Center zone district
in accordance with Municipal Code, Section 7.20.080(c).
3.2. Water Rights. Owner has provided all of the water rights to the Town for Town Center
zoning of the remaining portions of the Property. No additional water rights dedication
or augmentation will be required of the Owner as a condition to permitting additional
development of the Property in accordance with the Town Center zone district. Owner
constructed the infrastructure and capital facilities based upon full build out of the 2000
PUD Development Plan and Development Agreement and Town accepted all said
improvements.
3.3. Parking Requirements. Owner is required to comply with all of the parking
requirements of Town Center zone district. As of the Effective Date, Owner has
developed one hundred ninety one (191) parking spaces on the Property of which the
Town previously determined that forty -four (44) parking spaces were need to serve the
commercial building located on Lot 4. The conveyance of Lot 4 to the Town of Avon by
the Owner excluded any rights to parking. The Town hereby interprets the existing
constructed parking spaces as having 44 parking spaces in excess of the amount of
parking spaces needed to serve the development on the Property existing as of the
Effective Date. The 44 parking spaces may be used to serve additional development on
the Property.
3.4. Employee Housing Mitigation. Owner has fully complied with any and all employee
housing mitigation requirements required by the Town in accordance with ADC
7.20.100; this Agreement; and the 2000 PUD Development Plan and Development
Agreement Plan for the entirety of Lot C by the construction and development of the
existing twenty (20) deed - restricted employee housing units on the Property. Town
hereby interprets any employee housing mitigation to be fully satisfied for the Property
and that no additional employee housing mitigation shall be required regardless of the
site coverage of additional development on the Property.
3.5. Nonconforming Uses and Structures. The Property is located within District 1: West
Town Center District and designated as a High Priority District in the Avon
Comprehensive Plan. AMC, Section 7.04.120 specifically recognizes that there are
existing structures and uses of land which were lawfully established before, but which
would be prohibited, regulated or restricted under the terms of the ADC or by future
amendments to the ADC. The existing development on Lots 1, 2A, 2B and 5, Mountain
Vista Subdivision, Avon, CO was constructed under the terms and conditions of
Ordinance No. 02, Series of 2000, Lot C PUD Development Plan and Development
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FINAL July 26, 2016
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Agreement and exceeds the 80' maximum building height allowed in the Town Center
zone district. The Town interprets the existing structures and uses on Lots 1, 2A, 2B and
5, Mountain Vista Subdivision, Avon, CO as a nonconforming. Section 7.04.120(c)(4)
allows for additions or alteration to a nonconforming structure which meet the
requirements of the ADC. Additional development of the Property shall comply with
Town Center zoning requirements.
3.6. Additional Timeshare Units. The 2000 Lot C PUD Development Plan and
Development Agreement allowed for a total of eighty -five (85) two- bedroom timeshare
units in Phase IA and 113, which could be subdivided. The Property has constructed a
total of seventy -one (71) two - bedroom timeshare units. The Owner retains the right to
construct the remaining fourteen (14) two-bedroom timeshare units in the structure
located on Lot 1, 2A, 2B and 5, Mountain Vista Subdivision under the condition that they
comply with the then current Town building code requirements for a tenant permit. The
Mountain Vista Condominium, a Resubdivision of Lot 2A, Mountain Resort Subdivision
recorded with the Eagle County Clerk and Recorder on October 5, 2001 at Reception
#769319 and Mountain Vista Condominium -Phase 113, a Resubdivision of Lot 213,
Mountain Vista Resort Subdivision recorded with Eagle County Clerk and Recorder on
August 22, 2003 at Reception #845096 include the additional fourteen (14) two- bedroom
timeshare units.
3.7. Consideration of Shared Parking. Owner shall consider, but shall not be obligated to
provide, shared parking arrangements with the Town at the time of submitting an
application for additional development.
ARTICLE IV
RECREATIONAL AMENITIES FEE
4.1. Recreational Amenities Fee. Commencing as of the Effective Date of this Agreement,
and continuing in perpetuity, the condominium time -share association formed to manage
the condominium time -share project of the Property (the "Time -Share Association "), is
obligated to the Town for payment of a Recreation Amenities Fee. The Recreation
Amenities Fee shall be calculated and paid to the Town semiannually and will be based
on an initial annual amount of thirty-six and 01/100 dollars ($36.01) for each 1/52 time-
share interest ( "Time -Share Interest") in each time -share unit located on the Property.
4.2. Formula. The amount of the semiannual payments will be calculated according to the
following formula:
Number of existing or newly deeded Time -Share Interests on an
annualized weekly basis (January-June, calculated as of June 1, and July -
December calculated as of December 1), multiplied by $36.01 (or as
adjusted by CPI -U as defined below), divided by 2.
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4.3. Due Dates. The due dates for the semiannual payments are August 20 and February 20
for the previous semiannual calculation period.
4.4. Definition of Time -Share Unit. For purposes of this Article IV (and no other purpose),
a "time -share unit" is defined as a condominium unit subject to the timeshare plan within
the Property, which may include both a dwelling unit and an accommodation unit,
conveyed by the Owner (or successor timeshare developer) to a third -party purchaser. In
the event a timeshare unit is subdivided and the dwelling unit and accommodation unit
are conveyed separately, each will be considered a separate time -share unit. Subdivision
of time -share units shall be accomplished in accordance with the condominium
declaration and map of the Property. For purposes of this Article IV (and no other
purpose), a "Time -Share Interest" may include either a deeded time -share interest or a
right -to -use time -share interest and, in all events, the number of Time -Share Interests in
each time -share unit are fifty -two (52).
4.5. Adiustment to Recreational Amenity Fee. On January 1, 2016, and on the first day of
each year thereafter, the amount of the fee shall be increased by the prior year's average
consumer price index for All Urban Consumers for the Denver - Boulder - Greeley
metropolitan area as published semiannually and appearing in the January and July issues
of the CPI Detailed Report published by the Bureau of Labor Statistics (the "CPI -U ").
4.6. Records. It shall be the duty of the Time -Share Association to keep and preserve such
records as are necessary to determine the amount of fees due hereunder. Such records
shall be preserved for a period of three years and shall be open for inspection by
representatives of the Town during regular business hours.
4.7. Penalties and Interest. If a remittance to the Town is delinquent, or the remittance is
less than the full amount due, the Town shall make a written determination of the amount
due and shall deliver or mail the same to the office of the Time -Share Association. The
amount properly determined to be owing shall be subject to a penalty in the amount of ten
percent (10 %) of the amount due and shall bear interest from the due date of the
remittance at the rate of one and one -half percent (1.5 %) per month until paid.
ARTICLE V
REAL ESTATE TRANSFER TAXES
5.1. Real Estate Transfer Taxes. The Town shall retain one hundred percent (100 %) of the
Real Estate Transfer Taxes collected and attributable to the transfers of real property
interests in or to the Property, from and after the Effective Date, in accordance with the
Municipal Code.
5.2. Conveyance Other Than Deeded Interest. The Owner will include among its
application submittals for additional development of the Property a summary description
of the Time -Share Interests to be conveyed from such development, either deeded or
right -to -use timeshare interests, including sample forms of conveyance, so that the Town
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may determine the applicability of the Town's Real Estate Transfer Tax to such
conveyances,
ARTICLE VI
DEFAULTS, REMEDIES, AND TERMINATION
6.1. Default. A "breach" or "default" by a party under this Agreement shall be defined as the
party's failure to fiilfill or perform any material obligation of such party contained in this
Agreement.
6.2. Notices of Default. In the event of a default by either party under this Agreement, the
non - defaulting party shall deliver written notice to the defaulting party of such default, at
the address specified in Section 7.8, and the defaulting party shall have thirty (30) days
from and after receipt of such notice to cure such default. If such default is not of a type
which can be cured within such thirty (30) day period and the defaulting party gives
written notice to the non - defaulting party within such thirty (30) day period that it is
actively and diligently pursuing such cure, the defaulting party shall have a reasonable
period of time given the nature of the default following the end of such thirty (30) day
period to cure such default, provided that such defaulting party is at all times within such
additional time period actively and diligently pursuing such cure.
6.3. Remedies, If any default under this Agreement is not cured as described above, the non -
defaulting party shall have the right to enforce the defaulting party's obligations
hereunder by an action for any equitable remedy, including injunction and /or specific
performance, and /or an action to recover damages. Each remedy provided for in this
Agreement is cumulative and is in addition to every other remedy provided for in this
Agreement or otherwise existing at law, in equity or by statute.
ARTICLE VII
MISCELLANEOUS
7.1. Applicable Law. This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado.
7.2. No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town and Owner, and nothing contained in this Agreement shall be
construed as making Town and Owner joint ventures or partners.
7.3. Expenses. Except as otherwise provided in a separate written agreement, Owner and the
Town shall each bear their respective costs and expenses associated with implementing
and enforcing the terms of this Agreement
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FINAL July 26, 2016
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7.4. Waiver. No waiver of one or more of the terms of this Agreement shall constitute a
waiver of other terms. No waiver of any provision of this Agreement in any instance shall
constitute a waiver of such provision in other instances.
7.5. Town Findings. The Town hereby finds and determines that execution of this
Agreement is in the best interests of the public health, safety, and general welfare, and the
provisions of this Agreement contained herein are consistent with the Comprehensive
Plan, Municipal Code, and other applicable regulations and policies of the Town.
7.6. Severabitity. If any term, provision covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable the remaining
provisions of this Agreement shall continue in full force and effect so long as
enforcement of the remaining provisions would not be inequitable to the party against
whom they are being enforced under the facts and circumstances then pertaining.
7.7. Further Assurances. Each party shall execute and deliver to the other all such other
further instruments and documents as may be reasonably necessary to carry out this
Agreement in order to provide and secure to the other party the full and complete
enjoyment of its rights and privileges under this Agreement.
7.8. Notices. Any notice or communication required under this Agreement between the Town
and Owner must be in writing, and may be given by registered or certified mail with
return receipt requested or sent by e-mail. Notice by registered or certified mail shall be
deemed to have been given and received on the first to occur of (i) actual receipt by any
of the addresses designated below as the party to whom notices are to be sent, or (ii) five
days after a registered or certified letter containing such notice, properly addressed, with
postage prepaid, is deposited in the United States mail. Notice by e-mail shall be deemed
to have been given when receipt is acknowledged by the noticed party. Any party hereto
may at any time, by giving written notice to the other party hereto as provided in this
Section designate additional persons to whom notices or communications shall be given,
and designate any other address in substitution of the address to which such notice or
communication shall be given. Such notices or communications shall be given to the
parties at their addresses set forth below:
If to Town: Town of Avon
P.O. Box 975
Avon, Colorado 81620
Attention: Town Manager
vegger@avon.org
If to Owner: Points of Colorado, Inc.
% Vistana Signature Experiences, Inc.
8803 Vistana Center Drive
Orlando, FL 32821
Attn: Legal Department
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7.9. Assitinment. This Agreement shall be binding upon and except as otherwise provided in
this Agreement, shall inure to the benefit of the successors in interest or the legal
representatives of the parties hereto. Except as specifically set forth herein, Owner shall
have the right to assign, delegate or transfer all or any portion of its interest rights or
obligations under this Agreement to third parties acquiring an interest or estate in the
Property, including, but not limited to, purchasers or long term ground lessees of
individual lots, parcels, or of any improvements now or hereafter located within the
Property. Provided that the Town's approval of the assignee or transferee is first
obtained, an assumption or transfers providing for express assumption of any of Owner's
obligations under this Agreement by its assignee or transferee shall be relieved of any
further obligations under this Agreement with respect to the matter so assumed. The
Town's obligations hereunder may not be assigned or delegated without Owner's written
consent, and any attempted assignment or delegation by the Town not in compliance
herewith shall be null and void. The Town's approval of any such assignee or transferee
shall not be unreasonably withheld or delayed.
7.10. Counterparts. This Agreement shall be executed in multiple counterparts, each of which
shall be deemed be an original and all of which taken together shall constitute one and the
same agreement.
7.11. Waivers. No waiver of any provision of this Agreement, nor consent to any departure
hereof, shall in any event be effective unless the same shall be in writing and signed by
the parties hereto, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
[signature pages followl
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Page 9 or 12
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement as of the
date first written above.
ATTEST
Debbie Hoppe, To�rk
-L��-._.-
STATE OF COLORADO
ss.
COUNTY OF EAGLE
TOWN OF AVON, a Colorado home rule
municipal corporation
1
By: &�z
J41ie Fancher, Mayor
Avgv5+-
Subscribed before me this day of 1r, 2016, by Jennie Fancher as Mayor of
the Town of Avon, Colorado, Debbie Hoppe as Town Clerk of Town of Avon, and Eric J. Heil
as Town Attorney of Town of Avon.
My commission expires:
LACEY CHON No y Public
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20144006887 [signalrire page follows]
W COMMISSION EXPIRES 21812018
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POINTS OF COLORADO, INC.
By:
STATE OF FLORIDA )
ss.
COUNTY OF ORANGE )
The, ore�in Agreement was acknowledged before me this of day of July, 2016, by
[ L ,1 ��1 L-C 1 as
of POINTS OF COLORADO, INC., a Colorado corporation behalf of the corporation. He is
personally known to me.
(No"taly Signature)
(NOTARY SEAL)
STACEY LYNN KOBELL
MY CORMISSION # FF 015871
EXPIRES: May 7.2017
BordwTAruImW POW Und MUM
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rJ °'
(Notary Name ted)
NOTARY PUBLIC
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lots 1, 2A, 2B, 2C, 3, and 5, Mountain Vista Resort Subdivision, a resubdivision of Lot C, a
Final PIat and Resubdivision of Lots B and C, Avon Center at Beaver Creek, Benchmark at
Beaver Creek, Amendment No. 4, according to the Plat for Mountain Vista Subdivision,
recorded April 18, 2001, at Reception No. 754852, as such plat has been or may be
supplemented or amended from time to time, including without limitation, by the Second
Amended Final Plat, a Replat of Lots 4, 2C, and 5, recorded May 20, 2016 at Reception No.
201607621.
County of Eagle, State of Colorado.
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